Judge orders state to ‘malama’ Army training area

A Circuit Court judge ruled Tuesday that the state Department of Land and Natural Resources failed to “malama ‘aina,” or care for the land, under a lease it has with the U.S. Army at the Pohakuloa Training Area on Hawaii island.

Oahu Circuit Judge Gary Chang issued the order requiring the department to inspect the training area to ensure that the Army is complying with the terms of the lease it entered into in August 1964.

Chang also prohibited the department from entering into a new lease until the state Board of Land and Natural Resources issues a written determination that the Army is complying with the existing lease, which expires in 2029.

The Pohakuloa Training Area is a 100,000-acre property used by the Army for combat training. Some 20,000 acres of the military outpost are owned by the state and have been leased to the Army since 1964 for $1.

The lease requires the Army to make every 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 April 2014 Clarence Ching and Maxine Kahaulelio filed suit against the DLNR for failing to monitor whether the Army is complying with the lease.

During the trial Ching and Kahaulelio showed the court how unexploded ordnance and other military debris was left scattered across the training ground.

In his order, Chang found that state officials “breached their trust duties” even though they were fully aware that live-fire training and other military training activities posed “a significant and substantial risk of harm or damage” to the state lands.

The judge’s order asks for a plan to be submitted to the court by Dec. 28 requiring a written stewardship plan, regular monitoring and inspections, inspection reports with recommendations, procedures for addressing violations and debris removal plans.

In a statement issued after the ruling, DLNR said it has been inspecting the state lands at Pohakuloa for the last four years, resulting in the cleanup of the area.

“As the landlord of this land, DLNR will work with the tenant, the U.S. Army, to develop a formal inspection, monitoring and reporting process,” the statement said.

“We appreciate that this proceeding brought further focus to regular inspections and ongoing work with the Army to properly steward the leased lands. This work has already been underway for several years,” DLNR Chairwoman Suzanne Case said.

The statement added that the state Attorney General will continue to review the court order to determine whether the state will appeal and or take any other steps.

In his court order, Chang concluded that DLNR has a “duty to malama ‘aina.”

David Kimo Frankel, who represented Ching and Kahaulelio in the case for the Native Hawaiian Legal Corp., said it is the first time a court has used this term to describe the state’s responsibilities.