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Lama M;Kua, A Hawaii Non- Profit Corporation v. Robert Gates

September 30, 2011

LAMA M;KUA, A HAWAII NON- PROFIT CORPORATION, PLAINTIFF,
v.
ROBERT GATES, SECRETARY OF ) DEFENSE; AND JOHN MCHUGH, WAYS SECRETARY OF THE UNITED STATES DEPARTMENT OF THE ARMY, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

FINDINGS OF FACT; CONCLUSIONS OF LAW; ORDER DETERMINING THAT THE ARMY BREACHED THE 2007 SETTLEMENT AGREEMENT IN TWO WAYS, BUT NOT IN OTHER FINDINGS OF FACT; CONCLUSIONS OF LAW; ORDER DETERMINING THAT THE ARMY BREACHED THE 2007 SETTLEMENT AGREEMENT IN TWO WAYS, BUT NOT IN OTHER WAYS

I. INTRODUCTION.

It has been almost eleven years since Plaintiff Mālama

Mākua brought to this court its claim that Defendants ("the Army") had to prepare an environmental impact statement addressing the effects of military training with live ammunition at the Makua Military Reservation in West Oahu, Hawaii. The parties' present disputes bear little resemblance to the original claim. Now before the court is the narrow issue of whether the Army breached a 2007 agreement in which the Army pledged to conduct a marine resource survey. The court concludes that the Army breached that agreement by failing to test limu (seaweed) and other marine resources that are eaten by residents of the Waianae Coast to evaluate whether they posed a human health risk.

In all other respects, the court concludes that the Army did not breach the agreement.

II. FINDINGS OF FACT.

This court held a non-jury trial on June 21 to 23, 2011,

receiving direct testimony through its usual non-jury trial procedure of having direct testimony submitted in declaration form and having witnesses available for live cross-examination and redirect. Based on the testimony and exhibits received into evidence, the court finds that the following facts have been established by a preponderance of the evidence.

To the extent any finding of fact should more properly be designated a conclusion of law, it should be treated as a conclusion of law. Similarly, to the extent any conclusion of law should more properly be designated a finding of fact, it should be treated as a finding of fact. For ease of reference to particular findings and conclusions in later proceedings, if any, the findings and conclusions are presented in sequential numbered paragraphs.

1. On June 21, 2011, Mālama Mākua put on its case-in-chief, with testimony by Gary Shirakata (declaration submitted in lieu of live direct examination at ECF No. 175), Vince Kanai Dodge (declaration submitted in lieu of live direct examination at ECF No. 176), Leandra Wai (declaration submitted in lieu of live direct examination at ECF No. 177), Uyen Tran (declaration submitted in lieu of live direct examination at ECF No. 178), Susan Carstenn (declaration submitted in lieu of live direct examination at ECF No. 179), Jack Rensel (declaration submitted in lieu of live direct examination at ECF No. 180), and Jeffrey Foran (declaration submitted in lieu of live direct examination at ECF No. 181). Exhibits 1, 4, 5, 6, 7, 10, 11, 12, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 28, 29, 30, 31, 32 were received into evidence that day. Deposition designations of William Aila, Jr., were also admitted into evidence. See ECF No. 171. A transcript of the June 21, 2011, proceedings was filed as ECF No. 194.

2. On June 22, 2011, the Army put on its case-in-chief, with testimony by Uyen Tran (declaration submitted in lieu of live direct examination at ECF No. 183), Susan Carstenn (declaration submitted in lieu of live direct examination at ECF No. 184), and Dawn Lleces (declaration submitted in lieu of live direct examination at ECF No. 185). Exhibits 8, 26, 33, 34, 100, 105, 106, 107A-G, 108, 109, 111, and 117 were received into evidence that day. A transcript of the June 22, 2011, proceedings was filed as ECF No. 195.

3. On June 23, 2011, Dawn Lleces continued testifying. When the Army rested, Mālama Mākua chose not to present a rebuttal case. The court then heard closing arguments.

A transcript of the June 23, 2011, proceedings was filed as ECF No. 196.

4. All of the witnesses testified credibly and, for the most part, consistently. Except as discussed below, the court gives credence to the testimony of the witnesses.

5. The sequence of events giving rise to the present dispute about testing marine resources dates back to October 4, 2001, when Mālama Mākua and the Army filed a settlement agreement with this court resolving the issue of whether the Army had to prepare an environmental impact statement that addressed the effects of military training with live ammunition at the Makua Military Reservation ("MMR") in West Oahu, Hawaii. See Settlement Agreement and Stipulated Order, Oct. 4, 2011, Ex. 1 ("2001 Settlement Agreement").

6. Among other things, the 2001 Settlement Agreement required the Army to "Complete studies of potential contamination of soil, surface water, and ground water, and of potential impacts on air quality, associated with the proposed training activities at MMR." 2001 Settlement Agreement ¶ 6(a). The studies were to evaluate whether there was the potential of contamination to "the muliwai [brackish water pools near mouths of streams], or any marine resource or wildlife on or near Mākua Beach." Id. If the studies revealed a likelihood of contamination, the Army was to "undertake additional studies of the[] resources (e.g., testing of fish, limu and other marine resources on which area residents rely for subsistence; testing of the muliwai for contamination)." Id.

7. The Army hired Tetra Tech, Inc., to prepare the Marine Resource Study required by the 2001 Settlement Agreement and to draft a plan for gathering samples and analyzing them. Dawn Lleces testified that she worked for Tetra Tech as an environmental scientist. See Decl. of Dawn Lleces ¶ 1, ECF No. 186, June 22, 2011. According to Lleces, in 2005, she sought public input regarding what marine resources should be sampled for the survey. Id. ¶ 2. Lleces says that she talked with a number of people at public meetings, including members of Mālama Mākua. Id. ¶ 3. Lleces recalled that, at these meetings, members of Mālama Mākua told her that "they eat everything they find at the muliwai." Id. But other members of the public told her that they never eat anything from the muliwai. Id. Lleces also testified that Mālama Mākua members told her that "they ate what they caught at Mākua." Id. ¶ 4.

8. Based on conversations with people who identified themselves as being from the Waianae Coast, Lleces says that the Army and Tetra Tech decided to apply a "common sense and popular understanding of 'subsistence,'" using the term to refer to any personal or family consumption of marine resources. Id. ¶ 5. Uyen Tran, a supervisory chemist for the Army Corp of Engineers, similarly testified that, since December 2005, the Army has considered anyone who eats something to be relying on that item for subsistence, without regard to frequency or quantity. See Decl. of Uyen Tran ¶¶ 10 and 13, ECF No. 178; see also Army's Closing Arguments, Transcript at 3-37, ECF No. 196; Federal Defendants' Response to Plaintiffs' [Proposed] Post-Trial Findings of Fact and Conclusions of Law at 1, Aug. 15, 2011, ECF No. 200 ("The Parties agree that with respect to marine resources, the phrase 'on which area residents rely on for subsistence' as used in the 2007 Settlement Agreement means a marine resource that serves as a food source for area residence without regard to frequency or quantity.").

9. In December 2005, the Army issued a Marine Resources Study Sampling and Analysis Plan that had been prepared by Tetra Tech. Marine Resources Study Sampling and Analysis Plan at 2-2, Dec. 2005, Ex. 4. This plan described the Army's proposed marine resource survey, noting that, for testing purposes, species of interest included parrotfish, papio, tilapia, octopus, spiny lobster, and Limu kala. Id. at 2-1. The plan indicated that "species of interest (SOI) were identified through discussions with regional commercial fisherpersons, local recreational fisherpersons, area divers and spear fisherpersons, and local residents from the Waianae coast." See id. at 2-2; see also Lleces Decl. ¶ 7, ECF No. 186 (indicating that the "species of interest" were developed based on an initial site inspection and public comment at a meeting held regarding a draft environmental impact statement for the Army's live-fire training at MMR).

10. J.E. Jack Rensel, Ph.D., reviewed the December 2005 plan. Rensel stated that he prepared comments on the plan at the request of Mālama Mākua's counsel. Rensel identified species in the muliwai and near-shore waters of Mākua that he thought should be tested. Id. at 10-13.

11. Jeffery A. Foran, Ph.D., also reviewed the plan on behalf of Mālama Mākua, commenting that the plan was ...


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