The First Lesson of Wākea:
Ching v. Case and the Duty to Mālama ʻĀina
By D. Kapuaʻala Sproat, Director
Aloha e nā hoa makamaka!
In April 2018, Oʻahu Circuit Court Judge Gary W.B. Chang issued a pathbreaking decision with respect to trustee duties under both our public trust and “ceded” lands trust. For the first time, a Hawaiʻi court ruled that the State of Hawaiʻi has a duty to mālama ʻāina. Although the case is currently on appeal, it is an important indication of the power and potential of both the public trust and the ceded lands trust as legal doctrines, as well as the significance of Kānaka Maoli culture and history as a foundation for our laws and policy.
Ching v. Case, Civil No. 14-1-1085-04 (1st Cir. Ct. Apr. 3, 2018)
At 133,000 acres, an area slightly smaller than the Island of Kauaʻi, Pōhakuloa Training Area (“PTA”) is the largest military installation in Hawaiʻi. It sits at the center of Hawaiʻi Island, in what many call the “saddle” between the majestic peaks of Mauna Kea, Mauna Loa, and Hualālai. Pōhakuloa is a vast plain of lava fields and native dryland forest, and PTA is home to important archaeological sites, high concentrations of native plants and animals (including the endangered Palila), and was once the home of the great leader ‘Umi and his army. Though this region was never a permanent Maoli settlement because of its sub-alpine environment, archaeological studies established that it was physically and culturally significant to Kānaka Maoli who utilized this upland plateau.
In 1964, Hawaiʻi’s Board of Land and Natural Resources (“BLNR”) charged the U.S. Army a total of one dollar for a 65-year lease for nearly 23,000 acres at Pōhakuloa for military training exercises. For over a half century now, training has continued with live and blank ammunition and explosive munitions, including everything from small arms and rockets to antitank weapons, missiles, and other devices using ammunition containing depleted uranium. That lease expires in 2029. In the meantime, the lease requires the Army 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,” and to “remove or bury all trash, garbage or other waste materials.” Ching v. Case, Findings of Fact, Conclusions of Law and Order, Civil No. 14-1-1085-04 (1st Cir. Ct. Apr. 3, 2018), at *6-7 [hereinafter Ching v. Case FOF/COL/Order].
The three parcels under lease were the property of the Hawaiian Kingdom’s sovereign monarchs and of the government. Known as “ceded lands” or “public trust lands,” they are imbued with a special status and held by the state for five trust purposes, including bettering the conditions of Native Hawaiians. In 1959, the U.S. transferred the bulk of the ceded lands to the State of Hawaiʻi, which expressly agreed to comply with the trust provisions as a condition of statehood. Section 5(f) of the Admission Act and article 12, section 4 of Hawaiʻi’s constitution outline this kuleana. Moreover, article XI section 1 of Hawaiʻi’s constitution imposes an independent duty to protect and conserve natural resources, including Pōhakuloa, as part of the public trust.
In 2014, two Maoli cultural practitioners with ancestral ties to the area – Clarence Kū Ching and Mary Maxine Kahāulelio – filed suit against BLNR and the Department of Land and Natural Resources (collectively, “DLNR”) over DLNR’s failure to adequately care for the trust resources at Pōkahuloa under lease to the Army. In particular, the case raised concerns regarding military debris (including unexploded ordnance), the displacement of native vegetation, and the destruction of land that will never be safe for future generations. Represented by the Native Hawaiian Legal Corporation, Ching and Kahāulelio contended that Hawaiʻi’s Constitution requires DLNR to diligently protect public trust lands from degradation and that by neglecting to investigate whether the terms of the lease were being followed, DLNR failed to fulfill its trustee duties, including a kuleana to “mālama ʻāina.”
In April 2018, Judge Chang agreed, ruling that DLNR breached its trust duty to mālama ʻāina by neglecting to preserve and protect the trust lands. Importantly, the court found that the Plaintiffs’ “ability to enjoy the beauty, majesty, and aura of Pohakuloa, engage in the cultural practices of [their] ancestors on the Subject Lands, and ensure the long-term health of the ‘aina has been impaired by the littering of and damage to the landscape of the Subject Lands while under the Defendants’ watch.” Ching v. Case FOF/COL/Order, at *25-26. The court also distinguished the State’s duty to mālama ‘āina the subject lands from the Plaintiffs’ ability to mālama ‘āina the lands as cultural practitioners – for whom the ‘āina is of “crucial importance” as the foundation of cultural and spiritual identity, as well as part of their ‘ohana, “central” to their existence, and reflecting their kuleana as stewards of the land. Id. at *24-26. Judge Chang ordered DLNR to proactively manage and protect the trust property, and in doing so, to “consider the cumulative effects of current usage of the Pohakuloa lands for military trainings,” including the use of live ammunition, the running of heavy military vehicles on the land, and the impacts of these activities on the indigenous plants, animals, and insects, as well as the damage to Plaintiffs’ cultural interests. Id. at *28-29. Judge Chang directed DLNR to “promptly initiate and undertake affirmative activity to malama ‘aina the Subject Lands,” including a written stewardship plan, regular monitoring and inspection, procedures for addressing violations, debris removal plans, and a procedure to provide reasonable transparency to the general public, among other things. Id. at *39-44. He also barred DLNR from entering into a new lease until the Army complies with the terms of the existing lease.
In May 2018, DLNR appealed Judge Chang’s decision to the Hawaiʻi Intermediate Court of Appeals. In July 2018, attorneys for the Native Hawaiian practitioners and beneficiaries filed a motion to dismiss the appeal on the grounds that the attorney general handling the case did not have the authority to file the appeal because BLNR never met to discuss the matter. Ultimately, the courts will decide.
Implications for the future
Judge Chang’s ruling and the subsequent appeal in Ching v. Case are important on a number of fronts. At the outset, it is significant that the court upheld DLNR’s fiduciary duties as a trustee of the ceded lands and public trusts and was willing to order DLNR to do its job. For too long, Native Hawaiian resources have been appropriated and abused, with little accountability, especially when it comes to the military (e.g., Mākua, Waikāne Valley). For example, in Ching v. Case, the deputy attorney general argued that DLNR had no enforcement ability with respect to the lease whatsoever. Judge Chang interpreted the PTA lease provisions and DLNR’s kuleana as a trustee quite differently. Hopefully, now, DLNR and other agencies currently tasked with managing ceded lands and leases will take their fiduciary duties more seriously in the wake of Ching v. Case.
Second, it is significant that a Hawaiʻi court imposed a duty to mālama ʻāina on trustees of the ceded lands and public trusts. Since the beginning of time in Hawaiʻi, Kānaka Maoli have nurtured a deep and abiding relationship with our natural and cultural resources. Our local laws reflect this respect and protect our resources in trust for present and future generations. So much so, that this sentiment was elevated to at least two independent constitutional mandates in article 11 section 1 and article 12, section 4. On paper, much of the legal language appears favorable, but on the ground in our communities, local decisionmakers have regularly turned a blind eye to their kuleana – as they did in Pōhakuloa – leaving enforcement to citizen groups and, eventually, the courts.
This duty to mālama is also firmly grounded in Native Hawaiian custom and tradition, which is an important background principle of property law in Hawaiʻi. Kanaka Maoli scholar and professor Dr. Lilikalā Kameʻeleihiwa describes the kuleana to mālama as the first lesson of Wākea. This reference to the Kumulipo, the great chant of cosmos that ties Maoli to the creation of life in Hawaiʻi, describes Native Hawaiians’ inherent responsibility to respect and care for our elder sibling, the kalo plant, and in turn, all natural and cultural resources. By recognizing and upholding this cultural duty to mālama, Judge Chang illuminated the vital role of Kānaka Maoli custom and traditions as both a core value and a foundation for our current legal regime, especially in the context of the ceded lands and public trusts.
Finally, this case will have far-reaching consequences for all leases and permits of ceded lands, whether that is the more than 30,000 acres throughout the pae ʻāina currently leased to the U.S. military and set to expire in 2029 (including PTA); or, the yearly revocable permits currently managed by BLNR and DLNR, such as for the diversion of stream water in East Maui. For too long, decisionmakers have gotten away with subverting their public trust duties in the face of economic or political pressure, or ignoring them altogether. Although the final outcome of this issue is yet to be resolved, the circuit court decision provides inspiration and hope for the future of our trust resources and that the duty to mālama, as the first lesson of Wākea, will ultimately prevail.