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Lawsuit claiming state breached duties to protect public lands used for PTA heads to trial

Updated: 
September 28, 2015 - 7:46am

A lawsuit claiming the state breached its duties to protect public lands used for the Army’s Pohakuloa Training Area will go to trial this week.

Filed by Big Island residents Clarence Ching and Mary Kahaulelio, the suit says the Department of Land and Natural Resources failed to ensure that munitions are cleaned up after military exercises as the Army’s existing 65-year lease for the lands between Mauna Kea and Mauna Loa requires.

The plaintiffs, represented by the Native Hawaiian Legal Corp., are asking Oahu Circuit Court Judge Gary Chang to order DLNR to fulfill its trust duties and prevent the Army from receiving a new lease until it satisfactorily fulfills the terms of the existing agreement.

The complaint says it doesn’t allege the United States government violated its lease, but that violations may have occurred and the state has a “duty to investigate and take all necessary steps to ensure compliance with lease terms.” It alleges the state failed to fulfill this duty.

To support the plaintiffs’ concerns, the suit cites empty casings seen on the ground within 10 yards of Saddle Road and “rifle casings, machine gun cartridge links, unfired blanks and other rubbish on the ground at Pohakuloa Training Area.”

It also refers to environmental documents that state there is significant risk to encountering ordnance at the training area and that “past and current activities at PTA have resulted in contamination of soil by explosives and other chemicals.”

The trial starts Tuesday in Honolulu. Sharla Manley, NHLC litigation director, said she expects it to last about a week.

The Army leases 22,836 acres from the state to hold military training exercises at the cost of $1 for its duration.

The lease started in 1964 and expires Aug. 16, 2029.

The training area includes ceded lands, which belonged to the crown or government of Hawaii prior to annexation by the United States. The lands became the state’s responsibility following statehood.

The lawsuit was filed in 2014. The state unsuccessfully sought to dismiss it since it doesn’t cite the lessee as a defendant.

Defendants are DLNR and the Board of Land and Natural Resources. William Aila, who was DLNR chairman at the time, also is listed as a defendant.

“The way we see it, at the end of the day, who is the trustee of these lands?” Manley said, regarding the decision to leave the United States out of the lawsuit.

The Army and DLNR both declined to comment on the complaint since it involves ongoing litigation.

The state denied the allegations or cited sovereign immunity as part of its defense, according to its September 2014 response.

The suit says weapons that have been used at PTA include “small arms, grenades, machine guns, shotguns, antitank weapons, howitzers, mortars, field artillery, air defense artillery, explosives, rockets, missiles and weapons using ammunition containing depleted uranium.”

The plaintiffs say they are adversely impacted by the military’s actions as they engage in traditional and customary practices within and around the area.

The lawsuit says Ching is a Native Hawaiian cultural practitioner and a former member of the Pohakuloa cultural advisory committee. Kahaulelio is a Waimea resident.

A DLNR spokesman said there have been internal discussions about the Army’s request to seek a new lease for PTA but nothing is pending before the Land Board.

Email Tom Callis at tcallis@hawaiitribune-herald.com.

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