Environmental Law Clinic Update: The Duty to Mālama ʻĀina at Pōhakuloa
Letani Peltier, Post-J.D. Legal Fellow
For the Fall Semester 2018, the Environmental Law Clinic assisted Kuaʻāina Ulu ʻĀuamo (“KUA”) by researching and providing legal and cultural context for the April 2018 decision in Ching v. Case, which held that the State of Hawaiʻi (“State”) breached its trust obligations by failing to mālama ʻāina nearly 23,000 acres of public “ceded” lands at Pōhakuloa on Hawaiʻi Island. As mālama ʻāina practitioners, KUA was particularly interested in the inherent, Maoli origins of the public trust doctrine and the public land trust, which offer two independent bases for the State’s constitutional mandate to care for Hawaiʻi’s biocultural resources. The clinicians’ work will support KUA’s efforts to operationalize these powerful tools and to empower their own communities’ efforts to mālama their resources.
A critical part of this effort involved a site visit on September 28 – 30, 2018, during which students visited Pōhakuloa Training Area and met with both the Garrison Commander and his staff as well as community members who engage in mālama ʻāina practices at Pōhakuloa and other areas on Hawaiʻi Island, including Mauna Kea. Clinicians also had the opportunity to meet and talk story with one of the lead plaintiffs in Ching v. Case, Uncle Kū Ching, who has genealogical ties to Pōhakuloa.
Environmental Law Clinicians shared their research with KUA’s Board and staff at the William S. Richardson School of Law on November 30. Also present were several Hawaiʻi Island community members, who were able to see how their manaʻo informed the students’ efforts to better understand and articulate the cultural landscape at Pōhakuloa. The students received excellent feedback from KUA’s Board and community members, who also shared their own experiences using the law as a tool to protect their resources. Other legal experts joined the KUA board for a talk story session over lunch and the clinicians had an opportunity to share in that as well.
Native Hawaiian tradition and custom provide an important foundation for Hawaiʻi’s modern legal framework, especially with regard to the State’s constitutional mandates to protect the land and other biocultural resources. Ching v. Case is the first time that a court has framed these protections as “the duty to mālama ʻāina.” In doing so, the Court not only acknowledges the practices of our kūpuna, which continue today, but also invokes our inherited kuleana to steward our resources for future generations. For more information on Ching v. Case, see the Director’s column in the Fall 2018 edition of Ka Moaʻe, available here: https://blog.hawaii.edu/kahuliao/ka-moae/fall-2018/directors-column/
This project would not have been possible without the kōkua of many partners. Mahalo piha to the Office of Hawaiian Affairs, Kuaʻāina Ulu ʻAuamo and Kevin Chang in particular, U.S. Army Garrison-Pōhakuloa Training Area and Garrison Commander JR Borce in particular, Uncle Kū Ching, Uncle Kalani Flores, Aunty Kealoha Pisciotta, Professor Melody Kapilialoha MacKenzie, and David Kimo Frankel.