State has duty to mālama ‘āina at Pōhakuloa

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A circuit court judge has found the state breached its trust duty to enforce leases to the U.S. Army at Pōhakuloa Training Area, in what the Native Hawaiian Legal Corporation (NHLC) called a bombshell ruling.

Pōhakuloa, located on Hawai‘i Island, is a 100,000 acre property used for Army training activities. The Army owns or controls roughly 80 percent of the property, while the remainder is state land. In 1964, the state entered into a 65-year lease with the Army, allowing it to use 22,971 acres near Pōhakuloa for $1.

In a news release issued after Circuit Court Judge Gary Chang’s decision, NHLC said, “The lease required the Army to ‘make every reasonable effort to … remove or deactivate all live or blank ammunition upon completion of a training exercise or prior to entry by the said public, whichever is sooner’ and to ‘remove or bury all trash, garbage or other waste materials.’”

Chang also issued an order requiring the Department of Land and Natural Resources to inspect the area to make sure the Army is in compliance. DLNR must provide a written report by Dec. 28 that includes a stewardship plan, regular monitoring and inspections, inspection reports with recommendations, and procedures for addressing violations and debris removal, according to the department. Without this written determination of compliance, DLNR cannot renew the lease, which expires August 2029.

The ruling stems from an April 2014 lawsuit filed against the state by Clarence Ching and Maxine Kahaulelio, who alleged DLNR failed to monitor whether the Army was complying with its clean-up obligations. NHLC represented the plaintiffs, who showed unexploded ordnance and other military debris is scattered throughout the area during a 2015 trial.

Chang found that DLNR was aware that the military exercises put state lands at risk of substantial harm or damage. By not ensuring the Army was in compliance with lease terms, DLNR “has harmed, impaired, diminished, or otherwise adversely affected [Ching and Kahaulelio’s] cultural interests in [Pōhakuloa],” noted NHLC’s statement, which also pointed out the court concluded DLNR has an affirmative “duty to mālama ‘āina.”

“While the principle rests on firm precedent, this is the first time a court has used this term to describe the state’s duties,” according to David Kimo Frankel, one of the attorneys in the case. Clarence Ching added, “Everything we do is for the ‘āina.”

The Department of the Attorney General is reviewing the court order before deciding on next steps, including whether to appeal.