Hawaii Supreme Court modifies requirements for Pohakuloa land

A state Circuit Court judge correctly ruled that the Department of Land and Natural Resources breached its trust duties to care for ceded lands at Pohakuloa Training Area on Hawaii island used by the military, the Hawaii Supreme Court determined Friday.

But a number of remedies ordered by Judge Gary Chang were unconnected to that failure to monitor and inspect the PTA land, the Supreme Court said in its opinion.

Two Native Hawaiian cultural practitioners, Clarence Ching and Maxine Kahaulelio, had sued to “ensure that the public trust ceded lands at Pohakuloa would not suffer the same tragic fate” as spots such as Kahoolawe, according to the Native Hawaiian Legal Corp., which filed the case.

Chang ordered the state to rectify the situation by “promptly” initiating and undertaking “affirmative action to malama aina,” including, but not limited to, developing a written plan to care for the land.

Among the requirements was for the state to develop and potentially execute a plan to obtain adequate funding for a comprehensive cleanup of the leased PTA land.

Chang also ordered the state to initiate rule-making to establish a contested- case procedure so the public could challenge the state’s decisions in generally caring for the leased land.

But the plaintiffs in the case did not accuse the state of violating its trust duties by failing to rectify damage to the PTA land, the Supreme Court said. Nor did the plaintiffs contend that the state was required to allow the public a voice in its care for the land.

As a result, those ordered remedies are not “tailored to eliminate only the specific harm alleged,” the high court said. To the extent the Circuit Court made the provisions of the order not tailored to address the breach, “it strayed beyond its valid discretion.”

But given the length of time the state “has failed to fulfill its trust duties,” it was “not inappropriate for the Circuit Court to provide guidance as to how the state may fulfill its trust obligations in the future,” according to the Supreme Court.

Both Circuit Court requirements were made nonbinding recommendations.

On Aug. 17, 1964, the DLNR entered into a written agreement to lease three tracts of ceded land totaling 22,900 acres to the United States for 65 years for military purposes for $1.

The original lawsuit claimed that the state was aware of the possibility that the leased PTA land was littered with unexploded ordnance, but that the state didn’t know whether the U.S. government had complied with the lease because it had taken “no concrete steps to investigate, monitor or ensure compliance” with the lease.

“The state has a trust duty to malama aina,” Ching said in a release. “The Department of Land and Natural Resources failed to live up to this most basic duty at Pohakuloa.”