High court rules state breached trust duties at Pohakuloa Training Area

  • Pohakuloa Training Area. (NANCY COOK LAUER/West Hawaii Today file photo)

HILO — In a 5-0 vote, the Hawaii Supreme Court ruled Friday the state hasn’t properly managed ceded lands at Pohakuloa leased to the Army for military training.

In a case filed by the Native Hawaiian Legal Corporation on behalf of Clarence Ching and Maxine Kahaulelio, two Native Hawaiian cultural practitioners, the high court found the state failed to conduct regular monitoring and inspections of the land at Pohakuloa Training Area to prevent the area from “falling into ruin.” The Army uses the land for live-fire training.

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Kahaulelio sued the Department of Land and Natural Resources in April 2014, alleging the agency failed to monitor whether the federal government — which signed a 65-year lease for $1 that allowed the Army to use 22,971 acres of ceded state land at Pohakuloa — complied with the terms of the lease.

One of the lease requirements is that the Army “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.”

In a 2015 trial in Honolulu Circuit Court, Ching and Kahaulelio established the existence of military debris, including unexploded ordnance, at the Army training site. The Supreme Court decision affirms the lower court ruling in the case.

In a 101-page opinion, Justice Richard W. Pollock wrote the state’s duties to protect and preserve the leased PTA land are “derived in part from the properties’ status as ‘ceded land,’ which are lands that were held by the civil government or the monarchy of the Hawaiian Kingdom at the time of the 1893 overthrow of the Hawaiian monarchy.”

State laws mandate that ceded lands must be held in trust by the state for the benefit of Native Hawaiians and the general public, which places an obligation on the state to “take an active role in preserving” those lands.

The decision requires the state to “develop and execute a plan to conduct regular, periodic monitoring and inspection” for the lands at PTA and to “take an active role in preserving trust property and may not passively allow (trust lands) to fall into ruin.”

In a statement, Ching said the court’s decision affirms “the state has a trust duty to malama ‘aina.”

“The Department of Land and Natural Resources failed to live up to this most basic duty at Pohakuloa,” he said.

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“Enough already,” added Kahaulelio. “The Army and the state have got to clean up the land and stop the destruction. Now.”

Email John Burnett at jburnett@hawaiitribune-herald.com.

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