Native Hawaiian cultural practitioners on the Waianae Coast have won another legal battle with the U.S. Army — the most recent in a 20-year saga — over sacred sites on the Makua Military Reservation.

Malama Makua, a nonprofit group, had already been granted access to 13 sites previously blocked by the U.S. Army.

Now a settlement agreement between the nonprofit and the U.S. Army stipulates that the Army must also look into removing unexploded ordnance from two other cultural sites, a process that could take up to three years.

The Army also must pay $80,000 in attorney’s fees to David Henkin, an Earthjustice attorney who represented Malama Makua.

“We fought hard to make sure that the community has the opportunity to reconnect with sacred sites,” Henkin said. “Malama Makua considers it part of their cultural obligation to get reconnected with Makua.”

Sign and barbed wired fence fronting Makua Valley. 14 march 2015. photograph Cory Lum/Civil Beat

Makua Valley is a former bombing range that’s still littered with unexploded ordnance.

Cory Lum/Civil Beat

Scott Bauer, an attorney with the U.S. Department of Justice representing the Army in the case, declined to comment.

The U.S. Army Garrison issued a statement Tuesday that included the following:

The Army has implemented a number of measures to address safety and reduce risk in the valley. These have included re-assessing the conditions of cultural sites previously opened to Mālama Mākua, and ensuring each site had appropriate surface and sub-surface surveys conducted to detect and clear any unexploded ordnance. The Army validated and re-opened access to each site as safety requirements were met for that site.

Henkin said the Army requested three years to clear the sites of a stockpile of unexploded ordinance because it may not know its location at the back of the valley. The work shouldn’t disrupt other military activities, a Justice Department spokesperson said. 

Henkin has spent the last 20 years representing Malama Makua and that he would be prepared to go back to court should the Army fail to comply with this newest agreement.

“It shouldn’t take two years of in-court negotiations and two years of out-of-court negotiations to get the Army to do what it needs to do,” he said.

The most recent dispute started because of grass.

In The Weeds

The Army had an agreement with the state preservation office to maintain historical sites in Makua Valley. But it didn’t require the Army to cut the grass in areas leading to those sites, Henkin said.

In 2014, the Army halted access to cultural sites because the grass was too long. Henkin said he was told by the military that walking there would be unnsafe because people might not be able to see unexploded ordnance.

The Army said it needed to conduct a review in connection with the National Historic Preservation Act before cutting the grass, according to Henkin.

In 2015, two contractors were injured after hitting a tank round that exploded, the Hawaii Army Weekly reported. The Army, again, needed to conduct more reviews, Henkin said.

“Our view is that they were just dragging their feet,” he said.

The cutting off of access violated a prior settlement agreement between Malama Makua and the Army from the early 2000s. So Henkin again filed suit in November 2016.

In 2001, a court halted live fire training briefly and ordered the Army to complete an Environmental Impact Statement to study the effects on endangered species in Makua Valley, according to Henkin. The Army also paid $50,000 to Malama Makua to conduct a peer review process of its study.

The final EIS has yet to be completed.

The Garden of Eden

Not a single bullet has been fired at the Makua Military Reservation since 2004, but some cultural practitioners might say that the damage has already been done.

“The first bullet is still there decomposing,” said Sparky Rodrigues, a Malama Makua board member. “All the graves have bullet holes in them. The grave markers have bullet holes in them. The cultural sites in the back (of Makua Valley) have bullet holes in them.”

The military began using the valley as a live fire range in the 1920s. After the Pearl Harbor attack and the U.S. entrance into World War II, military activities in the area were ramped up.

The U.S. Army started using the valley as a live fire range in the 1920s.

U.S. Army

Warships practiced bombardments on the valley. Howitzers rained shells. And bombs, ranging from 250 to 1,000 pounds, were dropped. Some are still there, Rodrigues said. Families were forced from their homes with the promise of returning after the war.

They were never able to.

The valley is home to endangered species like the Oahu elepaio and several species of snails as well as over 100 cultural sites, Malama Makua’s website says. Before Henkin first filed suit in 1998, the Army claimed there were no sites of historical significance in the valley.

Rodrigues describes the valley in ancient times as a garden of Eden.

“(Native Hawaiians) lived in relative peace with a lot of resources that provided for people,” he said. “Fishermen would come to Makua to have their fishing stones blessed.”

That all changed, he said, when a passageway was blown into the mountainside to make way for a railroad that passed near the modern Farrington Highway.

“All the evidence of people that lived there has been destroyed. Blown up,” Rodrigues said.

One preservation practice that has drawn the ire of practitioners is the cordoning off of certain historical sites.

“When you get to a cultural site, it might be roped off like a museum piece,” Rodrigues said.

Henkin writes on the Malama Makua website that while archeologists’ efforts to protect the physical integrity of the sites may be well intentioned, cultural practitioners feel that they are losing a spiritual connection with their sacred sites.

“The harm to the site comes from cutting off its connection to people, because a site that isn’t used loses its mana, loses its spiritual force,” he wrote. “And in the absence of being able to have this personal interaction with these sites, they become just piles of rocks.”

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