Honolulu Civil Beat - April 3, 2018
A Hawaii judge ruled Tuesday that the state has failed to enforce a lease requiring the U.S. military to clean up debris on the Army’s Pohakuloa Training Area on Hawai`i Island.
The ruling requires the state Department of Land and Natural Resources to make sure that the military is cleaning up the land, some of which is being used for live-fire training. Pohakuloa Training Area is made up of 100,000 acres, with about 80 percent owned by the military and the remaining 20 percent leased from the state.
Judge Gary Chang ruled in a case filed four years ago by the Native Hawaiian Legal Corporation on behalf of two Native Hawaiian cultural practitioners, Clarence Ching and Mary Maxine Kahaulelio.
Chang wrote -
"Defendants have failed to preserve and protect the Subject Lands as required by their duties as a trustee of the public land trust. Defendants have failed to mālama `āina the Subject Lands under the Said Lease. These failures constitute a breach of Defendants’ trust duties that apply to the Subject Lands. This failure has harmed, impaired, diminished, or otherwise adversely affected Plaintiffs’ cultural interests in the Subject Lands."
The military has a 65-year lease for nearly 23,000 acres of state land for a total price of $1. The lease began in 1964 and expires in 2029.
Despite the low price, the lease requires the military 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.”
Chang found that the the Army hadn’t regularly cleaned up the area, noting in his ruling that inspections found artillery shells and abandoned cars. He also criticized the state’s record keeping.
“DLNR has not met its informal goal of inspecting the Subject Lands once every two (2) years. Additionally, DLNR has also not provided adequate documentation of any inspection efforts so as to provide rudimentary transparency into the DLNR’s efforts to inspect the Subject Lands so that it can mālama `āina,” Chang wrote.
Chang is requiring the state to develop a written plan by the end of the year to take care of Pohakuloa that includes periodic on-site monitoring and inspection, including written inspection reports and recommendations. The plan also must include processes for dealing with violations and removing debris.
The ruling also says the state can’t extend, renew or change the military’s lease of the land “without first determining (in writing) that the terms of the existing lease have been satisfactorily fulfilled.”
Dan Dennison, spokesman for the DLNR, said in a press release that the attorney general is reviewing the court order to determine next steps and is considering the possibility of an appeal. He added that inspections of state land since 2014 have resulted in cleanups.
“We appreciate that this proceeding brought further focus to regular inspections and ongoing work with the Army to properly steward the leased lands,” said DLNR Chairwoman Suzanne Case. “This work has already been under way for several years.”
The public affairs office for the U.S. Army Garrison Pohakuloa did not reply to a request for comment late Tuesday afternoon. The Army was not a party to the lawsuit.
David Kimo Frankel, an attorney at the Native Hawaiian Legal Corporation, says the court ruling probably won’t impact military training on the area but he hopes it will improve state oversight.
“We hope that it will make the DLNR and the BLNR do their job,” Frankel said. “They should not simply cede to the demands of whatever the military wants.”
He said Chang’s repeated references to mālama `āina in his ruling is significant.
“This is the first time that we know of that the court has ever articulated that principle as part of the state’s trust duty,” Frankel said.
Military debris is a major problem in Hawaii and the broader Pacific. Federal taxpayers spent hundreds of millions of dollars to clean up Kahoolawe, but the island remains largely uninhabitable.
