Two Native Hawaiians are suing the Department of Land and Natural Resources, saying the state has breached its duty to protect ceded lands at the Pohakuloa Training Area.
The Hawaii Island residents, Clarence Ching and Mary Maxine Kahaulelio, are asking a 1st Circuit Court judge to declare that the state has violated its trust agreement by allowing the military to degrade the land. They also want to prevent DLNR from negotiating an extension to its current lease or entering a new lease until the trust conditions are met.
Circuit Judge Gary Chang is scheduled to hear oral arguments on the case at 3 p.m. today in Honolulu.
A 1964 lease agreement between the state and the U.S. government provides 22,836 acres at PTA until 2029, at a lease price of $1 for the duration of the lease. DLNR last year began working on a mutual cancellation of the lease and a new lease between the parties, according to court records.
The plaintiffs, represented by the Native Hawaiian Legal Corp., say the current lease requires the military to remove or deactivate any live ammunition and to dispose of spent ammunition and garbage on the land. Ching and Kahaulelio say they are adversely affected by the military’s actions at PTA as they engage in traditional and customary practices within and around the area.
“Damage to trust lands permanently diminishes the collective rights of the public and Hawaiians and specifically injures me, because as a Hawaiian my identity and cultural rights are intrinsically tied to the land,” Ching said in court filings.
Ching said he has seen expended rifle casings, machine gun cartridge links, unfired blanks and other rubbish and other discarded debris on the ground at PTA.
“Based on my visits to the Pohakuloa Training Area, travel through the area and research and attendance of presentations by Army officials, it is my understanding that garbage and unexploded ordnance litter the state-owned ceded lands that are leased to the federal government at Pohakuloa,” Ching said.
The state Attorney General’s Office counters that the plaintiffs have no standing to sue because they aren’t parties to the lease.
“Plaintiffs are simply members of the public who object to the lease because it allows military use of weaponry on state land at Pohakuloa,” said Deputy Attorney General Daniel Morris in petitions to the court. “Plaintiffs describe themselves as native Hawaiian cultural practitioners, but they did not claim any special standing beyond what any member of the public would have as a beneficiary of the public lands trust.”
The state also contends that any lawsuit naming a lease agreement between the state and the federal government must by necessity include the federal government. That wasn’t done, according to the state, because of the federal government’s sovereign immunity.
“The elephant in the room is the United States,” Morris said in court filings. “Plaintiffs dance on a pin by carefully refraining from alleging any breach of the lease, which would immediately place the United States’ interest at the forefront of the litigation and warrant dismissal based on the United States’ sovereign immunity.”
The case, at the request of the state, was sent to federal court, but a federal judge remanded it back to the state.
