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Ching v. Case

Supreme Court of Hawaii

August 23, 2019

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.


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

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



          POLLACK, J.


         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.


         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, Hamakua 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 P6hakuloa 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 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 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.

         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 further stated that both Ching and Kahaulelio are beneficiaries of the ceded trust lands.

         Citing a March 2013 letter by a DLNR staff member, the complaint alleged that the State was aware of the possibility that the land leased to the United States was littered with unexploded ordnance (UXO) and "munitions and explosives of concern."[10] The Plaintiffs asserted that the State did not know whether the United States had complied with the lease because they had taken "no concrete steps to investigate, monitor or ensure compliance" with the lease. Because the State was obligated to protect, care for, and maintain trust property by investigating the United States' compliance with the lease and failed to do so, the Plaintiffs contended that the State "failed to fulfill [its] trust duties with respect to the ceded land leased" to the United States.

         The Plaintiffs requested a declaration that the State breached its trust obligations, an order to require the State to fulfill its trust duties with respect to the leased land, and an injunction to bar the State from negotiating an extension of the lease or from entering into a new lease of the PTA until the State ensures that the terms of the existing lease have been fulfilled.[11]

         2. Motions for Summary Judgment

         a. The Motions

         After the State filed its answer, the Plaintiffs filed a Motion for Summary Judgment. In their motion, the Plaintiffs asserted that under article XII, section 4 and article XI, section 1 of the Hawai'i Constitution, the State is the trustee of the public ceded lands trust and of public natural resources, and it therefore has a trust duty to "monitor, inspect and investigate to ensure that public trust lands are not being damaged--particularly if [it] has reason to believe that trust property is at risk." Despite the State's awareness of the possibility that the terms of the lease may have been violated, the Plaintiffs argued, the State took no steps to ensure compliance with the lease terms. Its failure to investigate the condition of the land, the Plaintiffs contended, fell well below its standard of care and constituted a breach of its trust duties. The Plaintiffs concluded that the equitable relief requested was warranted because they were entitled to prevail on the merits, there was a grave risk posed to the ceded land, and the public interest weighed in their favor.

         In its Memorandum in Opposition, the State argued that the Plaintiffs' Motion for Summary Judgment should be denied because the Plaintiffs did not allege that any provision of the lease had been violated, and it asserted that the United States' obligation to clean the leased property will not arise until 2029. In the absence of an alleged breach, the State maintained that the Plaintiffs' claims amounted to "speculation or predictions about future harm" that did not present an "actual controversy" suitable for judicial resolution.

         The State also contended that the Plaintiffs were seeking relief that was unavailable under Hawai'i Revised Statutes (HRS) § 632-1 (1993), as the relief requested would not bring an end to the controversy or resolve the dispute with finality.[12] The State posited that "even if the injunctive relief sought by Plaintiffs is ordered by the Court, Plaintiffs will still dispute the extent of any cleanup efforts by the United States" because the requested relief would require "the State to engage in some undefined form of oversight of the United States military." Therefore, the State concluded, the Plaintiffs' concerns and the underlying controversy did not meet the statutory requirements for declaratory relief.

         Additionally, the State argued that the Plaintiffs were not entitled to declaratory relief because the declaratory judgment statute limits declaratory actions to claims for which no alternative statutory relief is available. Here, the State concluded, HRS § 673-1 (1993) provides a cause of action for native Hawaiians' to bring a claim for breaches of relevant constitutional trusts, and the Plaintiffs were thus obligated to proceed under that statutory framework.[13]

         In reply, the Plaintiffs contended that the State was incorrect in asserting that the duty of the United States to clean the property did not arise until the lease expired because Paragraph 9 of the lease required the United States to clean the land during the lease--specifically, when it completed a training exercise. The Plaintiffs also argued that injunctive relief is appropriate "in a case involving a traditional equitable claim when a trustee breaches its fiduciary obligations," noting that HRS § 632-3 (1993) [14] empowers courts to grant ancillary equitable relief. (Citing Food Pantry, Ltd. v. Waikiki Bus. Plaza, Inc., 58 Haw. 606, 613-14, 575 P.2d 869, 875-76 (1978); Natatorium Pres. Comm. v. Edelstein, 55 Haw. 55, 515 P.2d 621 (1973); King v. Oahu Ry. & Land Co., 11 Haw. 717, 738 (Haw. Rep. 1899).)

         The State filed its own Motion for Summary Judgment that restated the arguments from the State's Memorandum in Opposition to the Plaintiffs' Motion for Summary Judgment verbatim.[15]

         b. Supplemental Briefing

         After a hearing, [16] the Plaintiffs submitted a Supplemental Memorandum in Support of their Motion for Summary Judgment, which argued that further discovered evidence demonstrated that the DLNR had not conducted an inspection of the PTA since 1984. For example, between 1984 and the start of the current litigation, there had been no communication between the State and the United States regarding compliance with the lease, the Plaintiffs asserted.[17] This demonstrated that the State had not made a sufficient effort to protect the trust land, the Plaintiffs contended.

         In the State's Supplemental Memorandum, it asserted that several records from the lease file showed that it had actively engaged in monitoring since the execution of the lease, including records of one formal inspection of the PTA, maps indicating locations where UXO may be located, reviews of the United States' compliance done in connection with amendments to the lease, and "informal communications" relating to the lease. The State also pointed to a written request it had sent to the United States for a description of its procedures to comply with the lease provisions at issue. The State asserted that the United States responded to the letter "with detailed information about their clean-up and post-training procedures." Because the letter demonstrated that the State had undertaken monitoring of the PTA, it concluded, there was no longer a justiciable controversy.

         In the Plaintiffs' Reply, they contended that even if the 1984 inspection was "complete and thorough," it is not sufficient to show that the State is currently fulfilling its trust duties because there was no evidence of an inspection since 1984. Thus, the State failed to demonstrate that it had fulfilled its trust duties, the Plaintiffs concluded.

         c. Orders Denying Summary Judgment

         The circuit court denied the Plaintiffs' Motion for Summary Judgment, stating that there were genuine issues of material fact as to whether the State had discharged its trust duties. The court also denied the State's Motion for Summary Judgment because the court found, inter alia, that there was an "actual controversy regarding whether or not the State ha[d] discharged its responsibilities as a trustee of public lands."

         3. Motions to Join the United States as a Party

         After its Motion for Summary Judgment was denied, the State filed a Motion to Add the United States as a Party or, in the Alternative, for Dismissal in which it argued that under Hawai'i Rules of Civil Procedure (HRCP) Rule 21 (1980), adding the United States was appropriate because, as the lessee of the leased land within the PTA, the United States had a legal and beneficial interest in the subject matter of the Plaintiffs' complaint. The State also contended that the United States was a necessary party under HRCP Rule 19(a) (2000) because complete relief could not be accorded in its absence. Resolution of the action would necessarily include an interpretation of the lease provisions, the State contended, and the United States would not be able to defend its interests under the lease if it were not added as a party. And, asserted the State, in the context of leases, Hawai'i courts have held that all parties to a lease are necessary parties in any equitable action that interprets or touches upon the lease. (Citing Foster v. Kaneohe Ranch Co., 12 Haw. 363, 365 (Haw. Rep. 1900).)

         Finally, the State argued that the United States is an indispensable party under HRCP Rule 19(b) and therefore the suit should be dismissed if it cannot be joined.[18] Under the first factor of HRCP Rule 19(b), a judgment rendered in the absence of the United States would be prejudicial to it because it "would be forced to accept factual findings that directly bear on whether the United States has breached the Lease," the State asserted. Under the rule's second factor, a court could not shape the relief to ameliorate the prejudicial effect of the judgment because "[n]ew or different monitoring" or limitations on the United States' current use of the land were fundamental to the relief sought by the Plaintiffs, the State argued. Applying the third factor, the State asserted that a judgment rendered in the absence of the United States would be inadequate because the United States was ultimately the party that the Plaintiffs sought to hold responsible for causing the waste of the trust property. And fourth, the State contended that the Plaintiffs had an alternate remedy for their breach of trust claims: an action in federal court that also names the United States or an action brought in state court pursuant to HRS § 673-1.

         The Plaintiffs responded that the circuit court should deny the State's motion because, contrary to the State's argument that the Plaintiffs' complaint was based on a violation of the lease, they were asserting "a basic state-law breach of trust claim." The United States was not a necessary nor indispensable party to the case under HRCP Rule 19(a), the Plaintiffs argued, because any effect on federal interests was "purely speculative," and any relief that would require the State to increase its monitoring would not impinge on the United States' rights under the lease because the State already has a right of entry under the lease. And, even assuming the State were to eventually take actions that affect the United States' interests as a result of a judicial ruling in this case, the United States was well protected because any dispute between it and the State would be decided by an agent of the United States under the lease, the Plaintiffs contended.

         Next, the Plaintiffs contended that even if the United States was a party that should be joined if possible under HRCP Rule 19(a), it was not an indispensable party under HRCP Rule 19(b). The rule's first factor weighed against the State, the Plaintiffs argued, because a "judgment [would] not prejudice the interests of the U.S. whatsoever" as it would "not [be] bound by any findings made to a case in which it is not a party." Second, the Plaintiffs asserted that the court could fashion its relief to ensure that the United States does not suffer any prejudice by, for example, ordering the State to provide a report to the court thirty days prior to an annual evidentiary hearing to ensure the State's compliance with the lease. Third, the Plaintiffs stated that it would be able to obtain adequate relief in the absence of the United States. Fourth, the Plaintiffs asserted that they would be "deprived of their day in court if th[e] action were dismissed," which would be inconsistent with Hawai'i Supreme Court decisions holding that beneficiaries must be able to keep government trustees accountable.

         The United States then filed a statement of interest in which it asserted that it "unquestionably has an interest" in the subject matter of the litigation that was "clearly sufficient" for joinder, if it were feasible.[19] But joinder was not feasible, it explained, because "such a state action against the United States is barred by its sovereign immunity" and neither party had identified a congressional waiver of sovereign immunity.[20] The United States asserted that disposition of the action in its absence may impair its ability to protect its interest, making it a necessary party under HRCP Rule 19(a).[21] The United States contended that the court could not assess the Plaintiffs' breach of trust claim without "directly or indirectly interpreting the lease and determining factual issues regarding whether the United States has complied with the lease." The Plaintiffs were therefore improperly asking a state court to interpret the United States' obligations under the lease, the United States argued.

         The United States also maintained that when a nonparty cannot be joined due to sovereign immunity, the first factor--the "extent a judgment rendered in the [party's] absence might be prejudicial to the [party] or those already parties"--takes primary importance and "should weigh heavily in the Rule 19(b) analysis." The Plaintiffs' relief would cause "serious harm" to it, the United States contended, for several reasons. An injunction barring the State from renegotiating the lease would seriously harm the United States because the PTA "is essential for readiness of all the forces" in the Pacific region and there is no other location in the Pacific at which the training done at the PTA could be accomplished, the United States asserted. Additionally, if the court instead ordered the State to conduct inspections of the leased land, such inspections could burden the United States, it contended, because it could disrupt critical training and raise safety issues.

         As to the second factor in the HRCP Rule 19(b) analysis, the extent that prejudice can be avoided through the shaping of relief, the United States contended that the Plaintiffs' proffered shaping of relief would put the extension of the lease in doubt or disrupt the military's training.[22] And as to the fourth factor in the HRCP Rule 19(b) analysis, the adequacy of available remedies should the suit be dismissed, the United States argued that "[c]ourts have recognized . . . that the lack of an alternative forum does not automatically prevent dismissal of a suit where the inability results from the nonparty's sovereign immunity."[23]

         The United States further stated that, in the event the case were permitted to go forward and "relief were entered that impacted the interests of the United States," the United States "would at that time consider what action to take, including whether to file a motion to intervene as a party for the purpose of removing the case to United States District Court pursuant to 28 U.S.C. § 1442(a)."

         The court denied the State's motion without prejudice, determining that "things may unfold as a matter of proof during the trial that may implicate some of the arguments being raised." Based on the pre-trial record, "the Court believe[d] it would be improvident to dismiss any of the claims."

         4. Trial

         A bench trial commenced, during which the Plaintiffs presented a series of witnesses who testified regarding the DLNR's management of the leased PTA lands.

         The Plaintiffs first called Kevin Moore, the DLNR's custodian of records who responded to the request for government records that Ching filed before the start of litigation. Moore testified that although DLNR's normal practice is to attempt to inspect leased lands at least once every two years, the leased PTA land is more difficult to inspect and therefore inspections are conducted less frequently. Moore stated that the DLNR's lease file contained records of only three inspections of the leased PTA land: one from 1984 that indicated the inspection lasted "no more than one day," which Moore acknowledged was not enough time for an inspector to inspect the 22, 900-acre property on foot;[24] one from 1994 that was not signed and did not have anything written in the spaces denoted for the condition of the land or the findings of the inspection; and one from December 2014 that indicated that the premises were in unsatisfactory condition but did not contain any determination as to whether the United States was in compliance with the lease. Moore also testified that a 2013 memorandum circulated within the DLNR suggested the leased PTA land should be swept for UXO to be removed at the United States' expense, but DLNR did not ask the United States Army (Army) to clean up any ammunition as a result of the memorandum.

         Moore related that the State had coordinated with the federal government and its various agencies to undertake a number of projects concerning the condition of the leased PTA land. Archeological surveys were done in 2001 as part of a Natural Resource Management Plan created by the United States, for instance, and a Programmatic Agreement between state and federal agencies permitted "cultural monitors" to be involved with inspections. According to Moore, these plans and programs ultimately demonstrated that the Army was the agency primarily responsible for environmental cleanup of the PTA leased land, but they also established that the Hawai'i Department of Health shared responsibility by providing support and regulatory oversight.

         The Plaintiffs also called Kealoha Pisciotta, a former cultural monitor for the battle area complex (BAX) within the PTA. Pisciotta testified that during her inspections she observed and noted in her reports a range of debris left over from military exercises, including munitions and UXO, stationary targets, junk cars, an old tank, crudely built rock shelters, and other miscellaneous military rubbish. She testified that some of her reports recommended that the debris be cleaned up, but not all of the UXO that she observed was removed.

         Next, the Plaintiffs called Suzanne Case, Chair of the BLNR and the Director of the DLNR. Plaintiffs' counsel showed Case a 2014 action memorandum from the Army addressed to the DLNR stating that a bazooka range within the PTA was heavily contaminated with explosive hazards, ammunitions, and debris that posed a significant danger to public health and welfare. Case testified that she did not remember receiving or having been shown the memorandum by DLNR staff and that she was not aware of any lease compliance issues that had been raised to the BLNR regarding the PTA lease during her tenure as Chair. She also testified that the DLNR did not have a written policy regarding when inspections of leased premises were to be conducted and instead chose which leases to inspect based on available resources, the risks involved, and whether the public had drawn attention to a specific property.

         The Plaintiffs then called Deputy Attorney General William Wynhoff, who had previously testified in a pretrial deposition on behalf of the DLNR. Wynhoff testified that to the best of his knowledge, the DLNR did not have a written procedure to ensure compliance with all terms of the PTA lease. DLNR's practice, Wynhoff stated, is to keep all records related to leases in the lease file. Wynhoff acknowledged that prior to the filing of this suit, there were no documents in the PTA lease file indicating that the DLNR had asked for or received assurances from the United States that it was in compliance with the lease.

         Ching testified next. Ching, who is part Hawaiian, stated he was a member of the P6hakuloa Cultural Advisory Committee, which advised the Army of cultural concerns related to its activities within the PTA. Ching testified that, during his bimonthly trips to the PTA as a member of the committee, he witnessed blank ammunition and other trash and military debris "strewn around" that negatively affected his spiritual and traditional practices.

         After Ching's testimony, the Plaintiffs called Kahaulelio. Kahaulelio testified that she was at least fifty percent Hawaiian and that, to her, caring for the land at P6hakuloa was a cultural practice. She explained that she and other Hawaiian practitioners participate in cultural ceremonies at P6hakuloa, which she compared to going to church. Kahaulelio testified that, during one such cultural trip to P6hakuloa in November 2014, she observed debris and blank ammunition on the ground and that this destruction of the land made her feel "angry" and "hurt."

         The Plaintiffs' final witness was Russell Tsuji, a former Deputy Attorney General, State Land Administrator at the DLNR, and Deputy Director of the DLNR. Tsuji stated that, while he was employed at the DLNR, he was in charge of managing state-owned lands and was a custodian of records contained in the PTA lease file. None of the files in the PTA lease file, Tsuji testified, mentioned paragraphs 9 and 14 of the lease. He was also unaware of any conversations that occurred during his employment at the DLNR regarding compliance with these lease provisions. Tsuji explained that his goal was to have land agents inspect leases at least once every two years while he was employed at the DLNR, but he stated that this target was "aspirational" rather than a mandatory rule. Tsuji acknowledged that prior to the initiation of the lawsuit, the leased PTA land had not been inspected during his tenure at the DLNR, which spanned ten years.

         Tsuji testified that the DLNR's PTA lease file contained a series of letters and reports from the United States Army that documented a need to clean up the leased PTA land, including a 2006 report indicating that there was debris in the BAX within the PTA; a 2008 report stating that there may have been munitions on PTA land; a 2013 final environmental impact statement (EIS) stating that UXO was "known to exist in impact area" and that "there [was] also a medium risk of finding [UXO] outside [the construction] area"; and a 2014 report stating that "[t]he military need[ed] to implement some kind of clean-up process as part of their training in PTA" because "[r]emnants of military trash [was] everywhere .... including unexploded ordnance that [was] carelessly discarded." When asked about the DLNR's response to one of the reports, Tsuji testified that he did not know if anyone at the DLNR "actually read" the report and noted that there was no record on file that the DLNR ever responded to the report.

         Tsuji testified that, after the lawsuit was filed, he sent a letter to the Army requesting its procedures for cleaning munitions after training exercises. Tsuji indicated that the Army responded by sending a letter setting forth its cleanup procedures. Tsuji also testified that he conducted an inspection of the leased PTA land in December 2014, approximately one year after receiving the Army's response. One of the reasons for the inspection was the lawsuit, Tsuji acknowledged. During this inspection, he observed trash, "[s]pent shells," "shell debris," and "derelict vehicles" used as target practice at the bazooka range. According to Tsuji, a draft inspection report was created after the inspection, which was revised after he conducted another inspection in January 2015. Tsuji indicated that the final report stated that the land condition was "unsatisfactory," but he testified that the DLNR did not issue a default notice to the Army.[25] At the conclusion of Tsuji's testimony, the Plaintiffs rested. The State did not call any witnesses.

         5. The Circuit Court Decision

         On April 3, 2018, the circuit court issued its Findings of Fact, Conclusions of Law and Order.

         a. Findings of Fact

         The circuit court made the following relevant findings of fact.

         In 1964, the State entered into a sixty-five year lease of three parcels of land in the P6hakuloa area with the United States for military training purposes. These land parcels are ceded lands owned by the State that are part of the public lands trust. The public trust lands are state-owned lands held for the use and benefit of the people of the State of Hawai'i, and the State is the trustee of such lands. Accordingly, the State has "the highest duty to preserve and maintain the trust lands."[26]

         The Plaintiffs had in the past and continued to be actively engaged in cultural practices upon the leased PTA land. These cultural practices included song, dance, and chant about the PTA area, walking upon and celebrating the land and the flora and fauna that grow upon it, and honoring the current and historic cultural significance of the area.

         The State was aware of the United States' failure to clean up other sites in the state[27] and of the possibility that UXO and munitions were present on the leased PTA land. Cultural monitors spent "extensive time" at the leased PTA land and observed military debris on the ground, including UXO and "spent shell casings, scattered across" the land. The concerns of the cultural monitors were documented in a number of federal reports. For example, the United States prepared a November 2010 report entitled "Final Archaeological and Cultural Monitoring of Construction of Battle Area Complex (BAX) for Stryker Brigade Combat Team (SBCT), Pohakuloa Training Area, Hawai'i Island, Hawai'i" that included a recommendation from cultural monitors that "[t]he Military needs to implement some kind of cleanup process as part of their training in PTA. Remnants of military trash are everywhere." (Emphasis omitted.) The report also stated that the cultural monitors voiced the following: "Another major concern is the military debris that is left behind after training including [UXO] that is carelessly discarded. There is a need to have some type of cleanup plan implemented in the military training process."

         These concerns were reiterated four years later in a second, similarly titled report. This report contained observations from cultural monitors who stated that "[r]emnants of live fire training are present within the BAX, including stationary targets, junk cars, an old tank, crudely built rock shelters, and miscellaneous military rubbish. Spent ammunition is scattered across the landscape." The report noted the cultural monitors feared that if the litter continued to remain on the land, "the land will be rendered unusable forever--one eighth of our island will become unavailable for use by any of our future generations." The cultural monitors therefore "strongly recommend[ed] the Army begin now to seek funding to initiate a serious cleanup effort throughout the leased training areas." (Emphasis in report.)

         Additionally, a March 2015 draft report stated that, based on a 2014 inspection by the DLNR and the Army, a bazooka range contained on the leased PTA land was "heavily contaminated on the surface with material potentially presenting an explosive hazard [] and munition debris []." A subsequent inspection of the bazooka range by military explosive ordnance disposal units found mortars, bazooka rounds, and white phosphorous on the land. The Army determined that the debris found at the bazooka range "coupled with the accessibility to the public make for the potential for significant danger to public health and welfare."

         The State's awareness of the potential contamination of the leased PTA land was also demonstrated by a March 2013 letter from the Acting Hawai'i Branch Manager for the DLNR to the State Lands Assistant Administrator. The Branch Manager recommended that "PTA should sweep the lands North of the saddle road for UXO and remove any UXO found at their expense to make the area safe for the public."[28] Additionally, a March 2013 Final EIS stated that "[d]ecades of using PTA as a training area have introduced a significant risk of encountering [munitions]/UXO. [Munitions]/UXO [are] known to exist in the impact area and [are] expected to be encountered during range construction activities; but there is also a medium risk of finding [munitions]/UXO outside the impact area." The EIS also stated that "[p]ast and current activities at PTA have resulted in contamination of soil by explosives and other chemicals." Therefore, the State was aware that military training activities on the leased PTA land "pose[d] a significant and substantial risk of harm or damage to [the PTA], and persons who may come upon" the land, and "to public health, safety, and welfare, as well as to the Plaintiffs' cultural interests in the [land]."

         Proper stewardship of the leased land includes "periodic and meaningful inspection and monitoring of the military training activities and their aftermath upon the Subject Lands and reasonably accurate documentation of such activities and the effects of such activities to achieve transparency of [the State's] inspection and monitoring actions." Inspections must occur with "a reasonable frequency" for the State to satisfy its duty. The DLNR did not meet its informal goal of inspecting the leased PTA land once every two years, nor did it adequately document its inspection efforts "so as to provide rudimentary transparency into the DLNR's efforts." An inspection of the PTA occurred on December 19, 1984, for which a "sparse" report was generated that stated only the following: "Property being used for Military training purposes per lease terms." Another inspection "appear[ed] to have been conducted" in 1994, although the "findings" and "inspected by" sections of the inspection form were blank.

         A third inspection occurred on December 23, 2014, after the litigation in this case had begun, and this inspection resulted in a report that "contained much more information" than those created from the two previous inspections. The 2014 Inspection Report stated that the condition of the land was "not satisfactory."[29] The report indicated that debris was "extensive" at the bazooka range, that there were "derelict vehicles" at one of the target ranges, and that an area was used for dumping spent artillery shells.

         "The lack of regular, meaningful inspection and monitoring of the" leased PTA land contributed to the breach of the State's trust duties, which in turn "harmed, impaired, diminished, or otherwise adversely affected Plaintiffs' cultural interest in the" leased land.

         b. Conclusions of Law

         The circuit court rendered the following relevant conclusions of law.

         The Plaintiffs had standing to enforce a breach of trust claim against the State, and the United States was not an indispensable party to the case because the Plaintiffs' claim concerned only the State's trust obligations. The State, as trustee of the ceded land, owed a "high standard of care when managing public trust ceded lands." The State's trust duties include but are not limited to using "reasonable efforts" to (1) preserve and protect trust property, and (2) take a proactive role in management and protection of the trust property. The State had a duty to consider the cumulative effects of the United States' use of the land upon the condition of the land and upon "the indigenous plants, animals, and insects, as well as the invasion to Plaintiffs' cultural interests in the Subject Land." Additionally, the State had a duty to determine whether the lessee was in compliance with the terms of the lease. And the Chair of the BLNR specifically had a duty to "[e]nforce contracts respecting . . . leases ... or other disposition of public lands." (Quoting HRS § 171-7 (5).[30])

         As part of its trust duties, the State was required, to enforce paragraphs 9, 14, 18, and 19 of the PTA lease. The State's records regarding its efforts to inspect the leased land and report its findings "were spotty at best" and in some cases "grossly inadequate."[31] Although there were studies and inspections completed regarding "other business" on the leased land, such as the EIS, these were not conducted to fulfill the State's trust duties.

         The State therefore breached its duties by failing to (1) conduct reasonable (in terms of frequency and scope) inspections of the condition of the leased PTA land or observations of the military training exercises, (2) ensure that the terms of the lease were being followed, (3) take prompt and appropriate follow-up steps with the United States when the State became aware of potential violations of the lease, (4) create detailed reports of the State's efforts to ensure compliance with the lease, and (5) initiate or assist with the appropriation of necessary funding to conduct cleanup or maintenance activities on the land. The court stated that the State would further breach its trust duties "if they were to execute an extension, renewal, or any other change to the State General Lease No. S-3849, or enter into a new lease of the PTA, without first determining (in writing) that the terms of the existing lease have been satisfactorily fulfilled."

         c. Order

         The court explained that because the Plaintiffs prevailed on the merits, the appropriate remedy was for the court to issue an order directing the State to perform its trust duties with respect to the leased PTA land. The court concluded that the balance of harm favored the issuance of a mandatory injunction and that protection of the public trust lands was in the public interest. The court therefore ordered that the State promptly initiate affirmative activity at the PTA in accordance with its trust duties by developing a written plan to fulfill such duties. The plan was required to include provisions for (1) on-site monitoring and inspections, (2) the creation of written inspection reports with recommendations, (3) a written protocol of appropriate action to be taken if the United States is to be found to be in breach of the lease, (4) a procedure to provide for "reasonable transparency" to the Plaintiffs and the general public with respect to compliance with the injunction, and (5) all steps that the State takes to "secur[e] adequate funding, from any and all appropriate funding sources, to plan, initiate, and conduct all appropriate comprehensive cleanup." The plan was required to be submitted to the court for approval. Additionally, the court ordered the State to create contested case procedures pursuant to HRS Chapter 91, if not already in existence, "for Plaintiffs or any member of the general public with standing to initiate such process in the event that Plaintiffs or other interested party may contest the decisions made by the [State] in the course of discharging" their trust duties.

         The circuit court entered Final Judgment on April 24, 2018.

         D. The Appeal and Motions to Dismiss

         The Department of the Attorney General (AG) filed a timely Notice of Appeal. The Plaintiffs filed a Motion to Dismiss the Appeal and argued that the AG did not have the authority to file an appeal "on behalf of BLNR or DLNR without BLNR's consent."[32] (Citing Chun v. Bd. of Trs. of the Emps.' Ret. Sys., 87 Hawai'i 152, 952 P.2d 1215 (1998).) The State replied that the AG was authorized to appeal the decision because the AG "has authority to manage and control all phases of litigation" in suits against state officials. (Citing Island-Gentry Joint Venture v. State, 57 Haw. 259, 554 P.2d 761 (1976) .)

         The Plaintiffs filed an application for transfer to this court, which the State did not oppose. This court granted the application on December 20, 2018.


         Certain decisions regarding the orderly administration of trial and the selection of an appropriate remedy to redress an injury "rest[] with the sound discretion of the trial court[, ] and the trial court's decision will be sustained absent a showing of manifest abuse of discretion." Hawaii Pub. Emp't Relations Bd. v. United Pub. Workers, Local 646, 66 Haw. 461, 467, 667 P.2d 783, 788 (1983). For instance, this court applies an abuse of discretion standard when it reviews a trial court's determination as to whether to dismiss a case pursuant to HRCP Rule 19(b) for a party's failure to join an indispensable party. UFJ Bank Ltd. v. Ieda, 109 Hawai'i 137, 142, 123 P.3d 1232, 1237 (2005) (citing Takabuki v. Ching, 67 Haw. 515, 529, 695 P.2d 319, 328 (1985)). Similarly, a trial court's grant of equitable relief, including a declaratory judgment or a mandatory injunction, will be upheld unless an abuse of discretion is demonstrated. Kau v. City & Cty. of Honolulu, 104 Hawai'i 468, 473, 92 P.3d 477, 482 (2004) (citing Shanghai Inv. Co. v. Alteka Co., 92 Hawai'i 482, 492, 993 P.2d 516, 526 (2000)); United Pub. Workers, 66 Haw. at 467, 667 P.2d at 788.

         By contrast, we review a trial court's conclusions of law de novo. Narayan v. Ass'n of Apartment Owners of Kapalua Bay Condo., 140 Hawai'i 75, 83, 398 P.3d 664, 672 (2017) (citing Nordic PCL Constr., Inc. v. LPIHGC, LLC, 136 Hawai'i 29, 41, 358 P.3d 1, 13 (2015)). Thus, a trial court's grant or denial of summary judgment is reviewable using our independent judgment under the right/wrong standard, as are the statutory and constitutional interpretations underlying the court's determinations. Id.; State v. March, 94 Hawai'i 250, 253, 11 P.3d 1094, 1097 (2000). But this court will uphold the findings of fact to ...

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