Marines barred from Makua
A federal judge halts next week’s planned
exercises and sets an April 19 hearing
By
Debra Barayuga
dbarayuga@starbulletin.com
A
federal judge has ruled that Kaneohe Marines cannot conduct live-fire training
at Makua Valley next week.
Late yesterday, U.S. District Judge Susan
Oki Mollway granted a request for a temporary restraining order by a Waianae
community group that challenged the Army's decision allowing the Marine Corps
to conduct life-fire exercises from Wednesday to Friday.
"Everyone
acknowledges the need for military training, but in the (Endangered Species
Act), Congress has charged the court with giving the highest priority to
protecting endangered species," Mollway ruled.
"We are extremely
pleased that the court recognized the need to preserve the status quo," said
David Henkin, the Earthjustice Legal Defense Fund attorney representing Malama
Makua. "I think it was a very prudent decision by the court and one that we
would hope the military would understand."
Malama Makua attorneys had
argued Tuesday that allowing Kaneohe Marines to use mortar and
shoulder-launched rockets in Makua Valley violates a 2001 agreement and poses a
threat of fire that could harm endangered species and cultural sites.
Army spokeswoman Patricia Simoes had no comment last night but expected
to release a response this afternoon.
Mollway plans an April 19 hearing
on a preliminary injunction to make permanent the ban on the Marines' live-fire
training at Makua.
"We would hope that they (the Marines) would
reconsider their current insistence on pursuing this type of destructive
training" in Makua, Henkin said. "We really would encourage the military to
rethink its strategy."
The 2001 agreement between the military and
Earthjustice outlines exercises permitted in Makua Valley.
After last
July's "controlled burn" at Makua went out of control and new endangered
species were discovered, the Army and the U.S. Fish and Wildlife Service began
a formal consultation to determine what types of exercises should be permitted.
The military argued that a biological assessment of the impact of
live-fire training in Makua Valley is unnecessary and required only when the
activity involves "major construction."
They contend that the Fish and
Wildlife Service backs the Army's determination to make sure that no
irreparable and irreversible damage will occur.
Henkin of Earthjustice
had argued that the military cannot conduct training until formal consultation
is completed, because it cannot guarantee that the training will not cause
irreparable damage to endangered species.
Mollway ruled that because it
is likely that the proposed training violates the 2001 agreement, the court
does not have to rule on the necessity of a biological assessment or whether
training should be allowed before formal consultation is completed.
"If
the government seeks to modify the agreement, it bears the burden of
demonstrating the safety of the exercise," Mollway said.
The Marines
had proposed using 110 60-mm mortars but fewer troops. The 2001 agreement
allows 36 60-mm mortars.
"Tripling the number of these shells used in a
training exercise appears to be a modification of the stipulated order,"
Mollway said, noting that the 60-mm shells have a history of igniting fires at
Makua.
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