Dispute Over Permit Terms Nearly Derails Ordnance Sweeps on Oʻahu, Hawaiʻi Island
“It is kind of the tail wagging the dog,” land agent Michael Ferreira told the state Board of Land and Natural Resource at its May 24 meeting, referring to a request by the U.S. Army Corps of Engineers to use its own right-of-entry permit form, rather than the one the state normally uses, to cover survey work planned for formerly used defense sites (FUDS) on Oʻahu and Hawaiʻi island.
Last October, the Land Board approved the issuance of a right-of-entry permit to the Army Corps that would allow it to remediate unexploded ordnance and other hazardous materials left by the military on nearly 30,000 acres of state land. The permit covered a total of 105 parcels and included a set of conditions that the Land Division of the Department of Land and Natural Resources had included in previous permits for more than a decade.
After the board’s decision, however, the Army Corps confessed that it could not sign the new permit due to “policy changes,” according to a Land Division report. Instead, the Corps offered its own right-of-entry permit to be used not just for the 105 sites that were the subject of the October action, but for all future remediation activities on state-owned FUDS.
The Army Corps’ proposed permit was much narrower in scope. It would allow for investigation work only, including soil sampling, monitoring well installation, geophysical surveys, and surface vegetation clearing. The agency would seek separate approvals for any remediation activities found to be necessary.
What’s more, the proposed new permit lacked “protections in favor of the state, including insurance coverage to be provided by USACE’s contractors and consultants and a type of indemnity tailored to fit the context of a federal permittee,” the Land Division’s report to the board stated. It continued that “any claims asserted against the state by third parties under the [state’s version of the] ROE are the responsibility of the federal government, subject to appropriation of funds by Congress. Land Division believes these protections are necessary, especially since USACE engages in hazardous activities on the permitted lands, including detonation of UXO in place under some circumstances. In contrast, the USACE form affords no protections to the state and even imposes liability on the State if the ROE is terminated short of the agreed term.”
The Land Division also noted that the Army Corps form requires the ROE to remain effective until USACE has completed its work on the relevant parcel, which was estimated to be by June 2028. “State law limits the term of ROEs to one year, subject to continuance by the Board (or Chairperson if authority is delegated to her) on a month-to-month basis for additional one-year periods,” the division stated.
With the Army Corps already having contractors ready to start remediation projects, it urged the state to quickly resolve the matter. In fact, for work planned at Makalapa Elementary School on Oʻahu, the Corps bypassed the Land Board altogether. The Corps got the state Department of Education to sign the new ROE permit form. The school was set aside to the DOE by a Governor’s Executive Order.
“To expedite its entry onto the site in March 2024, USACE took the view that the signature of the legal landowner of the property, i.e., the Board, was not required on the ROE,” the Land Division stated.
In June, the Corps was prepared to have its contractors start work in the former Waikoloa Maneuver Area on Hawaiʻi island. It met with Land Division staff and its counsel on May 1, stressing the urgent need for the state to agree to the Corps’ ROE permit.
“At the meeting, USACE offered to have its contractors add DLNR as an additional insured on their insurance policies,” the Land Division staff stated in its report to the board. This “would allow DLNR to look to USACE’s contractors for relief if claims were asserted against the State for cleanup related incidents under the ROEs. Further, USACE wants project-specific ROEs signed while the DLNR believes blanket approvals for one-year periods present a workable approach with less paperwork.”
Also at that same meeting, the staff report went on to say, “USACE explained that if the State refuses USACE entry onto lands contaminated by the United States military, the State will assume liability for the contamination under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended( CERCLA). Land Division staff requested USACE to provide a citation to the U.S. Code or Code of Federal Regulations as authority for this proposition, but USACE had not done so by the date of writing this submittal. Staff understands CERLCA imposes liability on any owner of contaminated land or any person who caused the contamination, which in this case is the United States military. It is not clear to staff that liability can be transferred solely to the State if the State does not allow USACE entry onto its lands using the one-sided USACE ROE form.”
Because the Army Corps had “made abundantly clear that its ROE form must be used for the project,” the Land Division, “with grave reservations,” was asking the Land Board to amend its October 13 decision “by authorizing the use of the USACE ROE form instead of the form previously used for USACE’s environmental remediation of FUDS on state lands, provided that USACE require its contractors and consultants to list the State of Hawaiʻi, Department of Land and Natural Resources, as an additional insured on all insurance policies required under the cleanup contracts with USACE.”
“If we decide we don’t sign it, they will move on and they will not do the project. Basically, we have to sign their form or they will not clean up the land,” Land Division administrator Russell Tsuji told the board.
Ferreira added that during negotiations with the DLNR, the Army Corps did agree to use the state’s ROE form for non-FUDS state lands, such as those occupied by Parker Ranch. “We end up having to go after the contractor if heaven forbid there was any kind of incident. But it was kind of better than nothing,” he said.
The Corps’ form would only be used for FUDS, which are properties that were used by the Department of Defense but transferred from its control prior to October 17, 1986.
Board chair Dawn Chang noted that the state Department of the Attorney General had reviewed the Army Corps ROE form and found it to be legally acceptable. But, she added, it would be up to the Land Board to approve it.
Land Board member Aimee Barnes asked, “Is this similar to if I were to say, like, I have to pay my taxes, and I don’t want to use the tax forms so I’m going to make up my own tax form. And then if the IRS doesn’t allow me to submit my own tax form, then I’m not going to pay my taxes? Because that’s kind of what it sounds like to me. I mean, it doesn’t sound like we have a whole lot of choice based on what the chair has said about the AG’s opinion, but it sounds like sort of a ridiculous situation to be putting the board in.”
Tsuji replied that she was “relatively correct.”
“I guess they’re saying, ‘Well, we’re ready to do it now and unless you sign my form, I’m not going to do it until whenever we get to it.” He added that the new ROE form is being used across the nation. “It’s not like they’re necessarily picking on Hawaiʻi,” he said.
“Our argument was Hawaiʻi is such a different place, we’ve had some exposure to the military, especially with the Red Hill incident, that we’re not too crazy about using whatever it is they give us. And having them tells us, it’s like the tenant telling the landlord, ‘Here’s my lease agreement. Take it or leave it,’” Ferreira added.
Board chair Dawn Chang clarified, “I think it’s a matter of timing. They are responsible for clearing up all unexploded ordnance. The issue is they’d like to do it sooner in some areas.”
“I reject this is an issue of timing. They are making it an issue of timing because they’re making it one,” Barnes said.
Ferreira, who used to work at the Department of Defense, explained that after the Army Corps gets an allocation of funds to address FUDS or other parcels, it engages a contractor to clean them up. “They go into a commitment for it, and If anything delays it or cancels it, then they end up having to pay the contractor. And then what ends up happening is, if it doesn’t happen within a certain period of time, they end up having to give that money back to the government and then they have to go into the next fiscal year and request it again.”
“To some extent, we are at the mercy of Army Corps of Engineers. It’s their schedule when they’re ready to clean up. We don’t dictate their clean up,” Chang said.
Hawaiʻi island board member Riley Smith recalled that years ago, when he worked for Parker Ranch, whose lands were included in the Waikoloa Maneuver Area, he was the point person who worked with the Army Corps on clearing unexplored ordnance from the ranch’s lands.
“Two Parker Ranch employees died because unexploded ordnance went off,” he said, adding that unexploded ordnance becomes more unstable as it gets older.
“This is really critical. If this is not approved, the Army Corps gets their annual funding, if they don’t have permission to go in certain areas, they’re going to use that money and go somewhere else, and really, they don’t care. They’re just doing their job,” he said.
He also noted that leaving the lands contaminated “really impacts the native Hawaiian community,” because some of those sites are on Hawaiian Home Lands in Waimea, where 80 house lots were prepared 13 years ago.
“If the … Corps of Engineers doesn’t go in there and give a clearance, the Department of Health doesn’t give their clearance. What that means is that the [Department of Hawaiian Home Lands] cannot underwrite loans on their property. … There are 80 families not able to move on those lots because DOH has not approved everything that needs to happen so these individuals can get a loan and build a house. …
“I think we can disagree about whether we’re being blackmailed or forced to sign this form, but the consequences are if we don’t sign this form, the money gets spent elsewhere, and you’re delaying housing opportunities for our residents,” he said.
Chang said that as a matter of policy, she didn’t like the Army Corps’ proposition and initially took the position that her department was not going to agree to it.
“But it did come back, we don’t have a choice. So fortunately, there was an agreement to limit this just to the FUDS sites,” she said.
Board member Kaiwi Yoon argued that the board did have a choice.
“I love and respect Riley Smith and I understand that, but what happens if they walk away? Are they really gonna walk away when they got unexploded ordnance? And if they do, what does that say about the Army and their land management practices going forward as we contemplate Army leases going forward? This is black mark on the Army as far a I’m concerned,” he said, referring to the fact that a number of the Army’s leases for state lands used as training areas are expiring in a few years.
Board member Vernon Char, however, shared Smith’s view. “We oughta do whatever needs to be done, as quickly as possible, and not be part of the bureaucracy,” he said.
“My greater concern, though, is that we get a report of what is being done and what the results are. I’m appalled to see that some of these areas go back 70 years ago, like Maunawili or Kahuku (on Oʻahu), where there are residents,” he added.
After discussing legal matters in executive session, the board approved the Land Division’s recommendation in a 4-3 vote. Board members Barnes, Yoon, and Kauaʻi board member Karen Ono voted in opposition.
Board Boosts Contract Terms For Kauaʻi Mosquito Control
On May 10, the Land Board unanimously voted to double the contract amount and term — from $6 million to $12 million, and from one year to two years — for mosquito control on Kauaʻi aimed at protecting native forest birds there from being wiped out by mosquito-borne avian malaria.
The Department of Land and Natural Resources’ Division of Forestry and Wildlife plans to issue a request for proposals to implement the work, which will involve using what’s known as the incompatible insect technique (IIT). IIT is already being used in East Maui, where lab-reared male mosquitoes containing a different strain of the Wolbachia bacteria than that carried by wild females are being released to suppress breeding and, ultimately, the overall mosquito population.
“We are anticipating getting some federal funding to increase that amount of money available for this project and that would also increase the time that we would need for the project. We’re trying to be proactive so that we can respond quickly if we get this new funding opportunity,” DOFAW’s Marigold Zoll explained to the board.
While the money is intended to be used for the Kauaʻi project, a small portion might be used to procure mosquitoes for the Maui project, DOFAW forest bird coordinator Lindsey Nietmann explained.
Kauaʻi board member Karen Ono asked whether the division had any statistics from the Maui releases that would prove to the board that the additional funds were needed.
Nietmann replied that it did not.
“The crews are out there collecting data as we speak. We’ve been releasing mosquitoes on Maui for the past six months and monitoring results,” she said, adding that they expected the data collected to be analyzed by the end of the year.
““As you guys know these birds are very critically endangered and any gap in contracting would mean a temporary lapse in the project. … If we had the $12 million in hand now, the issue is this is an annual grant program. We’ve gotten the funding for one year. We have an application in for next year. We aren’t sure if the application we have pending is going to be funded,” she explained.
Zoll noted that the additional $6 million would give the division the flexibility, if new funding becomes available, to increase the project.
Board members Kaiwi Yoon and Ono expressed some concern about what might happen if funding for the project dries up.
Nietmann replied, “We’re in collaboration with the Fish and Wildlife Service, actively searching for funding. I think it’s going to be really hard when BIL and IRA [Bipartisan Infrastructure Law and Inflation Reduction Act] phase out, which is coming up very soon. So we’re going to be doing some targeted legislative outreach. We’d love to have your support on all of that. So [we’re] planning some site visits for state legislators and trying to get a line item in the state budget. I think it’s going to be challenging until we have data showing that it works, so that’s a really key piece that we’re actively working toward. Because who wants to fund this if, you know, it’s so expensive?”
“Trust me, we get all the calls. Everybody’s nervous because there’s no data,” Yoon said.
A few members of the public testified in opposition, including Tina Lia, who, with her non-profit Hawaiʻi Unites, is seeking a court order to force the production of an environmental impact statement for the East Maui project.
Travis Lau of Maui said he thought it was “absurd for anyone to believe the motivation for the [IIT] project is to protect birds from malaria.” He added that Hawaiʻi Unites has collected reports of unusual mosquito bites during the Maui releases and said the insects were “showing up during drought times and biting in an unprecedented manner.”
“Adding the extra $6 million and pushing it to $12 million and releasing these mosquitoes on Kauaʻi, is reckless and it’s irresponsible. I don’t believe you have any data to support you hypotheses of wha’t going on,” he said.
“It appears to be, as the last testifier claimed, … it appears to be some hidden agenda that’s going on and I don’t think that’s paranoia speaking. You all understand this is an experiment of biotechnology. … So the rest of us are going to become more focused at looking at your partners and who the business that you’re working with against us, against the residents of Maui,” he said.
Prompted by questions from board member Yoon, Zoll assured the board, “We have quite a lot of data showing the precipitous decline of our native forest birds because of diseases that were introduced to Hawaiʻi. … Our only agenda is to preserve and protect our native species and to try these innovative ways in a last ditch effort to prevent their extinction.”
Even so, board member Ono was skeptical.
“I do really want preserve the birds as well, but I’m just wondering how much of that is also noise from helicopters within the area that’s putting these birds to extinction. Because I live in a wetland area and there really isn’t much mosquitoes now, so I don’t know where they’re going. That’s number one. Are they really going up to the upper elevations or is it also noise pollution that is making these birds just move out of the area?” she asked.
Nietmann replied, “Any amount mosquitoes in these areas that were previously mosquito-free can be absolutely detrimental. A single bite from an infected mosquito can kill a honeycreeper. So just the fact that there suddenly are ANY mosquitoes up in the Alakai is very problematic. In terms of helicopter noise, we don’t have any data to show that the birds are substantially affected by helicopter noises. Helicopter flights for conservation purposes or tour purposes in these areas are transitory. We have documentation of ʻakikiki and ʻakekeʻe breeding on a territory year after year after year. There isn’t evidence they’re moving around to avoid helicopters. But there is evidence that they’re disappearing. We started intense monitoring in 2015, and you can just look at photos of the territory maps each year and see territories being vacated and we don’t have any evidence that would be related to helicopter.”
Still, Ono pressed, “Because I know there is a lot of helicopter tours within the Kokeʻe area. You go up to the elevation and you’re trying to listen for birds and there is no bird. The only bird you hear is a helicopter. I think that’s something that should also be in your research, in the data that you provide to us.”
Board chair Dawn Chang told Ono that she recognized that noise pollution is an issue, but said that right now, there is a “direct correlation between climate change, the warming temperatures, and avian malaria being the primary cause of the extinction of these resources. “
Ono ultimately made the motion to approve DOFAW’s request to amend the contract amount and term that was initially approved by the Land Board in February. It was unanimously approved.
—Teresa Dawson
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