Hawaii Supreme Court concludes the State has a duty to take care of ceded land, even when leased to the military

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Pohakuloa Training Area. Photo: Justin Palmer

The Hawaii Supreme Court came to a unanimous decision Friday morning in the case Clarence Ching and Mary Maxine Kahaulelio, Plaintiffs-Appellees, vs. Suzanne Case, in her official capacity as Chairperson of the Board of Land and Natural Resources and State Historic Preservation Officer, Board of Land and Natural Resources, and Department of Land and Natural Resources, Defendants-Appellants.

The case revolved around the Pohakuloa Training Area on Hawaii Island, a 22,900 acre tract of ceded land which was leased to the US military in 1964. The lease requires the military to “remove and deactivate all live or blank ammunition upon completion of a training exercise or prior to entry” and to actively work to prevent unnecessary damage to natural resources.

Clarence Ching and Mary Maxine Kahaulelio, represented by the Native Hawaiian Legal Corporation, alleged that the Department of Land and Natural Resources (DLNR) and Board of Land and Natural Resources (BLNR) did not do their due diligence to ensure that the military was, in fact, following-through on the terms of the lease agreement.

Ching and Kahaulelio sued DLNR in 2014 for failing to monitor the ceded lands. An inspection later that year showed the training area littered with military debris, including unexploded ordnance. The State argued that it was the military’s responsibility to determine if there were any contract violations.

Today, however, the Supreme Court ruled that the State failed its constitutional duty to inspect and monitor the lands, and that they must take an active role in doing so.

In a statement on Facebook, The Native Hawaiian Legal Corporation stated, “As a result of today’s decision, the State is required to ‘develop and execute a plan to conduct regular, periodic monitoring and inspection’ for the lands at Pōhakuloa and to ‘take an active role in preserving trust property and may not passively allow [trust lands] to fall into ruin.'”

The case will be sent back to the circuit court, where plans for monitoring and inspecting Pohakuloa Training Area will be set.

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