Judge calls inspections at Pohakuloa training area ‘grossly inadequate’
A state judge earlier this year ruled that DLNR breached its trust duties by failing to care for the Big Island property.
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POHAKULOA, Hawaii >> Since 1964 the Army, for $1, has leased nearly 23,000 acres of state land here to conduct live-fire training exercises.
The training grounds are part of a 1.3 million-acre statewide land trust the Department of Land and Natural Resources oversees and is obligated to protect and maintain on behalf of the public.
But a state judge earlier this year ruled that DLNR breached its trust duties by failing to care for the Big Island property.
Circuit Judge Gary Chang cited a lack of inspections over the first nearly 50 years of the lease.
Despite the property being used for live-fire training, the department did only two inspections during that period — one in 1984 and another a decade later — and it was unclear what, if anything, was checked during the second one, according to Chang’s April ruling.
The single page documenting the 1994 inspection did not list any findings, and the space for the inspector’s name and signature was blank. Chang called the two DLNR inspection reports “grossly inadequate” and described the latter one as “virtually nonexistent” because of the lack of information.
The spotty inspection record came to light as a result of a lawsuit Native Hawaiian cultural practitioners Clarence “Ku” Ching and Mary Maxine Kahaulelio filed against DLNR in 2014, alleging the department and its governing board breached their trust duties by failing to enforce the Pohakuloa lease.
Eight months after the lawsuit was filed, the department did a third inspection, according to the court ruling.
Ching, 82, said he has walked old trails in Pohakuloa retracing his ancestors’ footsteps and found empty shell casings, machine gun cartridge links, unfired blanks and other military training debris.
Asked about the job DLNR is doing to care for the land, he told the Honolulu Star-Advertiser, “On the A-to-F scale, they’re not at the A level,” Ching said as he sat at a park table across Saddle Road from the training grounds. “It sort of looks like they’re closer to F.”
The lawsuit went to trial in 2015, but Chang didn’t issue his ruling until April. He wrote that DLNR and its board have a high standard of care when managing a public trust, must make reasonable efforts to discharge their duties and breached their obligation by failing to “malama ‘aina” the Pohakuloa lands.
“In my experience, this is typical of the way the Department of Land and Natural Resources cares for public trust and ceded lands,” said David Kimo Frankel, the attorney who represented Ching and Kahaulelio. “They care more about acceding to the demands of lessees rather than those who want the resources protected.”
Chang ordered the department to develop a detailed Pohakuloa monitoring plan for the court to approve.
The state has appealed Chang’s ruling, arguing the judge intruded into management practices traditionally reserved for the executive and legislative branches of government. The appeal is pending.
To monitor Pohakuloa, the state embraced cooperative management agreements that included cultural monitors going onto the site, Department of Health inspections and implementation of natural resource management plans, according to Dan Morris, the deputy attorney general who represented DLNR in the litigation.
The court, however, determined such an approach wasn’t enough and needed to focus instead on inspection and enforcement, Morris told the Star-Advertiser. Yet the judge’s order did not specify how often inspections must be done or how resources should be allocated to ensure the Pohakuloa monitoring was adequate, he added.
The court is basically making a new rule, raising questions about how the department and board allocate resources, added Suzanne Case, who heads DLNR and its board.
“It’s like an unfunded mandate,” Case told the Star-Advertiser.