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Though Hawaiian Garbage Plan Terminated, Yakama Nation Continues Legal Action With Eye On Future
Posted on Friday, August 27, 2010 (PST)

The Yakama Nation and conservation groups continue to press legal action to prevent the import of Hawaiian garbage for storage at a Columbia River gorge landfill even though the waste transfer plan has been stalled for now.


Plaintiffs are in the near term asking for a preliminary injunction to prevent the transfer of baled Honolulu municipal solid waste to the Roosevelt Regional Landfill in southern Washington's Klickitat County until the lawsuit filed late month can be resolved.


The lawsuit filed in Eastern Washington's U.S. District Court requests a court order that would prevent the U.S. Department of Agriculture from permitting the handling and transportation of the baled Hawaiian garbage to Washington until the federal agency has completed formal consultation with the tribes and conducted a more extensive evaluation of the potential environmental impacts.


Plaintiffs are the Confederated Tribes and Bands of the Yakama Nation, Friends of the Columbia Gorge, Columbia Riverkeeper, Northwest Environmental Defense Center, Dawn Stover and Daniel Lichtenwald. The defendants are the USDA and its Animal and Plant Health Inspection Service, which issued "compliance agreements" to a private firm, Hawaiian Waste Systems, LLC, to move solid waste from Hawaii to Washington.


APHIS earlier this month announced that it had decided to conduct further analysis under the National Historic Preservation Act and as a result needed to terminate the compliance agreements.


"Because of the termination, Plaintiffs' alleged harm cannot occur and cannot be remedied by this Court. Consequently, the case is moot," according to a brief filed Aug. 13. "And because of the termination of the challenged action, Plaintiffs cannot establish any of the four elements necessary to obtain a preliminary injunction. Defendants thus respectfully request that this Court deny Plaintiffs' motion for a preliminary injunction."


A hearing has been set for Aug. 30 to discuss preliminary injunction motions filed by the Yakama Nation and the environmental groups.


Meanwhile, Honolulu's acting mayor, Kirk Caldwell, Monday announced that the city has reached an agreement that will require the company to dispose of 20,000 tons of municipal solid waste elsewhere. Hawaiian Waste Systems will transport most of the waste to the city's HPOWER plant, where it will be combusted to produce electricity. Waste that is not suitable for combustion will be transported to the Waimanalo Gulch Sanitary Landfill on the island.


"The city bent over backwards to try to make this shipping effort work, but it is clear that shipping is not a viable option at this time," Caldwell said. "The opala (the Hawaiian word for garbage) must be removed to protect public health and safety."


The city had initially rejected Hawaiian Waste Systems' bid to ship waste to Washington, after raising numerous concerns about the company's ability to perform. Hawaiian Waste Systems appealed, and after a settlement the company was awarded the contract to ship 100,000 tons of waste per year for three years.


The federal government's claim that the lawsuit is moot is invalid, according to the tribes. They noted that APHIS could reissue the compliance agreement.


"Nothing about the termination of the CA guarantees the Defendants will not issue another violative CA tomorrow," according to a brief filed by the tribes Aug. 20.


"The termination of the CA does not obviate the grave threat lying at the heart of this matter – the potential for environmental disaster enabled by the Defendants multifaceted failures to execute their duties, and the potential for an irreparable abrogation of the Yakama Nation's Treaty of 1855."


"Prior to 2006, in order to protect the continental United States from the accidental importation of invasive species along with Hawaiian MSW, federal regulations categorically barred the shipping of Hawaiian garbage for dumping in the continental United States," according to an amended complaint filed Aug. 11 by the tribes and conservation groups.


The complaint says the USDA changed that policy without properly consulting the Yakama Nation as required by treaties, executive orders, statutes regulations and common law, or preparing a comprehensive environmental impact statement, as required by the National Environmental Policy Act. The agency instead followed a more abbreviated NEPA process, preparing an environmental assessment and releasing a "finding of no significant impact."


"An EIS, had Defendants prepared one, would have fully documented and disclosed to the public the actual risks, and possible harms from, Defendants' decision to expose the Pacific Northwest's ecosystems, and Yakama 's Treaty-protected habitat and ways of life, to the risks posed by invasive species from imported Hawaiian garbage."


An EIS also would have also addressed reasonable alternatives to dumping Hawaii's garbage on Yakama's ceded lands and evaluated the effectiveness and adequacy of mitigation measures to avoid any such adverse impacts.


U.S. District Court Judge Edward Shea on July 29 issued a temporary restraining order barring the shipment Hawaiian garbage up the Columbia River Gorge to Roosevelt Regional Landfill for at least 30 days.


The tribal request for a temporary restraining order said that "the area around the Landfill is close enough to timber habitat that if a treeboring insect was introduced, it would have devastating effect on the Yakama Nation's timber management and harvesting activities.


"Similarly devastating effect would result from decimation of riparian trees like black cottonwoods and aspens, which provide cover for watersheds and fish habitat," the tribal brief says. "Any adverse effect on the habitat could harm the game, like deer and grouse, that Yakamas hunt, the salmon and steelhead that Yakamas fish, and the roots and herbs that Yakamas gather for food and medicine."


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