{"id":11799,"date":"2019-10-01T19:06:01","date_gmt":"2019-10-01T19:06:01","guid":{"rendered":"https:\/\/www.environment-hawaii.org\/?p=11799"},"modified":"2020-04-08T20:56:46","modified_gmt":"2020-04-08T20:56:46","slug":"plaintiffs-seek-more-transparency-to-manage-armys-pohakuloa-training-area","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=11799","title":{"rendered":"Plaintiffs Seek More Transparency to Manage Army’s Pohakuloa Training Area"},"content":{"rendered":"\n
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Maneuvers at Pohakuloa Training Area.<\/figcaption><\/figure>\n\n\n\n

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. <\/p>\n\n\n\n

To NHLC attorney Summer Sylva,\nthose conditions are unacceptable.\n<\/p>\n\n\n\n

In an April 16 letter to 1st Circuit Judge Gary Chang, who must approve the plan before it goes into effect, Sylva wrote, \u201cIt 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\u2019 role as inspection observers to mere tokenism.\u201d <\/p>\n\n\n\n

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. <\/p>\n\n\n\n

After a trial, Chang ruled on April 3,\n2018, that the state had breached its trust\nduties to conduct reasonable inspections to\nensure that the lands within the PTA aren\u2019t\nharmed by its lessee. This despite it having\ngood reason to believe those lands were in\ndanger of being or may have already been\nharmed. He also ordered the state to de-\nvelop a management plan for the lease area\nthat includes periodic site inspections and\nmore detailed reports, as well as a procedure\nto improve transparency.\n<\/p>\n\n\n\n

In her April letter, Sylva reminded Chang\nthat her clients\u2019 testimony and photographs\nof the litter at PTA played a large role in his\ndecision to require a management plan.\n<\/p>\n\n\n\n

She offered an amended plan that would\nallow observers to take photos and record\ndebris on the lands only if the Army does\nnot object. Her plan would also require any\npublic dissemination of those records to\nreceive approval from the NHLC and the\nstate\u2019s attorneys beforehand.\n<\/p>\n\n\n\n

Chang did not sign any version of the plan pending the state\u2019s appeal to the Hawai\u2018i Supreme Court. On August 23, the high court largely upheld Chang\u2019s decision but made a few of the components of the plan recommendations, rather than requirements. <\/p>\n\n\n\n

Once Chang approves a final plan, the\nstate must execute it, the Supreme Court\nordered. According to a DLNR spokesman,\nthe plan is still under internal review. And\nSylva\u2019s co-counsel, former NHLC attorney\nDavid Kimo Frankel, indicated they will be\nmeeting with state attorneys this month to\ndiscuss possible changes to the plan.\n<\/p>\n\n\n\n

The Bad Old Days\n<\/h4>\n\n\n\n

The U.S. military\u2019s lease covers three tracts\nof ceded land at Ka\u2018ohe, Hamakua, and\nPu\u2018uanahulu and expires on August 16, 2029.\n<\/p>\n\n\n\n

The lease requires the military to \u201cmake\nevery reasonable effort to … remove and\ndeactivate all live or blank ammunition upon\ncompletion of a training exercise or prior to\nentry by the public, whichever is sooner.\u201d\n<\/p>\n\n\n\n

It must also take reasonable steps to \u201cprevent unnecessary damage or destruction to vegetation, wildlife and forest cover, geological features and related natural resources\u201d and to \u201cavoid pollution or contamination of all ground and surface waters and remove or bury all trash, garbage and other waste materials\u201d resulting from its use of the area. <\/p>\n\n\n\n

If required by the state at the end of the\nlease term, the military would also have to\nremove weapons and shells from training\nactivities \u201cto the extent that a technical and\neconomic capability exists and provided\nthat expenditures for removal of shells\nwill not exceed the fair market value of\nthe land.\u201d\n<\/p>\n\n\n\n

The U.S. military has a history of leaving\ntraining grounds in the islands severely, if\nnot irreparably, damaged. To name but a\nfew: The entire island of Kaho\u2018olawe, the\n\u2018Ahihi-Kina\u2018u Natural Area Reserve on\nMaui, Makua Valley in West O\u2018ahu, and\nWaikane Valley in East O\u2018ahu, which the\nmilitary leased from the Kamaka family and\nlater condemned because it was deemed too\nexpensive to clear of ordnance.\n<\/p>\n\n\n\n

During the Circuit Court trial last\nyear, DLNR Land Division agent Kevin\nMoore testified that since the lease began\nin 1964, there were records of just three\nstate inspections of the PTA area. While his\ndivision tries to inspect leased lands once\nevery two years, the PTA lands are harder\nto inspect because of their rugged terrain\nand sheer size.\n<\/p>\n\n\n\n

In its ruling, the Supreme Court took\nnote of the inadequacy of those inspections.\nThere was \u201cone from 1984 that indicated\nthe inspection lasted \u2018no more than one\nday,\u2019 which Moore acknowledged was not\nenough time for an inspector to inspect\nthe 22,900-acre property on foot; one from\n1994 that was not signed and did not have\nanything written in the spaces denoted for\nthe condition of the land or the findings\nof the inspection; and one from December\n2014\u201d \u2014 well after the NHLC sued the state\n\u2014 \u201cthat indicated that the premises were in\nunsatisfactory condition but did not contain\nany determination as to whether the United\nStates was in compliance with the lease,\u201d the\nSupreme Court decision stated.\n<\/p>\n\n\n\n

Prior Knowledge\n<\/h4>\n\n\n\n

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\u2019s lease file contained letters and reports from the Army documenting a need to clear the area, \u201cincluding 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 \u2018known to exist in impact area\u2019 and that \u2018there [was] also a medium risk of finding [UXO] outside [the construction] area\u2019; and a 2014 report stating that \u2018[t]he military need[ed] to implement some kind of clean-up process as part of their training in PTA\u2019 because\u2019 [r]emnants of military trash [were] everywhere … including unexploded ordnance that was carelessly discarded,\u2019\u201d the Supreme Court\u2019s decision stated. <\/p>\n\n\n\n

It continued, \u201cWhen asked about the DLNR\u2019s response to one of the reports, Tsuji testified that he did not know if anyone at the DLNR \u2018actually read\u2019 the report and noted that there was no record on file that\nthe DLNR ever responded.\u201d\n<\/p>\n\n\n\n

Moore had also testified that \u201ca 2013 memorandum circulated within the DLNR suggested the leased PTA land should be swept for UXO to be removed at the United States\u2019 expense, but DLNR did not ask the United States Army to clean up any ammunition as a result of the memorandum,\u201d the decision stated. <\/p>\n\n\n\n

Also in 2014, the Army sent the DLNR an action memorandum stating that \u201ca bazooka range within the PTA was heavily contaminated with explosive hazards, ammunitions, and debris that posed a significant danger to public health and welfare,\u201d it continued. <\/p>\n\n\n\n

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\u2019s battle area complex. <\/p>\n\n\n\n

\u2018Reasonable Monitoring\u2019\n<\/h4>\n\n\n\n

In its decision, the Supreme Court described\nthe leased area as ceded lands that are part\nof the public lands trust. And as trustee of\nthose lands, the state had \u201cthe highest duty\u201d\nto preserve and maintain them, it stated.\n<\/p>\n\n\n\n

\u201c[T]his obligation includes an obligation to reasonably monitor the trust property,\u201d it continued. \u201cReasonable monitoring ensures that a trustee fulfills the mandate of \u2018elementary trust law\u2019 that trust property not be permitted to \u2018fall into ruin on [the trustee\u2019s] watch.\u2019 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.\u201d <\/p>\n\n\n\n

In response to Chang\u2019s order to develop\na plan that would establish a reasonable\nmonitoring schedule, the state submitted\na draft in December 2018 and an amended\nversion in March of this year. It called for\ninspections to occur at least once every\ntwo years. They \u201cshould be supported by\nappropriate photographic or videographic\nentries\u201d and would also include live or\nremote monitoring of training subject to\nlimitations for safety or national security,\nunder the draft plan.\n<\/p>\n\n\n\n

Any recommendations for corrective action that grew out of those inspections \u201cshould include a projected or reasonable estimated time within which to take action,\u201d the March version stated. And if the inspection reveals a lease violation that might adversely affect the land\u2019s 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. <\/p>\n\n\n\n

Factual disputes over whether the lease\nterms were violated would be resolved by\nagreement or by the Division Engineer of\nthe U.S. Army Engineer Division.\n<\/p>\n\n\n\n

The state would also support efforts\nto seek federal funds for any cleanup of\nordnance or military-related debris or\ncontaminants.\n<\/p>\n\n\n\n

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\u2019s 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, \u201cto better ensure that any needed clean-up or other maintenance is undertaken in a prompt and appropriate manner.\u201d <\/p>\n\n\n\n

Transparency\n<\/h4>\n\n\n\n

The proposed plan states that any lease termination or enforcement actions \u201crequired 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\u2018i Revised Statutes.\u201d It adds that the Land Board will provide reasonable transparency to the plaintiffs and the general public with regard to the plan\u2019s implementation, and comply with all laws regarding the rights of the plaintiffs or the public to contest the board\u2019s decisions regarding its adoption or implementation of the plan. <\/p>\n\n\n\n

The NHLC called these transparency\nprovisions illusory, noting that the plan\nincludes no mechanism for informing\nthe public of or eliciting comment on the\nplan.\n<\/p>\n\n\n\n

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\u2019s 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\u2019s attorneys submitted a plan to the court later that month. <\/p>\n\n\n\n

\u201cBLNR was supposed to approve the\nplan at a public meeting, but never did.\n… The process that defendants followed\nprior to submitting this management plan\nto the court was inconsistent with both the\nlaw and any notion of transparency,\u201d the\nNHLC wrote.\n<\/p>\n\n\n\n

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 \u201cby another tribunal.\u201d \u2014Teresa Dawson <\/strong><\/p>\n\n\n\n

For Further Reading\n<\/em><\/p>\n\n\n\n

Environment Hawai\u2018i <\/em>has published several articles over the years regarding the military\u2019s use of lands in Hawai\u2018i and the Pacific. The following is a short list.<\/p>\n\n\n\n