Waikane Valley, on O`ahu’s Windward Coast, is of historical, cultural, and religious significance. Its taro lo`i (terraces) have earned it a place on the National Register of Historic Sites. Ancient Hawaiians erected a heiau in the valley. To this day, taro is cultivated in the Waiahole-Waikane valley floor.
To the Kamaka family, Waikane is more. It is the home of their ancestors, the site of a family shrine, the land from which their livelihood has been derived for generations.
To the United States government, Waikane Valley – in particular, the Kamakas’ 187-acre parcel – is a former training area where for two decades troops fired all manner of ordnance into the valley’s walls. Rather than clean up the unexploded ordnance and repair the environmental damage, the government wishes simply to purchase the Kamakas’ land, fence it off and turn this remarkably fertile, historically rich area into a barren no-man’s-land.
The Kamaka family is challenging the government’s condemnation in court. Jury selection in that case has been scheduled to begin September 29, 1992, in the court of U.S. District Judge Samuel King.
A Millennium of Use…
“Here Hi’iaka turned again to speak to her friend. ‘The name of this land is Waikane because it was here that Kane first dug for water for the benefit of Paliuli.”1
As this legendary account of the origin of the valley’s name illustrates, the waters of Waikane have been celebrated since time immemorial. The streams that cut across the valley floor made the site ideal for wet taro cultivation. The Waikane taro flats, listed on the National Register and situated in part on the Kamaka land, have been described as some of the best preserved lo’i in O’ahu. They are unique in that some of the lo’i contain internal mounds, which is evidence of the use of the traditional Hawaiian aulai planting method. Hawaiians are thought to have occupied the area for the last millennium, give or take a century.
Other structures important to Hawaiian history and religion are found in the valley as well. In 1972, state archaeologists determined the site of a series of taro flats described in early land surveys. Between that time and the present, the site was destroyed. In 1974, contract archaeologists pinpointed the site of Kukuianiani Heiau. Three years later, yet another archaeologist surveyed the valley; this time accompanied by an elder member of the Kamaka family. They located on the Kamakas’ land the taro lo’i, a manu kolea (guardian stone), a male rock and a female rock, and above it all, a pohaku wela (a smoke-emitting cliff).2
In 1984, the U.S. Marine Corps commissioned yet another survey – this time to evaluate the impact of removing ordnance in the area of the manu kolea; to which archaeologists have given the name Site 2889. The site consists of a cairn, terrace, retaining walls, and a petroglyph, and it lies within the boundaries of the taro lo’i. “Site 2889 appears to be a shrine (possibly associated with agricultural activities), and local informants (Kamaka family members) indicate it is currently in use,” according to the Navy’s environmental assessment of 1991.
After the Great Mahele, rice replaced taro as the area’s main crop. In about 1899, Lincoln McCandless, one of the leading haole Democrats at the time, acquired title from the government to 35 percent of the valley – including those areas best suited to agricultural and residential use.3 McCandless’ Waiahole Water Company built a tunnel through the Ko’olau range and sold the water rights to the O’ahu Sugar Company in Waipahu. McCandless’ daughter Elizabeth Marks eventually acquired title to most of the McCandless land in the valley.
In 1943, the Army began using 1,061 acres in Waikane Valley and the adjoining Waiahole Valley as a training area and for air-to-ground ordnance delivery practice (that is, it was a bombing range). The McCandless heirs granted the government a lease for this purpose, which was continued after the war ended. In 1953, the U.S. Marine Corps took over the lease, putting the land to much the same purpose. The lease was renewed in 1961, although by most accounts, the Marines’ use of the area as a firing range ceased soon after.
A decade later, the McCandless heirs sought to put their land to a more profitable use. To do so, clear title was needed, and the Kamakas’ acknowledged interest (at least 3 percent) was an impediment. Action to quiet title was brought, and the result was a settlement that gave members of the Kamaka family the diamond-shaped parcel of 187 acres that, unknown to them at the time, was the impact area – the ground most intensively shelled during the two decades that Waikane Valley served as a military training ground.
In 1975, the Kamakas and the McCandless heirs gave the Marines notice to vacate, which they did July 1, 1976. In the time since then, the McCandless heirs have sold part of their holdings to SMF Enterprises, a Japanese-owned corporation well on its way toward developing a golf course on its part of the valley floor.
The Kamakas have not done so well. Between 1976 and 1983, they farmed about 17 acres of their land, planting it in Japanese cucumbers, string beans, long beans, papayas, eggplant, taro and bananas as well as potted plants and red ginger. Several families lived on the land as well in eight extremely modest living units. According to a Navy environmental assessment, the shelters were “three converted buses, two single-room wooden structures, and three sheds.”
Since 1983, the Kamakas have been able to do almost nothing with their land. Torrential winter rains in 1983 washed soil from the hillsides denuded after years of shelling, leaving exposed thousands of rounds of unexploded ordnance. The Kamakas’ attempts to get the United States to make good on its promise in the lease to clear their land and leave it in the same condition as that in which they found it has resulted not in compliance with lease terms, but in the condemnation action.
…..But No More?
Under terms of the lease – specifically, paragraph eight – the land was to be returned to the owners cleared of all unexploded ordnance. The first sweep of the Kamakas’ property was conducted between August 9 and September 13, 1976.
A Marine Corps “after action report” stated that 42 explosive items were disposed of by detonation on site. More than 24,400 pounds of practice ordnance and scrap from the area were taken off-site for disposal. Dense ground cover and the extreme slope of much of the land were mentioned as obstacles to further ordnance clearing work. The report concluded that the area “can never be certified free of duds, practice ordnance, etc”.
But, according to a memorandum filed on behalf of the Kamakas in U.S. District Court, the Kamaka family was never told by the Marines that the land was not certifiably free of duds. Instead, the memo states, two months before the sweep was conducted, the Marine Corps was maintaining that the area was ordnance-free.
“For the next seven years, from 1976 to 1983,” the memorandum continues, “members of the Kamaka family occupied the land for farming purposes. They excavated the land to levels of more than five feet, using tractors, plows and various other farm implements. During these seven years, the government never once informed the Kamakas that [it] determined that the property would never be ordnance-free.”
After the winter rains in 1983, the Marines sent out an Explosive Ordnance Disposal (EOD) team to survey the land. Their “walk-through,” according to the court brief, “yielded a total of 480 3.5 inch rockets from three tracts of 50 feet by 125 feet.” The After Action Report concluded that the valley would be difficult and time consuming to sweep and that a sweep would fail to effectively eliminate all ordnances. It also urged that the Marine Corps consider purchasing the Kamaka portion of the Waikane Valley Training Area.
From February 2 to April 13, 1984, personnel from the Marine Corps, Army, Navy and Air Force conducted further sweeps of the area, collecting 16,000 tons of practice ordnance. According to the Navy’s Final Environmental Assessment for its proposal to deal with the Kamaka land – by fencing it off and erecting warning signs – “the After Action Report estimated that 85 percent of the visible surface ordnance was cleared. However, vegetation was not cleared prior to the sweep and it can be assumed that a significant amount of ordnance is covered by vegetation or located below the surface.”
Only following this second effort to clear the land did the representatives of the Marines begin discussions with the Kamakas on alternatives to clearing their property. The government claimed it had no land available for exchange and, according to the court memorandum of the Kamakas, the government “rejected the possibility of a lease arrangement with no further or intermittent clearing operations.”
The Kamakas approached the government then with a proposal to release the government from its obligations under paragraph eight of the lease under three conditions: first, that the government pay the family part of the cost of certifying the land ordnance-free; second, the government agree to pay for a civilian bomb crew to sweep the land once a year for the next 20 years; and third, that the government share with the Kamakas responsibility for public liability, The government rejected the proposal and continued to pursue acquisition of funds for purchase of the land, culminating in condemnation January 1989.
A ‘Public Purpose’
The United States contends that condemnation is appropriate inasmuch as it constitutes a taking for a public purpose. In briefs filed in U.S. District Court, government attorneys state that “the taking in this case is necessitated by the need to isolate a dangerous area and prevent public access to it. In order to prevent injuries from unexploded ordnance on the subject land, the United States seeks to take the land, then erect fencing around it and post signs warning of the dangerous condition of the land.”
The Kamakas’ argument that the government is obligated by its lease to clear the land upon termination of the lease is beside the point, U.S. attorneys state. “The claims of defendants that the United States has breached its lease agreement is [sic] not relevant to this condemnation action and should be pursued, if at all, in a U.S. Court Claims.”
The fair-market appraisal used by the government in setting the value of the land at $735,000 has been disputed by the Kamakas. In negotiations with the Navy and the Marines, family members pointed out that the adjoining parcel, where the 27-hole golfcourse is planned, sold for $7.5 million. Navy representatives were quick to point out the differences in the utility of the two parcels. The golf-course land is 505 acres, of which 433 were in the Agriculture District; the Kamaka land is 187 acres, with 52 acres in Agriculture. The golf-course land has frontage along Kamehameha Highway and utility access; the Kamaka land is accessible only by a rugged jeep road, with no utility service.
Cleaning Up
With the government seeing relatively little value in the Kamaka land, it can more easily justify the decision not to spend money to clear the land of ordnance. But precisely how much ordnance clearance would cost is debatable – as, too, is the government’s fundamental contention that by purchasing the land it will never be faced with paying for its cleanup.
The Navy, which has assumed responsibility for disposition of the Waikane site, states that its investigations show that ordnance clearing activities are all but impossible:
“In June 1990, the Navy’s ordnance research and development agency, the navy Explosive Ordnance Disposal Technology Center (EODTECHCEN), evaluated five ordnance locators and three geophysical instruments, representing the spectrum of known ordnance detection technology, The EODTECHCEN determined that under existing site conditions, there is a strong possibility that ordnance items will be buried beyond the detection range of the passive or active locators. The likelihood of at least some migration of remaining unexploded ordnance to the surface, such as following severe inclement weather, would prevent declaration of the site as cleared to any degree of confidence.”4
The Navy contracted with Belt Collins & Associates to do an independent assessment of what would be required to clear the area of ordnance. Belt Collins concluded that “soil processing” was the only certain way of dealing with the problem, but that this “involves removal of all surface vegetation and excavation and sifting the soil to the desired depth.” Soil processing by hand would be required on the steepest slopes. Sifting the soil by machine might be practical in flatter areas, but would be difficult given the tendency of the soils at the site to clump when wet… The Hanalei series soils, characteristic of lower areas of the site where mechanical processing is practical, may not lend itself to screening because of wetness and possible clumping.”
An alternative to silting would be to “spread the soil in shallow lifts on flat terrain,” Belt Collins reported. With the soil spread to a depth no more than 12 inches, ordnance detectors would be able to pickup the presence of even the smallest rounds (37 mm).
The cost of this combined manual and machine clearing operation was placed at more than $7 million. Apart from the cost, Belt Collins identified further drawbacks to ordnance removal. The extensive excavation required would result in soil instability, especially on higher slopes. This, in turn, “would jeopardize uses of the lower slopes below and pose a threat of significant degradation to water quality in Waikane Stream and Kane’ohe Bay Soil loss after removal of vegetation from these zones is estimated to be 2,363.85 tons/acre/year, an 8,988 percent increase from the present estimated amount of 26 tons/acre/year.”
Belt Collins did note, however, that manual clearing of the 45 or so acres of arable land would not inflict any “unacceptable environmental damage to the land.” It did not provide a cost estimate for this more limited project.
A Third Approach
In 1976, Staff Sergeant B.L. Donaldson was one of the Marines in the EOD team that conducted the first sweep of the Kamakas’ land. In 1988, Donaldson – now head of his own company that provides ordnance clearing services throughout the Pacific Ocean area – submitted to the Navy a proposal to clear the Kamaka land.
Donaldson’s approach differs in significant ways from the Belt Collins method. A surface sweep would be conducted on the arable portions of the land. It would involve removing most of the vegetation – but, Donaldson notes, most of that is weed species in any case. (Donaldson says he was told by a Kamaka kupuna that the Java plum and koa haole trees have ruined the valley – and that the former were actually introduced by the Marines in a misguided effort to restore the land.)
The three- or four-foot deep excavation needed to clear all buried ordnance would be undertaken only in those areas most likely to yield results. The areas around what Donaldson calls “Mortar Hill” would be scraped back by bulldozer until no more ordnance is uncovered. Following that, “periodic validation tests will be made.” (Donaldson notes that the use of machinery in an impact area normally makes EOD men cringe, but if one studies the cases of even here in Hawai’i, it then becomes apparently how successfully machinery can be utilized.”)
Donaldson’s plan would require seven to 10 years to carry out, with costs ranging from $13 million (the seven-year plan) to $16 million (the 10-year plan).
The Marine Corps’ response to Donaldson’s proposal was cool. In a memo from the Commandant of the Marine Corps (in Washington) to the Marine Corps commander at Camp Smith (Hawai’i), dated December 21, 1989, the proposal was first described as costing more than acquisition of the property – and for that reason alone, warranting dismissal.
But as though that were not enough, a second reason was given. “Any decision to fully decontaminate the property” – as Donaldson was proposing – “would require an alternatives analysis under the National Environmental Policy Act… Such an analysis would have to fully address the site’s highly erosive nature, the major surface and subsurface disturbances from decontamination, and protection of the sensitive watershed and riparian habitat, as well as any species issues. It is questionable that this analysis would favor decontamination even if it was economic.
Donaldson’s analysis of the problem may have its flaws. Nonetheless, it raises some disturbing questions. “As more areas are opened to the public for recreational and residential usage,” he wrote, “I believe that many more areas that were utilized during World War II will be uncovered and will have to be dealt with, i.e., Kahana, Ka’a’awa, and Punalu’u to name a few.” Elsewhere he lists other areas in Hawai’i with similar problems: Moloka’i’s Ilio Point; “Kania Range” (probably Kanaio) on Maui (described as a National Guard range near King’s Road); and Waikakalua, on O’ahu. In this last area, Donaldson writes, “in the 1940s, an ammo magazine blew up and littered the area with rifle grenades. No clearance, or only a portion, was done. This area is now being considered for housing.”
On the matter of ordnance clearing in general, Donaldson wrote: “There is no state-of the-art, star wars, or magic technology available now to do this work. One thing is very clear. You either clean it now, or later, but never – never.”
1 Quoted in Sites of O`ahu, compiled by Elspeth P. Sterling and Catherine C. Summers (Bishop Museum: Honolulu, 1978), p. 187.
2 These sites are listed in “Intensive Archaeological Survey,” a report on Waikane Valley prepared by PHRI for inclusion in the Navy’s environmental assessment of the impact of purchasing and fencing the Kamaka land. The EA was prepared for the Navy by Belt Collins & Associates in July 1990, with revisions in June 1991.
3 Just how McCandless consolidated his holdings in the valley – as well as his vast landholding throughout the state – is a matter of conjecture. According to several accounts, he won the hearts of Hawaiian women who turned over to him title to their kuleana lots. These accounts are given some credibility by a reference to McCandless in Lawrence Fuchs’ Hawai`i Pono (Harcourt Brace Jovanovich: San Diego, New York, London, 1961). Fuchs describes McCandless’ disparaging remarks at the idea that President Roosevelt would, in 1933, appoint a Hawaiian as territorial governor. (McCandless himself, at age 74, desired the position.) “A part-hawaiian… denounced McCandless for saying that it was a mistake to appoint a Hawaiian as governor. He wondered how Linc would dare raise such a question, charging that McCandless had spent a lifetime “debauching Hawaiian women'” (p. 193).
4 Letter of January 13, 1992, to Hawai`i’s Thousand Friends from Gary Brown, for the U.S. Marine Corps.
Volume 3, Number 2 August 1992