Malama Makua v. Gates et al

Filing 234

ORDER ADOPTING IN PART AND MODIFYING IN PART FEBRUARY 28, 2012, FINDINGS AND RECOMMENDATION REGARDING REMEDY FOR DEFENDANTS' SETTLEMENT VIOLATIONS; ORDER REGARDING REMEDIES re 220 ; 222 ; 223 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/20 /12. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MÂLAMA MÂKUA, a HawaiÌi nonprofit corporation,

)
)
)
Plaintiff,
)
)
vs.
)
)
ROBERT GATES, Secretary of
)
Defense; and JOHN McHUGH,
)
Secretary of the United
)
States Department of the
)
Army,
)
)
Defendants.
)
_____________________________ )

CIVIL NO. 09-00369 SOM/RLP
ORDER ADOPTING IN PART AND
MODIFYING IN PART FEBRUARY
28, 2012, FINDINGS AND
RECOMMENDATION REGARDING
REMEDY FOR DEFENDANTS’
SETTLEMENT VIOLATIONS; ORDER
REGARDING REMEDIES

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.”
¶ 6(a), ECF No. 62-2.

Id.

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 Mâkua 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 Mâlama Mâkua’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

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“one or more studies to determine whether fish, limu, shellfish,
and other marine resources near Mâkua 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.
Complaint, ¶¶ 53-60.

3

See

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.
ruling did not resolve all remaining issues.

The court’s

In relevant part,

the court granted summary judgment in favor of Mâlama Mâkua,
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 nonjury 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

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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 Mâlama Mâkua 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 Mâlama
Mâkua 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

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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

with the following modifications.
A.

First Claim for Relief--Archaeological Surveys.

On October 27, 2010, the court granted summary judgment
in favor of Mâlama Mâkua, 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.

See Order Granting in Part and

Denying in Part Cross-Motions for Summary Judgment, Oct. 27,
2010, ECF No. 96.
The Proposed Order suggested the following remedy for
the Army’s archaeological survey violation:
Defendants shall complete subsurface
archaeological surveys of Areas A through F
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as identified in Exhibit 1 to Dr. Laurie
Lucking’s April 7, 2010 deposition, attached
hereto as Appendix A, in accordance with the
terms and conditions set forth in paragraph
6(c) of the 2001 Settlement Agreement and
paragraphs 1, 5, and 9 of the 2007 Settlement
Agreement.
Proposed Order at 2.
Because neither party has objected to this remedy, and
because the court determines that it is an appropriate remedy,
the court adopts this portion of the F&R and Proposed Order.
B.

Second Claim for Relief--Marine Resource Studies.

On October 27, 2010, the court 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, the Army had breached its settlement
obligations.

See Order Granting in Part and Denying in Part

Cross-Motions for Summary Judgment, Oct. 27, 2010, ECF No. 96.
On September 30, 2011, the court further 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 limu eaten by area residents.

See ECF No. 206.

The F&R and Proposed Order suggested the following as a
remedy for those breaches:
Defendants shall complete one or more studies
to determine whether limu and other marine
resources (e.g., octopus and sea cucumber)
near Makua Beach and in the muliwai on which
Waianae Coast residents rely for subsistence,
in accordance with the terms and conditions
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set forth in paragraphs 6, 7, and 10 of the
2007 Settlement Agreement. The studies shall
specify whether arsenic, if present in the
limu or other marine resources, is organic or
inorganic and shall determine background
contamination by testing limu and other
marine resources at locations in Hawaii other
than Makua Beach.
Proposed Order at 3.
The Army objects to this proposed remedy, but only to
the extent it requires the Army to test limu and other marine
resources found in the muliwai.

The Army says that limu and

other marine resources were not found in the muliwai and that it
should not be required to conduct a study of them in the muliwai.
The Army additionally argues that the Proposed Order is
incomplete because it lacks language explaining what the Army is
required to do.

Mâlama Mâkua agrees that deletion of “and in the

muliwai” is appropriate and suggests changing “to determine
whether” to “of” to give the Army the clarity it desires.
ECF No. 225 at 2.

See

Given these concerns, both parties agreed to

the following changes at the hearing: “Defendants shall complete
one or more studies of to determine whether limu and other marine
resources (e.g., octopus and sea cucumber) near Makua Beach and
in the muliwai on which Waianae Coast residents rely for
subsistence, in accordance with the terms and conditions set
forth in paragraphs 6, 7, and 10 of the 2007 Settlement
Agreement. . . . ”

With these modifications, the court adopts

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the F&R regarding the remedy with respect to the marine resource
studies.
C.

Incorporation of Results Into Final EIS.

The F&R and Proposed Order suggest the following:
Defendants shall incorporate into the Final
Environmental Impact Statement (“EIS”) for
Military Training Activities at Makua
Military Reservation (“MMR”), dated June 2009
(“Final EIS”), the results of the
archaeological surveys and the marine
resources studies conducted pursuant to
paragraphs 1 and 2 above, in accordance with
the terms and conditions set forth in
paragraph 13 of the 2007 Settlement
Agreement.
Proposed Order at 3.
The Army does not object to this language.

Mâlama

Mâkua appears to agree to the substance of this paragraph, but
would like it to also order a new Final EIS and record of
decision (“ROD”) and require the Army to respond to comments
concerning the new EIS in its entirety, rather than just the new
studies.

See Plaintiff Mâlama Mâkua’s Proposed Order re: Remedy,

¶ 4, ECF No. 214-9.

The issue of a new Final EIS and ROD and the

scope of public comment are addressed below, making it necessary
to include here only a reference to that later discussion.
Accordingly, the court adopts this portion of the Proposed Order,
with the addition of that reference, as an appropriate remedy.
Specifically, this court modifies the Proposed Order by including

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the following before “the results”: “or such other document as
they determine is appropriate pursuant to paragraph 5 below.”
D.

Public Review and Comment and Setting Aside the
Final EIS and ROD.

With respect to the archaeological surveys and marine
resource studies discussed above, paragraph 11 of the 2007
settlement agreement requires the Army to put them out
for public review and comment, including
review by the technical assistants provided
for in paragraph 9 of the Settlement
Agreement, pursuant to 40 C.F.R. § 1502.19
and pt. 1503. Each such comment period shall
remain open for a minimum of sixty (60) days
and may be held contemporaneously or
separately, at Defendants’ discretion. Each
public comment period shall be publicized
pursuant to 40 C.F.R. § 1506.6, including,
but not limited to, notice pursuant to 40
C.F.R. § 1506.6(b)(1) to all members of the
public who requested to be added to the
mailing list for the EIS. During at least
one comment period provided for herein,
Defendants shall accept comment on all
aspects of the EIS.
2007 Settlement Agreement ¶ 11, ECF No. 214-4.
Paragraph 12 of the 2007 settlement agreement further
provides:
Defendants shall hold at least one public
meeting to receive comments during each
comment period described in paragraph 11. If
the comment periods run contemporaneously,
Defendants may hold a single public meeting
during the comment period. All public
meetings required by this paragraph shall be
conducted pursuant to paragraph 5 of the
Settlement Agreement.
2007 Settlement Agreement ¶ 12, ECF No. 214-4.
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Paragraph 13 of the 2007 settlement agreement provides:
Defendants shall incorporate in the Final EIS
an analysis of the results of the
archaeological surveys conducted pursuant to
paragraph 1 and the marine resource studies
conducted pursuant to paragraph 6.
Defendants shall assess, consider and respond
to all public comments on such studies and
surveys pursuant to 40 C.F.R. § 1503.4.
2007 Settlement Agreement ¶ 13, ECF No. 214-4.
The Proposed Order suggests the following language:
After completing the additional
archaeological surveys and marine resources
studies described in paragraphs 1 and 2
above, Defendants shall comply with the
public review and comment obligations set
forth in paragraphs 11 and 12 of the 2007
Settlement Agreement. Defendants shall not
be required to accept additional comments on
the previously issued Final EIS.
Proposed Order at 3-4.

Mâlama Mâkua argues that this proposed

language fails to take into account the public comment
obligations under paragraph 13 of the 2007 settlement agreement.
The Army, on the other hand, does not object to the Proposed
Order’s treatment of public review and comment.

Nor does the

Army object to the inclusion of the requested reference to
paragraph 13.

Accordingly, this part of the Proposed Order is

modified to state: “. . . Defendants shall comply with the public
review and comment obligations set forth in paragraphs 11, 12,
and 13 of the 2007 Settlement Agreement. . . .”

In addition, for

consistency throughout the order, the court modifies the next
sentence to read: “Defendants may accept additional comments on
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the previously issued Final EIS, but are not required to do so
unless otherwise ordered in accordance with paragraph 5 below.”
The Proposed Order then suggests the following
language:
The Final EIS and associated Record of
Decision, dated July 16, 2009 (“ROD”), remain
in effect and are not set aside at this time.
In accordance with the terms and conditions
set forth in paragraph 18 of the 2007
Settlement Agreement, Defendants shall
determine whether the results of the
archaeological surveys and the marine
resources studies conducted pursuant to
paragraphs 1 and 2 above require any
supplemental National Environmental Policy
Act, 42 U.S.C. § 4321 et seq. (“NEPA”),
documentation under 32 C.F.R. § 651.5(g)(1),
including, but not limited to, a supplemental
EIS or a new Final EIS.
Proposed Order at 4.1
The Army does not object to the Proposed Order’s
treatment of public review and comment or the recommendation that
the Final EIS and ROD not be set aside.

1

Mâlama Mâkua, on the

Paragraph 18 of the 2007 settlement agreement states:

Nothing in this Stipulation relieves Defendants of the
obligations to act in a manner consistent with
applicable federal, state, or local law, and applicable
appropriations law. Defendants maintain that no
provision of this Agreement shall be interpreted or
constitute a commitment or requirement that Defendants
obligate or pay funds in contravention of the AntiDeficiency Act, 31 U.S.C. § 1341, or any other
applicable law or regulation. Plaintiff does not agree
that the Anti-Deficiency Act applies to this court
order and reserves the right to so argue in any
subsequent action to enforce the terms of this
Stipulation.
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other hand, contends that the court must set aside the Final EIS
and ROD to give Mâlama Mâkua the benefit of its settlement
bargain.

This court determines that a middle ground is

appropriate under the circumstances and orders that the language
be modified to state:
The Final EIS and associated Record of
Decision, dated July 16, 2009 (“ROD”), remain
in effect and are not set aside at this time.
Defendants shall determine whether applicable
law and the results of the archaeological
surveys and the marine resources studies
conducted pursuant to paragraphs 1 and 2
above require a new Final EIS and ROD, or any
change to, modification of, or supplement to
those documents. At the earliest practicable
time (even if the actual new Final EIS and
ROD, or any change to, modification of, or
supplement to those documents has not been
completed), Defendants shall inform Plaintiff
of their determination and the reasons for
the determination, so that Plaintiff may, if
appropriate, object to the determination. In
the event an objection is raised, the parties
shall meet and confer in an effort to resolve
any dispute before seeking a judicial
resolution.
The court disagrees with Mâlama Mâkua’s contention that
the Final EIS and ROD must be set aside at this time to give it
the benefit of its bargain.

This is a breach-of-settlement-

agreement case, not a free-standing challenge to the Final EIS or
ROD under the National Environmental Policy Act (“NEPA”).

The

remedy the court has fashioned requires the Army to conduct the
bargained-for archaeological surveys and marine resource studies
that the Army has failed to conduct.

13

These surveys and studies

were agreed to when the parties resolved their disputes
concerning the Army’s failure to prepare an EIS that evaluated
the effects of live-fire military training at MMR.

Rather than

erase at this time the work done by the Army in its existing
Final EIS and ROD, the court will maintain the status quo until
the effect of the required archaeological surveys and the marine
resources studies is determined at a later date.
Given the court’s ban on live-fire military training at
MMR, discussed below, the court sees no prejudice visited on
Mâlama Mâkua by this procedure.

Whether a comprehensive new

Final EIS and ROD are required, or whether an abbreviated new
Final EIS, Supplemental EIS, or some other procedure is allowed,
may be addressed on a fuller record.
this issue at this time.

The court is not deciding

Once the archaeological surveys and

marine resource studies are completed, any decision as to what
the next step should be will be more informed.

Even if, as

Mâlama Mâkua argues, the issue is one of law, the application of
law will be clearer in light of the facts.

It may well be that,

before live-fire military training may be renewed at MMR, the
Army must reexamine its ROD based on the results of the
archaeological surveys and the marine resources studies.

Then

again, the results of those surveys and studies may indicate that
no changes need be made.

Keeping the status quo until a more

14

informed decision can be made preserves the rights of both parties.
E.

Ban on Live-Fire Training.

Magistrate Judge Puglisi proposed the following ban on
live-fire military training at MMR: “No live-fire training shall
be conducted at MMR until Defendants complete the analyses and
actions proposed in paragraphs 1 through 4, except as provided
pursuant to paragraph 15(b) of the 2001 Settlement Agreement.”
Proposed Order at 4.

To preserve the parties’ rights under the

settlement agreements, the court modifies this language to read:
“No live-fire military training shall be conducted at MMR until
this court orders that it be allowed or the parties so
stipulate.”

This modification ensures that live-fire military

training at MMR will not resume until after a decision has been
made as to whether a new, supplemental, or abbreviated Final EIS
and ROD must be prepared, or as to whether some other procedure
is appropriate.
IV.

ORDER REGARDING REMEDIES
1.

Defendants shall complete subsurface

archaeological surveys of Areas A through F as identified in
Exhibit 1 to Dr. Laurie Lucking’s April 7, 2010 deposition,
attached hereto as Appendix A, in accordance with the terms and
conditions set forth in paragraph 6(c) of the 2001 Settlement
Agreement and paragraphs 1, 5, and 9 of the 2007 Settlement
Agreement.

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2.

Defendants shall complete one or more studies of

limu and other marine resources (e.g., octopus and sea cucumber)
near Makua Beach on which Waianae Coast residents rely for
subsistence, in accordance with the terms and conditions set
forth in paragraphs 6, 7, and 10 of the 2007 Settlement
Agreement.

The studies shall specify whether arsenic, if present

in the limu or other marine resources, is organic or inorganic
and shall determine background contamination by testing limu and
other marine resources at locations in Hawaii other than Makua
Beach.
3.

Defendants shall incorporate into the Final

Environmental Impact Statement (“EIS”) for Military Training
Activities at Makua Military Reservation (“MMR”), dated June 2009
(“Final EIS”), or such other document as they determine is
appropriate pursuant to paragraph 5 below, the results of the
archaeological surveys and the marine resources studies conducted
pursuant to paragraphs 1 and 2 above, in accordance with the
terms and conditions set forth in paragraph 13 of the 2007
Settlement Agreement.
4.

After completing the additional archaeological

surveys and marine resources studies described in paragraphs 1
and 2 above, Defendants shall comply with the public review and
comment obligations set forth in paragraphs 11, 12, and 13 of the
2007 Settlement Agreement.

Defendants may accept additional

16

comments on the previously issued Final EIS, but are not required
to do so unless otherwise ordered in accordance with paragraph 5
below.
5.

The Final EIS and associated Record of Decision,

dated July 16, 2009 (“ROD”), remain in effect and are not set
aside at this time.

Defendants shall determine whether

applicable law and the results of the archaeological surveys and
the marine resources studies conducted pursuant to paragraphs 1
and 2 above require a new Final EIS and ROD, or any change to,
modification of, or supplement to those documents.

At the

earliest practicable time (even if the actual new Final EIS and
ROD, or any change to, modification of, or supplement to those
documents has not been completed), Defendants shall inform
Plaintiff of their determination and the reasons for the
determination, so that Plaintiff may, if appropriate, object to
the determination.

In the event an objection is raised, the

parties shall meet and confer in an effort to resolve any dispute
before seeking a judicial resolution.
6.

No live-fire training shall be conducted at MMR

until this court orders that it be allowed or the parties so
stipulate.
7.

Defendants shall complete the required

archaeological surveys and marine resource studies within a
reasonable time.

Beginning with the October 2012 quarterly

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progress report, Defendants shall update the court on the
progress of these surveys and studies in the quarterly progress
reports they are already preparing and filing in Civil No. 0000813 SOM.

If no progress is being made on the surveys and

studies, Defendants shall explain why no progress is being made.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 20, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Mâlama Mâkua v. Robert Gates, et al., Civ. No. 09-00369 SOM/RLP; ORDER ADOPTING IN
PART AND MODIFYING IN PART FEBRUARY 28, 2012, FINDINGS AND RECOMMENDATION REGARDING
REMEDY FOR DEFENDANTS’ SETTLEMENT VIOLATIONS; ORDER REGARDING REMEDIES

18

APPENDIX A