Lā 182: Big Isle residents sue DLNR: Complainants allege state failed to protect trust lands at Pohakuloa Training Area

Hawaii Tribune Herald September 23, 2015 By MEGAN MOSELEY

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Two Hawaii Island residents are suing the state Department of Land and Natural Resources and its director, William Aila, for allegedly failing to protect trust lands at Pohakuloa Training Area.

Mary Kahaulelio, a Hawaiian Home Lands lessee in Waimea, and Clarence “Ku” Ching, a former Office of Hawaiian Affairs trustee and natural Hawaiian practitioner, are listed as plaintiffs in the complaint filed Monday in the 1st Circuit Court in Honolulu.

Ching and Kahaulelio are being represented by David Kimo Frankel, staff attorney for the Native Hawaiian Legal Corporation.

According to the complaint, the two are asking the court to order the state to fulfill its trust duties and block the state from extending its lease with the U.S. Army as long as the terms of the lease are allegedly being violated.

The lease for Pohakuloa was drafted in 1964. According to the document emailed to the Tribune-Herald on Tuesday, the state agreed on Aug. 17, 1964, to lease three parcels of land at Pohakuloa to the federal government for military purposes at a rent of $1. The lease expires Aug. 16, 2029.

Within the lease is language that keeps the state accountable for ensuring the military is properly “removing or deactivating all live or blank ammunition upon completion of a training exercise or prior to entry by the said public, whichever is sooner.”

It also states the U.S. government is required to “remove or bury all trash, garbage or other waste materials.”

The complaint references that language and accuses the state of being aware of the possibility that unexploded ordnance (UXO) and munitions and explosives of concern (MEC) litter the state-owned ceded land, and the state failed to investigate those possibilities.

“The State has taken no steps to investigate or monitor the Army’s compliance with the terms of the lease,” said Ching in a written statement.”But the State’s own records show that it knows that unexploded ordnance litters the landscape.”

Kahaulelio also provided a written statement saying “the State has done nothing to make sure the Army complies with the terms of the lease. It can’t just sit on its ‘okole while trust lands are damaged. Like the king, chiefs and konohiki before it, the state has a solemn duty to malama aina.”

According to the complaint, the two requested the state to expose correspondence, inspection, monitoring reports and meeting notes to ensure the Army was in compliance with the lease terms.

Frankel said no such documents were made available.

According to PTA’s website, firing ranges allow units to conduct small-arms and crew-served weapons familiarization training and qualifications, as well as artillery and mortar live fire.

Lt. Col. Eric Shwedo, PTA commander, said most of the state leased land is along Saddle Road and, as of now, the explosives can only be shot in the Pohakuloa Impact Area.

In the case of UXOs, Shwedo said areas are sweeped to determine if there are any UXOs, and if so, they are dealt with.

“What happens … not just with the Army but with any agency with an unexploded ordinance, you set up an explosive next to the unexploded ordinance and run a wireless connection and put sand bags around where the unexploded ordinance is to set off the charge and make it explode,” he said.

Shwedo, unaware of the complaint filed against the state, said PTA is “in constant contact with the state.”

“We talk about a number of issues and I don’t have data on how many discussions focus on UXOs,” he said, explaining much of what goes on between the base and the state land board goes through the Army Corp. of Engineers.

The complaint does not allege the U.S. Government violated its terms of the lease but that the state has reason to think the lease terms may have been violated and has “a trust duty to investigate and take all necessary steps to ensure compliance with lease terms.”

After multiple phone calls and an email, no response was given by DLNR regarding the complaint by press time Tuesday.

Email Megan Moseley at mmoseley@hawaiitribune-herald.com.