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Malama Makua v. Gates

ELR Citation: 40 ELR 20017
Nos. No. 09-00369, (D. Haw. , 10/27/2010)

A district court granted in part and denied in part cross-motions for summary judgment on claims that the U.S. Army failed to comply with two settlement agreements requiring it to conduct and complete subsurface archaeological surveys of its munitions training grounds on the Makua Military Reservation in Hawaii and to conduct marine resource contamination studies. With respect to the subsurface survey claim, summary judgment is granted in part to each party. The Army violated its agreement to survey "all areas" of the training grounds. However, to the extent plaintiffs seek a better subsurface survey of three of those areas, summary judgment is granted in favor of the Army, as the settlement agreements do not require the Army to conduct any particular type of survey and the Army's survey of those areas is sufficiently meaningful to satisfy its obligations. With respect to the marine resource survey claims, the Army complied with the 2001 settlement agreement. And the general procedures used by the Army in its surveys under the 2007 settlement agreement were proper because the agreement did not require the Army to conduct any specific kind of survey. But the Army breached its obligations under the 2007 agreement by not testing background contamination of limu and not determining whether the arsenic detected was harmful to human health. However, questions of fact preclude summary judgment as to claims that the Army breached the 2007 settlement agreement by failing to test marine resources on which area residents rely for subsistence.