On Thursday, May 16, 2019, the Hawaii Supreme Court heard oral arguments in a case involving the military use of the Pohakuloa Training Area on Hawaii Island under the terms of a 1964 lease.

The case is CLARENCE CHING and MARY MAXINE KAHAULELIO, Plaintiffs-Appellees, vs. SUZANNE CASE, in her official capacity as Chairperson of the Board of Land and Natural Resources and State Preservation Officer, BOARD OF OF LAND AND NATURAL RESOURCES, and DEPARTMENT OF LAND AND NATURAL RESOURCES, Defendants-Appellants.

Brief Description from the court’s website:

In 1964, the Hawai i Department of Land and Natural Resources (DLNR) leased a 22,900-acre tract of ceded land on the island of Hawai i, known as the Pohakuloa Training Area (PTA), to the United States for military purposes for a term of 65 years. The lease requires the United States to “remove and deactivate all live or blank ammunition upon completion of a training exercise or prior to entry” of the public and to take “reasonable action during its use of the premises” to prevent unnecessary damage to natural resources and remove or bury “trash, garbage, and other waste materials” resulting from the United States’ use of the land.

Clarence Ching and Mary Maxine Kahaulelio (collectively “the Plaintiffs”), filed suit against the DLNR, the Board of Land and Natural Resources (BLNR), and the Chairperson of the BLNR (collectively “the Defendants”) alleging that they breached their constitutional duties, as trustees of the State’s ceded lands, to protect and maintain the public trust land by failing to take “concrete steps to investigate, monitor or ensure compliance” with the lease. The Plaintiffs requested a declaratory judgment that the Defendants breached their trust duties, an order to require the Defendants to fulfill these duties, and an injunction to bar the Defendants from negotiating an extension or renewal of the lease until the Defendants ensure that the terms of the existing lease have been fulfilled.

The case went to trial in Honolulu’s 1st Circuit Court, which found DLNR had “breached their trust duties by failing to inspect the condition of the leased land with sufficient frequency to ensure that the terms of the lease were being followed.” They appealed, and the case ended up before the Supreme Court.

Also on Thursday, the same day as the case was argued before the Supreme Court, the Army held a meeting in Hilo to discuss its “plans to manage historic resources at Pohakuloa Training Area and Kawaihae Military Reservation.”

A funny thing happened at the meeting. Although the meeting had initially been announced as being “by invitation only” and limited to those parties who have been part of the legal process to date. However, the meeting ended up being opened to the public, allowing anyone to observe.

Well, not quite everyone. Nancy Cook Lauer, the fine reporter for West Hawaii Today, was ejected from the otherwise public meeting (“Reporter told to leave meeting about Army management plans for historic resources at PTA and Kawaihae Military Reservation“).

An editorial in today’s newspaper took the Army to task for its decision to kick the reporter out of its public meeting.

When questioned as to why, the military said the participating parties may not feel comfortable expressing their opinions in the presence of the media.

At least 75 people were in attendance, including Jim Albertini, an activist who has frequently been at odds with the military operations around PTA.

The media is part of the public. It’s still, in fact, a voice for the people. The media landscape has changed over the years — the reach of Albertini’s critical opinions of the military online and via mass email is information sharing that wasn’t possible years ago. But traditional news is still the public’s Fourth Estate.

While I can understand the need to limit active participation in the discussion and debate over the policy fine points, it seems neither necessary nor advisable to iron out the policy details in secret, which just invites more public distrust, cynicism, and criticism going forward.

And the Army’s action appears to provide more evidence that the land board and the state must more act more directly to ensure that the military use of the area complies with the terms of the underlying lease that the Department to Defense voluntarily entered into just a few years after Hawaii statehood.