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Aluli v. Brown

Citation: 7 ELR 20780
No. No. 76-0380, 437 F. Supp. 602/10 ERC 1765/(D. Haw., 09/15/1977) partial summary judgment granted to plaintiff

The court declares that the Navy is violating the requirements of the National Environmental Policy Act (NEPA) and Executive Order (E.O.) 11593, which concerns the preservation of historic sites under the National Historic Preservation Act, in carrying out target practice activities on the small uninhabited island of Kahoolawe. Defendants' objections to plaintiffs' contention that preparation of a new or revised environmental impact statement (EIS) is required in conjunction with the Navy's annual budget request for naval training operations are not well taken. Such appropriations requests are proposals for legislation within the meaning of NEPA, and the bombardment itself constitutes major federal action which significantly affects the quality of the human environment because it threatens archaeological sites on the island which are important to Hawaiian history and culture. The EIS prepared in 1972 is no longer adequate since many more archaeological sites have now been discovered on the island. Neither the Navy nor the state have yet made nominations of appropriate sites on the island for listing in the National Register of Historic Places, a task they were to have completed by July 1, 1973 under E.O. 11593. Despite these findings, the court determines that injunctive relief against all bombardment is not appropriate because defendants have taken measures to protect historic sites and such an injunction would substantially reduce the Third Fleet's military readiness. An injunction mandating compliance with the requirements of NEPA and E.O. 11593 is warranted, however. Defendants are therefore ordered to file a draft updated EIS on their bombardment activities within 45 days and to supplement the statement annually thereafter. They are also directed to continue identifying, inventorying, and protecting historic sites on Kahoolawe, nominate qualified sites for listing in the National Register without waiting for completion of the survey of the entire island, and refer their bombing activities to the Secretary of the Interior for his opinion on the entire island's eligibility for inclusion in the National Register.

For moving papers in this case see ELR PEND. LIT. 65504.

Counsel for Plaintiffs
Joel E. August, Michael A. Town
Legal Aid Society of Hawaii
2286 Main St., Wailuku HA 96793
(808) 244-3731

Ronald Albu
Suite 1100, 1164 Bishop St., Honolulu HA 96813
(808) 536-4303

Counsel for Defendants
Harold Fong, U.S. Attorney; Howard Chang, Ass't U.S. Attorney
P.O. Box 654, Honolulu HA 96809
(808) 546-7170

L. Mark Wine
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 739-2845