r HT C;.iROorr couRT NATIVE HAWAIIAN LEGAL CORPORATION iL · NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 ... sites in Hawai'i."1 Through the federal court's decision

HEARING DATE: Oc4-01-

TIME: C)

JUDGE: Hon. Gary W.B. Chang

r HT C;.iROorr couRT STATE OF .HA4'iA1l

iL.ED

2fi14SEp23 ANII 44

NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 Honolulu, Hawai'i 96813 Telephone: (808) 521-2302

DAVID KIMO FRANKEL 5791 SUMMER L. H. SYLVA 9649

J. KUB0

Attorneys for Plaintiffs Clarence Ching and CLERK

Mary Maxine Kahaulelio

IN THE CIRCUIT COURT OF THE FIRST CIRCUIT

STATE OF HAWAII

CLARENCE CHING and MARY MAXINE ) KAHAULELIO, )

) Plaintiffs,

vs. ) )

WILLIAM J. AILA JR. in his official capacity ) as Chairperson of the Board of Land and ) Natural Resources and state historic ) preservation officer, BOARD OF LAND ) AND NATURAL RESOURCES, ) DEPARTMENT OF LAND AND ) NATURAL RESOURCES, )

) Defendants. )

) ) ) )

)

CIVIL NO. 14-1-1085-04 GWBC (Declaratory Judgment)

) PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; MEMORANDUM IN SUPPORT OF MOTION; DECLARATION OF CLARENCE CHING; DECLARATION OF MARY MAXINE KAHAULELIO; STIPULATION REGARDING UNCONTESTED FACTS AND EXHIBITS; EXHIBITS A-F; NOTICE OF HEARING AND CERTIFICATE OF SERVICE

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

Plaintiffs, by and through their undersigned attorneys, move this Court, pursuant to Rules

7 and 56 of the Hawai'i Rules of Civil Procedure, for summary judgment. Summary judgment

should be granted because no material facts are in dispute, and Plaintiffs are entitled to judgment

as a matter of law.

As trustees of the State's ceded lands, the Defendants are obligated to protect the public

trust lands at Pohalculoa and prevent them from falling into ruin. By failing to ensure that the

military complies with the teims of its lease of ceded lands at the Pohakuloa Training Area —

particulary when they have reason to believe that the lease temis may have been violated — the

Defendants have breached their trust duties. Defendants have a trust duty to investigate and take

all necessary steps to ensure compliance with lease telms.

Plaintiff asks that this Court:

• declare that the Defendants breached their trust obligations by failing to ensure

compliance with lease conditions of ceded land;

• order the Defendants to fulfill their trust duties with respect to the lands leased

pursuant to State General Lease No. S-3849;

• enjoin the Defendants from negotiating the extension of State General Lease No. 5-

3849 or entering into a new lease of the ceded lands at Pohakuloa until the

Defendants ensure that the terms of the existing lease have been satisfactorily

fulfilled; and

• provide for such other and further relief as the Court shall deem just and proper.

This motion is supported by the attached memorandum in support; declarations;

stipulation regarding uncontested facts and exhibits; the exhibits; and the entire record in this

matter.

DATED: Honolulu, Hawaii, September 22, 2014.

DAVID KIMO FRANKEL SUMMER L. H. SYLVA Attorneys for Plaintiffs Clarence Ching and Mary Maxine Kahaulelio

2


STATE OF HAWAII

CLARENCE CHING and MARY MAXINE ) CIVIL NO. 14-1-1085-04 GWBC KAHAULELIO, ) (Declaratory Judgment)

) Plaintiffs, ) MEMORANDUM IN SUPPORT OF

vs. ) MOTION )

WILLIAM J. AILA JR. in his official capacity ) as Chairperson of the Board of Land and ) Natural Resources and state historic ) preservation officer, BOARD OF LAND ) AND NATURAL RESOURCES, ) DEPARTMENT OF LAND AND NATURAL) RESOURCES, )

) Defendants. )

MEMORANDUM IN SUPPORT OF MOTION

I. INTRODUCTION

In 1978, the citizens of this State voted to add a new section to the State Constitution that

reads:

The lands granted to the State of Hawaii by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution, excluding therefrom lands defined as "available lands" by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians and the general public.

Hawai'i State Constitution Art. XII, § 4 (emphasis added). They also voted to declare that "[all

public natural resources are held in trust by the State for the benefit of the people." Hawaii State

Constitution Art. XI, § 1. Unfortunately, the defendants in this case have breached their trust

duty to protect the public trust ceded lands at Pohakuloa. The defendants have failed to take any

action to ensure that the U.S. military complies with the terms of its lease with the department of

land and natural resources —jeopardizing the integrity of the ceded lands that are included within

the Pohakuloa Training Area (PTA). The plaintiffs ask this Court to grant them summary

judgment as to their one and only count of their first amended complaint. Given the stipulation

entered into between the plaintiffs and defendants (attached hereto), there are no material facts in

dispute.

UNDISPUTED FACTS

Defendants' Awareness of the Military's Track Record

The defendants are well aware of the military's poor track record when it comes to

cleaning up damage from military training activities. Defendant William J. Aila, Jr. "believes

that military training activities have caused damage to public land, natural resources and cultural

sites in Hawai'i."1 Through the federal court's decision in Malcom Makua v. Rumsfeld, 163 F.

Supp. 2d 1202 (D. Haw. 2001) and subsequent decisions in that same case (Malama Makua v.

Gates, 2008 U.S. Dist. LEXIS 19201 (D. Haw. Mar. 11, 2008) and Malama Makua v. Gates,

2009 U.S. Dist. LEXIS 5050 (D. Haw. Jan. 23, 2009)), he is aware of the difficulties encountered

in getting the Army to clean up the unexploded ordnance in Makua.2 BLNR chairperson Aila is

also aware that "the military has failed to clean up all the ordnance remaining after the military's

use of the land it leased in Waikane Valley."3 According to the website maintained by the State's

Kaho'olawe Island Reserve Commission at http://kahoolawe.hawaii.gov/history.shtml, the U.S.

Navy did not clear unexploded ordnance from 25% of the surface of the island and these areas

remain unsafe.4

Pohakuloa Training Area Lease

I Stipulation Regarding Uncontested Facts and Exhibits ("Stipulation") IA- 2; Defendant William Aila, Jr. is the chairperson of the board of land and natural resources (BLNR). Defendants' Answer at ¶4 admitting to paragraph 31 of the first amended complaint. 2 1d. ¶A-4. 3 Id. ¶A-5. 4 1d. ¶A-3.

2

Fifty years ago, the State of Hawai'i department of land and natural resources entered

into a sixty-five year lease with the United States of America (State General Lease No. S-3849)

to use land at Pnakuloa for military purposes.5 These lands are ceded lands.6

At that time, the State recognized the importance of restoring the land at Pohakuloa,

which would be damaged by military activities.7 Paragraph 9 of the lease therefore 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."8 Paragraph 14 of the lease also requires the U.S Government to "remove

or bury all trash, garbage or other waste materials."9

Compliance with Lease Terms

Despite these requirements, defendants admit that they "are aware that there is a

possibility that unexploded ordnance (UXO) and munitions and explosives of concern (MEC) are

present on the state-owned ceded land that is leased pursuant to State General Lease No. S-3849

to the U.S. Govemment."10 A federal environmental impact statement for activities at PTA

concluded: "Decades of using PTA as a training area have introduced a significant risk of

encountering MECXXO. MEC/UXO is known to exist in the impact area and is expected to be

encountered during range construction activities; but there is also a medium risk of finding

MEC/UXO outside the impact area."11

Furthermore, there is cause for concern. Past and current activities at PTA have resulted

5 Exhibit C; Defendants' Answer at 14 admitting to paragraph 38 of the first amended complaint; Stipulation 6. 6 Defendants' Answer at 110 ; Admissions Act §5. 7 Exhibit A at 00001-00004. 8 Exhibit C at 00016 19. 9 1d. at 00018 114. I° Stipulation 1A-7; Exhibit D. "Id A-9.

3

in soil contamination by explosives and other chemicals.12 In addition, the Army has applied to

the Nuclear Regulatory Commission for a license to possess Davy Crockett M101 spotting round

depleted uranium on ranges at the PTA.13

Nevertheless, the defendants have not taken any steps to ensure compliance with lease

provisions on State owned land at Pohakuloa.14 BLNR Chair Aila admits that he "does not know

whether the U.S. Government has fully complied with paragraphs 9 and 14 of the State General

Lease No. S-3849."15 Responding to an HRS chapter 92F request, for all government records

that show the efforts that the defendants have made to ensure compliance with these lease terms

(including inspection and monitoring reports), the defendants replied that they had none.16

Plaintiffs

Plaintiff Clarence Ching is a Hawaiian who engages in traditional and customary

practices within and around PTA.17 He is a beneficiary of the ceded lands trust. He has seen

expended rifle casings, machine gun cartridge links, unfired blanks and other rubbish and other

discarded debris on the ground at PTA. His interests are adversely affected by actions that

devalue the ceded land at Pohakuloa — including allowing unexploded ordnance, munitions,

explosives of concern and garbage to remain on the lands leased to the U.S. Government.

Plaintiff Mary Maxine Kahaulelio is also a Hawaiian and a beneficiary of the ceded lands

trust.18 She has seen first-hand the damage that the military causes to the land. Her ability to

enjoy the beauty of Pohakuloa, engage in the cultural practices of her ancestors and ensure the

12 7- a 7. 'If 11. 13 Id. If 12. 14 According to DLNR's website, DLNR's mission is to le]nhance, protect, conserve and manage Hawaii's unique and limited natural, cultural and historic resources held in public trust for current and future generations of visitors and the people of Hawaii nei in partnership with others from the public and private sectors." Stipulation ¶ A-1. 15 Stipulation TA-14. 16 Exhibit F; Stipulation TA-13. 17 Declaration Of Clarence Ching. 18 Declaration of Mary Maxine Kahaulelio.

4

long-term health of the 'aina has been impaired by the littering of the landscape, damage to the

land and the failure of the defendants to fulfill their trust obligations.

III. LEGAL STANDARD

Summary judgment shall be rendered "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law." Hawai'i Rules of Civil Procedure Rule 56(b).

Furthermore, this Court must "strictly scrutinize the actions of government" where the

government acts as a trustee. Ahuna v. Department of Hawaiian Home Lands, 64 Haw. 327, 339,

640 P.2d 1161 (1982).

IV. ARGUMENT

The State Constitution requires that the defendants act diligently to protect public trust

ceded land from degradation. The defendants have breached this duty because they have done

nothing to discover whether the terms of the lease that protect ceded lands are being followed.

The plaintiffs are entitled to the relief that they have requested.

A. The Defendants Have a Trust Duty to M'alama qina.

Pursuant to Article XII, § 4 of the Hawai'i State Constitution, ceded lands are held by the

State "as a public trust for native Hawaiians and the general public." See also Pele Defense Fund

v. Paty, 73 Haw. 578, 601-5, 837 P.2d 1247, 1262-64 (1992)(PDF); and Hawai'i State

Constitution Art. XI, § 1. As trustees of the public ceded lands trust and of public natural

resources, the defendants have a duty to malama 'dina. This duty to malama 'dina is derived from

principles that have arisen in cases related to the treatment of trust property.

First, the defendants must abide by a "high standard" of care. PDF, 73 Haw. at 605 n.18,

837 P.2d at 1264 n. 18; Office of Hawaiian Affairs v. State, 110 Hawai'i 338, 355, 133 P.3d 767,

5

784 (2006).

Second, the trustees are "under a duty to use the care and skill of . . . ordinary prudence to

preserve the trust property." Estate of Dwight, 67 Haw. 139, 146, 681 P.2d 563, 568 (1984). See

also State by Kobayashi v. Zimring, 58 Haw. 106, 121, 566 P.2d 725, 735 (1977) ("Under public

trust principles, the State as trustee has the duty to protect and maintain the trust property and

regulate its use."); Restatement (Third) of Trust § 176 ("The trustee is under a duty to the

beneficiary to use reasonable care and skill to preserve the trust property"); Central States,

Southeast & Southwest Areas Pension Fundy. Central Transport, Inc., 472 U.S. 559, 572, 86 L.

Ed. 2d 447, 105 S. Ct. 2833 (1985)("One of the fundamental common-law duties of a trustee is

to preserve and maintain trust assets."). In Dwight, the Hawai'i Supreme Court held that a

landlord breached its trust duty when it failed to take necessary steps to protect property.

Third, "elementary trust law, after all, confirms the commonsense assumption that a

fiduciary actually administering trust property may not allow it to fall into ruin on his watch."

United States v. White Mt. Apache Tribe, 537 U.S. 465, 475, 123 S. Ct 1126, 1133, 155 L. Ed. 2d

40, 51 (2003).

Fourth, the trustees must protect the environmental assets of public trust ceded lands. The

Hawai'i Supreme Court held that beneficiaries of the Hawaiian Home Lands trust "have an

interest in ensuring that the environment on Hawaiian home lands is not harmed. Thus, it is in

the interest of the beneficiaries that the environmental impact of projects be considered and

informational documents prepared." Kepo'o v. Watson, 87 Hawai'i 91, 101-102, 952 P.2d 379,

389-90 (1998). Because the Supreme Court has found that the State owes the same high standard

of care to the beneficiaries of the ceded lands trust as the beneficiaries of the Hawaiian Home

Lands, PDF, 73 Haw. at 605 n. 18, 837 P.2d at 1264 n. 18, the State has a duty to ensure that the

6

environmental integrity of public trust ceded lands is also not harmed.

Fifth, the trustees have the duty to take the initiative and investigate — rather than just sit

back passively. In Re Water Use Permit Applications, 94 Hawai'i 97, 143, 9 P.3d 409, 455

(2000) ("Waidhole"). A trustee may not relegate itself to the role of a mere umpire passively

calling balls and stikes, but instead must take the initiative in considering, protecting and

advancing public rights in the trust resource. Id.. In affirming the trial court's conclusion that the

trustee had breached its duties in Dwight, the Hawai'i Supreme Court emphasized that the trustee

failed to examine the leasee's maintenance records, neglected to conduct inspections, and did not

check the condition of the property. Dwight, 67 Haw. at 143-45, 681 P.2d at 567-88.

These five principles govern the conduct of the defendants. Because the defendants are

leasing trust property — as did the trustee in Dwight — they must take necessary steps to make

sure that the property is preserved. Reasonably prudent people in the same position as the

defendants would enforce the lease provisions designed to protect their property from

contamination and degradation. The defendants must deteil — as any good landlord would —

whether the terms of the lease that protect ceded lands are being followed. They must monitor,

inspect and investigate to ensure that public trust lands are not being damaged — particularly if

they have reason to believe that trust property is at risk. They cannot sit back and do nothing —as

the trustees in Dwight, White Mt. and Waiahole did. They cannot ignore the beneficiaries'

interest in ensuring that the environment integrity of ceded lands is not harmed. Kepo'o. In sum,

the defendants are obligated to malama `aina.

B. The Defendants Have Breached Their Duty.

The defendants have breached their trust duty to malama the public trust ceded lands at

Pohakuloa. The department of land and natural resources recognizes that its mission is to

7

"[e]nhance, protect, conserve and manage Hawaii's unique and limited natural, cultural and

historic resources held in public trust for current and future generations of visitors and the

people of Hawaii nei in partnership with others from the public and private sectors. "19 The

defendants are well aware of the military's poor track record when it comes to cleaning up

damage from military training activities.20 They are aware that there is a possibility that

unexploded ordnance and munitions and explosives of concern are present on the state-owned

ceded land that is leased pursuant to State General Lease No. S-3849 to the U.S. Government.21

In other words, they have reason to believe that the lease terms have been violated.

Nevertheless, the defendants have not taken any steps to ensure compliance with lease

provisions on State owned land at Pohakuloa. They do not know whether the U.S. Government

has fully complied with the terms of the lease.22 Responding to an HRS chapter 92F request, for

all government records that show the efforts that the defendants have made to ensure compliance

with these terms of the lease (including inspection and monitoring reports), the defendants

replied that they had none.23 The defendants have made no effort to ensure that the United States

Government has removed or deactivated "all live or blank ammunition upon completion of a

training exercise or prior to entry by the said public, whichever is sooner."24 Nor have they taken

any steps to ensure the U.S Goverment fulfills its obligation to "remove or bury all trash,

garbage or other waste materials."25

The defendants complete lack of action is not even akin to an umpire calling balls and

strikes. Waidhole, 94 Hawaii at 143, 9 P.3d at 455. Their inaction is more akin to an ostrich with

19 Stipulation T A-1 (emphasis added). 20 Stipulation TA- 2, -3, -4 and -5. 21 Stipulation TA-7, -9; Exhibit D. 22 Stipulation TA-14. 23 Exhibit F; Stipulation TA-13. 24 Exhibit C at 00016 ¶ 9. 25 M at 00018 T14.

8

its head in the sand. Their failure to investigate the condition of the land is a breach of trust as

egregious as the lack of effort made by the trustee in Dwight. The defendants have failed to

ensure that lessee United States Goverment is complying with the provisions of the lease of

ceded lands at Pohakuloa. The care the defendants have displayed is not even close to the high

standard articulated in OHA, 110 Hawai'i at 355, 133 P.3d at 78; it is no care. The damage to

trust lands that the defendants are allowing to occur is far more destructive than experienced in

White Mt. Apache Tribe. They have done nothing to ensure that environmental assets of ceded

lands are not hatined, Kepo'o, 87 Hawai'i at 101-102, 952 P.2d at 389-90. The defendants have

breached their trust duties.

C. Plaintiffs are Entitled to the Relief They Seek.

Given the State's abject failure as a trustee, it should not be allowed to escape

accountability. In their prayer for relief, the plaintiffs requested three specific foliiis of relief.

The plaintiffs first ask that this Court declare that the defendants breached their trust obligations

by failing to ensure compliance with lease conditions of ceded land. Based on the discussion

above, such a declaration is clearly warranted. See HRS § 632-1.

The equitable relief requested by the plaintiffs is also warranted. The test "for

determining whether a permanent injunction is proper is: (1) whether the plaintiff has prevailed

on the merits; (2) whether the balance of irreparable damage favors the issuance of a permanent

injunction; and (3) whether the public interest supports granting such an injunction." Office of

Hawaiian Affairs v. Hous. & Cmty. Dev. Corp., 117 Hawai'i 174, 212, 177 P.3d 884, 922 (2008)

reversed on other grounds. The merits are discussed above. The public interest supports granting

injunctive relief After all, injunctive relief would help protect the public's interest in public trust

ceded lands. The Hawai'i Supreme Court has repeatedly recognized the public interest in

9

protecting trust lands. PDF, 73 Haw. at 602-5, 837 P.2d at 1262-64; Kapiolani Park

Preservation Soc'y v. Honolulu, 69 Haw. 569, 572-73, 751 P.2d 1022, 1025 (1988). Furthei nore,

the Court has recognized the "cultural importance of the land to native Hawaiians." Office of

Hawaiian Affairs v. Hous. & Cmty. Dev. Corp., 121 Hawai'i 324, 333, 219 P.3d 1111, 1120

(2009). As to the specific equitable relief requested, the balance of the harm favors injunctive

relief. The defendants would not be adversely affected whatsoever if all the injunctive relief is

granted.

The plaintiffs ask that this Court order the defendants to fulfill their trust duties with

respect to the lands leased pursuant to State General Lease No. S-3849. Given the state's breach

of its duties, the military's track-record, the grave risk to ceded lands, the public interest in

ensuring that ceded lands are protected, and the lack of any hail i to the defendants if this relief is

granted, this Court should grant the plaintiffs' requested relief.

Finally, the plaintiffs ask this Court to enjoin the defendants from negotiating the

extension of the lease, or entering into a new lease for the ceded lands at PTA, until the

defendants ensure that the terms of the existing lease have been satisfactorily fulfilled. Although

the plaintiffs would prefer that the defendants be completely barred from negotiating the

extension of the lease, or entering into a new lease of any the ceded lands at Pohakuloa, at the

very minimum, no extension or new lease should be entered until the defendants have fulfilled

their trust responsibilities. An extension of the lease, or a new lease, without first ensuring

compliance with the existing terms would be an abject failure to fulfill trust duties. The lease

does not expire until August 2029 — approximately fifteen years from now.26 It should not take

the defendants that long to ensure that the existing twits of the lease have been satisfactorily

" Exhibit C.

10

fulfilled. This injunctive relief would not harm the defendants whatsoever.27

V. CONCLUSION

Because there is no dispute as to the material facts and the plaintiffs are entitled to prevail

as a matter of law, summary judgment should be granted to the plaintiffs. All the relief they have

requested should be granted.


DAVID KIMO FRANKEL SUMMER SYLVA Attorneys for Plaintiffs Clarence Ching and Mary Maxine Kahaulelio

27 Nor would any protected interest of the military be affected. The United States has no property interest in the extension of the lease. A party to a lease does not have a legal right to renewal or extension absent some provision to that effect. Abele v. Phoenix Suns Ltd. P'ship (In re Harrell), 73 F.3d 218, 220 (9th Cir. 1996); United States v. 57.09 Acres of Land, 757 F.2d 1025, 1028 (9th Cir. Wash. 1985)(" In the absence of a renewal clause, however, expectations of renewal are not a compensable item."); Cassidy v. Hawaii, 915 F.2d 528, 531 (9th Cir. 1990); Hi-Tech Rockfall Constr., Inc. v. County of Maui, 2009 U.S. Dist. LEXIS 15917 (D. Haw. Feb. 26, 2009); Keahole Def Coal., Inc. v. Bd. of Land & Natural Res., 110 Hawai'i 419, 434-34, 134 P.3d 585, 599-600 (2006). There is no provision in the lease guaranteeing or even foreseeing its extension.

11

NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 Honolulu, Hawai'i 96813 Telephone: (808) 521-2302 Facsimile: (808) 537-4268

DAVID KIMO FRANKEL 5791 LEINAALA LEY 9710 Attorneys for Plaintiffs Clarence Ching and Mary Maxine Kahaulelio


STATE OF HAWAII

CLARENCE CHING and MARY MAXINE ) CIVIL NO.14-1-1085-04 GWBC KAHAULELIO, ) (Declaratory Judgment)

) Plaintiffs, ) DECLARATION OF CLARENCE CHING

vs. ) )


) Defendants. )

DECLARATION OF CLARENCE CHING

I, CLARENCE CHING, under penalty of perjury hereby state:

The statements below are based upon my personal knowledge.

2. I am a descendant of the aboriginal people who, prior to 1778, inhabited,

subsisted and exercised sovereignty in the area that now comprises the State of Hawai'i.

3. I am part Hawaiian by blood and Hawaiian by nationality.

4. I have been a resident of Hawai'i island since approximately 1992.

5. I am a descendant of a line of ruling chiefs, among them being Liloa, 'Um" A

Liloa, Keawe A `Urni and of Lonoikamakahiki, who was born in about 1663, all of whom had

dominion over major parts of, if not the entire, island of Hawai'i, including what is now the

Pohakuloa Training Area.

6. I engage in native Hawaiian traditional and customary practices that originate in

the traditional Native Hawaiian culture and community.

7. One of my cultural practices is malama 'aina. The 'aina is of crucial importance

to me, to my culture, and to my well-being.

8. I have a deep feeling and attachment to the land at Pohakuloa.

9. The 'aina is irreplaceable. Land is not a commodity; it is the foundation of my

cultural and spiritual identity as a Hawaiian. It is part of my 'ohana. The land and the natural

environment is alive, respected and treasured.

10. Another of my cultural practices is to walk in the footsteps of my ancestors,

particularly on old roads and trails.

11. My identity and cultural practices are intrinsically tied to the land.

12. I have hiked through and around the Pohakuloa Training Area on multiple

occasions.

13. I have hiked across the northern side of the Pohakuloa Training Area along the

old Saddle Road, on the Ke'eke'e Trail, the Old Kona Highway and the Old Bobcat Trail..

14. I engage in the traditional cultural practice of ma:lama 'aina of cultural sites within

the Pohakuloa Training Area.

15. In 2002, I (and my hiking group) hiked from sea level at Kukai'au on the

Hamakua coast of Hawai'i island to the 13,796 foot summit of Mauna Kea, then across and

through the Pohakuloa Training Area on Ke'eke'e Trail and the Old Kona Highway and down to

2

sea level at Kiholo Bay on the Kona coast.

16. I have participated in traditional and customary services at Pu'u Ka Pele, at Pu'u

Koli, at the beginning of Ke'eke'e Trail (at the Old Saddle Road), near a cave at part of the

impact zone containing human remains and many other sites within the Pohakuloa Training

Area.

17. I have visited other cultural sites within the Pohakuloa Training Area.

18. I served on the Pohakuloa cultural advisory committee for approximately ten

years until August 2013.

19. I have travelled to Kaho' olawe approximately five times.

20. I have seen the remains of ordnance that the military left on Kaho'olawe and

failed to clean up.

21. I am a beneficiary of the ceded lands trust.

22. Based on my visits to the Pehakuloa Training Area, travel through the area and

attendance of presentations by Army officials, I am familiar with many of the activities,

including destructive activities that take place at the Pohakuloa Training Area.

23. I have seen expended rifle casings, machine gun cartridge links, unfired blanks

and other rubbish and other discarded debris on the ground at the Pohakuloa Training Area.

24. Within the past two years, I have seen empty casings on the ground within

approximately ten yards of the new Saddle Road (that some people call the Daniel K Inouye

highway).

25. Based on my visits to the Pohakuloa Training Area, travel through the area,

research and attendance of presentations by Ail iy officials, it is my understanding that garbage

and unexploded ordnance litter the state-owned ceded lands that are leased to the federal

3

government at Pohakuloa.

26. My ability to enjoy the beauty of Pohakuloa, hike without unnecessary risk to my

health, engage in the cultural practices of my ancestors and ensure the long-tean health of the

'aina have been impaired by the littering of the landscape, damage to the land and the failure of

the Defendants to fulfill their trust obligations.

27. The degradation of the land at the Pohakuloa Training Area causes me to suffer a

cultural injury.

28. Rubbish left on the ground at the Pohakuloa Training Area diminishes my

enjoyment of the area and impairs my cultural connection to the land.

29. If I am still alive in 2029, I look forward to walking upon, engaging in cultural

practices on, and enjoying the ceded lands at the Pohakuloa Training Area leased to the U.S.

Government — without fear of being harmed by unexploded ordnance and without having to look

at land blemished by garbage.

30. Damage to trust lands permanently diminishes the collective rights of the public

and Hawaiians and specifically injures me because, as a Hawaiian, my identity and cultural

rights are intrinsically tied to the land.

31. As a beneficiary of the ceded lands trust, my interests are adversely affected by

actions that devalue the land — including allowing unexploded ordnance, munitions, explosives

of concern and garbage to remain on the ceded lands at the Pohakuloa Training Area leased to

the U.S. Government.

I declare under penalty of perjury that the foregoing is true and correct.

DATED: Honolulu, Hawaii, May (3, 2014.

CLARENCE CHING

4


STATE OF HAWAII

CLARENCE CHING and MARY MAXINE ) CIVIL NO.14-1-1085-04 GWBC KAHAULELIO, ) (Declaratory Judgment)

) Plaintiffs, )

VS. ) )


) Defendants. )

DECLARATION OF MARY MAXINE KAHAULELIO

DECLARATION OF MARY MAXINE KAHAULELIO

I, MARY MAXINE KAHAULELIO, under penalty of perjury hereby state:

1. The statements below are based upon my personal knowledge.

2. I am a descendant of the aboriginal people who, prior to 1778, inhabited,

subsisted and exercised sovereignty in the area that now comprises the State of Hawai'i.

3. I am at least fifty percent native Hawaiian and am a beneficiary of the Hawaiian

Home Lands Trust.

4. I am a resident of the State of Hawai'i.

5. I have been a resident of Hawai'i island since approximately 1999.

6. I have been a Hawaiian Home Lands lessee, living in Waimea since

approximately 1999.

7. My great great grandfather lived in Waimea.

8. I am a beneficiary of the ceded lands trust as well as the Hawaiian Home Lands

Trust.

9. The 'aina is central to my existence. Part of my kuleana is to be a steward of the

land.

10. I have participated in cultural ceremonies in Pohakuloa.

11. In 1977, I went to Kaho' olawe and helped defend it from bombing and other

destructive activities by the military.

12. When I returned to Kaho'olawe in 2004, I saw ordnance on the ground that the

military had not been cleaned up.

13. I have been to Waikdne and was unable to go onto some of the land that the

Kamaka family once owned because of the ordnance that the military left on the ground there.

14. Based on my experience, I am well aware of the damage that the military causes

to the land.

15. It hurts me to see the land desecrated. Destruction and abuse of the 'aina causes

me great pain.

16. My ability to enjoy the beauty of Pohakuloa, engage in the cultural practices of

my ancestors and ensure the long-teirn health of the 'dina has been impaired by the littering of

the landscape, damage to the land and the failure of the Defendants to fulfill their trust

obligations.

17. As a beneficiary of both the ceded lands trust and the Hawaiian Home Lands

Trust, my interests are adversely affected by actions that devalue the land — including allowing

unexploded ordnance, munitions, explosives of concern and garbage to remain on the ceded

lands at the Pohakuloa Training Area leased to the U.S. Government.

2

I declare under penalty of perjury that the foregoing is true and correct.

DATED: Honolulu, Hawaii, May / , 2014.

°I1 MARY IAXINE I4AHAULELIO

it-(4/Lie—)&4PLA-Lef

3

NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 Honolulu, Hawai'i 96813 Telephone: (808) 521-2302

DAVID KIMO FRANKEL 5791 Attorneys for Plaintiffs Clarence Ching and Mary Maxine Kahaulelio


STATE OF HAWAII


) Plaintiffs, ) PARTIES' STIPULATION REGARDING

vs. ) UNCONTESTED FACTS AND EXHIBITS; ) EXHIBITS A-F


) Defendants. )

PARTIES' STIPULATION REGARDING UNCONTESTED FACTS AND EXHIBITS

Plaintiffs Clarence Ching and Mary Maxine Kahaulelio and Defendants William J. Aila

Jr. (in his 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, through their respective attorneys, agree and stipulate to the following:

A. UNCONTESTED FACTS

The following facts are uncontested by the parties:

1. According to DLNR's website, DLNR's mission is to "[e]nhance, protect,

conserve and manage Hawaii's unique and limited natural, cultural and historic resources held in

public trust for current and future generations of visitors and the people of Hawaii nei in

partnership with others from the public and private sectors."

2. Defendant William J. Aila Jr. believes that military training activities have caused

damage to public land, natural resources and cultural sites in Hawai'i.

3. According to the website maintained by the State's Kaho'olawe Island Reserve

Commission at http://kahoolawe.hawaii.gov/history.shtml, the U.S. Navy did not clear

unexploded ordnance from 25% of the surface of the island and these areas remain unsafe.

4. Defendant William Aila Jr. through the federal court's decision in Malama

Makua v. Rumsfeld, 163 F. Supp. 2d 1202 (D. Haw. 2001) and subsequent decisions in that same

case (Malama Makua v. Gates, 2008 U.S. Dist. LEXIS 19201 (D. Haw. Mar. 11,2008) and

Malama Makua v. Gates, 2009 U.S. Dist. LEXIS 5050 (D. Haw. Jan. 23, 2009)), is aware of the

difficulties encountered in getting the Army to clean up the unexploded ordnance in Makua.

5. Defendant William J. Aila Jr. is aware that the military has failed to clean up all

the ordnance remaining after the military's use of the land it leased in Waikane Valley.

6. State General Lease No. S-3849 leased three parcels of land at Pohakuloa to the

U.S. Government for a sixty-five year temi ending on August 16, 2029.

7. Defendants are aware that there is a possibility that unexploded ordnance (UXO)

and munitions and explosives of concern (MEC) are present on the state-owned ceded land that

is leased pursuant to State General Lease No. S-3849 to the U.S. Government.

8. A true and correct copy of the Final Environmental Impact Statement for

Construction and Operation of an Infantry Platoon Battle Course at Pohakuloa Training Area

PARTIES' STIPULATION REGARDING UNCONTESTED FACTS AND EXHIBITS; EXHIBITS A-F; Clarence Ching et. al. v. William Aila Jr. et. al.; Civ. No. 14-1-1085-04 GWBC Page 2

(March 2013) can be found at http://www.garrison.hawaii.army.mil/pta_peis/documents.htm.

9. Page ES-8 of the Final Environmental Impact Statement for Construction and

Operation of an Infantry Platoon Battle Course at POhakuloa Training Area (March 2013) states:

"Decades of using PTA as a training area have introduced a significant risk of encountering

MEC/UXO. MEC/UXO is known to exist in the impact area and is expected to be encountered

during range construction activities; but there is also a medium risk of finding MEC/UXO

outside the impact area."

10. The type of weapons that have been used at Pohakuloa Training Area may include

small arms, grenades, machine guns, shotguns, antitank weapons, howitzers, mortars, field

artillery, air defense artillery, explosives, rockets, missiles, and/or weapons using ammunition

containing depleted uranium.

11. Page 3-64 of the Final Environmental Impact Statement for Construction and

Operation of an Infantry Platoon Battle Course at Pohakuloa Training Area (March 2013) states,

"Past and current activities at PTA have resulted in contamination of soil by explosives and other

chemicals."

12. The Army has applied to the Nuclear Regulatory Commission for a license to

possess Davy Crockett M101 spotting round depleted uranium on ranges at the Pohakuloa

Training Area.

13. In January 2014, Defendants received a request from Plaintiff, through counsel,

asking for all government records (including correspondence, inspection and monitoring reports

and meeting notes) that show DLNR's or BLNR's efforts at ensuring compliance with the quoted

sections of paragraphs 9 and 14 of State General Lease No. S-3849.

PARTIES' STIPULATION REGARDING UNCONTESTED FACTS AND EXHIBITS; EXHIBITS A-F; Clarence Ching et. al. v. William Alla Jr. et. al.; Civ. No. 14-1-1085-04 GWBC Page 3

14. Defendant William J. Aila, Jr. does not know whether the U.S. Government has

fully complied with paragraphs 9 and 14 of State General Lease No. S-3849 during his tenure as

Chairperson of BLNR.

B. EXHIBITS

Attached hereto as Exhibit A is a true and correct bates-stamped copy of a July 2,

1964 letter from the Department of the Attorney General, State of Hawai'i to the acting Chief,

Real Estate Division, U.S. Army Engineer Division, Pacific Ocean Corps of Engineers (00001-

00007).

2. Attached hereto as Exhibit B is a true and correct bates-stamped copy of a July

24, 1964 submittal to the Board of Land and Natural Resources from James J. Detor of the

Department of Land and Natural Resources' Division of Land Management. (00008-00013).

3. Attached hereto as Exhibit C is a true and correct bates-stamped copy of State

General Lease No. S-3849 (00014-00032).

4. Attached hereto as Exhibit D is a true and correct bates-stamped copy of a March

13, 2013 memorandum from Steve Bergfeld, Acting Hawaii Branch Manager to Kevin Moore,

State Lands Assistant Administrator (00034-35).

5. Attached hereto as Exhibit E is a true and correct bates-stamped copy of a January

15, 2014 request to access a government record that Defendants received in January 2014

(00036-00037).

6. Attached hereto as Exhibit F is a true and correct bates-stamped copy of a January

23, 2014 notice from Kevin Moore of the Department of Land and Natural Resources' Land

PARTIES' STIPULATION REGARDING UNCONTESTED FACTS AND EXHIBITS; EXHIBITS A-F; Clarence Ching et. al. v. William Alla Jr. et. al.; Civ. No. 14-1-1085-04 GWBC Page 4

Division responding to the January 15, 2014 request to access government record (00038-

00041).

DATED: Honolulu, Hawai'i, September 17, 2014.

DAVID KIMO FRANKE Attorney for Plaintiffs Clarence Ching and Mary Maxine Kahaulelio

11\ DANIEL A. MORRIS AMANDA J. WESTON WILLIAM J. WYNHOFF Attornneys for Defendants William J. Aila Jr. (in his 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

PARTIES' STIPULATION REGARDING UNCONTESTED FACTS AND EXHIBITS; EXHIBITS A-F; Clarence Ching et. al v. William Alla Jr. et. al; Civ. No. 14-1-1085-04 GWBC Page 5

EXHIBIT A

PCL:es

STATE OF HAWAII

DEPARTMENT OF THE ATTORNEY GENERAL

HONOLULU

July 2, 1964

Mr. H. H. de Vis-Norton Acting Chief, Real Estate Division U. S. Army Engineer Division,

Pacific Ocean Corps of Engineers Building 96, Fort A mstrong Honolulu 13, Hawaii

Dear Mr. de Vis-Norton:

I am transmitting herewith drafts of four leases from the State to the United States, covering the following training areas: Makua, Kahuku, Kawailoa and Pohakuloa. With the exception of those areas of disagreement hereinafter specified, the drafts represent the cumulative results of a series of meetings held with personnel representing the Division Engineer, U. S. Army Hawaii and U. S. Army Pacific.

I am in receipt of a draft document prepared by your office covering each of the aforementioned training areas. It is my understanding that this document reflects the terms and conditions which would be acceptable to the Division Engineer, U. S. Army Hawaii and U. S. Army Pacific. The numbering of the provisions in the enclosed drafts is similar to that in your drafts except where additional, disputed provisions are involved. These provisions, as well as those where only a partial disagreement exists in a pro-vision, are delineated by red brackets. The feiTareas where a difference of opinion exists involve three general pro-visions and two which are applicable to the Pohakuloa document only.

The first problem involves a provision whereby the . State is requiring the United States to restore the premises at the termination of the lease, this provision appearing specifically as 'number 28 in the Kahuku, Kawailoa and Pohakuloa leases and number 25 in the Makua lease. A

00001

„

EXHIBIT A

Mr. H. H. de Vis-Norton -2- July 2, 1964

restoration provision of this type is typical of those found Sin many leasing arrangements including those entered into previously by the United States. This would appear to be a token gesture when one considers that the United States is being given the use of the land for a 65-year period for the nominal consideration of $1. The only explanation given the State for refusing to agree to such a provision is that a directive has been sent down by Washington to the effect that no restoration provision should be included in the leases.

At the risk of making some broad presumptions, it seems that the rationale for most of the disputed provisions lies in the feeling that since the United States can set these lands aside without any conditions, it is in a strong bargaining position and does not have to accept provisions it might otherwise be willing to accept under normal leasing arrangements. Where equity would otherwise dictate that these areas of disagreement be resolved in favor of the State, there would seem to be no justification for a contrary result in the present situation.

Two other areas of disagreement relating to restoration, both involving reforestation, have been included because of the question which has been raised by the Army whether reforestation constitutes a form of restoration, thus falling within the category of the aforementioned restoration provision. Before discussing the question of reforestation, it should be noted that it is the opinion of the undersigned that the subject reforestation provisions do not constitute restoration provisions.

The first reforestation issue appears in the "fire prevention" provision of three of the leases, this involving provision number 11 of the Kahuku and Kawailoa leases and number 13 of the Pohakuloa lease. It should be noted that this particular obligation is at best a contingent one which would only be effectuated if "an area is damaged by fire started by or resulting from Government activities." In the Kawailoa lease and Parcel 2 of the Kahuku lease, the land involved constitutes a valuable watershed for the public water supply and it is extremely important that this asset5 be protected. If a fire were to destroy a significant portion of the subject premises and no steps were taken to reforest the land, serious erosion could take place with its accompanying and far-reaching effects. Turning to Parcel 1 of the Kahuku lease and the Pohakuloa area in its entirety,

00002

Mr. H. H. de vis-Norton -3- July 2, 1964

although not at this time serving as a valuable watershed, these areas are presently subject to a considerable number of problems involving wind and rain erosion. The trees must be replaced if destroyed by fire to prevent both of the subject areas from being subsequently denuded completely by the forces of nature.

The other reforestation provision which appears in provision number 27 of the Kahuku; Kawailoa and Pohakuloa leases covers all instances where trees are destroyed due to causes other than fire and is likewise restricted to "areas where the forest cover has been destroyed as the result of Government activities." In both of the above cases, the obligation to reforest--to an even lesser extent than the aforementioned general obligation to restore--would seem to constitute a token consideration for the Government's use of the premises. Furthermore, the obligation only covers damage caused by the activities of the Government and thus cannot be considered a carte blanche credit card for reforestation regardless of the cause of the destruction.

The second general area where a difference of opinion exists involves Government liability for damage caused to improvements erected by the State, this appearing in provision number 16 of the Pohakuloa lease and number 17 of the Kahuku and Kawailoa leases and number 14 of the Makua lease. In keeping with the concept of joint use of the subject lands, it can be expected that at some future date public changing and sanitary facilities and possibly mountain cabins or similar items may be constructed on the leased premises. Under the terms of the leases, the State cannot indiscriminately place these improvements anywhere it wishes, but rather it must coordinate with and obtain the prior approval of the controlling Government agency before initiat-ing any such action. Thus, the State may not place its im-provements in the middle of a tank maneuvering ground or similar type of maneuver area and then require the Government to repair any damage caused to the said improvements. On the contrary, these improvements are required to be located in such a manner as to cause the minimum amount of interference with military training activities and only after the approval of the Government's controlling agency has been obtained. Consequently, there appears to be a certain lack of equity involved to permit a situation where the Government can approve the location of an improvement and then turn around and be able to damage or destroy the said improvement with-out at least subjecting itself to the obligation to restore

00003


or repair the damage it has caused. Once again the Govern-ment's obligation runs only to damage caused by the activi-ties of the Government. The language used in the applicable portion of the subject provisions is similar to that already agreed upon in a license agreement between the State and the Air Force for a portion of Bellows Air Force Station beach which is likewise being made available to the public on weekends and national holidays except when military training activities prohibit said use. It seems difficult to dis-tinguish the analogy between the Bellows license and the subject leases, and where the principles of equity prevailed without any disagreement by either party in the former, it is felt that they should likewise prevail in the latter case. As with the restoration provision, the State has only been told that a liability provision of this nature is prohibited by a directive from Washington.

The third major area of disagreement centers around the State's insistence on a revocation provision which appears in provision number 29 of the Pohakuloa, Kahuku and Kawailoa leases and provision number 26 of the Makua lease. The subject provision has purposely been written so that a lease can be revoked only for a substantial and willful violation of the terms of the lease and one that persists for a long period. Thus, the provision cannot be used arbitrarily for some minor deviation from the terms of the lease. Without a revocation provision the rest of the terms of the lease lose much of their meaning, as the State's only remedy for a breach, regardless of its magnitude, would be to go to a court of law and ask for damages, and in cases where public enjoyment is concerned these may conceivably be without monetary value or at best very difficult to prove. It can be analogized that to eliminate the revocation provision would be like enacting a criminal law without providing a sanction, with the result that the law becomes practically meaningless. Since the United States is acting in good faith In accepting the undisputed terms of this lease, it would not seem to place an excessive burden on it to accept a provision which would call for revocation only in the event of a substantial and willful violation of the terms of the lease and one which is not corrected for a period of sixty days after notice of such a violation. As in the previous instances, the only explanation given the State is that a directive from Washington prohibits the inclusion of such .a. provision.

A fourth area Of disagreement involves the time.

00004


permitted for exclusive use of Parcel C of the Pohakuloa lease, this appearing as provision number 17 of the subject lease. At the present time Parcel C is reserved exclusively for the State for a three-month period beginning October 15 and terminating January 15. . This three-month reservation has been in effect for a number of years. Furthermore, the Army has managed to live with the existing conditions even after a build-up in troops brought about by the ROAD re-organization. Also, any discussion of a military expansion of any magnitude at Pohakuloa must necessarily be preceded by a solution to the water shortage problem. It is recog-nized that the Army has had to come up with an efficient utilization plan in order to complete its annual training requirements within the allotted time. Nevertheless, the problem has been solved before, and undoubtedly will continue to be solved in the future. It should be noted, however, that the State has offered a compromise solution whereby it will have exclusive use of the area for two-thirds of the time it presently enjoys with an additional month's use on weekends only. This compromise was offered to make available more time for Government use of Parcel C. Considering the fact that very few public hunting areas are available in the islands and that Parcel C offers one of the prime areas, plus the fact that it is immediately adjacent to the State Park Department's cabins, it is critical to the recreational program of the State that this area remain available for hunting at least during the times specified in provision number 17.

A fifth area of disagreement, involving a property alignment next to the State's cabins at Pohakuloa, is still the subject of negotiations here in Hawaii. An on-the-site inspection next week by the parties concerned may resolve the issue to the mutual satisfaction of all concerned. Because of the considerable amount of dust and noise from one of the main access routes between Tract A and Tract C, which is only a quarter of a mile from the State Park Depart-ment's cabins, the State is insisting that a greater buffer zone be established and the radial boundary be moved from a quarter of a mile to three-quarters of a mile from the cabins. It is inconceivable for one to imagine the volume and intensity of the lava dust which permeates the State camp area from the present Army access road. As the present road is only a quarter of a mile from the camp, the existing buffer zone is practically useless. Three-quarters of a mile, although far from satisfactory, would considerably help to alleviate the problem. The Army has pointed out

00005


that this present area along the Saddle Road, where one crosses from Parcel C. to the rest of the training area, already constitutes a bottle-neck and tends to detract from the realism of a training problem. The State contends, how-ever, that since the realism has already been lost, an addi-tional half-mile will not significantly change the situation. Another obstacle pointed out. by the Army is the fact that a lava ridge exists on the western side of the Saddle Road and this would have to be traversed in order to provide a new access. road. This has already been done by the Army in the past and it is presumed that it can be done again if the . circumstances so dictate. From the beginning, the State has indicated its flexibility and shown a willingness to negoti-ate a possible compromise boundary which would help alleviate the State's dust and noise problem, while at the same time providing a more satisfactory route to the Army than the rigid three-quarters of a mile boundary. As indicated above, this matter may be resolved next week.

Having outlined the various items where a differ-ence of opinion exists between the State and the Army, it is my understanding that the next step will involve the trans-mission of the Army's lease and comments along with the State's lease and comments to the Department of the Army in Washington for its review and comment. Subsequently, it is anticipated that the Department of Defense will review the leases and, following this, the Bureau of the Budget, in consultation with the Department of Defense, will render a decision on each of the disputed items. It is the State's understanding that the Bureau of the Budget's decision on each of the disputed items will be final and binding on both the State and the Department of the Army and that subse-quently a lease will be executed by the State which will reflect the said decision. Thus, the necessity or possibility of using a set-aside action will no longer be' applicable for any of the subject areas.

Once the decision has been rendered by the Bureau of the Budget, the State will proceed expeditiously to consummate the subject leases prior to August 21, 1964. In fact, a Presentation will be made to the Board of Land and Natural Resources on July 24, 1964, requesting the Board to authorize the Chairman of the Board to execute the leases regardless of the outcome of the decision by the Bureau of the Budget on any or all of the disputed areas. It is, however, expected that in those few instances where a

00006


difference of opinion presently exists, the issues will be resolved amicably to the best interest of all parties concerned.

Sincerely,

/s/ BERTRAM T. KANBARA Deputy Attorney General

for PETER C. LEWIS Deputy Attorney General

00007

EXHIBIT B

STATE OF HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES

HONOLULU, HAWAII Division of Land Management

July 24, 1964

Board of Land and Natural Resources

Honolulu, Hawaii OAHU KAUAI

Gentlemen: FEDERAL LEASES ' HAWAII

STATUTE: Section 103A-90, Revised Laws of Hawaii 1955, /963 Supplement.

APPLICANT: UNITED STATES OF AMERICA, through its Corps of. Engineers and the United States Navy.

• FOR: Pohakuloa Training Area, Island of Hawaii; Kawailoa, Kahuku and Makua Training Areas, Lualualei Maneuver Area, Kaena Point Tracking Station, and a portion of Kapalama Military Reservation (designated as Parcel I), Island of Oahu; and Tracts E-1, E-2 and E-3, with appurtenant easements, of Bonham Air Force Base, Island of Kauai.

AREA: Pohakuloa 22,836.0 acres; Kawailoa 4,390.0 acres; Kahuku 1150.0 acres; Lualualei 57.64 acres; Makua 1515.0 acres; Mena Point 138.07 acres; Kapalama 11.36 acres;.%Bonham 189.26 acres, for a total of 30,287.33 acres.

OWNERSHIP: State lands, mostly in Conservation District, except for 25-acre parcel of Hawaiian Home Lands on Kaaai.

STATUS: Under permit or permissive use to the United States Government.

PURPOSE: Military and scientific purposes of the Government.

TERN: Sixty-five (65) years, in each instance.

RENTAL: One Dollar ($1.00) for the term for each lease.

REMARKS: Under the terms of Section 5(d) of the Statehood Act, any public land or other property which were, imme-diately prior to Statehood, "... controlled by the United States pursuant to permit, license, or permis-sion, written or verbal, from the Territory of Hawaii or any department thereof may, at any time during the five (5) years following admission of Hawaii into the Union, be set aside by Act of Congress or by Executive

• ,

r4i 111' tin

I TEM F-70

00008

EXHIBIT B

Board of Land. and Natural Resources -2- July 24, 1964

Order of the President, made pursuant to law, for the use of the United States, and the /ands or prop-erty so set aside shall, subject only to valid rights then existing, be the property of the United States," Verbal permission is considered by the Government to be implied by the fact of use, even though no evi-dence of such permission exists.

Under the provisions of 5(d), all of the areas covered by the leases in this submittal are subject to set-aside action which would result in the State losing all control over the subject areas as long as they were not surplus to the needs of the Federal Government.

Under Public Law 88-233, the so-called "Sand Island Act", the Statehood Act is modified to the extent that the fee to set-aside ceded lands is not neces-sarily lost irrevocably; rather a provision is made for the return to the State of all ceded lands if, at any time in the future, they are found to be sur-plus to the needs of the Federal Government,

Nevetheless, the State has made a strong case against the set-aside procedure in cases where the areas involved might conceivably in the future become surplue to the needs of the Federal Government, and the Government has agreed to accept sixty-five-year leases an such areas, leaving the fee with. the State.

The areas covered under these leases would, if set aside due to failure of agreement on lease terms, fall under the provisions of the Sand Island Act and would, if ever found to be surplus to the needs of the Government, be returned to the State.

In the meantime, however, the fee to the lands would . rest with the Government and the State would have no say as to possible joint use and restrictive covenants and conditions favorable to the State. Under the - leasing program, the Federal Government is agreeing to joint-use provisions and many restrictive conditions favoring the State.

The leases presented for your consideration are the result of long-term negotiations between the State, represented by Deputy Attorney General Peter C. Lewis, assigned to the Federal Lands PrOgram, and the various Government agencies concerned, primarily military.

00009

Board of Land and Natural Resources -3- July 24, 1964

Representatives of Land Management, State Parks, Forestry and Fish and Game have been consulted from the beginning of negotiations as to terms and con-ditions desirable to be incorporated into the docu-ments and are agreeable to the terms of the leases as presented.

The Government has made certain significant con-cessions as to joint use, responsibility and con-sideration for the public. There are still, however, three areas of disagreement, general in nature.

In a letter to the Corps of Engineers, copies of which were forwarded to the Bureau of the Budget. Mr. Lewis outlined five (5) areas of disagreement; 3 general areas and 2 peculiar to Pohakuloa. One of the Pohakuloe issues has been resolved. As to the three general points of disagreement, Mr. Lewishas presented very strong and sound arguments for the State's position which should carry weight with the Bureau of the Budget. The general areas of disagreement between the State and the United States are: 1) Restoration, including (a) restoration of the premises on termination of the lease, (b) refores-tation of areas where forest cover is destroyed by fire caused by the activities of the Government, and (c) reforestation of areas where forest cover is destroyed other than by fire, again due to the acti-vities of the Government; 2) Liability of he Govern-ment for repairing or replacing State improvements constructed on joint-use areas with the consent of the Government and damaged or destroyed thereafter by Government activity; and 3) Revocation provision whereby the State may revoke the lease for willful and continued breach of conditions of the lease after notice of such breach has been given.

The two disputed points concerning Pohakilloa are: 1) Moving the training area boundary farther away from the cabins and camp areas and 2) the inclusion of all the leased area Mauna Kea of the Saddle Road in the exclusive and weekend-use hunting agreement developed for Area "C" (the area between the camp and Humuula). The matter of moving the training area boundary has been agreed to by the Government and the Army's answer on the added hunting area is expected shortly.

The lease documents have been agreed to as drafted with the exception of the three points mentioned above; restoration, liability and revocation; As to these points, agreement has been reached, subject to

00010

Board of Land and Natural Resources -4-

July 24, 1964

approval of the Board, to submit disputed issues to the Bureau of the Budget for determination and to accept the decision of the Bureau as final.

As attempt has been made to standardize the lease documents as much as possible and, with the exception of special conditions peculiar to individual areas, all of the leases here presented have provisions:

1. Against strip, spoil and/or improper use;

2. For joint use when and where compatible with the purposes of the Government;

3. For non-responsibility clauses: The State will not be responsible for claims resulting from Government activity and the Government will not be responsible for claims resulting from State activity;

For prevention and control of forest fires;

5. For reservation of water and mineral rights; provided that the Government may use water and materials required for its activities;

6. That any rental derived from temporary assign- ment of any portion of the leased areas shall be covered into the State treasury;

7. For automatic reversion to the State for non-use for three consecutive years, exclusive of periods of national emergency and temporary deployment;

8. For restoration of the premises on termination of the lease and for reforestation where forest cover is destroyed by Government activity (disputed point);

9. For liability of the Government for damage to State improvements on the leased.areas„ where such damage is caused by Government activity (disputed point);

10. For revocation of the lease for willful and continued breach of any of the terms and conditions of the lease after notice of such breach (disputed point).

4.

00011

DETOR, Head vision of Land Management

Board of Land and Natural Resources -5- July 24, 1964

RECOMMENDATION:

That the Board approve the sale of subject leases to the Government for sixty-five-year terms at a rental of one dollar ($1.00) for the term, subject to the following:

1. Terms and conditions to be those contained in the documents filed in the basic file; provided that the Board agrees to accept the decision of the Bureau of the Budget on disputed points as final;

2. Approval as to form by the Attorney General's office.

Respectfully submitted,

RECOMEENDED FOR APPROVAL:

LO -e-ge-tr

Z'f)iljj

M P. FERRY, Chairman

00012

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V

EXHIBIT C

. • •

RECORDATION REQUESTED BY: U. S. Army Engineer Division, Pacific Ocean ,

Parma RECORDATION,. RETURN TO: U. S. Army Engineer Division, Pacific Ocean Phone: 542986

STATE OF HAWAII BUREAU OF CONVEYANCES RECEIVED FOR RECORD

LIEER 4821 PAGES 425 TO 444

'64 AUG 20 PM 1:37

/S/ M. Adachi IMEI RAR

RETURN BY: MAIL ( ) PICKUP (X) SPACE ABOVE THIS LINE FOR REGISTRAR'S USE

STATE OF HAWAII

DEPARTMENT OF LAND AND NATURAL RESOURCES

STATE GENERAL LEASE NO. S-3849 U. S. LEASE, CONTRACT NO. DA-94-626-ENG-80

1. THIS LEASE, made and entered into this kl • day of Ao'r,u4". , in the year one thousand nine hundred

and sixty-four by and between the STATE OF HAWAII, represented

by its Board of Land and Natural Resources, whose address is

P. 0. Box 621, Honolulu, Hawaii, 96809, and whose interest in

the property hereinafter described is that of fee simple

owner, for itself, its administrators, successors and assigns,

hereinafter called the "Lessor", and THE UNITED STATES OF

AMERICA, hereinafter called the "Government":

WITNESSETH: The parties hereto for the considera-

tion hereinafter mentioned covenant and agree as follows:

2. The Lessor hereby leases to the Government

three (3) parcels of land described on Exhibit "A" attached

hereto and hereby made a part hereof, all to be used for the

following. purpose: Military purposes. '

P.OHAKULOA 00014 EXHIBIT C

3. TO HAVE AND TO HOLD the said premises for a term

of sixty-five (65) years beginning August 17 , 1964

and ending August 16 , 2029; subject, however, to the

rights of the Lessor and the Government respectively to

terminate this lease in accordance with provisions 6 and 21

hereof.

4. The Government shall pay the Lessor rent at the

following rate: ONE DOLLAR ($1.00) for the term of the lease,

the receipt and sufficiency whereof is hereby acknowledged.

5. The Government shall have the right, during the

existence of this lease, to attach fixtures, and erect

structures or signs, in or upon the premises hereby leased,

which fixtures and structures or signs, so placed in, upon or

attached to the said premises shall be and remain the property

of the Government and may be removed or otherwise disposed of

by the Government. In addition, the Government shall post and

maintain Signs on roads and trails entering dangerous areas to

provide a warning of any dangerous or hazardous activities;

provided, that the information placed on the posted signs

anywhere within the demised premises shall not be incompatible

with the terms of this lease and, in those instances where

joint use of an area is permitted, the information placed on

the signs may include the permitted activities.

6. The Government may terminate this lease at any

time by 'giving thirty (30) days notice in writing to the

Lessor.

7. Except as otherwise provided herein, the Govern-

ment shall have unrestricted control and use of the demised

premises including the right to fire all combat weapons

-2-

00015

•

therefrom into the designated Pohakuloa Impact Area.

, 8. The Lessor will not be responsible for any loss,

liability, claim, or demand for property damage, property

loss, or personal injury, including but not limited to death,

arising out of any injury or damage caused by or resulting

from any act or omission of the Federal Government in connec-

tion with the Federal Government's use of the premises

described herein.

9. In recognition of public use of the demised

premises, the Government shall make every reasonable effort to

stockpile supplies and equipment in an orderly fashion and

away from established roads and trails and 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.

10. The Government shall obtain the written consent

of the Lessor prior to constructing any road or building of

the type for which design and construction plans are normally

required; provided, however, that such consent shall not be

arbitrarily withheld. The Government agrees that its training

roads which provide primary access within or across the

demised premises will be maintained to normal standards for

training area roads with due regard for preventing unnecessary

erosion; provided, however, that the Government shall be under

no obligation to maintain roads during periods when the neces-

sary engineer troops are absent from the island of Hawaii.

10(a). The Government hereby agrees that all Govern-

ment vehicles of any type will at all times be prohibited from

using that portion of the demised premises indicated by a red

-3...

00016

cross hatch on the map attached to and made a part of this

lease. In addition, the Government hereby agrees that it will

maintain at all times at least a two-strand wire fence along

that part of the boundary bordering Parcel "C" colored in

green on the said map.

11. In the interest of safety the Government shall

have the right to interrupt traffic on the Saddle Road during

training activities involving firing of and/or the passage of

troops across the Saddle Road; provided, however, that the

Government shall minimize interference with traffic by limit-

ing stoppages thereof to 15 minute periods.

12. With the exception of artillery simulators,

atomic bomb simulators and any similar devices, and explosives

used in construction work, the Government shall not fire any

live ammunition into any portion of the demised premises.

This restriction does not apply to any portion of Parcel "A"

deemed by' the Government to be safe for smallarms firing. In

addition, the Government shall not fire any weapons within

three-fourths (3/4) of a mile of the Pohakuloa Ranger Station.

13. The Government shall take every reasonable

precaution to prevent the start of any fire in the areas

herein demised and shall take immediate and continuing action

to extinguish any and all fires started by or resulting from

Government training activities. Further, the Government

shall establish and at all times maintain a standard operat-

ing procedure for fighting fires within or adjacent to the

subject leased property resulting from Government training

activities during its use and occupancy of the premises;

provided, further, that Government personnel actually using

00017

the premises shall be familiar with said standard procedure

including the means of implementation.

14. In recognition of the limited amount of land

available for public use, of the importance of forest reserves

and watersheds in Hawaii, and of the necessity for preventing

or controlling erosion, the Government hereby agrees that,

commensurate with training activities, it will take reasonable

action during its use of the premises herein demised to pre-

vent unnecessary damage to or destruction of vegetation,

wildlife and forest cover, geological features and related

natural resources and improvements constructed by the Lessor,

help preserve the natural beauty of the premises, avoid pollu-

tion or contamination of all ground and surface waters and

remove or bury all trash, garbage and other waste materials

resulting from Government use of the said premises.

15. Except as required for defense purposes in

times of national emergency, the Government shall not

deliberately appropriate, damage, remove, excavate, disfigure,

deface or destroy any object of antiquity, prehistoric ruin

or monument.

16. The Lessor shall have the right to erect signs A

and construct capital improvements within the leased property

at locations mutually .d. upon by the parties hereto, in •

connection with water conservation, public water consumption,

forestry', recreational and related purposes, said capital

improvements including but not limited in any way to the

construction, maintenance and/or improvements of roads and

trails; provided, however, that notwithstanding any other

provisions of this lease to the contrary, the Government

-5-

00018

hereby accepts the responsibility and liability for repairs

of any damage which can be demonstrated to have been the

direct result of military activities, to improvements con-

structed by the Lessor subsequent to the date of this lease.

17. To the extent permitted by training require-

ments the Government will cooperate with the Lessor in the

game development and hunting programs of the Lessor. and, in

connection therewith, the Government agrees that Parcels "A",

"B" and "C" hereof shall remain available for the aforesaid pro-

grams of the Lessor and, further, that Parcels "B" and "C" and

all that part of Parcel "A" which lies to the north of the

Saddle Road shall be made exclusively available to the Lessor

for hunting during the periods 1 July through 15 July and 1.

December through 15 January and on national holidays from dawn

to midnight and on weekends from midnight Friday through mid-

night Sunday during the periods 1 November through 30 November

and 16 January through 31 January. The Lessor shall also have

the right to construct a road along a mutually agreeable route

through the northerly portion of Parcel "C" hereof.

18. The Lessor hereby agrees that, commensurate

with the public use of the premises herein demised, it will

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.

19. Subject to obtaining advance clearance from

the plans and training office of the Government's controlling

agency, or any other designated Government agency, officials

and employees of the Lessor shall have the right to enter

-6- 00019

upon the demised premises at all reasonable times to conduct

any operations that will not unduly interfere with activities

of the Government under the terms of this lease; provided,

however, that such advance clearance shall not be unreasonably

withheld.

20. All persons legally entitled under the provi-

sions of this lease to be on the said premises shall have a

nonexclusive right to use all Government roads and trails

except when such use will interfere with the training activi-

ties of the Government or said roads and trails have been

restricted, by a duly posted sign, as security or danger areas

by the Government.

21. In the event that the leased property is not

used by the Government for a period of three (3) consecutive

years, this lease may be terminated upon ninety (90) days

written notice from the Lessor to the Government, provided,

however, that if prior to the expiration of the aforesaid

90-day period the Secretary of the Army shall find and deter-

mine that the leased property is required for military purposes

and shall notify the Lessor in writing of this finding and

determination, this lease will continue in effect; provided,

further, that periods during which a national emergency has

been declared by the President or the Congress of the United

States and periods during which major combat elements are

temporarily deployed away from the State of Hawaii shall not

• be included in the said three-year period. During such

period of temporary deployment the parties hereto shall discuss

and give consideration to and provide for the additional

public use of the demised premises compatible with then

-7-- 00020

existing military training requirements. The Government will

assure that current military standards concerning adequate

utilization are applied to these premises and will assure that

such use is known and is a matter of record and available to

the Lessor upon request.

22. The Lessor reserves unto itself all ground and

surface water-, ores, minerals and mineral rights of every

description on, in or under the demised premises but shall

exploit or permit others to exploit the said ores, minerals

and mineral rights only with the consent of the Government.

Notwithstanding the foregoing reservation, the Government

shall have the right to develop and use for road construction

projects on the demised premises sources of coral, rock and

similar materials occurring naturally on the said premises

and to use said ground and surface waters for purposes

incident to the rights granted by this lease.

23. The Government will not be responsible for any

loss, liability, claim or demand for any property damage,

property loss, or personal injury, including but not limited

to death, arising out of injury or damage caused by or resulting

from any act or omission of the Lessor or the general public

In connection with their use of the premises described herein.

24. Any notice under the terms of this lease shall

be in writing signed by a duly authorized representative of

the part l; giving such notice, and if given by the Government

shall be addressed to the Lessor at P. O. Box 621, Honolulu,

Hawaii, 96809, and if given by the Lessor shall be addressed

to the Division Engineer, U. S. Army Engineer Division,

Pacific Ocean, Building 96, Fort Armstrong, Honolulu, Hawaii,

-8-- 00021

Attention: Real Estate Division or at such location and to

such other agency as may be mutually agreed upon by the

parties hereto.

25. The Government hereby agrees that the use and

enjoyment of the land herein demised shall not be in support

of any policy which discriminates against anyone based upon

race, creed or color.

26. The Government shall not grant any interest in

the demiSed premises; provided, however, that the Government

shall have the right to grant the use of portions of the

premises for temporary activities of Governmental agencies

or their contractors in which case any land rental derived

from such use of the premises shall be covered into the

Treasury of the State of Hawaii.

27. Subject to obtaining the prior approval of the

Government, the Lessor reserves the right to grant rights or

privileges to others not inconsistent with the terms of this

lease affecting the whole or any portion of the demised

promises.

28. The Government agrees to reforest areas, as

expeditiously as practicable and within a period mutually

agreed upon, where it can be demonstrated that substantial

forest cover, including trees, has been destroyed as a direct

result of Government activities; provided, however, that the

Lessor shall obtain advance Government approval of all future

plantings proposed by the Lessor.

29. The Government shall surrender possession of

the premises upon the expiration or sooner termination of

this lease and, if required by the Lessor, shall within

-9- 00022

sixty (60) days thereafter, or within such additional time as

may be mutually agreed upon, remove its signs and other

structures; provided that in lieu of removal of structures the

Government abandon them in place. The Government shall also

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.

30. (a) That, except as otherwise provided in this

lease, any dispute concerning a question of fact arising under

this lease which is not disposed of by agreement shall be

decided by the Division Engineer, U. S. Army Engineer Division,

Pacific Ocean, Honolulu, Hawaii, hereinafter referred to as

said officer, who shall within a reasonable time reduce his

decision and the reasons therefor to writing and mail or other-

wise furnish a copy thereof to the Lessor. The decision of

the said Officer shall be final and conclusive unless, within

thirty (30) days from the date of receipt of such copy, the

Lessor mails or otherwise furnishes to the said officer a

written appeal addressed to the Secretary of the Army. The

decision of the Secretary or his duly authorized representa-

tive for the determination of such appeals shall be final and

conclusive unless determined by a court of competent juris—

diction to have been fraudulent, or capricious, or arbitrary,

or so grossly erroneous as necessarily to imply bad faith, or

not supported by substantial evidence. In connection with

any appeal proceeding under this condition, the Lessor shall

be afforded an opportunity to be heard and to offer evidence

in support of its appeal.

-10-

00023

(b) This Condition does not preclude consider-

ation of law questions in connection with decisions provided

for in paragraph (a) above: Provided, that nothing in this

Condition shall be construed as making final the decision of

any administrative official, representative, or board on a

question of law.

(c) That all appeals under this provision

shall be processed expeditiously.

31. The Government's compliance with all obliga-

tions placed on it by this lease shall be subject to the

availability of funds.

32. The Lessor's compliance with any obligations

which may be placed on it by this lease shall be subject to

the availability of funds and/or personnel.

33. The Lessor warrants that no person or selling

agency has been employed or retained to solicit or secure

this lease upon an agreement or understanding for a commission,

percentage, brokerage, or contingent fee, excepting bona fide

employees or bona fide established commercial or selling

agencies maintained by the Lessor for the purposes of securing

business. For breach or violation of this warranty the

Government shall have the right to annul this lease without

liability or in its discretion to deduct from the lease price

or consideration the full amount of such commission, per-

centage,'brokerage, or contingent fee.

34. No member of or delegate to Congress or resident

commissioner shall be admitted to any share or part of this

lease or to any benefit that may arise therefrom, but this

provision shall not be construed to extend to this lease if

-11-

00024

made with a corporation for its general benefit.

35. (a) The Government may, by written notice to

the Lessor, terminate the right of the Lessor to proceed under

this lease if it is found, after notice and hearing, by the

Secretary of the Army or his duly authorized representative,

that gratuities (in the form of entertainment, gifts, or

otherwise) were offered or given by the Lessor, or any agent

or representative of the Lessor, to any officer or employee

of the Government with a view toward securing a lease or

securing favorable treatment with respect to the awarding or

amending, or the making of any determinations with respect to

• the performing of such lease; provided that the existence of

facts upon which the Secretary of the Army or his duly

authorized representatives makes such findings shall be in

issue and may be reviewed in any competent court.

(b) In the event his lease is terminated as

provided in paragraph (a) hereof, the Government shall be

entitled (1) to pursue the same remedies against the Lessor

as it could pursue in the event of a breach of the lease by

the Lessor, and (2) as a penalty in addition to any other

damages to which it may be entitled by law, to exemplary

damages in an amount (as determined by the Secretary of the

Army or his duly authorized representative) which shall be '

not less than three or more than ten times the costs incurred

by the Lessor in providing any such gratuities to any such

officer or employee.

(c) The rights and remedies of the Government

provided in this clause shall not be exclusive and are in

addition to any other rights and remedies provided by law or

-12- 00025

And By

By bairmam and em

ard of Land and Natural Resources

APPROVED AS TO FORM:

Bert T. obayaVi Attorney General State of Hawaii

Deputy Attorney General State of Hawaii

under this lease.

36. This lease is not subject to Title 10, United

States Code, Section 2662.

IN WITNESS WHEREOF, the parties hereto have hereunto

subscribed their names as of the date first above written.

STATE OF HAWAII

Member Board of Land and Natural

Resources

THE UNITED STATES OF AMERICA

Ebgene E. Merrill DeputrAssistant Secretary of the Army (4L) • PPtal4atio.!lq

-13-

00026

EXHIBIT "A"

TRACT A-105, POBAKULOA TRAINING AREA

PARCEL "A"

Land situated at Kaohe, Hamakua and Puuanahulu, North Kona, Hawaii.

Being portions of the Government lands of Kaohe and Puuandhulu.

Beginning at the southeast corner of this piece of land, the coordinates of the said point of beginning from Government Survey Triangulation Station "Omaokoili," being 5462.74 feet North and 14,081.19 feet West, thence running by azimuths measured clockwise from True South:

1. 111° 10'

6,000.00 feet along the Pohakuloa Impact Area;

2. 280 30'

800.00 feet along the Pohakuloa Impact Area;

3. 118° 30'


4. 208° 30'


5. 113° 50'


6. 74° 20'


7. 116° 30'


8. 90° 48'


9. 110° 00'


along, the Pohakuloa Impact Area;

along the Pohakuloa Impact Area;



00027

10. 58° 00'

3,600.00 feet

11. 22° 30'

1,300.00 feet

12. 79° 40'

3,700.00 feet

13. 85° 10'

3,000.00 feet

14. 359° 29' 1,132.00 feet along the Pohakuloa Impact

Area;

15. 89° 10' 21,730.00 feet along the Pohakuloa Impact Area;

16. 221° 36' 51"

5,539.10 feet along the remainder of the Government Land of Puuanahulu;

27.. 183° 36' 51" 9,400.00 feet along the remainder of the Government Land of Puuanahulu;

18. 249° 06' 51" 11,000.00 feet along the remainder of the Government Land of Puuanahulu;

19, 306" 06' 51" 2,500.00 feet along the land of Waikoloa;

20. 300° 23' 51" 12,201.50 feet along the land of Waikoloa;


22. 181" 29' 01" 1,617.00 feet along the land of Waikoloa;


24. 174" 29' 01" 700.00 feet along the land of Waikoloa;

25. 237° 02' 31" 800.61 feet along portion of Kaohe;

26. 319" 59' 01" 9,000.00 feet along portion of Kaohe;

27. 287° 29' 01" 11,000.00 feet along portion of Kaohe;

28. 288° 40' 7,832.30 feet along "Parcel B" hereof;

29. 10" 53' 30" 2,713.32 feet along Parcel A of Governor's Executive Order 1719, and across the Saddle Road;

30. 288° 13' 2,247.05 feet along the southerly boundary of the Saddle Road;

31. 276° 47' 30" 207.36 feet along the southerly boundary of the Saddle-Road;

32.. 271° 54' 30" 4.00 feet along the southerly boundary of the Saddle Road;

33. 1° 54' 30" 2,600.00 feet along Parcel B of Governor's Executive Order 1719;

34. 271°. 54' 30" 3,215.00 feet along Parcel B of. Governor's Executive Order 17191

00028 -2-

35. 181° 54' 30"

2,598.25 feet along Parcel B of Governor's Executive Order 1719;

36. 271° 59'

937.10 feet along the southerly boundary of the Saddle Road;

37. 269° 44' 30"

2,115.14 feet along the southerly boundary of the Saddle Road;

38. 2800 44'


39. 290° 20'

1,036.00 feet along the southerly boundary of the Saddle Road;

40. 288° 44'


41. 22° 28' 45" 5,075.66 feet along Mauna Kea Forest Reserve and Parcel "C" hereof:

42. 3540 00'

5,350.00 feet along Parcel "C" to the point of beginning and containing a GROSS AREA OF 15,480 ACRES, more or less, excluding there-from approximately 60 acres of Saddle Road, leaving a NET AREA OF 15,420. ACRES, more or less,

:PARCEL "B"

Land situated at Kaohe, Hamakua, Hawaii, Hawaii.

Being a portion of the Government Land of Kaohe and also being a portion of Mauna Kea Forest Reserve.

Beginning at a point on the southwesterly boundary of this piece of land, also being the northwest corner of Parcel A of Governor's Executive Order 1719 dated 26 January 1956, the coordi-nates of said paint of beginning from Government Survey Triangula-tion Station "Omaokoili" being 19,465.73 feet North and 22,857.15 feet West, thence running by azimuths measured clockwise from True South:-

1. 108° 40' 7,832.30 feet along Parcel A to the boundary of Mauna Kea Forest Reserve;

2. 224° 59' 01" 4,000.00 feet along a portion of the Govern-ment Land of Kaohe;

3. 279° 30'

16,000.00 feet along the remainder of Mauna.

Kea Forest Reserve; 00029

-3-

4. 315° 30'

3,000.00 feet along the remainder of Mauna Kea Forest Reserve;

5. 32° 30'

1,700.00 feet along the remainder of Mauna Kea Forest Reserve;

6. '5° 25' 30"

354.25 feet along the remainder of Mauna

Kea Forest Reserve;

7. 37* 00'

2,750.00 feet along the remainder Of Mauna Kea Forest Reserve;

8. 85° 30'

950.00 feet along the remainder of Mauna

Kea Forest Reserve to the boundary of Parcel A of Governor's Executive Order 1719;

9. 213* 45'

1,650.00 feet along Parcel A of Governor's Executive Order 1719;

10. 101° 18'

10,869.06 feet along Parcel A of Governor's Executive Order 1719 to the point of beginning and con-taining an AREA OF 1,944 ACRES, more or less.

PARCEL "C" •

• Land situated at Kaohe, Hamakua and Humuula, North Hilo, Hawaii, Hawaii.

Beginning at the. most southerly corner of this piece of land,'' also being on the easterly boundary of the proposed Impact Area of Pohakuloa Military Reservation, the coordinates of the said point of beginning from Government Survey Triangulation Station • "Omaokoili" being 9685.30 feet South' and 2632.28 feet West, thence running by azimuths measured clockwise from True South:-

1, 156° 22' 3,297.35 feet along the proposed Impact Area of Pohakuloa Military Reserva-tion;

2. 136° 30' ;4,800.00 feet along. the proposed Impact Area of Pdhakuloa Military Reserva-tion;

3. 154° 39' 1,540.00 feet along the proposed Impact Area of Pohakuloa Military Reserva-tion;

4. 174° 00' 5,350.00 feet along Tract B of Pdhakuloa Military Reservation;

00030 -4-.

5. 202° 28' 45" 2,100.00 feet along Tract B of Pohakuloa Military Reservation;

6. 262° 25' 2,604.15 feet along the. remainder of Mauna Kea Forest Reserve (Governor's Proclamation dated May 2, 1938);

7. 324° 00' 1,525.54 feet along fence, along the re-mainder of Mauna Kea Forest Reserve (Governor's Proclama-tion dated May 2; 1938);

8. 258° 11' 1,988.55

9. 305° 21' 10" 4,014.60

10. 231° 30' 4,500.00

11. 315° 00' 10,000.00

feet along fence, along the re-mainder of Mauna Kea Forest Reserve (Governor's Proclama-tion dated May 2, 1938);

feet along the remainder of Mauna Kea Forest Reserve (Governor's Proclamation dated May 2, 1938);

feet along the remainder of Mauna Kea Forest Reserve (Governor's Prodlamation dated May. 2, 1938);

feet along the remainder of Mauna Kea Forest Reserve (Governor's Proclamation dated May 2, 1938) to the boundary between Humuula and Kaohe;

along Humuula;

along the remainder of Humuula;

along the remainder of Humuula;

along the northeasterly boundary of the Saddle Road to the boundary between Humnula and Kaohe;

12. 39° 58' 12" 1,600.00 feet

13. 16° 57' 40" 5,307.56 feet

14. 36° 58' 30" 5,718.57 feet

15. 144° 20' 30" 171.84 feet

16. 15° 12' 18" 4,768.28 feet along Humuula to the point of beginning, and containing a GROSS AREA OF 5,659 ACRES, more or less, excluding there-from the Saddle Road, 100-foot wide right-of-way (52 acres, more Or less) leaving a NET AREA OF -5,.607 ACRES, more or less.

00031

'WHIZTAUVEIVit.q 'TRAMS WAVINK.

MairVONSWAYEA.A.

K.

WAREWEEI , M"4,111WEY :. wisaracessamEsa.-VEVEBIVEILVINSIBi. WIDENNIE14.

VINOSEESEME111,016. NEONNEWMCIffi fialiab. VOREIMEM:11a4iffiVaiifftx

wIRMEINNVE114afffflallifflu WffigaffiBEE MINEINEL-

lifiga WHIP (

NM? EA TEEMS cilS HIA5 MEM' WE ,5 MEN

WC 40 Egfailil N1.6.0714735Zilit MK WHIM

WA NERIMI VIECIMIal V Afficati ' WEINIA61 wasts7

'N' ifELE-.

Ex/e/ a/r aoc:( retzi‘iV.5

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Attt

EXHIBIT 0

NEIL ABERCROMBIE GOVERNOR OF HAWAII

WILLIAM J. AILA, JR- CHAIRPERSON

BOARD OF LAND AND NATURAL RESOURCES COMMISSION ON WATER RESOURCE MANAGEMETIT

ESTHER KWAINA FIRST DEPUTY

WILLIAM M. TAM DEPUTY DIRECTOR - WATER

AQUATIC RESOURCES BOATING AND OCEAN RECREATION

BUREAU OF CONVEYANCES COMMISSION ON WATER RESOURCEMANAGEMENT

CONSERVATION AND COASTAL LANDS CONSERVATION AND RESOURCES ENFORCEMENT

ENGINEERING FORES7RY AND WILDLIFE HISTORIC PRESERVATION

KAHOOLAWE ISLAND RESERVE COMMISSION LAND

STATE PARKS

STATE OF HAWAII DEPARTMENT OF LAND AND NATURAL RESOURCES

DIVISION OF FORESTRY AND WILDLIFE 19 EAST ICAWILI STREET

HILO, HAWAII 96720

March 13, 2013

MEMORANDUM

To:

From:

Subject:

Kevin Moore, State Lands Assistant Administrator

Steve Bergfeld, Acting Hawaii Branch Manager

DOFAW Hawaii Branch Comments on Cancellation and Issuance of a New General Lease No. S-3849 to the United States of America for the Pohakuloa Training Area (PTA).

The following is a compilation of comments from Hawaii Island DOFAW in regards to the mutual cancellation of general lease No. S-3849 for the United States of America for the Pohakuloa Training Area and issuance of a new direct lease to the United States of America.

DOFAW would like access to rock material from the quarry operated under land license No. S-353 for maintenance of roads in the surrounding Forest Reserves.

This board action should remove the lands North of saddle road from the lease and approve its proposed addition to the Mauna kea Forest Reserve. If a survey is required to remove the area North of the saddle road from the lease then PTA should coordinate and pay for the survey, subdivision and supporting documents. A Right of Entry should be issued to DOFAW until such time as it has been executive ordered to the Mauna Kea Forest Reserve.

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.

On page 6 item 17 of the current lease it starts, "To the extent permitted by training requirements the Government will cooperate with the Lessor in the game development and hunting programs of the Lessor," It would be good to keep that language in and remove the rest of the dates in that section, those dates and times are not relevant anymore. A more up to date sentence would be "To the extent permitted by training requirements the Government will cooperate with the Lessor in both developing hunting programs and game management that includes but is not limited to, habitat and water resource improvements, adjusting bag limits and seasons, means of take, and relevant research."

00034

EXHLBIT D

Add that the FBI/Infantry Road and other designated access in PTA would remain public access for hunting year round unless in direct conflict with training.

Adding language to establish a more clear and transparent process/communication of opening and closing of training areas with DOFAW to allow as much hunting opportunity as possible. For example, before LTC Shwedo, TAs 1-4 were closed months at a time and the sheep consumed the habitat to the point of distinct browse line. The population was so large that it resulted in too much competition of limited resources. During that time there was no training in those TAs.

00035

EXHIBIT E

REQUEST TO ACCESS A GOVERIVVIENT RECORD

DATE: January 15, 2014

TO: Willaim Aila, Jr. Chair, BLNR

FROM: David Kimo Frankel, Staff Attorney, Native Hawaiian Legal Corporation on behalf of Clarence Ching 1164 Bishop St. #1205 Honolulu, HI 96813 [email protected]

I WOULD LIKE THF, FOLLOWING GOVERNMENT RECORD:

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 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 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 not limited to, correspondence, inspection and monitoring reports, and meeting notes.

I WOULD LIKE: (please check one or more of the options below)

121 To inspect the government record.

A copy of the government record: (Please check one of the options below.) See the back of this page for information about fees that you may be required to pay for agency services to process your record request. Note: Copying and transmission charges may also apply to certain options.

Z Pick up at agency (date and time): when available Z Mail 0 Fax (toll free and only if available) Z Other, if available (please specify): email ok too Whichever method is the most convenient for DLNR

El If the agency maintains the records in a form other than paper, please advise in which format you would prefer to have the record.

0 Electronic 0 Audio 0 Other (please specify):

Check this box if you are attaching a request for waiver of fees in the public interest (see waiver information on back).

SEE BACK FOR IMPORTANT INFORMATION 00036

OIP 1 (rev. 9/1 2/01)

EXHIBIT E

FEES FOR PROCESSING RECORD REQUESTS

You may be charged fees for the services that the agency must perform when processing your record request, including fees for making photocopies and other lawful fees. The first $30 of fees charged for searching for a record, reviewing, and segregating will not be charged to you. Any amount over $30 will be charged to you. Fees are as follows:

Search for a Record $2.50 for 15 minutes Review and Segregation of a Record $5.00 for 15 minutes

WAIVER OF FEES IN THE PUBLIC INTEREST

Up to $60 of fees for searching for, segregating and reviewing records may be waived when the waiver would serve the public interest as described in section 2-71-32, Hawaii Administrative Rules. If you wish to apply for a waiver of fees in the public interest, you must attach to this request a statement of facts, including your identity as the requester, to show how the waiver of fees would serve the public interest. The criteria for this waiver, found at section 2-71-32, Hawaii Administrative Rules, are:

(1) The requested record pertains to the operations or activities of an agency; (2) The record is not readily available in the public domain; and (3) The requester has the primary intention and the actual ability to widely disseminate

information from the government record to the public at large.

The requested government records pertain to the manner in which the BLNR and DLNR, as trustees of the ceded land trust, have fulfilled their responsibilities. These documents are only available from the DLNR. Clarence Ching, through the Native Hawaiian Legal - Corporation, intends to widely disseminate this information through to the public through press releases and the Native Hawaiian Legal Corporation's website.

AGENCY RESPONSE TO YO'UR REQUEST FOR ACCESS

The agency to which you addressed your request must respond within a set time period. The agency will normally respond to you within 10 business days from the date it receives your request; however, in extenuating circumstances the agency must respond within 20 business days from the date of your request. If you have questions about the response time, you may contact the agency's UIPA contact person. If you are not satisfied with the agency's response, you may call the Office of Information Practices at 808-586-1400.

REQUESTER'S RESPONSIBILITI PS

You have certain responsibilities under §2-71-16, Hawaii Administrative Rules. You may obtain a copy of these rules from the Lieutenant Governor's Office or from the Office of Information Practices. These responsibilities include making arrangements to inspect and copy records, providing further clarification or description of the requested record as instructed by the agency's notice, and making a prepayment of fees, if assessed.

00037 01P 1 (rev. 9/12/01)

EXHIBIT F

NOTICE TO REQUESTER (Use multiple forms if necessary)

TO: David Kimo Frankel, NHLC, 1164 Bishop St., #1205, Honolulu, HI 96813 FROM: Dept. of Land & Nat. Resources Land Division, Kevin Moore 587-0426

(Agency/name & telephone # of contact person at agency) DATE REQUEST RECEIVED: January 16, 2014 DATE OF THIS NOTICE: January 23, 2014

GOVERNMENT RECORDS YOU REQUESTED (attach copy of request or provide brief description below): 1. See attached Request to Access Government Record dated January 15, 2014 2. 3.

NOTICE IS PROVIDED TO YOU THAT YOUR REQUEST:

El Will be granted in its entirety.* 0 Cannot be granted because

O Agency does not maintain the records. Agency believed to maintain records: E Agency needs a further description or clarification of the records requested. Please contact the agency

and provide the following information:

E Request requires agency to create a summary or compilation from records not readily retrievable. fl Is r- denied in its entirety 0 will be granted only as to certain parts

based upon the following exemption provided in HRS § 92F-13 and/or § 92F-22 and other laws cited below (portions of records that agency will not disclose should be described in general terms).

*We are making our entire file on General Lease No. S-3849 available. Based on our review of the file, it contains no records responsive to your request (with the possible exception of news articles on depleted uranium). But we suggest you conduct your own review to verify.

RECORDS OR APPLICABLE AGENCY INFORMATION WITHHELD STATUTES JUSTIFICATION

N/A

REQUESTER'S RESPONSIBILITIES:

You are required to (1) pay any lawful fees assessed; (2) make any necessary arrangements with the agency to inspect, copy or receive copies as instructed below; and (3) provide the agency any additional information requested. If you do not comply with the requirements set forth in this notice within 20 business days after the postmark date of this notice or the date the agency makes the records available, you will be presumed to have abandoned your request and the agency shall have no further duty to process your request. Once the agency begins to process your request, you may be liable for any fees incurred. If you wish to cancel or modify your request, you must advise the agency upon receipt of this notice.

METHOD & TIMING OF DISCLOSURE:

Records available for public access in their entireties must be disclosed within a reasonable time, not to exceed 10 business days, or after receipt of any prepayment required. Records not available in their entireties must be disclosed within 5 business days of this notice or after receipt of any prepayment required. If incremental disclosure is authorized by HAR § 2-71-15, the first increment must be disclosed within 5 business days of this notice or after receipt of any prepayment required.

Method of Disclosure:

00038 01P 2 (rev. 6/21/07)

EXHIBIT F

ED Inspection at the following location: DLNR Land Division, 1151 Punchbowl Street, Rm 220, Honolulu, HI 96813. CI Copy will be provided in the following manner:

El Available for pick-up at the following location: 0 Will be mailed to you. 0 Will be transmitted to you by other means requested:

Timing of Disclosure: All records, or first increment where applicable, will be made available or provided to you:

El On January 27, 2014, or such later date as you arrange with us. After prepayment of fees and costs of $ (50% of fees +100% of costs, as estimated below). Payment may be made by: rj cash CI personal check El other

For incremental disclosures, each subsequent increment will be disclosed within 20 business days after: The prior increment (if one prepayment of fees is required and received).

El Receipt of each incremental prepayment required. Disclosure is being made in increments because the records are voluminous and the following extenuating circumstances exist:

F1 Agency must consult with another person to determine whether the record is exempt from disclosure under HRS chapter 92F. Request requires extensive agency efforts to search, review, or segregate the records or otherwise prepare the records for inspection or copying. Agency requires additional time to respond to the request in order to avoid an unreasonable interference with its other statutory duties and functions.

El A natural disaster or other situation beyond agency's control prevents agency from responding to the request within 10 business days.

ESTIMATED FEES & COSTS:

The agency is authorized to charge you certain fees and costs to process your request (even if no record is subsequently found to exist), but must waive the first $30 in fees assessed for general requesters and the first $60 in fees when the agency finds that the request made is in the public interest. See HAR §§ 2-71-19, -31 and -32. The agency may require prepayment of 50% of the total estimated fees and 100% of the total estimated costs prior to processing your request. The following is the estimate of the fees and costs that the agency will charge you, with the applicable waiver amount deducted:

Fees: Search Estimate of time to be spent: lhour $ 10.00 ($2.50 for each 15-minute period)

Review & segregation Estimate of time to be spent: 0.25 hour $ ($5.00 for each 15-minute period)

Fees waived El general ($30) public interest ($60) <$ 60.00>

Other (Pursuant to HAR § 2-7-31(B) )

Total Estimated Fees:

Costs: Copying Estimate of # of pages to be copied: $ 0.50 per page.)

Other

Total Estimated Costs:

$ 0.00

For questions about this notice, please contact the person named above. Questions regarding compliance with the UIPA may be directed to the Office of Information Practices at 808-586-1400 or [email protected].

00039 01P 2 (rev. 6/21/07)

REQUEST TO ACCESS A GOVERNMENT RECORD

DATE: January 15, 2014

TO: Willaim Aila, Jr. Chair, BLNR

FROM: David Kimo Frankel, Staff Attorney, Native Hawaiian Legal Corporation on behalf of Clarence Ching 1164 Bishop St. #1205 Honolulu, HI 96813 [email protected]

I WOULD LIKE THE FOLLOWING GOVERNMENT RECORD:

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 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 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 not limited to, correspondence, inspection and monitoring reports, and meeting notes.

I WOULD LIKE: (please check one or more of the options below)

To inspect the government record.

A copy of the government record: (Please check one of the options below.) See the back of this page for information about fees that you may be required to pay for agency services to process your record request. Note: Copying and transmission charges may also apply to certain options.

Pick up at agency (date and time): when available Mail

E1 Fax (toll free and only if available) Other, if available (please specify): email ok too Whichever method is the most convenient for DLNR

LI If the agency maintains the records in a form other than paper, please advise in which format you would prefer to have the record.

0 Electronic 0 Audio El Other (please specify):

Check this box if you are attaching a request for waiver of fees in the public interest (see waiver information on back).

SEE BACK FOR IMPORTANT INFORMATION 00040

up 1 (rev. 9/12/01)

A

2

FEES FOR PROCESSING RECORD REQUESTS

You may be charged fees for the services that the agency must perform when processing your record request, including fees for making photocopies and other lawful fees. The first $30 of fees charged for searching for a record, reviewing, and segregating will not be charged to you. Any amount over $30 will be charged to you. Fees are as follows:

Search for a Record $2.50 for 15 minutes Review and Segregation of a Record $5.00 for 15 minutes

WAIVER OF FEES IN THE PUBLIC INTEREST

Up to $60 of fees for searching for, segregating and reviewing records may be waived when the waiver would serve the public interest as described in section 2-71-32, Hawaii Administrative Rules. If you wish to apply for a waiver of fees in the public interest, you must attach to this request a statement of facts, including your identity as the requester, to show how the waiver of fees would serve the public interest. The criteria for this waiver, found at section 2-71-32, Hawaii Administrative Rules, are:

(1) The requested record pertains to the operations or activities of an agency; (2) The record is not readily available in the public domain; and (3) The requester has the primary intention and the actual ability to widely disseminate

information from the government record to the public at large.

The requested government records pertain to the manner in which the BLNR and DLNR, as trustees of the ceded land trust, have fulfilled their responsibilities. These documents are only available from the DLNR. Clarence Ching, through the Native Hawaiian Legal Corporation, intends to widely disseminate this information through to the public through press releases and the Native Hawaiian Legal Corporation's website.

AGENCY RESPONSE TO Yom REQUEST FOR ACCESS

The agency to which you addressed your request must respond within a set time period. The agency will normally respond to you within 10 business days from the date it receives your request; however, in extenuating circumstances the agency must respond within 20 business days from the date of your request. If you have questions about the response time, you may contact the agency's UIPA contact person. If you are not satisfied with the agency's response, you may call the Office of Information Practices at 808-586-1400.

REQUESTER'S RESPONSIBILITIES

You have certain responsibilities under §2-71-16, Hawaii Administrative Rules. You may obtain a copy of these rules from the Lieutenant Governor's Office or from the Office of Information Practices. These responsibilities include making arrangements to inspect and copy records, providing further clarification or description of the requested record as instructed by the agency's notice, and making a prepayment of fees, if assessed.

00041 01P 1 (rev. 9/12/01)


STATE OF HAWAII


) Plaintiffs, ) NOTICE OF HEARING AND

vs. ) CERTIFICATE OF SERVICE )


) Defendants. )

NOTICE OF HEARING

To: DAN MORRIS Deputy Attorney General Department of the Attorney General 465 South King Street, 3"I Floor Honolulu, Hawais i 96813

PLEASE TAKE NOTICE that the foregoing motion for summary judgment shall come on for

hearing before the HONORABLE GARY W.B. CHANG, Judge of the above-entitled Court, in

his courtroom located at 777 Punchbowl Street, Honolulu, Hawaii, 1171Afor5ct

0 c-/ b-c V at 3 0 0 r olor as soon thereafter as counsel can be heard.

Dated: Honolulu, Hawaii, September 22, 2014.

DAVID KIMO FRANKEL SUMMER L. H. SYLVA Attorney for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document will be served by hand delivery to

the above address on September 22, 2014.


DAVID KIMO FRANKEL SUMMER L. H. SYLVA Attorneys for Plaintiffs

2

Documents

r HT C;.iROorr couRT NATIVE HAWAIIAN LEGAL CORPORATION iL · NATIVE HAWAIIAN LEGAL CORPORATION 1164 Bishop Street, Suite 1205 ... sites in Hawai'i."1 Through the federal court's decision