449 P.3d 1146 (Hawai‘i 2019), SCAP-18-0000432, Ching v. Case

Docket NºSCAP-18-0000432
Citation449 P.3d 1146, 145 Hawai‘i 148
Opinion JudgePOLLACK, J.
Party NameClarence CHING and Mary Maxine Kahaulelio, Plaintiffs-Appellees, v. Suzanne CASE, in her official capacity as Chairperson of the Board of Land and Natural Resources and State Historic Preservation Officer, Board of Land and Natural Resources, and Department of Land and Natural Resources, Defendants-Appellants.
AttorneyEwan C. Rayner, (Daniel A. Morris, Clyde J. Wadsworth, and William J. Wynhoff, Honolulu, with him on the briefs), for appellants David Kimo Frankel, Honolulu, (Summer L.H. Sylva with him on the briefs), for appellees
Judge PanelRECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
Case DateAugust 23, 2019
CourtSupreme Court of Hawai'i

Page 1146

449 P.3d 1146 (Hawai‘i 2019)

145 Hawai‘i 148

Clarence CHING and Mary Maxine Kahaulelio, Plaintiffs-Appellees,

v.

Suzanne CASE, in her official capacity as Chairperson of the Board of Land and Natural Resources and State Historic Preservation Officer, Board of Land and Natural Resources, and Department of Land and Natural Resources, Defendants-Appellants.

No. SCAP-18-0000432

Supreme Court of Hawai‘i

August 23, 2019

Page 1147

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APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-18-0000432; CIV. NO. 14-1-1085-04)

Ewan C. Rayner, (Daniel A. Morris, Clyde J. Wadsworth, and William J. Wynhoff, Honolulu, with him on the briefs), for appellants

David Kimo Frankel, Honolulu, (Summer L.H. Sylva with him on the briefs), for appellees

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION

POLLACK, J.

Page 1150

[145 Hawai‘i 152] I. INTRODUCTION

Under the Hawai‘i Constitution, all public natural resources are held in trust by the State for the common benefit of Hawai‘i’s people and the generations to come. Additionally, the constitution specifies that the public lands ceded to the United States following the overthrow of the Hawaiian Monarchy and returned to Hawai‘i upon its admission to the Union hold a special status under our law. These lands are held by the State in trust for the benefit of Native Hawaiians and the general public. Accordingly, our constitution places upon the State duties with respect to these trusts much like those of a common law trustee, including an obligation to protect and preserve the resources however they are utilized.

Several parcels of ceded land on the island of Hawai‘i that are indisputably held in public trust by the State have been leased to the federal government of the United States of America for military training purposes, subject to a number of lease conditions designed to protect the land from long-term damage or contamination. This case concerns the degree to which the State must monitor the leased trust land and the United States’ compliance with the lease terms to ensure the trust property is ultimately safeguarded for the benefit of Hawai‘i’s people.

We hold that an essential component of the State’s duty to protect and preserve trust land is an obligation to reasonably monitor a third party’s use of the property, and that this duty exists independent of whether the third party has in fact violated the terms of any agreement governing its use of the land. To hold otherwise would permit the State to ignore the risk of impending damage to the land, leaving trust beneficiaries powerless to prevent irreparable harm before it occurs. We therefore affirm the trial court’s determination that the State breached its constitutional trust duties by failing to reasonably monitor or inspect the trust land at issue.

II. BACKGROUND

A. Lease No. S-3849

On August 17, 1964, the State of Hawai‘i Department of Land and Natural Resources (DLNR) entered into a written agreement to lease three tracts of ceded land situated at Ka‘ohe, Hā mā kua and Pu‘uanahulu, North Kona, Hawai‘i to the United States for military purposes.1 The 22,900 acre tract of land, which is contained within the Pō hakuloa Training Area (PTA),2 was leased to the United States for a term of sixty-five years, to expire on August 16, 2029. In exchange, the United States paid the DLNR one dollar.

The lease gives the United States the right to "have unrestricted control and use of the demised premises." The lease also establishes several duties that the United States is obligated to fulfill during the course of the lease. Most notably for purposes of this appeal, Paragraph 9 of the lease requires that the United States "make every reasonable effort to ... remove and deactivate all live or blank ammunition upon completion of a training exercise or prior to entry by the [ ] public, whichever is sooner."3 In Paragraph 14 of the lease, the United States agrees to "take reasonable action during its use of the

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[145 Hawai‘i 153] premises herein demised to prevent unnecessary damage to or destruction of vegetation, wildlife and forest cover, geological features and related natural resources" and to "avoid pollution or contamination of all ground and surface waters and remove or bury all trash, garbage and other waste materials resulting from [the United States’] use of the said premises."[4] And, in Paragraph 29 of the lease, the United States agrees that, if required by the State upon the surrender of the property at the termination of the lease, it will "remove weapons and shells used in connection with its training activities to the extent that a technical and economic capability exists and provided that expenditures for removal of shells will not exceed the fair market value of the land."[5]

The lease also places a number of corresponding rights and duties on the DLNR. The most relevant to the present case is established in Paragraph 18, in which the DLNR agrees to "take reasonable action during the use of the said premises by the general public, to remove or bury trash, garbage and other waste materials resulting from use of the said premises by the general public."[6] In Paragraph 19, the lease also grants the DLNR the "right to enter upon the demised premises at all reasonable times to conduct any operations that will not unduly interfere with activities of the [United States] under the terms of the lease," subject to "obtaining advance clearance" from the United States.7

Additionally, the lease provides in Paragraph 30 that any dispute over a question of fact regarding the lease must be decided by the "Division Engineer, U.S. Army Engineer Division," with a right of appeal to the Secretary of the Army.8 Paragraph 30 further

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[145 Hawai‘i 154] provides that the decision of the Secretary or a duly authorized representative "shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence." The paragraph clarifies that questions of law may also be considered in connection with a dispute’s resolution, but the decision of any administrative party on a question of law shall not be final. It further guarantees the State’s right to be heard and to offer evidence in support of the appeal.

B. The Plaintiffs’ Request to Access Government Records

In January 2014, Clarence Ching filed a request with the Chairperson of the Board of Land and Natural Resources (BLNR) to access government records. Ching requested the following government records: 1. Paragraph 9 of State General Lease No. S-3849 (with the U.S. Army relating to Pohakuloa) 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." Please provide all government records that show (a) the U.S. Government’s compliance or non-compliance with this lease term and (b) the Department of Land and Natural Resources or Board of Land and Natural Resources efforts at ensuring compliance with this term of the 1964 lease. This would include, but [is] not limited to, correspondence, inspection and monitoring reports, and meeting notes.

2. Paragraph 14 of the same lease requires the U.S. Government to "remove or bury all trash, garbage or other waste materials." Please provide all government records that show (a) the U.S. Government’s compliance or noncompliance with this lease term and (b) the Department of Land and Natural Resources or Board of Land and Natural Resources efforts at ensuring compliance with this term of the 1964 lease. This would include, but [is] not limited to, correspondence, inspection and monitoring reports, and meeting notes.

The DLNR responded that the request would be granted in its entirety. The response stated that the DLNR was providing its entire file on the lease (the lease file), which, based on its review, contained no records responsive to Ching’s request.

C. The Circuit Court Action

1. Complaint

Three months later, Ching and Mary Maxine Kahaulelio (collectively, "the Plaintiffs") filed a complaint in the Circuit Court of the First Circuit (circuit court) against the BLNR, DLNR, and William J. Aila, Jr., in his official capacity as Chairperson of the BLNR and State Historic Preservation Officer (collectively, "the State").[9] In their complaint, the Plaintiffs alleged that the State, as trustee of the state’s ceded lands, breached its trust duty "to protect and maintain the[ ] public trust lands" in the PTA. The complaint specified that it was not alleging that the United States had violated the terms of its lease, but rather that the State has reason to believe that the lease terms may have been violated and has a trust duty to investigate and take all necessary steps to ensure compliance with the terms of the lease.

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[145 Hawai‘i 155] According to the complaint, Ching is a descendant of the aboriginal people of Hawai‘i and engages in native Hawaiian cultural practices, which includes walking in the footsteps of his ancestors on hiking trails located within the PTA. He also participates in other "traditional and customary services" within the PTA, the complaint explained. Kahaulelio is also a descendant of the aboriginal people of Hawai‘i, the complaint stated. She is at least 50% native Hawaiian and a beneficiary of the Hawaiian Home Lands Trust, the complaint continued, as well as a Hawaiian Home Lands lessee. The complaint...

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