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

June 20, 2012

M LAMA M KUA, A HAWAII NON- PROFIT CORPORATION, PLAINTIFF,
v.
ROBERT GATES, SECRETARY OF DEFENSE; AND JOHN MCHUGH, 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

ORDER ADOPTING IN PART AND MODIFYING IN PART FEBRUARY 28, 2012, FINDINGS AND RECOMMENDATION REGARDING REMEDY FOR DEFENDANTS' SETTLEMENT VIOLATIONS;

ORDER REGARDING REMEDIES

I. INTRODUCTION AND FACTUAL BACKGROUND.

This case grows out of a 2001 settlement agreement in which Defendants ("the Army") agreed to complete an environmental impact statement ("EIS") addressing the effects of military training with live ammunition at the Makua Military Reservation ("MMR") in West Oahu, Hawaii. See Complaint for Declaratory Judgment and Injunctive Relief ¶ 19, Aug. 12, 2009, ECF No. 1; Settlement Agreement and Stipulated Order ¶ 1, Oct. 4, 2001, ECF No. 62-2. As part of the settlement, the Army was to conduct and complete "surface and subsurface archaeological surveys of all areas within the CCAAC [Company Combined Arms Assault Course] training area circumscribed by the south firebreak road," except for areas suspected of containing Improved Conventional Munitions. Id. ¶ 6(c), ECF No. 62-2.

The 2001 settlement agreement also required the Army to "[c]omplete 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." Id.

¶ 6(a), ECF No. 62-2. 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 Makua 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.

This lawsuit is not Malama Makua's first attempt to enforce the 2001 settlement agreement. An earlier attempt led to a 2007 settlement agreement, in which the Army similarly agreed to conduct "surface and subsurface archaeological surveys of all areas within the Company Combined-Arms Assault Course circumscribed by the south firebreak road," except for areas suspected of containing ICMs. Joint Stipulation Re: Partial Settlement of Plaintiff's Motion to Enforce the October 4, 2001 Settlement Agreement and Stipulated Order ¶ 1, Jan. 8, 2007, ECF No. 62-3. The 2007 settlement also obligated the Army to conduct "one or more studies to determine whether fish, limu, shellfish, and other marine resources near Makua Beach and in the muliwai on which area residents rely for subsistence are contaminated by substances associated with the proposed training activities at MMR." Id. ¶ 6.

The present action began with four claims relating to alleged breaches of the 2001 and 2007 settlement agreements. The First Claim for Relief asserted that the Army had failed to complete subsurface archeological surveys pursuant to paragraph 6(c) of the 2001 settlement agreement and paragraph 1 of the 2007 settlement agreement. The Second Claim for Relief asserted that the Army had failed to complete marine resource contamination studies required by paragraph 6(a) of the 2001 settlement agreement and paragraph 6 of the 2007 settlement agreement. The Third Claim for Relief asserted that the Army had failed to seek public input regarding archaeological surveys and contamination studies, as required by paragraphs 11 and 12 of the 2007 settlement agreement. The Fourth Claim for Relief asserted that the Army had failed to incorporate archaeological surveys and contamination studies into the Final EIS, as required by paragraphs 1, 6, and 13 of the 2007 settlement agreement. See Complaint, ¶¶ 53-60.

On November 18, 2009, the court dismissed the Third and Fourth Claims for Relief. See Order Granting in Part and Denying in Part Defendants' Motion to Dismiss, Nov. 18, 2009, ECF No. 23.

On October 27, 2010, the court ruled on cross-motions for summary judgment regarding the remaining claims. The court's ruling did not resolve all remaining issues. In relevant part, the court granted summary judgment in favor of Malama Makua, ruling that the Army had breached the settlement agreements by not conducting a survey of "all areas" of the Company Combined Arms Assault Course, including land designated as Areas A to F on Exhibit 1 of the April 7, 2010, deposition of Laurie Lucking. The court also ruled that, to the extent the Army had not tested background contamination of limu and had not determined whether the arsenic detected was harmful to human health, such failures breached its settlement obligations. See Order Granting in Part and Denying in Part Cross-Motions for Summary Judgment, Oct. 27, 2010, ECF No. 96. Related issues remained for trial.

This court held a non-jury trial on June 21 to 23, 2011. On September 30, 2011, this court issued its Findings of Fact; Conclusions of Law; Order Determining that the Army Breached the 2007 Settlement Agreement in Two Ways, But Not in Other Ways.

See ECF No. 206. The court ruled that the Army had breached the 2007 settlement agreement by failing to test anything qualifying as an "other marine resource" and by failing to test any type of limu actually eaten by area residents. In all other respects, the court determined that no breach had been proven. Id.

This court asked Magistrate Judge Richard L. Puglisi to address the parties' dispute as to what remedies should be ordered given the Army's settlement agreement breaches. On February 28, 2012, Magistrate Judge Puglisi issued his Findings and Recommendation Regarding Remedy for Defendants' Settlement Violations ("F&R"). See ECF No. 220. Magistrate Judge Puglisi attached a proposed order to his F&R. ("Proposed Order"). See id.

On March 13, 2012, both the Army and Malama Makua filed objections to the F&R. See ECF Nos. 222 and 223. After de novo review of those portions of the F&R that the Army and Malama Makua have objected to, and after reviewing for clear error the other portions of the F&R, the court adopts the careful, detailed, and well-reasoned F&R, with the modifications set forth below.

II. STANDARD.

This court reviews de novo those portions of an F&R to which objection is made and may accept, reject, or modify, in whole or in part, the F&R. The court may receive further evidence on the matter or recommit it to the Magistrate Judge with instructions. The court may accept those portions of the Magistrate Judge's F&R that are not objected to if it is satisfied that there is no clear error on the face of the record. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Local Rule 74.2; Int'l Longshore & Warehouse Union, Local 142, AFL-CIO v. Foodland Super Market Ltd., 2004 WL 2806517, *1 (D. Haw. Sept. 15, 2004); Stow v. Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003), aff'd, 389 F.3d 880 (9th Cir. 2004); Abordo v. State of Hawaii, 902 F. Supp. 1220 (D. Haw. 1995); see also Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974).

III. ANALYSIS.

The F&R and the Proposed Order attached thereto suggested six remedies. The court adopts the suggested remedies ...


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