Ka Wai Ola - Office of Hawaiian Affairs, Volume 35, Number 5, 1 May 2018 — State has duty to mālama 'āina at Pōhakuloa [ARTICLE+ILLUSTRATION]

State has duty to mālama 'āina at Pōhakuloa

j 'ĀINA v > LAND AND WATER f~

By KaWai Ola Staff Acircuit 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 22,97 1 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 eomplianee. 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 depaitment. Without this written determination of eomplianee.

DLNR cannot renew the lease, whieh expires August 2029. The mling stems from an Apiil 2014 lawsuit filed against the state by Clarenee Ching and Maxine Kahaulelio, who alleged DLNR failed to monitor whether the Army was complying with its elean-up obligations. NHLC represented the plaintiffs, who showed unexploded ordnance and other mihtary 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 eomplianee with lease terms, DLNR "has harmed, impaired, diminished, or otherwise adversely affected [Ching and Kahaulelio's] cultural interests in [Pōhakuloa]," noted NHLC's statement, whieh also pointed out the court concluded DLNR has an affir-

mative "duty to mālama 'āina." "While the piineiple 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 attomeys 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. ■

danger Wk: _ ( liKadLsK ir BLJfl Ui ARMT MIUTfl*r TRAINING ASEA f > Nt . UNAUTHORIZED tNTW PtOHISITiD *~ TO OBTAIN ACCESS, CONTACT RANGE OPERATIONS BRANCH PHONI 969-3456 The U.S. Army has leased Pohakuloa for military training exercises since 1 964. - Image: Kamakako'i