Plaintiffs Seek More Transparency to Manage Army’s Pohakuloa Training Area

posted in: October 2019 | 0
Maneuvers at Pohakuloa Training Area.

Under a draft, court-ordered plan to manage state lands within the Pohakuloa Training Area (PTA) on the Big Island, observers chosen by the Native Hawaiian Legal Corporation (NHLC) or its clients, Clarence Ching and Mary Maxine Kahaulelio, would be allowed to tag along on site inspections by the staff of the Department of Land and Natural Resources (DLNR). They would not, however, be allowed to photograph or record any part of those inspections and any documentation of the inspection that the observers might make would be confidential.

To NHLC attorney Summer Sylva, those conditions are unacceptable.

In an April 16 letter to 1st Circuit Judge Gary Chang, who must approve the plan before it goes into effect, Sylva wrote, “It is both prudent and reasonable to keep training or maneuvers implicating national security confidential. It is neither prudent nor reasonable, however, to prohibit plaintiffs from photographing debris or litter observed by them during the inspection, or to prevent them from sharing with third parties observations that have no national security implications. To do so would reduce plaintiffs’ role as inspection observers to mere tokenism.”

In 2014, the NHLC sued the Board of Land and Natural Resources and its chair (William Aila at the time; Suzanne Case today) after the DLNR failed to provide Ching and Kahaulelio with records demonstrating that the military was complying with conditions of its 65-year lease for the 22,900 acres of state lands, for which the military has paid a single dollar.

After a trial, Chang ruled on April 3, 2018, that the state had breached its trust duties to conduct reasonable inspections to ensure that the lands within the PTA aren’t harmed by its lessee. This despite it having good reason to believe those lands were in danger of being or may have already been harmed. He also ordered the state to de- velop a management plan for the lease area that includes periodic site inspections and more detailed reports, as well as a procedure to improve transparency.

In her April letter, Sylva reminded Chang that her clients’ testimony and photographs of the litter at PTA played a large role in his decision to require a management plan.

She offered an amended plan that would allow observers to take photos and record debris on the lands only if the Army does not object. Her plan would also require any public dissemination of those records to receive approval from the NHLC and the state’s attorneys beforehand.

Chang did not sign any version of the plan pending the state’s appeal to the Hawai‘i Supreme Court. On August 23, the high court largely upheld Chang’s decision but made a few of the components of the plan recommendations, rather than requirements.

Once Chang approves a final plan, the state must execute it, the Supreme Court ordered. According to a DLNR spokesman, the plan is still under internal review. And Sylva’s co-counsel, former NHLC attorney David Kimo Frankel, indicated they will be meeting with state attorneys this month to discuss possible changes to the plan.

The Bad Old Days

The U.S. military’s lease covers three tracts of ceded land at Ka‘ohe, Hamakua, and Pu‘uanahulu and expires on August 16, 2029.

The lease requires the military to “make every reasonable effort to … remove and deactivate all live or blank ammunition upon completion of a training exercise or prior to entry by the public, whichever is sooner.”

It must also take reasonable steps to “prevent unnecessary damage or destruction to vegetation, wildlife and forest cover, geological features and related natural resources” and to “avoid pollution or contamination of all ground and surface waters and remove or bury all trash, garbage and other waste materials” resulting from its use of the area.

If required by the state at the end of the lease term, the military would also have to remove weapons and shells from training activities “to the extent that a technical and economic capability exists and provided that expenditures for removal of shells will not exceed the fair market value of the land.”

The U.S. military has a history of leaving training grounds in the islands severely, if not irreparably, damaged. To name but a few: The entire island of Kaho‘olawe, the ‘Ahihi-Kina‘u Natural Area Reserve on Maui, Makua Valley in West O‘ahu, and Waikane Valley in East O‘ahu, which the military leased from the Kamaka family and later condemned because it was deemed too expensive to clear of ordnance.

During the Circuit Court trial last year, DLNR Land Division agent Kevin Moore testified that since the lease began in 1964, there were records of just three state inspections of the PTA area. While his division tries to inspect leased lands once every two years, the PTA lands are harder to inspect because of their rugged terrain and sheer size.

In its ruling, the Supreme Court took note of the inadequacy of those inspections. There was “one from 1984 that indicated the inspection lasted ‘no more than one day,’ which Moore acknowledged was not enough time for an inspector to inspect the 22,900-acre property on foot; one from 1994 that was not signed and did not have anything written in the spaces denoted for the condition of the land or the findings of the inspection; and one from December 2014” — well after the NHLC sued the state — “that indicated that the premises were in unsatisfactory condition but did not contain any determination as to whether the United States was in compliance with the lease,” the Supreme Court decision stated.

Prior Knowledge

Well before the 2014 inspection, the DLNR was aware of possible contamination of its lands within the PTA. Land Division administrator Russell Tsuji testified to the Circuit Court that his agency’s lease file contained letters and reports from the Army documenting a need to clear the area, “including a 2006 report indicating there was debris in the BAX [battle area complex] within the PTA; a 2008 report stating that there may have been munitions on PTA land; a 2013 final environmental impact statement stating that UXO was ‘known to exist in impact area’ and that ‘there [was] also a medium risk of finding [UXO] outside [the construction] area’; and a 2014 report stating that ‘[t]he military need[ed] to implement some kind of clean-up process as part of their training in PTA’ because’ [r]emnants of military trash [were] everywhere … including unexploded ordnance that was carelessly discarded,’” the Supreme Court’s decision stated.

It continued, “When asked about the DLNR’s response to one of the reports, Tsuji testified that he did not know if anyone at the DLNR ‘actually read’ the report and noted that there was no record on file that the DLNR ever responded.”

Moore had also testified that “a 2013 memorandum circulated within the DLNR suggested the leased PTA land should be swept for UXO to be removed at the United States’ expense, but DLNR did not ask the United States Army to clean up any ammunition as a result of the memorandum,” the decision stated.

Also in 2014, the Army sent the DLNR an action memorandum stating that “a bazooka range within the PTA was heavily contaminated with explosive hazards, ammunitions, and debris that posed a significant danger to public health and welfare,” it continued.

In addition to these records, Ching, a member of the Pohakuloa Cultural Advisory Committee, testified that during his bimonthly trips to the area, he saw blank ammunition and other military debris strewn around. Kahaulelio offered similar testimony, as did witness Kealoha Pisciotta, a former cultural monitor for PTA’s battle area complex.

‘Reasonable Monitoring’

In its decision, the Supreme Court described the leased area as ceded lands that are part of the public lands trust. And as trustee of those lands, the state had “the highest duty” to preserve and maintain them, it stated.

“[T]his obligation includes an obligation to reasonably monitor the trust property,” it continued. “Reasonable monitoring ensures that a trustee fulfills the mandate of ‘elementary trust law’ that trust property not be permitted to ‘fall into ruin on [the trustee’s] watch.’ To hold that the state does not have an independent trust obligation to reasonably monitor the trust property would be counter to our precedents and would allow the state to turn a blind eye to imminent damage, leaving beneficiaries powerless to prevent damage before it occurs.”

In response to Chang’s order to develop a plan that would establish a reasonable monitoring schedule, the state submitted a draft in December 2018 and an amended version in March of this year. It called for inspections to occur at least once every two years. They “should be supported by appropriate photographic or videographic entries” and would also include live or remote monitoring of training subject to limitations for safety or national security, under the draft plan.

Any recommendations for corrective action that grew out of those inspections “should include a projected or reasonable estimated time within which to take action,” the March version stated. And if the inspection reveals a lease violation that might adversely affect the land’s condition or the lawful use of the area for cultural purposes, or if it involves unexploded ordnance or other contaminants from military training, the state must investigate and initiate appropriate enforcement actions authorized under the lease and state law.

Factual disputes over whether the lease terms were violated would be resolved by agreement or by the Division Engineer of the U.S. Army Engineer Division.

The state would also support efforts to seek federal funds for any cleanup of ordnance or military-related debris or contaminants.

The March version, while it included amendments to address some of the concerns raised by the NHLC, did not address all of them. In a February request to Chang to reject the state’s December version of the plan, the NHLC pointed out that it lacked maps of the areas to be inspected. Also, given the vast size of the lease area, it recommended that inspections occur annually, rather than every two years, “to better ensure that any needed clean-up or other maintenance is undertaken in a prompt and appropriate manner.”

Transparency

The proposed plan states that any lease termination or enforcement actions “required by law to be the subject of a sunshine meeting shall include the opportunity for plaintiffs or other members of the public with standing to provide input and/participate as allowed by the Chapter 91, Hawai‘i Revised Statutes.” It adds that the Land Board will provide reasonable transparency to the plaintiffs and the general public with regard to the plan’s implementation, and comply with all laws regarding the rights of the plaintiffs or the public to contest the board’s decisions regarding its adoption or implementation of the plan.

The NHLC called these transparency provisions illusory, noting that the plan includes no mechanism for informing the public of or eliciting comment on the plan.

It pointed out that the December version of the plan was not approved by the Land Board at a public meeting. Consideration of the plan was on the board’s December 7, 2018 agenda, but no submittal was provided. The board met in executive session to discuss the plan with its attorney, but did not take a vote in public, with chair Suzanne Case later explaining that it was a non-action item, according to the meeting minutes. Nonetheless, the board’s attorneys submitted a plan to the court later that month.

“BLNR was supposed to approve the plan at a public meeting, but never did. … The process that defendants followed prior to submitting this management plan to the court was inconsistent with both the law and any notion of transparency,” the NHLC wrote.

Whether the March version or a new version of the plan will be brought to the Land Board for approval before Chang signs it remains to be seen. In his March decision on the plan, Chang chose not to rule on whether or not the board should have approved it before it was submitted to him, and left that matter to be resolved “by another tribunal.” —Teresa Dawson

For Further Reading

Environment Hawai‘i has published several articles over the years regarding the military’s use of lands in Hawai‘i and the Pacific. The following is a short list.

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