On November 24, 1989, Lani Stemmermann, a botanist at the University of Hawai`i at Hilo, visited an area of dryland forest in the western third of Pohakuloa Training Area, in search of research sites for studies of native plants. What she found were Army bulldozers leveling roads through naio and mamame trees.
As Stemmermann was later to learn, the bulldozers were clearing ground for the Army’s planned Multi-Purpose Range Complex, one of several similar computerized facilities that the Army was building at ranges across the country to “standardize” training operations. An environmental assessment for the project had been completed three years earlier, in 1986, resulting in a finding of no significant impact. Notice of the EA and FONSI was carried in the state-published OEQC Bulletin, but the project appears to have escaped the attention of any of the parties that might have had an objection to it. Only one comment (supporting the project) was received at the time, the Army reported.
On December 1, Stemmermann sued the Army, seeking an injunction against further work at the site and attempting to force the Army to prepare an environmental impact statement. The Sierra Club Legal Defense Fund represented Stemmermann. U.S. District Judge Samuel Conti denied the motion for a temporary restraining order on December 6, but heard arguments on the request for a preliminary injunction on December 18.
Cursory Surveys
Testimony and evidence presented in court established that the Army had issued its FONSI on the basis of one sixteen-hour zoological survey (conducted by Stemmermann’s sister, Maile Kjargaard). When Kjargaard asked for more time, including an opportunity to conduct an evening census, the Army denied her request.
The botanical surveys were just as cursory. In 1985, the U.S. Fish and Wildlife Service made an initial botanical survey of the general area by helicopter and ground reconnaissance over three days. A year later, botanical consultant Evangeline Funk was hired to survey plants in the area of the access road and the general project area. Heavy winds and rains, including thunderstorms, occurred during the study period, making it impossible to use helicopters to reach the more remote sites. Funk’s report to the Army notes that her team spent just six hours in the field. “As a result, insufficient data were collected to fulfill that portion of the scope of the work which states that a vegetation map of the site must be prepared as part of the report.”
Funk requested that botanists “be allowed to camp on the site for five or six days and carry out more definitive studies in the area to determine what is growing there. The vegetation in the southeastern portion of this site has not been completely elucidated. It would be tragic if the plants of this area are destroyed without as complete a record as possible having been made that they existed.”1 The Army ignored Funk’s request.
Despite the inadequacies of the surveys acknowledged by the authors, the Army stated in its environmental assessment of May 1986 that “No endangered plant or animal species were found within the MPRC area… As indicated by the U.S. Fish and Wildlife Service (letter, dated May 1986), the proposed action will not likely jeopardize the continued existence of any listed/proposed threatened or endangered species.”
National Security
The case came to trial on December 18 and lasted two days. In arguing against Stemmermann’s complaint, the Army claimed that national security would be compromised and that if the project were held up by more than 10 days, the entire project might have to be cancelled since funding might be in jeopardy with the contractor charging $6,000 a day. In response, the Sierra Club Legal Defense Fund noted that the Army had spent “three and one-half years in redesigning, rethinking, and replotting a project that should have been completed in one year. The Army’s own dilatory conduct in pushing this project is an excellent indication of its low national security importance.”
To refute Stemmermann’s testimony that the MPRC area contained rare and even unique plant communities, the Army brought forward Richard D. Laven, a professor from Colorado State University who, until contracted to conduct studies at PTA, had no experience with Hawaiian plants. Laven testified that Stemmermann had no data to support her claim and that in any case, the same types of plant communities found at the MPRC site existed elsewhere.
In the end, Conti ruled that the Army violated no law when it issued the EA for the project and that there was no reason to order a halt to construction of the MPRC.
Stemmermann appealed to the 9th U.S. Circuit Court of Appeals. In September 1990, before the appeal came to trial, the Army, on the advise of Justice Department lawyers, worked out a settlement agreement. Under its terms, the Army could complete construction of the MPRC (it was by that time more than 90 percent completed, in any event). However, before the facility could be used, a full environmental impact statement would need to be prepared.
In addition, the settlement called for the EIS to consider the “no use” or “no action” alternative. “In the event that the ‘no use’ or ‘no action’ alternative is adopted,” the settlement stated, “the Army shall, to the extent feasible, agree to undertake site restoration for the purpose of permitting the area to revert to its natural state.”
Unfinished Business
Since then, the Army has contracted with several teams of scientists to survey the flora and fauna of the western third of the Pohakuloa Training Area. The results have been staggering, confirming Stemmermann’s claims.
In addition, the U.S. Army Audit Agency reviewed the circumstances surrounding the construction of the MPRC, which to date has cost somewhere between $23 million and $30 million. In its report, published in January 1993, the Audit Agency found that the U.S. Army Support Command, Hawai`i, had failed to involve its own environmental experts in the site selection process; had not asked that its environmental committee review the project; and had not adequately considered recommendations made by its Engineer Division to perform more intensive environmental studies. In particular, the Audit Agency determined that following the April 1985 preliminary botanical survey, “the Engineer Division recommended that Support Command perform more intensive studies to collect the data needed to prepare a satisfactory environmental assessment. The Engineer Division prepared a scope of work and estimated the environmental assessment would be prepared by 31 August 1986.
“Support Command didn’t perform the intensive studies as recommended by the Engineer Division. Instead it opted to perform a more limited survey. At that time, Engineer Division officials stated that the limited survey: would be incomplete and therefore subject to criticism by other government agencies, the academic community, and other concerned organizations and citizens; [and] could subject the assessment to lawsuits because of a perceived lack of information.”
The initial schedule for the EIS called for the document to be complete by 1994. Although much of the draft EIS has been written and many of the surveys have been completed, publication of a formal draft EIS has not yet occurred.
It may never be. In October 1995, Admiral Richard C. Macke, the former commander in chief of the U.S. Pacific Command, told Rotary Club members in Hilo that the U.S. Army had “given up” hope of ever using the facility. In a report on Macke’s speech carried in the Hawai`i Tribune Herald of October 15, 1995, Macke was reported to have expressed frustration with the environmental problems plaguing the unused range, whose cost he then placed at $30 million.
While as late as 1994, Army officials had been “fairly optimistic” that they would be able to use the MPRC, the newspaper reported, Macke had said that that isn’t the case anymore. “Right now, the Army has given up,” Macke was quoted as saying.
Coda
Although Stemmermann has been vindicated, she told Environment Hawai`i how upset she was with Laven, the Colorado State University scientist who testified against her. In a 1990 interview with the University of Hawai`i-Hilo campus newspaper, Vulcan News, Stemmermann referred to Laven as an “expert from Colorado who said he didn’t know anything about Hawaiian vegetation, and didn’t think this area was particularly special.”
Laven responded with a letter to the editor, taking “strong exception to this quote.” “I currently have a research project on rare plant population biology at PTA,” he said, “and to make a statement about a lack of knowledge on my part is libelous and unprofessional.” Laven went on to say that the burden of proof in the case fell to Stemmermann, who had to show her opinions were backed up by scientific study. “The onus of proof was on Dr. Stemmermann and she clearly failed to document her position,” Laven said.
Three years later, Laven and Robert Shaw, whose Center for Ecological Management of Military Lands at Colorado State University has done much of the survey work at PTA, published a post-mortem on the MPRC debacle.2 Despite Laven’s testimony that Stemmermann had no sound basis for making her claims in court, Laven and Shaw concluded in their article that, “The original botanical surveys were not thorough enough to locate listed or proposed plant species. Not enough time or effort was spent surveying the MPRC for rare plants. One of the major problems was that the MPRC boundary was not identified or set prior to the surveys, thus no one knew exactly where to concentrate the surveys.”
Even those cursory studies that had been done, they wrote, “should have indicated that there might be more rare plant species within the area. Furthermore, a 1977 botanical survey for PTA” — one, incidentally, in which Stemmermann participated — “indicated that some of the area near the MPRC was considered potentially important from a botanical standpoint.”
Stemmermann delighted in reading Laven’s conclusion. Two years later, at age 42, she died.
- 1. Evangeline J. Funk, dba Botanical Consultants, “Botanical Survey Report Proposed Multi-Purpose Range Complex, Pohakuloa, Hawai`i,” April 21, 1986.
2. Robert B. Shaw and Richard D. Laven, “Environmental Auditing: Environmental Regulatory Compliance on Army Lands: A Case Study,” Environmental Magazine, 17:3 (1993), 387-393.
— Patricia Tummons
Volume 7, Number 7 January 1997
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