The federal district court for Hawai‘i on Aug. 3 entered a settlement agreement between Mālama Mākua, represented by Earthjustice, and the U.S. Army, resolving a lawsuit filed in 2016 to restore cultural access rights to sacred sites at Mākua Military Reservation on O‘ahu. The reservation contains over 100 sites eligible for listing on the national historic register, including Hawaiian temples, shrines, petroglyphs and other historical and cultural sites.

Mālama Mākua secured the right for cultural practitioners to access these sites as part of a 2001 settlement over military training on the reservation, and exercised that right routinely to access 14 high priority sites until June 2014, when the Army suddenly cut off access, claiming it needed to comply with the National Historic Preservation Act before continuing to cut grass on trails leading to cultural sites. Prior to the Army’s abrupt decision to bar access, the Army had cut grass to allow access to cultural sites for nearly 13 years, without incident.

The new settlement restores access to all but two sites, and opens access to one site that was not previously accessible. The two excluded sites remain off-limits because they are within the blast radius of unexploded ordinance that the Army stockpiled at the back of Mākua Valley in the early 2000s. The Army agreed to seek a waiver to access the area and deal with the hazard posed by the stockpile.

“It should not have required another lawsuit for the Army to honor its commitment to allow cultural access at Mākua, but we appreciate that the Army has now worked with us to restore access,” said Earthjustice attorney David Henkin, who negotiated the 2001 settlement and represents Mālama Mākua in this latest legal action. “Allowing cultural practitioners to connect with Mākua’s sacred sites is not only required under legally binding agreements with the Army, but it’s simply the right thing to do.”

History

The U.S. military evicted local families from Mākua during World War II, converting the valley into a live-fire training facility. The area was subject to ship-to-shore bombardment by naval guns. Large bombs were dropped, and Mākua’s church was used for target practice and destroyed.

The military promised to return Mākua within six months after the end of World War II, but reneged and continued live-fire training at Mākua until Mālama Mākua, represented by Earthjustice, took action against the Army in 1998 to enforce the National Environmental Policy Act (NEPA) and the Endangered Species Act.

A follow-up lawsuit in 2000, also brought by Earthjustice on Mālama Mākua’s behalf, challenged the Army’s failure to conduct the comprehensive review of environmental (including cultural) impacts of military training at Mākua required by NEPA. That lawsuit resulted in a preliminary injunction against the Army, preventing live-fire training from resuming. This paved the way for the 2001 settlement agreement in which the Army agreed to nearly cease live-fire training at Mākua (under the agreement, no live-fire training has occurred since June 2004) while it completes a comprehensive Environmental Impact Statement. The Army also agreed to start clearing unexploded ordnance from the area (which usually isn’t done until a range is retired), with a focus on providing access to cultural sites.

When the bullets and bombs stopped flying, archeologists were able to better study the valley. They discovered more than 100 sites eligible for listing on the national historic register, including Hawaiian temples, shrines, petroglyphs and other historical and cultural sites.

The 2001 settlement guarantees Mālama Mākua and other cultural practitioners the right to access Mākua’s cultural sites twice a month, which is vital to allow the community to reestablish a connection with their past and with their culture. The settlement also allowed two overnight accesses per year. The new settlement allows two additional overnight accesses per year for the next two years.