BLNR to discuss Pohakuloa lawsuit on Friday

On Friday, August 14, the Board of Land and Natural Resources (BLNR) will be meeting at its board room to discuss the lawsuit Ching v. Case, regarding the pollution and environmental damage at the Pohakuloa Training Area (PTA) on the Big Island. The lawsuit alleges that the Department of Land and Natural Resources (DLNR) breached its public trust duties by failing to ensure that the military complies with the terms of its lease with the state. The lease requires that the military clean up ordnance and other military debris. There is abundant evidence that the military has not complied. Yet, state officials want to extend the lease beyond its 2029 expiration date.

“Fifty years ago, the State of Hawaii Department of Land and Natural Resources entered into a 65 year lease with the United States of America (State General Lease No. S-3849) to use land at Pohakuloa for military purposes. Paragraph 9 of the lease requires the United States Government to ‘make every reasonable effort to ... remove or deactivate all live or blank ammunition upon completion of a training exercise or prior to entry by the said public, whichever is sooner.’ Paragraph 14 of the lease also requires the U.S Government to ‘remove or bury all trash, garbage or other waste materials,’” according to testimony submitted by the Native Hawaiian Legal Corporation (NHLC), which represents the plaintiffs in the lawsuit.

As a result of the lawsuit, DLNR finally conducted an inspection in December of 2014. Photographs taken by DLNR’s own staff show the military’s damage to the public trust ceded lands at Pohakuloa. The state’s photographs are not the only proof of the military’s noncompliance and threats to the environment, however; the Army admits it as well. Through a legal notice published in the March 9, 2015 edition of West Hawai’i Today, the U.S. Army Garrison-Hawaii made available to the public a document regarding the cleanup of a former bazooka range on state-owned ceded lands at Pohakuloa. The Army never bothered to send this document to DLNR. DLNR never bothered to request it, even though they were informed about its existence in a March 6, 2015 letter. The document states:

The Former Bazooka Range [Munitions Response Site] is located at PTA on approximately 70 acres of land that is owned by the State of Hawaii and leased by the U.S. Army Garrison - Hawaii (USAG) .... The [Munitions Response Site] is an area of important habitat that contains both protected habitat and species.

During a site visit conducted jointly by the State of Hawaii Department of Land and Natural Resources (DLNR) and USAG-HI personnel in [December], 2014, the area was found to be heavily contaminated on the surface with material potentially presenting an explosive hazards (MPPEH) and munitions debris (MD).

The [munitions and explosives of concern] / [munitions debris] densities and sheer quantities of [munitions and explosives of concern] / [munitions debris] and [material potentially presenting an explosive hazard] that are present on the ground surface coupled with the accessibility to the public make for the potential for significant danger to public health and welfare.

There is a significant possibility that [munitions and explosives of concern] exists at the [Munitions Response Site] that presents an imminent and substantial endangerment to public health, or welfare or the environment based on the potential explosive or fire safety hazard if not addressed through the response action described in this [Action Memorandum].

The state has the right to refuse to allow the U.S. to use the public trust ceded lands at Pohakuloa once the lease expires. The BLNR has the unilateral discretion (subject, of course, to its trust duties) to deny the U.S. use of the public trust ceded land after 2029. Through this lawsuit, the plaintiffs seek to prevent the defendants from executing (or entering into) a new lease—or an extension of the existing lease—until the defendants have fulfilled their trust responsibilities by ensuring that the terms of the existing lease have been satisfactorily fulfilled.

The NHLC points out that, ironically, agreeing to such a provision actually helps BLNR to fulfill its vital role as a trustee of the land. It strengthens the BLNR’s hand in negotiations with the U.S. by allowing the board to point to language like this in settlement to demand that the U.S. finally do what it has been required to do for the past five decades. It also gives the BLNR flexibility to make the determination—based on written findings—not someone else. Lastly, it provides greater accountability to the public.

And speaking of the public, concerned members have the right to testify (HRS § 92-3) on this BLNR agenda item—even though the board will go into executive session to discuss it because it concerns legal matters.