October 1, 2002
Secretary of the Interior
U.S. Department of the Interior
1849 C Street, N.W.
Washington, D.C. 20240
Dear Ms. Gale Norton:
The purpose of this letter is to initiate a formal complaint regarding the deliberate and intentional destruction and disinterment of ancient human burial remains, in a manner “inconsistent with any management plan” and without a permit for the site destruction through the operation of a bulldozer with a cutting blade. The subject of this formal complaint is an area of public lands commonly and generally known as the Nike Missile Site, Bellows Air Force Station, Waimanalo, Island of Oahu, State of Hawaii.
Our complaint to you is brought under the "Archaeological Resources Protection Act of 1979", as amended, which states in pertinent part:
Section 4(a) “Any person may apply to the Federal land manager for a permit to excavate or remove any archaeological resource located on public lands or Indian lands and to carry out activities associated with such excavation or removal. The application shall be required, under uniform regulations under this Act, to contain such information as the Federal land manager deems necessary, including information concerning the time, scope, and location and specific purpose of the proposed work,” and; at (b) (4) (a) “A permit may be issued pursuant to an application under subsection if the Federal land manager determines, pursuant to uniform regulations under this Act, that the activity pursuant to such permit is not inconsistent with any management plan applicable to the public lands concerned,” and;
Section 6(a) No person may excavate, remove, damage, or otherwise alter or deface any archaeological resource located on public lands or Indian lands unless such activity is pursuant to a permit issued under section 4, a permit referred to in section 4(h)( 2), or the exemption contained in section 4(g)(1), and;
(d) Any person who knowingly violates, or counsels, procures, solicits, or employs any other person to violate, any prohibition contained in subsection (a), (b), or (c) of this section shall, upon conviction, be fined not more than $10,000 or imprisoned not more than one year, or both: Provided, however, That if the commercial or archaeological value of the archaeological resources involved and the cost of restoration and repair of such resources exceeds the sum of $5,000, such person shall be fined not more than $20,000 or imprisoned not more than two years, or both. In the case of a second or subsequent such violation upon conviction such person shall be fined not more than $100,000, or imprisoned not more than five years, or both.
Based on information, and pertinent documentation included herewith, we believe that UXB International, Inc., used a bulldozer with a cutting blade on public lands containing archaeological resources and ancient human remains. The actions were taken without a permit to excavate six feet of soil or in violation of a permit or in violation of permit conditions which prohibited the excavation to exceed a depth of six inches. The actions taken exceeded the scope of a government contract and archaeological monitoring plan and appear to have been for the purpose of their financial gain through the completion of a U.S. Army Corps of Engineers (ACOE) contract and further benefits which stem from positive evaluations of performance by the ACOE that will allow the contractor to perform additional government work in the future.
The facts and circumstances related to our complaint are as follows:
In a “Memorandum For Mr. Michael D. Wilson, State Historic Preservation Officer,” signed by Mr. Robert M. Okazaki, Deputy Civil Engineer, dated March 17, 1997, the Department of The Air Force proposed hand cutting of vegetation to certify explosive ordnance clearance and “Any digging will be done by hand and will be limited to six inches in depth and approximately one square foot in area.” The memo explains that heavy equipment may be used to “remove cut brush from the parcel” and that “No excavation is planned for this phase of the project.” The memorandum included maps detailing the area in question and the probabilities of cultural resources in the area. (Attachment 1)
On April 14, 1997, the State of Hawaii, Department of Land and Natural Resources (DLNR) Chairperson and State Historic Preservation Officer, Michael D. Wilson, reviewed the “Land Clearance at Bellows Air Force Station, Hawaii.” Mr. Wilson wrote:
Thank you for the opportunity to review this project which proposes hand clearing of vegetation and explosive ordnance clearance of 145 acres at Bellows APS. Land clearing includes the cutting of vegetation 3 inches in diameter and smaller and the use of metal detectors to identify potential ordnance locations. The use of heavy equipment will be limited to the removal of cut brush from the cleared areas. Hand excavation will be limited to a depth of 6 inches if ordnance is detected.
A review of our records shows that two historic sites are located in the proposed project location; site 383, a traditional pu’uhonua and site 4850, an area of undetermined boundary that contains one recorded subsurface cultural deposit (basalt flake deposit, buried A-horizons and one surface pile of basalt cobbles. Recent archaeological monitoring associated with engineering evaluation/cost analysis testing activities within Site 383 and site 4850 did not locate any historic remains from soils shallower than 15 cm. Because no excavation greater than 6 inches (15.2 cm) will be conducted for this project and hand clearing of vegetation would have no direct impact on these sites, and it is unlikely that human burials will be found at this shallow depth, we concur with your determination that this project will have “no effect” on historic sites. (Letter: from Michael D. Wilson, State of Hawaii, to Robert M. Okazaki, Deputy Civil Engineer, Department of the Air Force, DLNR correspondence “Log No: 19204, Doc No: 9703EJ22,” April 14, 1997.) (Attachment 2)
According to a “MEMORANDUM FOR Lydia Tadaesse” by Glenn H. Earhart, Acting Chief, Design Center for Ordnance and Explosives Team, dated 5 May 1998, (Attachment 3) a “Sole Source” contract, contract Number DACA87-97-D-0006, was issued by the U.S. Army Corps of Engineers (ACOE) for an “Ordnance Removal Action” to be conducted on Bellows Air Force Base and awarded to UXB International, Inc. A portion of the “Sole Source” justification was recorded as follows: “Bellows Air Force Station is a culturally rich area. UXB has been working for the past several years on the clean up of Kahoolawe Island. They have been working extensively with the native sovereignty groups in the protection of significant cultural sites. This experience is invaluable when selecting a contractor for Bellows.”
In July of 1998, an Archaeological Monitoring Plan (AMP) (Attachment 4) was prepared. The AMP claimed “Excavations for ordinance (sic) are expected to extend one meter or less below the surface, although they may extend further if required” (Dega, Michael F., Archaeological Monitoring Plan for Monitoring and Sampling Operations During Ordinance (sic) and Explosive Removal Action at Bellows Air Force Station, Waimanalo, Koolaupoko District, Oahu Island, Hawaii, Scientific Consultation Services/Cultural Resource Management Services. July 1998. P. 1). A direct comparison of a map (located on page 4 of the AMP indicates the project boundary is the same as that for which the ordnance removal project contract was granted to UXB International, Inc., described above. The AMP further states that: “The current project is located on lands of high archaeological sensitivity due, for the most part, to the location of the area proximate to both the ocean and the findings of previous archaeological studies within the project area (P. 39).
A series of ACOE e-mails, circulated between November 19, 1998 and November 23, 1998, between the ACOE Project Manager, Robert M Inouye, Kanalei Shun, Jerry Cornell, and others, (Attachment 5) seeks to initiate the use of a “dozer mounted push rake” referring to a diagram that designates the proposed “dozer with a push rake” areas of use.
The “Scope of Work” prepared by the ACOE for this project issued on “22 June 1999” and “revised 25 August 1999” and again “revised 18 October, 1999” (Attachment 6) informed the contractor that:
Native Hawaiian remains can be found in can be found in any areas at Bellows AFS because earth used for fill in areas considered non-archaeologically sensitive may contain human remains. All Native Hawaiian remains must be treated in accordance with the North American Graves Protection and Repatriation Act (NAGPRA). There are two cultural properties aside from the National Register sites include a subsurface cultural deposit and a potential pu’uhonua (place of refuge). (Scope of Work For Ordnance and Vegetation Removal Action, Bellows Air Force Station, Oahu, Hawaii, DACA87-97-D-0006, Task Order 0011, Mod Number 0011-06. P. 3)
The Scope of Work did not preclude the contractor from using heavy equipment but did limit excavations to six inches (6”) in depth through the instruction at Section 6.4.2: “The contractor shall excavate and identify all anomalies detected to a depth of six inches” (P. 17).
The site Work Plan created by UXB International Inc., in November 1999, Chapter 7 states at page 7-7, in Section 7.2.91 “Cultural and Archaeological Resources” (Attachment 7):
7.2.9.1 The December 1995 EIS identified two potential cultural resources that could be affected by the work activity. There are archaeological and historical resources pre-contact and post-contact. One site is identified in the Inoaole Stream area and the other extends south and west of the Nike Hercules Missile site. UXB has been told it is unlikely any cultural resources will be found above the six inch required clearance depth, therefore disturbance of the resources is unlikely. However, a CEPOH archaeologist will be available for training and consultation in the event that these resources are encountered.
On January 21, 1999, Don Hibbard, Deputy State Historic Preservation Officer, State of Hawaii, considered a modified proposal by the Department of the Air Force to do mechanical clearing “with a bulldozer mounted push rake” (DLNR correspondence file number: “Log No: 22786, Doc No: 9901EJ01”) (Attachment 8). Mr. Hibbard suggested that “An acceptable Archaeological Monitoring Plan should be prepared and submitted to this office for review. . ..”
On April 26, 1999, Don Hibbard wrote to James L Bersson, P. E., Chief, Engineering Division, Environmental Division, Department of the Army (Attachment 9) and stated:
Thank you for the opportunity to comment on the Archaeological Monitoring Plan for Monitoring and Sampling Operations During ordinance (sic) and Explosive Removal Action at Be/lows Air Force Station, Waimanalo, Ko’olaupoko District O’ahu Island. Hawai’i (Dega. 1998). The AMP was provided to counter the potential adverse effect proposed mechanical clearing (with a bulldozer mounted push rake) of areas both east and west of Inoaole stream might have on any significant archaeological remains exposed during clearing activities.
The monitoring plan identifies the types of historic sites likely to be encountered during field monitoring activities including evidence for habitation, wood/plant processing, lithic workshops and maintenance of small fishponds or agricultural pond fields. Remnants of structural features are not expected. We believe that the Scope of Work provided by the Army and the AMP, provide responsible guidelines for treating, documenting, and reporting on any sites that are encountered. We find the monitoring plan acceptable and believe that if the monitoring plan is followed, this project will have “no adverse effect” on significant historic sites. (DLNR correspondence file number: “Log No: 23293, Doc No: 9904EJ16”).
On July 14, 2000, Charles Robert Tasker presented evidence of the use of a bulldozer on the site in his statement and subsequent filings presented to the United States District Court District of Hawaii, in Civil Number CV00 00487, a False Claims Act lawsuit (Attachment 10). Mr. Tasker’s complaint states: “The bulldozer was used to mostly level out the ground in the natural forest of mostly ironwood trees. In the leveling effort there was much sand and soil movement. In some areas the existing grade was lowered by over six feet or covered over by four feet.” Mr. Tasker’s complaint lists other witnesses as well as the businesses from which the bulldozers were rented.
On April 8, 2002, in a stipulated agreement settling United States of America ex rel. Charles Robert Tasker V. UXB international, Inc., Civil No. 00-00487 SOM BMK (Attachment 11), UXB International, Inc. while denying all claims and maintaining that “it performed all of its work on the Bellows Air Force Station in accordance with the terms of the contract, the work plan, the instruction it received from the Corp’s on-site representative, and generally accepted standards for UXO removal” agreed to certain actions to settle the complaint. Among the conditions were that UXB repair damage to ironwood tree root systems and removal of trees damaged by bulldozer marks within particular “grids.” UXB agreed to “restore the grade of a ditch to a maximum excavation of 6 feet” and to “clear face of bank 6 horizontal feet from the existing face of bank. No soil will be removed to attempt to find previous face of bank.”
EnviroWatch, Inc. has asked the United States Attorney for copies of photographs believed to have been provided in support of the Tasker claim cited above (Attachment 12). The photographs, if provided, show at least two bulldozers with blades and no evidence of a bulldozer with a “push rake.” The photos also depict areas of the Bellows Air Force Station showing evidence of the operation of bulldozer(s) in identifiable areas beyond the scope of permitted conditions.
EnviroWatch, Inc. has obtained a copy of the “ARCHAEOLOGICAL MONITORING AND SAMPLING OPERATIONS DURING ORDINANCE AND EXPLOSIVE REMOVAL ACTION AT BELLOWS AIR FORCE STATION, WAIMANALO, KO’OLAUPOKO DISTRICT, O’AHU ISLAND, HAWAI’I,” prepared by Guerin Tome, B.A. and Michael F. Dega, Ph.D., dated October 2001, Draft Report (Attachment 13). The report abstract states: “Archaeological monitoring and sampling supporting Ordnance and Explosive removal actions at Bellows Air Force Station, Waimanalo Ahupna’a, Ko’olaupoko District, O’ahu Island, Hawai’i have been completed. Archaeological mitigation measures were conducted by SCS/CRMS, Inc. at the request of the U.S. Army Corps of Engineers, Pacific Ocean Division.” The draft report states:
The proposed monitoring program provided an opportunity to examine surficial and buried cultural deposits from an archaeologically sensitive area of BAFS. Full-time monitoring during vegetation clearance, systematic archaeological survey of the entire project area, and investigation of exposed subsurface strata was completed to assess the presence/absence of temporary habitation (including lithic workstations), agriculture (swidden evidence), and faunal and floral remains indicative of land utilization over time and space within BAFS and more succinctly, the project area (see Figures 2 and 3). (P. 41) (emphasis added)
The Archaeological Monitor Report claims: “Fieldwork for the project was intermittently conducted from mid-1998 through late 1999” (P. 1). A facsimile dated May 25, 2000, from Col. Steven J. Redmann, USAF, to Col. Pawlowski, ACOE, and bearing a handwritten notation indicating that it was delivered to LTC. Wally Walters, ACOE, (Attachment 14) claims the “project completion is 86%” and a map included indicates the work remaining was within the areas of high and medium probability of encountering human remains. It is clear that the monitoring had ceased before the project was completed.
EnviroWatch, Inc. has toured the site in August, 2002, and observed evidence of heavy equipment operation. EnviroWatch, Inc. was also provided with a “Status Map Week [En]ding 26 July 02” (Attachment 15) and compared that status map with the stipulated agreement of the Tasker False Claims Act settlement. The “grids” containing the filled “drainage ditch,” “marshy area” as well as the grid containing the human bone and ironwood trees are all within the areas of medium and high probability of archaeological remains.
ENVIROWATCH, Inc. Findings and Conclusions:
1) The Archaeological Resources Protection Act claims at section 4(a) “Any person may apply to the Federal land manager for a permit to excavate or remove any archaeological resource located on public lands or Indian lands and to carry out activities associated with such excavation or removal. The application shall be required, under uniform regulations under this Act, to contain such information as the Federal land manager deems necessary, including information concerning the time, scope, and location and specific purpose of the proposed work,” and; at (b) (4) (a) “A permit may be issued pursuant to an application under subsection if the Federal land manager determines, pursuant to uniform regulations under this Act, that the activity pursuant to such permit is not inconsistent with any management plan applicable to the public lands concerned.”
It is clear that UXB International, Inc. was to have cleared ordnance from culturally sensitive areas of the Bellows Air Force Station. A comparison of the UXB status map of 26 July 2002 with the other maps, site inspection, and other available information indicates that at least one bulldozer was operated on the instruction of UXB International, Inc. in a manner inconsistent with any permit issued and inconsistent with the management plan, work plans and contracts issued intended to recover explosive ordnance from the surface six inches (6”) of soil. The operations outside the scope of permission included filling drainage ditches and marshy areas with bulldozed soil and damaging trees as alleged in the Tasker False Claims Act lawsuit.
2) The Tasker False Claims Act lawsuit did not address the damage to archaeological resources or cultural remains. The lawsuit did not address the recovery or restoration of the human cultural remains in the high and moderate probability sites at Bellows Air Force Station.
3) The archaeological monitor may be unaware of the bulldozer activity occurring after 1999. It is likely that one or more disinterred remains still exist on the surface within the bulldozed area and that no proper survey, recovery operation, or inventory of disinterred remains has yet occurred.
4) The site must be surveyed as to archaeological resources as they currently exist due to the different land uses that may be considered in the future. The property should not be incorrectly listed as an undisturbed natural area with a high probability of human, in situ, burials when it has, in fact, been significantly disturbed and any probable remains bulldozed. An incorrect listing will have an adverse future economic impact on the State of Hawaii and its citizens.
5) The activity was either conducted in violation of an established and approved Archeological Monitoring Plan or conducted after the contract expiration of a valid Archeological Monitoring Plan.
6) The State of Hawaii was repeatedly informed that no soil was to be disturbed in relation to the vegetation clearing phase of the vegetation and ordnance clearing project. Further, The State of Hawaii was repeatedly informed that no more than six inches of soil was to be disturbed during the ordnance clearing phase of the vegetation and ordnance clearing project. The resulting implication is that either the contractor violated the scope of work or the Department of Defense violated the terms and intent of Section 106 of the National Historic Preservation Act of 1996.
7) The public lands owner: the Department of the Air Force, and the contracting agency: the Corps of Engineers, failed to exercise due diligence in the supervision of a contractor and allowed the use of heavy equipment without archaeological monitoring. As stated by UXB in the Tasker lawsuit settlement agreement: UXB “maintains that it performed all of its work on Bellows Air Force Station in accordance with the terms of the contract, the work plan, the instruction it received from the Corps’ on-site representative, and generally accepted standards for UXO removal” (Attachment 11, P. 4).
8) The contractor had prior experience in “working with the native sovereignty groups in the protection of significant cultural sites.” The contractor also had knowledge of the probability of encountering human remains on this project site. The contractor also received instructions as where a “bulldozer mounted push rake” could be used on this project site. The contractor chose to ignore experience, knowledge, and competent instruction and used an inappropriate piece of machinery: a bulldozer with a blade, in a culturally sensitive area without permit or license and in a manner likely to damage and destroy archaeological remains.
In conclusion EnviroWatch, Inc, based on information and belief, refers the unauthorized destruction of archaeological resources to your office for investigation and/or distribution to an appropriate investigatory agency. By this submission EnviroWatch, Inc. reserves its entitlement under 16 USC 1B §470gg.
For further information, EnviroWatch, Inc. may be contacted by mail at Post Office Box 89-3062, Mililani, HI 96789 and telephone number (808) 625 2175. EnviroWatch, Inc. vice-president Joseph N. A. Ryan, Jr. may be contacted directly at telephone number (808) 259 8463 or by fax at (808) 259 6870 for further information.
Respectfully Yours
Joseph N. A. Ryan
Vice-President