Ching v. Case ( 2019 )

***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Electronically Filed
Supreme Court
SCAP-XX-XXXXXXX
23-AUG-2019
09:05 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
CLARENCE CHING and MARY MAXINE KAHAULELIO,
Plaintiffs-Appellees,
vs.
SUZANNE CASE, in her official capacity as Chairperson
of the Board of Land and Natural Resources and
State Historic Preservation Officer, BOARD OF LAND AND NATURAL
RESOURCES, and DEPARTMENT OF LAND AND NATURAL RESOURCES,
Defendants-Appellants.
SCAP-XX-XXXXXXX
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CAAP-XX-XXXXXXX; CIV. NO. 14-1-1085-04)
AUGUST 23, 2019
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
I. INTRODUCTION
Under the Hawai‘i Constitution, all public natural
resources are held in trust by the State for the common benefit
of Hawai‘i’s people and the generations to come. Additionally,
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the constitution specifies that the public lands ceded to the
United States following the overthrow of the Hawaiian Monarchy
and returned to Hawai‘i upon its admission to the Union hold a
special status under our law. These lands are held by the State
in trust for the benefit of Native Hawaiians and the general
public. Accordingly, our constitution places upon the State
duties with respect to these trusts much like those of a common
law trustee, including an obligation to protect and preserve the
resources however they are utilized.
Several parcels of ceded land on the island of Hawai‘i
that are indisputably held in public trust by the State have
been leased to the federal government of the United States of
America for military training purposes, subject to a number of
lease conditions designed to protect the land from long-term
damage or contamination. This case concerns the degree to which
the State must monitor the leased trust land and the United
States’ compliance with the lease terms to ensure the trust
property is ultimately safeguarded for the benefit of Hawai‘i’s
people.
We hold that an essential component of the State’s
duty to protect and preserve trust land is an obligation to
reasonably monitor a third party’s use of the property, and that
this duty exists independent of whether the third party has in
fact violated the terms of any agreement governing its use of
2
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the land. To hold otherwise would permit the State to ignore
the risk of impending damage to the land, leaving trust
beneficiaries powerless to prevent irreparable harm before it
occurs. We therefore affirm the trial court’s determination
that the State breached its constitutional trust duties by
failing to reasonably monitor or inspect the trust land at
issue.
II. BACKGROUND
A. Lease No. S-3849
On August 17, 1964, the State of Hawaii Department of
Land and Natural Resources (DLNR) entered into a written
agreement to lease three tracts of ceded land situated at Kaohe,
Hāmākua and Puuanahulu, North Kona, Hawaii to the United States
for military purposes.1 The 22,900 acre tract of land, which is
contained within the Pōhakuloa Training Area (PTA),2 was leased
to the United States for a term of sixty-five years, to expire
1
Hawaii’s ceded lands are lands which were classified as
government or crown lands prior to the overthrow of the
Hawaiian monarchy in 1893. Upon annexation in 1898, the
Republic of Hawaii ceded these lands to the United States.
In 1959, when Hawaii was admitted into the Union, the ceded
lands were transferred to the newly created state, subject
to the trust provisions set forth in § 5(f) of the
Admission Act.
Pele Def. Fund v. Paty, 73 Haw. 578, 585, 837 P.2d 1247, 1254 (1992).
2
The PTA as a whole is approximately 134,000 acres and includes
land ceded to the United States military by Presidential and Governor’s
Executive Orders, land purchased by the United States in fee simple from a
private owner, and land that is leased from the State.
3
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
on August 16, 2029. In exchange, the United States paid the
DLNR one dollar.
The lease gives the United States the right to “have
unrestricted control and use of the demised premises.” The
lease also establishes several duties that the United States is
obligated to fulfill during the course of the lease. Most
notably for purposes of this appeal, Paragraph 9 of the lease
requires that the United States “make every reasonable effort to
. . . remove and deactivate all live or blank ammunition upon
completion of a training exercise or prior to entry by the []
public, whichever is sooner.”3 In Paragraph 14 of the lease, the
United States agrees to “take reasonable action during its use
of the premises herein demised to prevent unnecessary damage to
or destruction of vegetation, wildlife and forest cover,
geological features and related natural resources” and to “avoid
pollution or contamination of all ground and surface waters and
remove or bury all trash, garbage and other waste materials
3
Paragraph 9 of the lease states the following:
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 road 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.
4
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
resulting from [the United States’] use of the said premises.”4
And, in Paragraph 29 of the lease, the United States agrees
that, if required by the State upon the surrender of the
property at the termination of the lease, it will “remove
weapons and shells used in connection with its training
activities to the extent that a technical and economic
capability exists and provided that expenditures for removal of
shells will not exceed the fair market value of the land.”5
4
Paragraph 14 provides the following:
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 prevent 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 pollution 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.
5
Paragraph 29 provides the following:
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 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.
5
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
The lease also places a number of corresponding rights
and duties on the DLNR. The most relevant to the present case
is established in Paragraph 18, in which the DLNR agrees to
“take reasonable action during the use of the said premises by
the general public, to remove or bury trash, garbage and other
waste materials resulting from use of the said premises by the
general public.”6 In Paragraph 19, the lease also grants the
DLNR the “right to enter upon the demised premises at all
reasonable times to conduct any operations that will not unduly
interfere with activities of the [United States] under the terms
of the lease,” subject to “obtaining advance clearance” from the
United States.7
Additionally, the lease provides in Paragraph 30 that
any dispute over a question of fact regarding the lease must be
6
Paragraph 18 provides the following:
The Lessor hereby agrees that, commensurate with the public
use of the premises herein demised, it will take reasonable
action during the use of 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.
7
Paragraph 19 provides the following:
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 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 held.
6
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
decided by the “Division Engineer, U.S. Army Engineer Division,”
with a right of appeal to the Secretary of the Army.8 Paragraph
30 further provides that the decision of the Secretary or a duly
authorized representative “shall be final and conclusive unless
determined by a court of competent jurisdiction to have been
fraudulent, or capricious, or arbitrary, or so grossly erroneous
as necessarily to imply bad faith, or not supported by
substantial evidence.” The paragraph clarifies that questions
8
Paragraph 30 provides the following:
(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 otherwise 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 representative for the determination
of such appeals shall be final and conclusive unless
determined by a court of competent jurisdiction to have
been fraudulent, or capricious, or arbitrary, or so grossly
erroneous as necessarily to imply bad faith, or not
supported by substantial evidence. 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.
(b) This Condition does not preclude consideration 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.
7
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
of law may also be considered in connection with a dispute’s
resolution, but the decision of any administrative party on a
question of law shall not be final. It further guarantees the
State’s right to be heard and to offer evidence in support of
the appeal.
B. The Plaintiffs’ Request to Access Government Records
In January 2014, Clarence Ching filed a request with
the Chairperson of the Board of Land and Natural Resources
(BLNR) to access government records. Ching requested the
following government records:
1. Paragraph 9 of State General Lease No. S-3849 (with the
U.S. Army relating to Pohakuloa) requires the United States
Government to “make every reasonable effort to . . . remove
or deactivate all live or blank ammunition upon completion
of a training exercise or prior to entry by the said
public, whichever is sooner.” Please provide all
government records that show (a) the U.S. Government’s
compliance or non-compliance with this lease term and (b)
the Department of Land and Natural Resources or Board of
Land and Natural Resources efforts at ensuring compliance
with this term of the 1964 lease. This would include, but
[is] not limited to, correspondence, inspection and
monitoring reports, and meeting notes.
2. Paragraph 14 of the same lease requires the U.S.
Government to “remove or bury all trash, garbage or other
waste materials.” Please provide all government records
that show (a) the U.S. Government’s compliance or non-
compliance with this lease term and (b) the Department of
Land and Natural Resources or Board of Land and Natural
Resources efforts at ensuring compliance with this term of
the 1964 lease. This would include, but [is] not limited
to, correspondence, inspection and monitoring reports, and
meeting notes.
The DLNR responded that the request would be granted in its
entirety. The response stated that the DLNR was providing its
8
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
entire file on the lease (the lease file), which, based on its
review, contained no records responsive to Ching’s request.
C. The Circuit Court Action
1. Complaint
Three months later, Ching and Mary Maxine Kahaulelio
(collectively, “the Plaintiffs”) filed a complaint in the
Circuit Court of the First Circuit (circuit court) against the
BLNR, DLNR, and William J. Aila, Jr., in his official capacity
as Chairperson of the BLNR and State Historic Preservation
Officer (collectively, “the State”).9 In their complaint, the
Plaintiffs alleged that the State, as trustee of the state’s
ceded lands, breached its trust duty “to protect and maintain
the[] public trust lands” in the PTA. The complaint specified
that it was not alleging that the United States had violated the
terms of its lease, but rather that the State has reason to
believe that the lease terms may have been violated and has a
trust duty to investigate and take all necessary steps to ensure
compliance with the terms of the lease.
According to the complaint, Ching is a descendant of
the aboriginal people of Hawaii and engages in native Hawaiian
9
Under Hawaii Rules of Appellate Procedure Rule 43(c), a public
officer named in a case is automatically substituted by his or her successor
when the holder of the office ceases to hold office on appeal. Accordingly,
Suzanne Case has been substituted for William J. Aila, Jr., whom she
succeeded as Chairperson.
9
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
cultural practices, which includes walking in the footsteps of
his ancestors on hiking trails located within the PTA. He also
participates in other “traditional and customary services”
within the PTA, the complaint explained. Kahaulelio is also a
descendant of the aboriginal people of Hawaii, the complaint
stated. She is at least 50% native Hawaiian and a beneficiary
of the Hawaiian Home Lands Trust, the complaint continued, as
well as a Hawaiian Home Lands lessee. The complaint further
stated that both Ching and Kahaulelio are beneficiaries of the
ceded trust lands.
Citing a March 2013 letter by a DLNR staff member, the
complaint alleged that the State was aware of the possibility
that the land leased to the United States was littered with
unexploded ordnance (UXO) and “munitions and explosives of
concern.”10 The Plaintiffs asserted that the State did not know
whether the United States had complied with the lease because
they had taken “no concrete steps to investigate, monitor or
ensure compliance” with the lease. Because the State was
obligated to protect, care for, and maintain trust property by
investigating the United States’ compliance with the lease and
10
The Plaintiffs’ First Amended Complaint added four paragraphs
citing a state-run website and several federal cases that allegedly
demonstrated that the State was aware that the United States’ military had
failed to clean up ordnance on other land leased to the United States.
10
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
failed to do so, the Plaintiffs contended that the State “failed
to fulfill [its] trust duties with respect to the ceded land
leased” to the United States.
The Plaintiffs requested a declaration that the State
breached its trust obligations, an order to require the State to
fulfill its trust duties with respect to the leased land, and an
injunction to bar the State from negotiating an extension of the
lease or from entering into a new lease of the PTA until the
State ensures that the terms of the existing lease have been
fulfilled.11
2. Motions for Summary Judgment
a. The Motions
After the State filed its answer, the Plaintiffs filed
a Motion for Summary Judgment. In their motion, the Plaintiffs
asserted that under article XII, section 4 and article XI,
section 1 of the Hawaii Constitution, the State is the trustee
of the public ceded lands trust and of public natural resources,
and it therefore has a trust duty to “monitor, inspect and
investigate to ensure that public trust lands are not being
11
Approximately one month after the Plaintiffs filed their
complaint, the State filed a notice of removal from the circuit court to the
United States District Court for the District of Hawai‘i. The Plaintiffs
subsequently filed a motion to remand the case back to circuit court. The
federal district court granted the Plaintiffs’ motion, concluding that “at
issue is a purely state-law breach of trust claim raising numerous questions
of fact and substantial questions of Hawaii law regarding the State’s
obligations as to ceded lands.”
11
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
damaged--particularly if [it] has reason to believe that trust
property is at risk.” Despite the State’s awareness of the
possibility that the terms of the lease may have been violated,
the Plaintiffs argued, the State took no steps to ensure
compliance with the lease terms. Its failure to investigate the
condition of the land, the Plaintiffs contended, fell well below
its standard of care and constituted a breach of its trust
duties. The Plaintiffs concluded that the equitable relief
requested was warranted because they were entitled to prevail on
the merits, there was a grave risk posed to the ceded land, and
the public interest weighed in their favor.
In its Memorandum in Opposition, the State argued that
the Plaintiffs’ Motion for Summary Judgment should be denied
because the Plaintiffs did not allege that any provision of the
lease had been violated, and it asserted that the United States’
obligation to clean the leased property will not arise until
2029. In the absence of an alleged breach, the State maintained
that the Plaintiffs’ claims amounted to “speculation or
predictions about future harm” that did not present an “actual
controversy” suitable for judicial resolution.
The State also contended that the Plaintiffs were
seeking relief that was unavailable under Hawaii Revised
Statutes (HRS) § 632-1 (1993), as the relief requested would not
bring an end to the controversy or resolve the dispute with
12
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
finality.12 The State posited that “even if the injunctive
relief sought by Plaintiffs is ordered by the Court, Plaintiffs
will still dispute the extent of any cleanup efforts by the
United States” because the requested relief would require “the
State to engage in some undefined form of oversight of the
United States military.” Therefore, the State concluded, the
Plaintiffs’ concerns and the underlying controversy did not meet
the statutory requirements for declaratory relief.
Additionally, the State argued that the Plaintiffs
were not entitled to declaratory relief because the declaratory
judgment statute limits declaratory actions to claims for which
no alternative statutory relief is available. Here, the State
concluded, HRS § 673-1 (1993) provides a cause of action for
native Hawaiians’ to bring a claim for breaches of relevant
12
HRS § 632-1 provides the following in relevant part:
Relief by declaratory judgment may be granted in civil
cases where an actual controversy exists between contending
parties, or where the court is satisfied that antagonistic
claims are present between the parties involved which
indicate imminent and inevitable litigation, or where in
any such case the court is satisfied that a party asserts a
legal relation, status, right, or privilege in which the
party has a concrete interest and that there is a challenge
or denial of the asserted relation, status, right, or
privilege by an adversary party who also has or asserts a
concrete interest therein, and the court is satisfied also
that a declaratory judgment will serve to terminate the
uncertainty or controversy giving rise to the proceeding.
Where, however, a statute provides a special form of remedy
for a specific type of case, that statutory remedy shall be
followed[.]
13
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
constitutional trusts, and the Plaintiffs were thus obligated to
proceed under that statutory framework.13
In reply, the Plaintiffs contended that the State was
incorrect in asserting that the duty of the United States to
clean the property did not arise until the lease expired because
Paragraph 9 of the lease required the United States to clean the
land during the lease--specifically, when it completed a
training exercise. The Plaintiffs also argued that injunctive
relief is appropriate “in a case involving a traditional
equitable claim when a trustee breaches its fiduciary
obligations,” noting that HRS § 632-3 (1993)14 empowers courts to
grant ancillary equitable relief. (Citing Food Pantry, Ltd. v.
Waikiki Bus. Plaza, Inc., 58 Haw. 606, 613-14, 575 P.2d 869,
875-76 (1978); Natatorium Pres. Comm. v. Edelstein, 55 Haw. 55,
13
HRS § 673-1 provides in relevant part as follows:
(a) The State waives its immunity for any breach of trust
or fiduciary duty resulting from the acts or omissions of
its agents, officers and employees in the management and
disposition of trust funds and resources of:
. . . .
(2) The native Hawaiian public trust under article
XII, sections 4, 5, and 6 of the Constitution of the
State of Hawaii implementing section 5(f) of the
Admission Act[.]
14
HRS § 632-3 provides that “[f]urther relief based on a
declaratory judgment may be granted whenever necessary or proper, after
reasonable notice and hearing, against any adverse party whose rights have
been adjudicated by the judgment.”
14
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
515 P.2d 621 (1973); King v. Oahu Ry. & Land Co., 11 Haw. 717,
738 (Haw. Rep. 1899).)
The State filed its own Motion for Summary Judgment
that restated the arguments from the State’s Memorandum in
Opposition to the Plaintiffs’ Motion for Summary Judgment
verbatim.15
b. Supplemental Briefing
After a hearing,16 the Plaintiffs submitted a
Supplemental Memorandum in Support of their Motion for Summary
Judgment, which argued that further discovered evidence
demonstrated that the DLNR had not conducted an inspection of
the PTA since 1984. For example, between 1984 and the start of
the current litigation, there had been no communication between
the State and the United States regarding compliance with the
lease, the Plaintiffs asserted.17 This demonstrated that the
15
At a hearing regarding the motions, the State also argued that it
should prevail on the merits because an internal memorandum attached to its
Memorandum in Opposition showed that there were internal discussions at the
DLNR regarding the monitoring of the United States’ compliance with the
lease. This memorandum was sent from the Acting Hawai‘i Branch Manager of the
Division of Forestry and Wildlife (DOFAW) to the DLNR regarding DOFAW’s
comments on cancellation and issuance of a new lease with the United States
for the PTA. One concern noted by DOFAW was that the United States “should
sweep the lands . . . for UXO and remove any UXO found at their expense to
make the area safe for the public.”
16
The Honorable Gary W.B. Chang presided.
17
On November 14, 2014, approximately one month after the hearing
and one week before the Plaintiffs filed their supplemental memorandum, the
DLNR sent a letter to a United States Army officer requesting the following:
(continued . . .)
15
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
State had not made a sufficient effort to protect the trust
land, the Plaintiffs contended.
In the State’s Supplemental Memorandum, it asserted
that several records from the lease file showed that it had
actively engaged in monitoring since the execution of the lease,
including records of one formal inspection of the PTA, maps
indicating locations where UXO may be located, reviews of the
United States’ compliance done in connection with amendments to
the lease, and “informal communications” relating to the lease.
The State also pointed to a written request it had sent to the
United States for a description of its procedures to comply with
the lease provisions at issue. The State asserted that the
United States responded to the letter “with detailed information
about their clean-up and post-training procedures.” Because the
letter demonstrated that the State had undertaken monitoring of
the PTA, it concluded, there was no longer a justiciable
controversy.
(. . . continued)
[A] description of the procedures utilized to comply with
the[] provisions of Lease No. S-3849, including detailed
information about any action taken by the United States
following training exercises to remove or deactivate
ordnance, as well as actions taken to remove trash or
garbage resulting from Government use of the lease
premises.
16
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
In the Plaintiffs’ Reply, they contended that even if
the 1984 inspection was “complete and thorough,” it is not
sufficient to show that the State is currently fulfilling its
trust duties because there was no evidence of an inspection
since 1984. Thus, the State failed to demonstrate that it had
fulfilled its trust duties, the Plaintiffs concluded.
c. Orders Denying Summary Judgment
The circuit court denied the Plaintiffs’ Motion for
Summary Judgment, stating that there were genuine issues of
material fact as to whether the State had discharged its trust
duties. The court also denied the State’s Motion for Summary
Judgment because the court found, inter alia, that there was an
“actual controversy regarding whether or not the State ha[d]
discharged its responsibilities as a trustee of public lands.”
3. Motions to Join the United States as a Party
After its Motion for Summary Judgment was denied, the
State filed a Motion to Add the United States as a Party or, in
the Alternative, for Dismissal in which it argued that under
Hawaii Rules of Civil Procedure (HRCP) Rule 21 (1980), adding
the United States was appropriate because, as the lessee of the
leased land within the PTA, the United States had a legal and
beneficial interest in the subject matter of the Plaintiffs’
complaint. The State also contended that the United States was
a necessary party under HRCP Rule 19(a) (2000) because complete
17
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
relief could not be accorded in its absence. Resolution of the
action would necessarily include an interpretation of the lease
provisions, the State contended, and the United States would not
be able to defend its interests under the lease if it were not
added as a party. And, asserted the State, in the context of
leases, Hawaii courts have held that all parties to a lease are
necessary parties in any equitable action that interprets or
touches upon the lease. (Citing Foster v. Kaneohe Ranch Co., 12
Haw. 363, 365 (Haw. Rep. 1900).)
Finally, the State argued that the United States is an
indispensable party under HRCP Rule 19(b) and therefore the suit
should be dismissed if it cannot be joined.18 Under the first
factor of HRCP Rule 19(b), a judgment rendered in the absence of
the United States would be prejudicial to it because it “would
be forced to accept factual findings that directly bear on
whether the United States has breached the Lease,” the State
asserted. Under the rule’s second factor, a court could not
18
HRCP Rule 19(b) provides that courts should weigh the following
factors when determining whether a party is indispensable:
[F]irst, to what extent a judgment rendered in the person’s
absence might be prejudicial to the person or those already
parties; second, the extent to which, by protective
provisions in the judgment, by the shaping of relief, or
other measures, the prejudice can be lessened or avoided;
third, whether a judgment rendered in the person’s absence
will be adequate; fourth, whether the plaintiff will have
an adequate remedy if the action is dismissed for
nonjoinder.
18
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
shape the relief to ameliorate the prejudicial effect of the
judgment because “[n]ew or different monitoring” or limitations
on the United States’ current use of the land were fundamental
to the relief sought by the Plaintiffs, the State argued.
Applying the third factor, the State asserted that a judgment
rendered in the absence of the United States would be inadequate
because the United States was ultimately the party that the
Plaintiffs sought to hold responsible for causing the waste of
the trust property. And fourth, the State contended that the
Plaintiffs had an alternate remedy for their breach of trust
claims: an action in federal court that also names the United
States or an action brought in state court pursuant to HRS
§ 673-1.
The Plaintiffs responded that the circuit court should
deny the State’s motion because, contrary to the State’s
argument that the Plaintiffs’ complaint was based on a violation
of the lease, they were asserting “a basic state-law breach of
trust claim.” The United States was not a necessary nor
indispensable party to the case under HRCP Rule 19(a), the
Plaintiffs argued, because any effect on federal interests was
“purely speculative,” and any relief that would require the
State to increase its monitoring would not impinge on the United
States’ rights under the lease because the State already has a
right of entry under the lease. And, even assuming the State
19
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
were to eventually take actions that affect the United States’
interests as a result of a judicial ruling in this case, the
United States was well protected because any dispute between it
and the State would be decided by an agent of the United States
under the lease, the Plaintiffs contended.
Next, the Plaintiffs contended that even if the United
States was a party that should be joined if possible under HRCP
Rule 19(a), it was not an indispensable party under HRCP Rule
19(b). The rule’s first factor weighed against the State, the
Plaintiffs argued, because a “judgment [would] not prejudice the
interests of the U.S. whatsoever” as it would “not [be] bound by
any findings made to a case in which it is not a party.”
Second, the Plaintiffs asserted that the court could fashion its
relief to ensure that the United States does not suffer any
prejudice by, for example, ordering the State to provide a
report to the court thirty days prior to an annual evidentiary
hearing to ensure the State’s compliance with the lease. Third,
the Plaintiffs stated that it would be able to obtain adequate
relief in the absence of the United States. Fourth, the
Plaintiffs asserted that they would be “deprived of their day in
court if th[e] action were dismissed,” which would be
inconsistent with Hawaii Supreme Court decisions holding that
beneficiaries must be able to keep government trustees
accountable.
20
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
The United States then filed a statement of interest
in which it asserted that it “unquestionably has an interest” in
the subject matter of the litigation that was “clearly
sufficient” for joinder, if it were feasible.19 But joinder was
not feasible, it explained, because “such a state action against
the United States is barred by its sovereign immunity” and
neither party had identified a congressional waiver of sovereign
immunity.20 The United States asserted that disposition of the
action in its absence may impair its ability to protect its
interest, making it a necessary party under HRCP Rule 19(a).21
19
Prior to this filing, the court denied without prejudice the
State’s Motion to Add the United States as a Party, or in the Alternative,
for Dismissal “because of the possibility that the United States will make a
determination that it has a sufficient interest to appear in this case.”
After the United States filed its Statement of Interest, the State filed a
Motion to Dismiss for Failure to Join an Indispensable Party, or in the
Alternative, for Summary Judgment in which it made substantially similar
arguments to those made in its first motion as to why the United States was a
necessary and indispensable party under HRCP Rule 19. The latter motion also
argued that the action was nonjusticiable because, inter alia, it presented a
political question falling within the discretion of the executive branch and
the court could not resolve an “actual controversy” due to the vagueness of
the requested relief. For the sake of clarity, this opinion addresses the
two motions together with respect to the necessity and indispensability of
the United States as a party.
20
The United States noted that filing a statement of interest
neither constitutes a formal intervention nor makes the United States a party
to the proceedings and thus does not amount to a waiver of sovereign
immunity. (Citing M.R. v. Dreyfus, 697 F.3d 706, 735 (9th Cir. 2012).)
21
The United States used the PTA, it stated, for “combined live-
fire and maneuver training,” which “is critical because military operations
require significant coordination.” Additionally, the United States explained
that the PTA cannot operate as an effective training area without the land
leased from the State, because, for safety purposes, the artillery firing
ranges contained within the PTA must be situated so that the artillery lands
in areas in which soldiers and the general public do not travel. The leased
land provides such safety, the United States noted. The leased land was also
(continued . . .)
21
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
The United States contended that the court could not assess the
Plaintiffs’ breach of trust claim without “directly or
indirectly interpreting the lease and determining factual issues
regarding whether the United States has complied with the
lease.” The Plaintiffs were therefore improperly asking a state
court to interpret the United States’ obligations under the
lease, the United States argued.
The United States also maintained that when a non-
party cannot be joined due to sovereign immunity, the first
factor--the “extent a judgment rendered in the [party’s] absence
might be prejudicial to the [party] or those already parties”--
takes primary importance and “should weigh heavily in the Rule
19(b) analysis.” The Plaintiffs’ relief would cause “serious
harm” to it, the United States contended, for several reasons.
An injunction barring the State from renegotiating the lease
would seriously harm the United States because the PTA “is
essential for readiness of all the forces” in the Pacific region
and there is no other location in the Pacific at which the
(. . . continued)
crucial to the United States training operations, it explained, because the
land contains (1) a “Battle Area Complex,” which “allows soldiers to train
and test their ability to detect, identify, engage and defeat stationary and
moving targets in both open and urban terrain environments,” (2) a “Modular
Military Operations in Urban Terrain,” which “is designed to look like
villages/towns and contains different types of buildings to practice military
operations,” and (3) the Cooper Airstrip, which “is used to practice launches
and recovery of Shadow Unmanned Aircraft.”
22
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
training done at the PTA could be accomplished, the United
States asserted. Additionally, if the court instead ordered the
State to conduct inspections of the leased land, such
inspections could burden the United States, it contended,
because it could disrupt critical training and raise safety
issues.
As to the second factor in the HRCP Rule 19(b)
analysis, the extent that prejudice can be avoided through the
shaping of relief, the United States contended that the
Plaintiffs’ proffered shaping of relief would put the extension
of the lease in doubt or disrupt the military’s training.22 And
as to the fourth factor in the HRCP Rule 19(b) analysis, the
adequacy of available remedies should the suit be dismissed, the
United States argued that “[c]ourts have recognized . . . that
the lack of an alternative forum does not automatically prevent
dismissal of a suit where the inability results from the non-
party’s sovereign immunity.”23
22
As stated, the Plaintiffs asserted that injunctive relief
regarding the lease could be shaped by “enjoin[ing] the defendants from
executing an agreement extending the lease or entering into a new lease until
the defendants ensure that the terms of the existing lease have been
fulfilled.” They also contended that the court could shape relief in regards
to monitoring by ordering that “the defendants provide a report to [the
circuit] court thirty days prior to annual evidentiary hearings on
defendants’ efforts to ensure compliance with the lease.”
23
The United States did not address the third factor of HRCP Rule
19(b), the adequacy of a judgment rendered in the party’s absence.
23
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
The United States further stated that, in the event
the case were permitted to go forward and “relief were entered
that impacted the interests of the United States,” the United
States “would at that time consider what action to take,
including whether to file a motion to intervene as a party for
the purpose of removing the case to United States District Court
pursuant to 28 U.S.C. § 1442(a).”
The court denied the State’s motion without prejudice,
determining that “things may unfold as a matter of proof during
the trial that may implicate some of the arguments being
raised.” Based on the pre-trial record, “the Court believe[d]
it would be improvident to dismiss any of the claims.”
4. Trial
A bench trial commenced, during which the Plaintiffs
presented a series of witnesses who testified regarding the
DLNR’s management of the leased PTA lands.
The Plaintiffs first called Kevin Moore, the DLNR’s
custodian of records who responded to the request for government
records that Ching filed before the start of litigation. Moore
testified that although DLNR’s normal practice is to attempt to
inspect leased lands at least once every two years, the leased
PTA land is more difficult to inspect and therefore inspections
are conducted less frequently. Moore stated that the DLNR’s
lease file contained records of only three inspections of the
24
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
leased PTA land: one from 1984 that indicated the inspection
lasted “no more than one day,” which Moore acknowledged was not
enough time for an inspector to inspect the 22,900-acre property
on foot;24 one from 1994 that was not signed and did not have
anything written in the spaces denoted for the condition of the
land or the findings of the inspection; and one from December
2014 that indicated that the premises were in unsatisfactory
condition but did not contain any determination as to whether
the United States was in compliance with the lease. Moore also
testified that a 2013 memorandum circulated within the DLNR
suggested the leased PTA land should be swept for UXO to be
removed at the United States’ expense, but DLNR did not ask the
United States Army (Army) to clean up any ammunition as a result
of the memorandum.
Moore related that the State had coordinated with the
federal government and its various agencies to undertake a
number of projects concerning the condition of the leased PTA
land. Archeological surveys were done in 2001 as part of a
Natural Resource Management Plan created by the United States,
for instance, and a Programmatic Agreement between state and
federal agencies permitted “cultural monitors” to be involved
24
Moore stated that it would be difficult for an inspector to
inspect the leased land in a motor vehicle due to the rugged terrain.
25
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
with inspections. According to Moore, these plans and programs
ultimately demonstrated that the Army was the agency primarily
responsible for environmental cleanup of the PTA leased land,
but they also established that the Hawaii Department of Health
shared responsibility by providing support and regulatory
oversight.
The Plaintiffs also called Kealoha Pisciotta, a former
cultural monitor for the battle area complex (BAX) within the
PTA. Pisciotta testified that during her inspections she
observed and noted in her reports a range of debris left over
from military exercises, including munitions and UXO, stationary
targets, junk cars, an old tank, crudely built rock shelters,
and other miscellaneous military rubbish. She testified that
some of her reports recommended that the debris be cleaned up,
but not all of the UXO that she observed was removed.
Next, the Plaintiffs called Suzanne Case, Chair of the
BLNR and the Director of the DLNR. Plaintiffs’ counsel showed
Case a 2014 action memorandum from the Army addressed to the
DLNR stating that a bazooka range within the PTA was heavily
contaminated with explosive hazards, ammunitions, and debris
that posed a significant danger to public health and welfare.
Case testified that she did not remember receiving or having
been shown the memorandum by DLNR staff and that she was not
aware of any lease compliance issues that had been raised to the
26
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
BLNR regarding the PTA lease during her tenure as Chair. She
also testified that the DLNR did not have a written policy
regarding when inspections of leased premises were to be
conducted and instead chose which leases to inspect based on
available resources, the risks involved, and whether the public
had drawn attention to a specific property.
The Plaintiffs then called Deputy Attorney General
William Wynhoff, who had previously testified in a pretrial
deposition on behalf of the DLNR. Wynhoff testified that to the
best of his knowledge, the DLNR did not have a written procedure
to ensure compliance with all terms of the PTA lease. DLNR's
practice, Wynhoff stated, is to keep all records related to
leases in the lease file. Wynhoff acknowledged that prior to
the filing of this suit, there were no documents in the PTA
lease file indicating that the DLNR had asked for or received
assurances from the United States that it was in compliance with
the lease.
Ching testified next. Ching, who is part Hawaiian,
stated he was a member of the Pōhakuloa Cultural Advisory
Committee, which advised the Army of cultural concerns related
to its activities within the PTA. Ching testified that, during
his bimonthly trips to the PTA as a member of the committee, he
witnessed blank ammunition and other trash and military debris
27
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
“strewn around” that negatively affected his spiritual and
traditional practices.
After Ching’s testimony, the Plaintiffs called
Kahaulelio. Kahaulelio testified that she was at least fifty
percent Hawaiian and that, to her, caring for the land at
Pōhakuloa was a cultural practice. She explained that she and
other Hawaiian practitioners participate in cultural ceremonies
at Pōhakuloa, which she compared to going to church. Kahaulelio
testified that, during one such cultural trip to Pōhakuloa in
November 2014, she observed debris and blank ammunition on the
ground and that this destruction of the land made her feel
“angry” and “hurt.”
The Plaintiffs’ final witness was Russell Tsuji, a
former Deputy Attorney General, State Land Administrator at the
DLNR, and Deputy Director of the DLNR. Tsuji stated that, while
he was employed at the DLNR, he was in charge of managing state-
owned lands and was a custodian of records contained in the PTA
lease file. None of the files in the PTA lease file, Tsuji
testified, mentioned paragraphs 9 and 14 of the lease. He was
also unaware of any conversations that occurred during his
employment at the DLNR regarding compliance with these lease
provisions. Tsuji explained that his goal was to have land
agents inspect leases at least once every two years while he was
employed at the DLNR, but he stated that this target was
28
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
“aspirational” rather than a mandatory rule. Tsuji acknowledged
that prior to the initiation of the lawsuit, the leased PTA land
had not been inspected during his tenure at the DLNR, which
spanned ten years.
Tsuji testified that the DLNR’s PTA lease file
contained a series of letters and reports from the United States
Army that documented a need to clean up the leased PTA land,
including a 2006 report indicating that there was debris in the
BAX within the PTA; a 2008 report stating that there may have
been munitions on PTA land; a 2013 final environmental impact
statement (EIS) stating that UXO was “known to exist in impact
area” and that “there [was] also a medium risk of finding [UXO]
outside [the construction] area”; and a 2014 report stating that
“[t]he military need[ed] to implement some kind of clean-up
process as part of their training in PTA” because “[r]emnants of
military trash [was] everywhere . . . . including unexploded
ordnance that [was] carelessly discarded.” When asked about the
DLNR’s response to one of the reports, Tsuji testified that he
did not know if anyone at the DLNR “actually read” the report
and noted that there was no record on file that the DLNR ever
responded to the report.
Tsuji testified that, after the lawsuit was filed, he
sent a letter to the Army requesting its procedures for cleaning
munitions after training exercises. Tsuji indicated that the
29
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Army responded by sending a letter setting forth its cleanup
procedures. Tsuji also testified that he conducted an
inspection of the leased PTA land in December 2014,
approximately one year after receiving the Army’s response. One
of the reasons for the inspection was the lawsuit, Tsuji
acknowledged. During this inspection, he observed trash,
“[s]pent shells,” “shell debris,” and “derelict vehicles” used
as target practice at the bazooka range. According to Tsuji, a
draft inspection report was created after the inspection, which
was revised after he conducted another inspection in January
2015. Tsuji indicated that the final report stated that the
land condition was “unsatisfactory,” but he testified that the
DLNR did not issue a default notice to the Army.25
At the conclusion of Tsuji’s testimony, the Plaintiffs
rested. The State did not call any witnesses.
5. The Circuit Court Decision
On April 3, 2018, the circuit court issued its
Findings of Fact, Conclusions of Law and Order.
a. Findings of Fact
The circuit court made the following relevant findings
of fact.
25
Tsuji testified that the report was written by a land agent and
that he had no input in the report’s conclusion that the land was
“unsatisfactory.”
30
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
In 1964, the State entered into a sixty-five year
lease of three parcels of land in the Pōhakuloa area with the
United States for military training purposes. These land
parcels are ceded lands owned by the State that are part of the
public lands trust. The public trust lands are state-owned
lands held for the use and benefit of the people of the State of
Hawaii, and the State is the trustee of such lands.
Accordingly, the State has “the highest duty to preserve and
maintain the trust lands.”26
The Plaintiffs had in the past and continued to be
actively engaged in cultural practices upon the leased PTA land.
These cultural practices included song, dance, and chant about
the PTA area, walking upon and celebrating the land and the
flora and fauna that grow upon it, and honoring the current and
historic cultural significance of the area.
The State was aware of the United States’ failure to
clean up other sites in the state27 and of the possibility that
26
Throughout its findings of fact and conclusions of law, the
circuit court referred to this obligation as the duty to “malama ‘aina,” which
the court translated as “to care for the land.”
27
Specifically, the court found that the previous Chair of the
DLNR, William Aila, Jr., was aware of the United States’ failure to clean up
other sites in the state such as Kaho‘olawe, Mākua, and the Waikāne Valley,
and the court imputed this knowledge to the State in this case. The court
noted that a website maintained by the State contained a history of the
island of Kahoolawe that explained that the United States Navy did not clear
all UXO from 25 percent of the surface of the island. Additionally the court
found that the United States’ failure to properly clean the Mākua area was
(continued . . .)
31
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
UXO and munitions were present on the leased PTA land. Cultural
monitors spent “extensive time” at the leased PTA land and
observed military debris on the ground, including UXO and “spent
shell casings, scattered across” the land. The concerns of the
cultural monitors were documented in a number of federal
reports. For example, the United States prepared a November
2010 report entitled “Final Archaeological and Cultural
Monitoring of Construction of Battle Area Complex (BAX) for
Stryker Brigade Combat Team (SBCT), Pohakuloa Training Area,
Hawaii Island, Hawaii” that included a recommendation from
cultural monitors that “[t]he Military needs to implement some
kind of cleanup process as part of their training in PTA.
Remnants of military trash are everywhere.” (Emphasis omitted.)
The report also stated that the cultural monitors voiced the
following: “Another major concern is the military debris that is
left behind after training including [UXO] that is carelessly
discarded. There is a need to have some type of cleanup plan
implemented in the military training process.”
(. . . continued)
documented in the federal court decisions in Makua v. Rumsfeld, 163 F. Supp.
2d 1202 (D. Haw. 2001), Mâkua v. Gates, Civ. No. 08-00327 SOM/LEK, 2009 WL
196206 (D. Haw. Jan. 23, 2009), and Mâkua v. Gates, Civ. No. 00-00813 SOM,
2008 WL 696093 (D. Haw. Mar. 11, 2008).
32
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
These concerns were reiterated four years later in a
second, similarly titled report. This report contained
observations from cultural monitors who stated that “[r]emnants
of live fire training are present within the BAX, including
stationary targets, junk cars, an old tank, crudely built rock
shelters, and miscellaneous military rubbish. Spent ammunition
is scattered across the landscape.” The report noted the
cultural monitors feared that if the litter continued to remain
on the land, “the land will be rendered unusable forever--one
eighth of our island will become unavailable for use by any of
our future generations.” The cultural monitors therefore
“strongly recommend[ed] the Army begin now to seek funding to
initiate a serious cleanup effort throughout the leased training
areas.” (Emphasis in report.)
Additionally, a March 2015 draft report stated that,
based on a 2014 inspection by the DLNR and the Army, a bazooka
range contained on the leased PTA land was “heavily contaminated
on the surface with material potentially presenting an explosive
hazard [] and munition debris [].” A subsequent inspection of
the bazooka range by military explosive ordnance disposal units
found mortars, bazooka rounds, and white phosphorous on the
land. The Army determined that the debris found at the bazooka
range “coupled with the accessibility to the public make for the
potential for significant danger to public health and welfare.”
33
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
The State’s awareness of the potential contamination
of the leased PTA land was also demonstrated by a March 2013
letter from the Acting Hawaii Branch Manager for the DLNR to the
State Lands Assistant Administrator. The Branch Manager
recommended that “PTA should sweep the lands North of the saddle
road for UXO and remove any UXO found at their expense to make
the area safe for the public.”28 Additionally, a March 2013
Final EIS stated that “[d]ecades of using PTA as a training area
have introduced a significant risk of encountering
[munitions]/UXO. [Munitions]/UXO [are] known to exist in the
impact area and [are] expected to be encountered during range
construction activities; but there is also a medium risk of
finding [munitions]/UXO outside the impact area.” The EIS also
stated that “[p]ast and current activities at PTA have resulted
in contamination of soil by explosives and other chemicals.”
Therefore, the State was aware that military training activities
on the leased PTA land “pose[d] a significant and substantial
risk of harm or damage to [the PTA], and persons who may come
upon” the land, and “to public health, safety, and welfare, as
well as to the Plaintiffs’ cultural interests in the [land].”
28
Although the letter stated, “PTA should sweep,” it appears that
the Branch Manager was referring to the United States.
34
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Proper stewardship of the leased land includes
“periodic and meaningful inspection and monitoring of the
military training activities and their aftermath upon the
Subject Lands and reasonably accurate documentation of such
activities and the effects of such activities to achieve
transparency of [the State’s] inspection and monitoring
actions.” Inspections must occur with “a reasonable frequency”
for the State to satisfy its duty. The DLNR did not meet its
informal goal of inspecting the leased PTA land once every two
years, nor did it adequately document its inspection efforts “so
as to provide rudimentary transparency into the DLNR’s efforts.”
An inspection of the PTA occurred on December 19, 1984, for
which a “sparse” report was generated that stated only the
following: “Property being used for Military training purposes
per lease terms.” Another inspection “appear[ed] to have been
conducted” in 1994, although the “findings” and “inspected by”
sections of the inspection form were blank.
A third inspection occurred on December 23, 2014,
after the litigation in this case had begun, and this inspection
resulted in a report that “contained much more information” than
those created from the two previous inspections. The 2014
Inspection Report stated that the condition of the land was “not
35
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
satisfactory.”29 The report indicated that debris was
“extensive” at the bazooka range, that there were “derelict
vehicles” at one of the target ranges, and that an area was used
for dumping spent artillery shells.
“The lack of regular, meaningful inspection and
monitoring of the” leased PTA land contributed to the breach of
the State’s trust duties, which in turn “harmed, impaired,
diminished, or otherwise adversely affected Plaintiffs’ cultural
interest in the” leased land.
b. Conclusions of Law
The circuit court rendered the following relevant
conclusions of law.
The Plaintiffs had standing to enforce a breach of
trust claim against the State, and the United States was not an
indispensable party to the case because the Plaintiffs’ claim
concerned only the State’s trust obligations. The State, as
trustee of the ceded land, owed a “high standard of care when
managing public trust ceded lands.” The State’s trust duties
include but are not limited to using “reasonable efforts” to (1)
preserve and protect trust property, and (2) take a proactive
29
The court found that the Army’s assertion recorded in the report
that it “regularly inspected and cleaned up after [an] exercise was complete”
was contradicted by evidence that there was a significant amount of debris
and ammunition on the land.
36
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
role in management and protection of the trust property. The
State had a duty to consider the cumulative effects of the
United States’ use of the land upon the condition of the land
and upon “the indigenous plants, animals, and insects, as well
as the invasion to Plaintiffs’ cultural interests in the Subject
Land.” Additionally, the State had a duty to determine whether
the lessee was in compliance with the terms of the lease. And
the Chair of the BLNR specifically had a duty to “[e]nforce
contracts respecting . . . leases . . . or other disposition of
public lands.” (Quoting HRS § 171-7(5).30)
As part of its trust duties, the State was required,
to enforce paragraphs 9, 14, 18, and 19 of the PTA lease. The
State’s records regarding its efforts to inspect the leased land
and report its findings “were spotty at best” and in some cases
“grossly inadequate.”31 Although there were studies and
inspections completed regarding “other business” on the leased
land, such as the EIS, these were not conducted to fulfill the
State’s trust duties.
30
HRS § 171-7(5) (2011) provides, in relevant part, “Except as
provided by law the board of land and natural resources through the
chairperson shall: . . . (5) Enforce contracts respecting sales, leases,
licenses, permits, or other disposition of public lands[.]”
31
The court found that, given “the virtual nonexistent nature of
the 1994 inspection report” and “the sparse and incomplete nature of the 1984
inspection report,” there was an unrebutted presumption that the State had
failed to conduct any inspections prior to December 2014 to monitor or
confirm the United States’ compliance with paragraphs 9, 14, 18, and 19.
37
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
The State therefore breached its duties by failing to
(1) conduct reasonable (in terms of frequency and scope)
inspections of the condition of the leased PTA land or
observations of the military training exercises, (2) ensure that
the terms of the lease were being followed, (3) take prompt and
appropriate follow-up steps with the United States when the
State became aware of potential violations of the lease, (4)
create detailed reports of the State’s efforts to ensure
compliance with the lease, and (5) initiate or assist with the
appropriation of necessary funding to conduct cleanup or
maintenance activities on the land. The court stated that the
State would further breach its trust duties “if they were to
execute an extension, renewal, or any other change to the State
General Lease No. S-3849, or enter into a new lease of the PTA,
without first determining (in writing) that the terms of the
existing lease have been satisfactorily fulfilled.”
c. Order
The court explained that because the Plaintiffs
prevailed on the merits, the appropriate remedy was for the
court to issue an order directing the State to perform its trust
duties with respect to the leased PTA land. The court concluded
that the balance of harm favored the issuance of a mandatory
injunction and that protection of the public trust lands was in
the public interest. The court therefore ordered that the State
38
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
promptly initiate affirmative activity at the PTA in accordance
with its trust duties by developing a written plan to fulfill
such duties. The plan was required to include provisions for
(1) on-site monitoring and inspections, (2) the creation of
written inspection reports with recommendations, (3) a written
protocol of appropriate action to be taken if the United States
is to be found to be in breach of the lease, (4) a procedure to
provide for “reasonable transparency” to the Plaintiffs and the
general public with respect to compliance with the injunction,
and (5) all steps that the State takes to “secur[e] adequate
funding, from any and all appropriate funding sources, to plan,
initiate, and conduct all appropriate comprehensive cleanup.”
The plan was required to be submitted to the court for approval.
Additionally, the court ordered the State to create contested
case procedures pursuant to HRS Chapter 91, if not already in
existence, “for Plaintiffs or any member of the general public
with standing to initiate such process in the event that
Plaintiffs or other interested party may contest the decisions
made by the [State] in the course of discharging” their trust
duties.
The circuit court entered Final Judgment on April 24,
2018.
39
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
D. The Appeal and Motions to Dismiss
The Department of the Attorney General (AG) filed a
timely Notice of Appeal. The Plaintiffs filed a Motion to
Dismiss the Appeal and argued that the AG did not have the
authority to file an appeal “on behalf of BLNR or DLNR without
BLNR’s consent.”32 (Citing Chun v. Bd. of Trs. of the Emps.’
Ret. Sys., 87 Hawaii 152, 952 P.2d 1215 (1998).) The State
replied that the AG was authorized to appeal the decision
because the AG “has authority to manage and control all phases
of litigation” in suits against state officials. (Citing
Island-Gentry Joint Venture v. State, 57 Haw. 259, 554 P.2d 761(1976).)
The Plaintiffs filed an application for transfer to
this court, which the State did not oppose. This court granted
the application on December 20, 2018.
IV. STANDARD OF REVIEW
Certain decisions regarding the orderly administration
of trial and the selection of an appropriate remedy to redress
an injury “rest[] with the sound discretion of the trial
court[,] and the trial court’s decision will be sustained absent
32
The Plaintiffs later filed a second motion to dismiss to
“follow[] up” on the first, making substantially similar arguments with
respect to the AG’s authority to appeal on behalf of the Chair of BLNR
without her express consent.
40
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
a showing of manifest abuse of discretion.” Hawaii Pub. Emp’t
Relations Bd. v. United Pub. Workers, Local 646, 66 Haw. 461,
467, 667 P.2d 783, 788 (1983). For instance, this court applies
an abuse of discretion standard when it reviews a trial court’s
determination as to whether to dismiss a case pursuant to HRCP
Rule 19(b) for a party’s failure to join an indispensable party.
UFJ Bank Ltd. v. Ieda, 109 Hawai‘i 137, 142, 123 P.3d 1232, 1237
(2005) (citing Takabuki v. Ching, 67 Haw. 515, 529, 695 P.2d
319, 328 (1985)). Similarly, a trial court’s grant of equitable
relief, including a declaratory judgment or a mandatory
injunction, will be upheld unless an abuse of discretion is
demonstrated. Kau v. City & Cty. of Honolulu, 104 Hawai‘i 468,
473, 92 P.3d 477, 482 (2004) (citing Shanghai Inv. Co. v. Alteka
Co., 92 Hawai‘i 482, 492, 993 P.2d 516, 526 (2000)); United Pub.
Workers, 66 Haw. at 467, 667 P.2d at 788.
By contrast, we review a trial court’s conclusions of
law de novo. Narayan v. Ass’n of Apartment Owners of Kapalua
Bay Condo., 140 Hawai‘i 75, 83, 398 P.3d 664, 672 (2017) (citing
Nordic PCL Constr., Inc. v. LPIHGC, LLC, 136 Hawaii 29, 41, 358
P.3d 1, 13 (2015)). Thus, a trial court’s grant or denial of
summary judgment is reviewable using our independent judgment
under the right/wrong standard, as are the statutory and
constitutional interpretations underlying the court’s
41
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
determinations. Id.; State v. March, 94 Hawai‘i 250, 253, 11
P.3d 1094, 1097 (2000). But this court will uphold the findings
of fact to which the trial court applies these interpretations
unless they are clearly erroneous. Noel Madamba Contracting LLC
v. Romero, 137 Hawai‘i 1, 8, 364 P.3d 518, 525 (2015).
V. DISCUSSION
A. The Motions to Dismiss
Before addressing the merits of the State’s appeal in
this case, we must first consider the Plaintiffs’ motions to
dismiss asserting that the AG lacked authority to bring the
appeal without the express authorization of the BLNR and,
derivatively, the authorization of the Board’s Chairperson and
the DLNR, which the Board heads. This court first addressed the
allocation of litigation authority between the AG and other
government agencies in Island-Gentry Joint Venture v. State, 57
Haw. 259, 264, 554 P.2d 761, 765 (1976). In Island-Gentry, the
BLNR agreed to a financial settlement with a landowner after it
breached a purchase agreement to acquire the owner’s property in
order to build a school. Id. at 261, 554 P.2d at 763. Upon
discovering that the landowner had thereafter sold the land to a
third party for over twice the BLNR’s agreed-upon purchase
price, the AG declined to pay the agreed-upon settlement,
reasoning that the landowner had “suffered no damage resulting
from [the] State’s failure to honor its agreement to purchase
42
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the land.” Id. at 262, 554 P.2d at 764. The landowner brought
suit to enforce the settlement.
This court held that under the general grant of
authority contained in HRS § 26-7 (Supp. 1975),33 the AG “has
exclusive authority to control and manage for the State all
phases of civil litigation in which the State has an interest,
unless authority to do so in specific matters has been expressly
or impliedly granted to another department or agency.” Id. at
264-65, 554 P.2d at 765-66. We held that this authority
necessarily includes the authority to control the settlement of
actions against the State. Id. at 265, 554 P.2d at 766. The
same section also grants the AG “exclusive authority to approve
as to the legality and form of all documents relating to the
33
The portions of HRS § 26-7 cited in Island-Gentry have not been
amended since this court’s decision in the case. The statute provides in
relevant part as follows:
The department of the attorney general shall be headed by a
single executive to be known as the attorney general.
The department shall administer and render state legal
services, including furnishing of written legal opinions to
the governor, legislature, and such state departments and
officers as the governor may direct; represent the State in
all civil actions in which the State is a party; approve as
to legality and form all documents relating to the
acquisition of any land or interest in lands by the State;
and, unless otherwise provided by law, prosecute cases
involving violations of state laws and cases involving
agreements, uniform laws, or other matters which are
enforceable in the courts of the State. The attorney
general shall be charged with such other duties and have
such authority as heretofore provided by common law or
statute.
43
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
acquisition of any land or interest in land by the State,” we
noted. Id. This court held that implicit in these express
grants of authority was the “sole power to approve or to refuse
to approve as to the legality and form of any compromise
settlement effectuated by the [BLNR] in regards to the [BLNR]’s
breach of a contract to purchase land for the State.” Id.
Because the record identified that “no other department or
agency ha[d] been expressly or impliedly granted the authority
to approve or to disapprove as to the legality and form of the
settlement in question,” we held that the BLNR was without
authority to bind the State to the settlement. Id.
Chun v. Board of Trustees of the Employees’ Retirement
System, 87 Hawai‘i 152, 952 P.2d 1215 (1998), on which the
Plaintiffs rely, stands in tension with Island-Gentry. In Chun,
the circuit court vacated a decision of the Board of Trustees of
the Employees Retirement System concerning the retirement
benefits of a group of teachers and school administrators,
finding that the Board had miscalculated the benefits as a
result of its misinterpretation of the applicable statute. Id.
at 158, 952 P.2d at 1221. During the pendency of the case, the
composition of the Board had changed, and the newly constituted
Board deadlocked in a four-to-four vote on a motion to authorize
an appeal of the circuit court’s decision. Id. at 160, 952 P.2d
at 1223. The Chairperson of the Board thus sent a letter
44
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
informing the AG that the “motion failed because it did not
receive the necessary majority vote.” Id. at 161, 952 P.2d at
1224. When the AG nevertheless filed a notice of appeal, the
retirees filed a motion to dismiss the appeal, arguing that the
AG had no independent authority to pursue it without the Board’s
consent. Id.This court held that a distinction exists between, on
the one hand, the AG’s duty under HRS § 28-1 (1993)34 and the
common law to represent the State in furtherance of the public
interest as the AG deems it to be, and on the other hand, the
AG’s duty under HRS § 26-7 to serve as legal counsel to the
public officials and instrumentalities of the State, inter alia,
when they are sued in their professional capacity. Id. at 170,
952 P.2d at 1233. Extensively quoting the Supreme Court of West
Virginia, we stated,
When the Attorney General appears in a proceeding on behalf
of the state in her name, she exercises her discretion as
to the course and conduct of the litigation. She assumes
the role of a litigant and she is entitled to represent
what she perceives to be the interest of the state and the
public at large.
. . . .
The Attorney General performs quite a different function
when she appears to defend a state officer or
34
HRS § 28-1, which has not been amended since this court’s
decision in Chun, provides as follows: “The attorney general shall appear for
the State personally or by deputy, in all the courts of record, in all cases
criminal or civil in which the State may be a party, or be interested, and
may in like manner appear in the district courts in such cases.”
45
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
instrumentality sued in their official capacity. In this
circumstance the Attorney General does not appear as a
party to the action. That role is filled by the state
officer or instrumentality against whom the suit is
brought. Rather, the Attorney General’s function is to act
as legal advisor and agent of the litigant and to prosecute
or defend, within the bounds of the law, the decision or
policy of such officer or instrumentality which is called
into question by such lawsuit.
. . . .
The Legislature has designated the Attorney General as the
legal representative of state officers and
instrumentalities sued in their official capacities. In the
absence of other statutory or constitutional provision to
the contrary, she is their sole legal representative in the
courts and they are her clients. When the Attorney General
appears in litigation in this capacity, she does so as a
lawyer and an officer of the court. Her primary
responsibility is to provide proper representation and
competent counsel to the officer or instrumentality on
whose behalf she appears. The Attorney General’s role in
this capacity is not to make public policy in her own right
on behalf of the state. It is presumed, in the absence of
a contrary showing, that the officer made a party to the
suit has, in the performance of his or her official duties,
acted in contemplation of the relevant laws and in the best
interests of the state. The Attorney General’s role and
duty is to exercise her skill as the state chief lawyer to
zealously advocate and defend the policy position of the
officer or agency in the litigation.
The Legislature has thus created a traditional attorney-
client relationship between the Attorney General and the
state officers or instrumentalities she is required to
represent. It is well settled that in the control of
litigation, the Attorney General has the duty to conform
her conduct to that prescribed by the rules of professional
ethics. As a lawyer and an officer of the courts of this
State, the Attorney General is subject to the rules of this
Court governing the practice of law and the conduct of
lawyers, which have the force and effect of law.
Id. at 171-73, 952 P.2d at 1234-36 (quoting Manchin v. Browning,
296 S.E.2d 909, 918-20 (W. Va. 1982)) (alterations omitted)
(emphases added). This court thus held that when the AG
represents a state official or instrumentality in its official
capacity, the official or instrumentality is the AG’s client and
46
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the allocation of authority in that relationship is governed by
at least some provisions of the Hawai‘i Rules of Professional
Conduct (HRPC). Id. at 173-74, 952 P.2d at 1236-37.
Applying HRPC Rule 1.7, which governs conflicts, this
court held that, once the AG has informed the state official or
instrumentality of the different legal strategies and defenses
available and provided a professional opinion as to their
advisability, the AG “should then stand aside and allow [the]
client to exercise [] independent judgment on which course to
pursue.” Id. at 174, 952 P.2d at 1237 (emphasis and alterations
omitted) (quoting Manchin, 296 S.E.2d at 920). Because the AG’s
position in pursuing the appeal was at odds with the Board’s
wishes, this court held that the AG “was ethically obligated to
recommend the retention of other counsel to represent the Board
and to take such other action as, in her opinion, the
circumstances required.” Id. at 176, 952 P.2d at 1239. The AG
lacked authority, however, to pursue the appeal without the
Board’s consent. Id. at 177, 952 P.2d at 1240.
In a footnote in Chun, the court asserted that its
holding was consistent with Island-Gentry, focusing on the
Island-Gentry court’s statement that the AG has ultimate
authority to make litigation decisions “unless authority to do
so in specific matters has been expressly or impliedly granted
to another department or agency.” 87 Hawai‘i at 171 n.21, 952
47
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
P.2d at 1234 n.21 (emphasis omitted) (quoting Island-Gentry, 57
Haw. at 264–65, 554 P.2d at 765–66). The court stated that,
unlike with the BLNR in Island-Gentry, the legislature had
enacted a series of laws that conferred upon the Board of
Trustees of the Employees Retirement System “the powers and
privileges of a corporation,” including the powers to “sue or be
sued and transact all of its business.” Id. (citing HRS §§ 88–
22, 88–23, 88-110). These statutes acted to divest the AG of
the authority to control litigation with respect to the Board,
the court reasoned. Id.
This distinction is problematic, however. Analogous
statutes existed conferring substantially the same authority on
the BLNR at the time Island-Gentry was decided. See, e.g., HRS
§ 171-7(8) (1968) (“Except as provided by law the board of land
and natural resources through the chairman shall: . . . (8)
Bring such actions and proceedings as may be necessary to carry
out the powers and duties of the board in the name of the State
and to defend such actions brought against the State as may be
authorized[.]”). Moreover, the Chun court based its analysis
not on the withdrawal of the general authority of the AG under
HRS §§ 28-1 and 26-7 by another statute, but rather on the
distinction between the different aspects of that authority.
See 87 Hawai‘i at 169-70, 952 P.2d at 1232-33 (“Thus, by [its]
terms, HRS § 26–7 . . . designate[s] the attorney general as
48
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
legal counsel for ‘public officers’ and instrumentalities of the
state[.] . . . At the same time, however, HRS § 28–1 mandates
that the attorney general ‘represent the State in all . . .
civil matters where the State . . . may be an interested
party.’” (some alterations original)).
The cases can be more logically reconciled in two
ways. First, because Island-Gentry concerned the settlement of
litigation arising directly from a breach of a contract to
acquire public lands, approval of the settlement agreement fell
within the AG’s “exclusive authority” under HRS § 26-7 “to
approve as to the legality and form of all documents relating to
the acquisition of any land or interest in land by the State.”
And second, the settlement agreement essentially “commit[ed] the
State to an obligation to pay a sum of money out of State
funds”--which was authority that had not been granted to BLNR.
Island-Gentry, 57 Haw. at 264, 554 P.2d at 765.
Thus, Chun should be read as limiting Island-Gentry to
situations when the AG appears on behalf of the State generally
(as opposed to on behalf of a specific State public official or
instrumentality), when the action falls within the AG’s
exclusive statutory authority, or when the result of the action
would commit the State to pay public funds that have not been
appropriated to the represented State official or
instrumentality. By contrast, when the AG appears on behalf of
49
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
a specific State official or instrumentality and the above
exceptions do not apply, the AG has a duty to comply with the
wishes of the represented party that is loosely analogous to the
duty a private attorney owes a client under the HRPC and other
professional standards.35 Chun, 87 Hawaii at 173, 952 P.2d at
1236.
The Plaintiffs argue that, in the absence of an
affirmative vote by the BLNR, the AG was not authorized to bring
an appeal in the present case. Yet our precedent and legal
professional standards more generally permit--and in some cases
require--an attorney to take the procedural steps necessary to
protect a client’s right to appeal. See Maddox v. State, 141
Hawai‘i 196, 204, 407 P.3d 152, 160 (2017) (“Defense counsel
should take ‘whatever steps are necessary’ to protect the
client’s right to appeal . . . .” (quoting ABA Standards for
Criminal Justice: Prosecution and Defense Function, Standards 4–
8.2(b), 4–8.3(c) (3d ed. 1993))). Unlike in Chun, in which the
Chairperson of the Board sent a letter “informing [the AG] of
35
By so holding, the autonomy of the various agencies that are
headed by boards instead of a single executive is preserved, as the framers
intended such boards to maintain a level of independence from the governor
and officials like the AG who are directly answerable to the governor. See
Stand. Comm. Rep. No. 67 in I Proceedings of the Constitutional Convention of
Hawaii of 1950, at 217 (1960) (“Your committee has followed the principle
that the Governor should be strong in his branch of the government but that
he should be precluded from infringing upon the other branches, for example,
the power to remove members of the boards and commissions.”).
50
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the Board’s refusal to authorize an appeal of [the circuit
court’s] decisions,” there is no indication in the record that
the BLNR communicated to the AG a desire not to pursue the
present appeal--nor is there any evidence that the appeal is at
odds with the BLNR’s wishes. 87 Hawai‘i at 161, 952 P.2d at 1224(second alteration original). “[W]here no conflict plainly
appears . . . it is generally presumed ‘that the actions and
determinations of the Attorney General in . . . a lawsuit are
made both as a representative of the public interest and as
counsel for the state agency or officer.’” Id. at 170, 952 P.2d
at 1233 (some alterations in original) (quoting D’Amico v. Bd.
of Med. Exam’rs, 11 Cal.3d 1, 112 (1974)). Accordingly, we deny
the Plaintiffs’ two motions to dismiss the appeal.
B. The State’s Appeal
The State argues that the circuit court erred by
failing to dismiss the case or grant summary judgment to the
State on the grounds that 1) the United States was a necessary
and indispensable party under HRCP Rule 19 whose joinder was not
feasible due to its sovereign immunity; 2) the case presented a
nonjusticiable political question regarding how the State should
manage the leased PTA land; and 3) the case did not present an
“actual controversy” in which a declaration could “terminate the
51
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
uncertainty or controversy giving rise to the proceeding” as is
required for declaratory relief under HRS § 632-1.36 The State
additionally challenges the circuit court’s findings and
conclusions insofar as the court found that the State breached
its trust duties by failing to perform adequate inspections of
the leased PTA land and declined to consider the State’s
cooperative activities with entities other than the State in
determining whether the State had violated its trust
obligations. Lastly, the State argues that the injunctive
relief granted by the circuit court was improper because it was
tantamount to an award of damages barred by the State’s
sovereign immunity and the order granting relief was vague,
overbroad, and improperly intruded on legislative prerogatives.
This opinion will address the State’s contentions
alleging related errors together.
1. The United States Is Not a “Necessary” Party and Therefore Is
Not “Indispensable”
The State contends that the United States is a
necessary and indispensable party to the present case under HRCP
Rule 19 and that the circuit court reversibly erred by failing
36
Under Hawai‘i law, the denial of a summary judgment motion can be
appealed following a trial on the merits only if the appeal centers on a
question of law rather than the existence of a disputed material fact. See
Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 17-18, 837 P.2d 1273, 1282-83
(1992). Here, the State’s contentions are rooted in questions of law, and we
accordingly conclude that it is entitled to review of the circuit court’s
denial of its summary judgment motion on the challenged grounds.
52
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
to either join the United States or dismiss the case due to its
absence. Under our precedents, an analysis under HRCP Rule 19
follows two steps. Kellberg v. Yuen, 135 Hawai‘i 236, 250-51,
349 P.3d 343, 357-58 (2015). First, courts must determine if
the party is a “necessary” party under part (a) of the rule, and
if so, whether joinder of the party is feasible. Id. If the
court finds that a party is necessary and joinder is not
feasible, it then proceeds to part (b) of the rule, under which
it analyzes whether “in equity and good conscience” the case can
continue in the party’s absence. Id. at 252, 349 P.3d at 359
(quoting HRCP Rule 19(b)). “If, under this second step, the
court dismisses the action rather than moving forward without
the absent party, the nonparty is described as ‘indispensable.’”
Id. (quoting Marvin v. Pflueger, 127 Hawai‘i 490, 499, 280 P.3d
88, 97 (2012)).
HRCP Rule 19(a) sets forth a number of factors for
courts to consider in evaluating whether an entity is a
necessary party who should be joined if feasible. The rule
provides, in relevant part, as follows:
(a) Persons to be joined if feasible. A person who is
subject to service of process shall be joined as a party in
the action if (1) in the person’s absence complete relief
cannot be accorded among those already parties, or (2) the
person claims an interest relating to the subject of the
action and is so situated that the disposition of the
action in the person’s absence may (A) as a practical
matter impair or impede the person’s ability to protect
that interest or (B) leave any of the persons already
parties subject to a substantial risk of incurring double,
53
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
multiple, or otherwise inconsistent obligations by reason
of the claimed interest.
With respect to HRCP Rule 19(a)(2),37 this court does
not need to speculate as to the interest claimed by the United
States in the subject matter of this case because the United
States filed a statement of interest in the circuit court.
Before this court, the State repeats the United States’
assertion that “[t]he action here relates to the public land
leased by the State to the United States for military purposes
and puts directly at issue the United States’ compliance with
the terms of the lease.” The State contends that the United
States clearly has an interest in an action “forcing the State
to initiate rigorous enforcement action against” the United
States.
But determining whether the State fulfilled its duties
as trustee in this case does not require determining whether the
United States in fact complied with the lease, however, and if a
breach of the State’s trustee duties is found, the appropriate
remedy would not be an order requiring the State to initiate an
enforcement action. Article XI, section 1 of the Hawai‘i
Constitution places upon the State a fiduciary duty analogous to
37
Neither the State nor the United States make any arguments with
respect to HRCP Rule 19(a)(1), under which the court would consider whether
the United States’ absence would prevent complete relief from being afforded
in this case.
54
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the common law duty of a trustee with respect to lands held in
public trust. See In re Conservation Dist. Use Application HA-
3568 (In re TMT), 143 Hawai‘i 379, 400, 431 P.3d 752, 773 (2018);
State ex rel. Kobayashi v. Zimring, 58 Haw. 106, 121, 566 P.2d
725, 735 (1977). Article XII, section 4 imposes a similar duty
regarding lands ceded to the State under Section 5(b) of the
Admission Act. It is undisputed that the leased PTA land at
issue in this case is trust land within the meaning of these
constitutional provisions.
The most basic aspect of the State’s trust duties is
the obligation “to protect and maintain the trust property and
regulate its use.” Zimring, 58 Haw. at 121, 566 P.2d at 735;
accord Restatement (Second) of Trusts § 176 (1959) (“The trustee
is under a duty to the beneficiary to use reasonable care and
skill to preserve the trust property.”). Under the common law,
this obligation includes an obligation to reasonably monitor the
trust property. See Restatement (Third) of Trusts § 90 cmt. b
(2007); Tibble v. Edison Int’l, 135 S.Ct. 1823, 1828 (2015).
This duty exists regardless of whether the property is being
used by a third party pursuant to a lease.
Reasonable monitoring ensures that a trustee fulfills
the mandate of “elementary trust law” that trust property not be
permitted to “fall into ruin on [the trustee’s] watch.” United
States v. White Mt. Apache Tribe, 537 U.S. 465, 475 (2003). To
55
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
hold that the State does not have an independent trust
obligation to reasonably monitor the trust property would be
counter to our precedents and would allow the State to turn a
blind eye to imminent damage, leaving beneficiaries powerless to
prevent damage before it occurs. Cf. Kelly v. 1250 Oceanside
Partners, 111 Hawai‘i 205, 231, 140 P.3d 985, 1011 (2006)
(holding that the Department of Health’s article XI, section 1
public trust duty to protect coastal waters required it to “not
only issue permits after prescribed measures appear to be in
compliance with state regulation, but also to ensure that the
prescribed measures are actually being implemented.” (emphasis
added)).
Thus, the State might breach its fiduciary duty by
failing to reasonably monitor public ceded lands, including the
public ceded lands within the PTA that the United States
utilizes pursuant to its lease with the State. Such a breach
would be complete upon the State’s failure to reasonably monitor
the ceded land--irrespective of whether the United States
actually violated the lease. A determination of whether the
State breached its duty by failing to monitor the United States’
compliance with the lease therefore will not require a
subsidiary determination that the United States breached the
terms of the lease, and thus it will not impair the United
States’ ability to defend itself against any such speculative
56
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
future claim. And because the court would not be determining
whether the United States violated the terms of the lease, the
appropriate remedy for the alleged breach of the State’s trust
duties would be an order requiring the State to initiate
appropriate monitoring--and not an order requiring the State to
initiate an enforcement action.
The United States further asserted in its statement of
interest that an order requiring the State to inspect or monitor
the United States’ use of the PTA “at specified times” has the
potential to disrupt critical training exercises. In a similar
vein, the State argues that the disposition of the case could
put the State at risk of incurring inconsistent obligations
because the United States may deem the required monitoring to be
“[un]reasonable” or determine that it “unduly interfere[s]” with
training operations, ultimately leading to a separate
determination under the lease’s dispute resolution mechanism.
However, these concerns were speculative. Under paragraph 19 of
the lease, the State “shall have the right to enter upon the
demised premises at all reasonable times to conduct any
operations that will not unduly interfere with activities of the
[United States].” And while this right of entry is subject to
advance clearance from the United States, the lease specifies
“that such advance clearance shall not be unreasonably held.”
There was no indication at the time the State’s motions were
57
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
determined that the extent of the monitoring the court might
order would necessarily be inconsistent with the State’s rights
under the lease so as to prejudice the United States’ interests
or subject the State to conflicting obligations.38
The United States also asserted in its statement of
interest that courts have recognized that all parties to a
contract are necessary parties in any equitable action that
requires interpretation of the contract. As an initial matter,
a reading of the unambiguous text on the face of the lease does
not require “interpretation” of the contract. See Airgo, Inc.
v. Horizon Cargo Transp., Inc., 66 Haw. 590, 594, 670 P.2d 1277,
1280 (1983) (stating that a contract is ambiguous “when the
terms of the contract are reasonably susceptible to more than
one meaning”). Further, the cases cited by the United States
are inapposite and do not support its position. Each case
involved an action that sought to invalidate, enforce, or
38
Even if concerns that the State would be subject to inconsistent
obligations resulting from the dispute resolution mechanism were sufficient
to make the United States a necessary party, the United States correctly
asserts that it is not feasible to join it as a party because Congress has
not waived sovereign immunity to allow the United States to be involuntarily
made a party to the case in Hawai‘i state courts. See Minnesota v. United
States, 305 U.S. 382, 388 (1939). In determining whether a case should be
dismissed for failure to join an indispensable party under HRCP Rule 19(b),
courts must consider “the extent to which, by protective provisions in the
judgment, by the shaping of relief, or other measures, the prejudice can be
lessened or avoided.” In this case, the remedy could be tailored to avoid
subjecting the State to inconsistent obligations by simply ordering the State
to engage in monitoring consistent with its rights under the lease. Thus,
dismissal would not be warranted even if the United States were to be
considered a necessary party.
58
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
establish a breach of the terms of the contract at issue.39
These cases did not hold that parties to a contract must be
joined in any action regarding a trustee’s duty to reasonably
monitor the property that is the subject of the contract.
Unlike the cited cases, this action seeks neither to invalidate
the lease nor to directly enforce its terms but rather to
require the State to monitor the leased PTA land and the United
States’ compliance with the lease. The cited cases thus do not
apply.40
The United States contended and the State similarly
argues that an injunction barring the State from renegotiating
the lease until any breach of its terms is cured would adversely
impact the United States’ interests directly by inhibiting its
right to renew the lease and indirectly by undermining its
ability to make future plans for the PTA. This presumes,
39
See Dawavendewa v. Salt River Project Agr. Imp. & Power Dist.,
276 F.3d 1150, 1157 (9th Cir. 2002) (holding that a Native American tribe was
necessary and indispensable in a suit alleging that hiring preference for
Native Americans in contract between the tribe and public power company
violated civil rights laws); McClendon v. United States, 885 F.2d 627, 633
(9th Cir. 1989) (holding a Native American tribe indispensable in an action
to enforce the terms of a rental lease to which the tribe was a party);
Queen’s Med. Ctr. v. Kaiser Found. Health Plan, Inc., 948 F.Supp.2d 1131,
1165 (D. Haw. 2013) (holding that a health management network was a necessary
party in a suit that required demonstrating it had breached the contract to
which it was a party).
40
To be clear, this opinion does not find or conclude that the
United States has breached the lease, nor does it enforce or invalidate any
provision of the lease. To the extent any portion of the circuit court’s
judgment can be interpreted as rendering such a finding, conclusion, or
order, we hold that this interpretation is incorrect, and the circuit court’s
judgment shall be construed consistent with this opinion.
59
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
however, that the court was required to provide all of the
precise remedies that the Plaintiffs requested. It is well
settled that in an equitable action, a court has “broad
discretionary power to . . . craft remedies to preserve equity.”
Ito v. Inv’rs Equity Life Holding Co., 135 Hawai‘i 49, 62, 346
P.3d 118, 131 (2015). Courts may use this discretion to devise
remedies that avoid prejudicing the rights of an absent party,
and this latitude should be considered in determining whether a
party is necessary and should be joined if feasible. See Salt
Lake Tribune Pub. Co. v. AT&T Corp., 320 F.3d 1081, 1097 (10th
Cir. 2003) (“Tribune Publishing mistakenly assumes that the only
remedy that will give it complete relief is an order compelling
KTLLC to specifically perform under the Option Agreement with
respect to every Tribune Asset it owns. An order of complete
specific performance is one way in which Tribune Publishing can
receive complete relief, but it is not the only way.”). Thus,
the fact that the Plaintiffs requested a remedy barring the
renegotiation of the lease does not alter our determination that
the circuit court did not abuse its discretion in concluding
that the United States is not a necessary party to the action.
(Indeed, the circuit court did not ultimately issue an
injunction barring the State from renegotiating the lease until
it determines that the United States has complied with its
terms, notwithstanding the Plaintiffs’ request for such relief.)
60
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Lastly, it is noted that the United States stated in
its filing that “if relief were entered that impacted the
interests of the United States, the Government would at that
time consider what action to take, including whether to file a
motion to intervene as a party for the purpose of removing the
case to United States District Court pursuant to 28 U.S.C.
§ 1442(a).” And, in denying the State’s motion to add the
United States as a party without prejudice, the circuit court
stated that the United States would have an “automatic right to
intervene” if it chose to. Nevertheless, the United States has
not filed a motion to intervene in the present case, nor even
requested permission to participate as amicus curiae--which
would avoid any waiver of sovereign immunity. See Sch. Dist. of
Pontiac v. Sec'y of U.S. Dept. of Educ., 584 F.3d 253, 266 (6th
Cir. 2009). In determining whether the circuit court erred in
permitting the case to proceed in the United States’ absence, it
is appropriate for this court to consider that, “even if the
[United] States ha[d] a particular interest in this dispute,
[it] had the opportunity to intervene to protect that interest
but declined to participate.” Id. “[I]t would turn Rule 19
analysis on its head to argue that the [United] States’
interests are now impaired because [it] declined to participate
in this much-publicized case.” Id.61
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Based on the foregoing, we affirm the circuit court’s
denial of the State’s motions to join the United States as a
necessary party and to dismiss the case for failure to join an
indispensable party.
2. The Case Presents a Justiciable Controversy
a. The Alleged Breach of Trust Is an Actual Controversy for
Purposes of HRS § 632-1
The State argues that, because the Plaintiffs have not
alleged that the United States actually violated the terms of
the lease, there is no controversy between the parties of
sufficient immediacy and reality to warrant declaratory
judgment.41 The State relies on Asato v. Procurement Policy
41
In response, the Plaintiffs argue that the court’s jurisdiction
over their claims is not dependent on HRS § 632-1. This court has recognized
that the beneficiaries of the article XII, section 4 ceded land trust possess
a constitutional cause of action against state officials to prospectively
enjoin violations of their trust duties. Pele Def. Fund v. Paty, 73 Haw.
578, 601-06, 837 P.2d 1247, 1261–64 (1992). Thus, the Plaintiffs’ request
for an order requiring the State to prospectively fulfill its trust duties
and enjoining future trust violations is not dependent on HRS § 632-1.
We have clarified, however, that the implied constitutional right
of action does not permit a court to “turn back the clock” to grant
retrospective relief for “actions already taken by the State.” Id. at 601,
837 P.2d at 1262. And we have indicated that suits seeking retrospective
declaratory relief based on an alleged constitutional violation that has
already occurred are governed by HRS § 632-1. See Nelson v. Hawaiian Homes
Comm’n, 127 Hawai‘i 185, 205, 277 P.3d 279, 299 (2012) (applying HRS § 632-1
in a suit seeking a declaration that the State had violated its duty to
afford “sufficient sums” to the Office of Hawaiian Affairs under article XII,
section 1 of the Hawai‘i Constitution); Kaho‘ohanohano v. State, 114 Hawai‘i
302, 332, 162 P.3d 696, 726 (2007) (applying HRS § 632-1 in a suit seeking a
declaration that the State had violated the article XVI, section 2
prohibition on the impairment of accrued retirement system benefits).
Therefore, to the extent the Plaintiffs are seeking a declaration that the
State has already violated its trust duties, this relief is dependent on
satisfying the requirements of HRS § 632-1.
62
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Board, 132 Hawai‘i 333, 322 P.3d 228 (2014) and Kau v. City and
County of Hawai‘i, 104 Hawai‘i 468, 92 P.3d 477 (2004), which it
contends demonstrate that the Plaintiffs’ claim is too
speculative to qualify for declaratory relief under HRS § 632-1.
Recently, this court considered the requirements that
must be met to demonstrate a controversy that is subject to a
request for declaratory relief under HRS § 632-1(b). We held
that
a party has standing to seek declaratory relief in a civil
case brought pursuant to HRS § 632-1 (1) where antagonistic
claims exist between the parties (a) that indicate imminent
and inevitable litigation, or (b) where the party seeking
declaratory relief has a concrete interest in a legal
relation, status, right, or privilege that is challenged or
denied by the other party, who has or asserts a concrete
interest in the same legal relation, status, right, or
privilege; and (2) a declaratory judgment will serve to
terminate the uncertainty or controversy giving rise to the
proceeding.
Tax Found. of Hawai‘i v. State, 144 Hawai‘i 175, 202, 439 P.3d
127, 154 (2019).42 It is clear that the Plaintiffs’ assertion
that the State breached the trust duty that it owes to them as
beneficiaries meets these requirements, and additionally, the
cases relied upon by the State are inapposite.
42
Hawai‘i state courts are not subject to a constitutional “case or
controversy” jurisdictional limitation. See Haw. Const. art. VI, § 1 (“The
several courts shall have original and appellate jurisdiction as provided by
law . . . .”); Trs. of Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154,
170 n.17, 737 P.2d 446, 456 n.17 (1987); Tax Found., 144 Hawai‘i at 190, 439
P.3d at 142.
63
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
In Asato, the plaintiff brought suit seeking to
invalidate an administrative rule relating to the State’s
contracting policies and to void every contract that the State
had entered into under the regulation. 132 Hawai‘i at 337, 322
P.3d at 232. Notably, the claim in Asato was brought under HRS
§ 91-7(a), which allows “any interested person” to challenge an
agency rule.43 Asato did not concern HRS § 632-1, and it thus
does not provide guidance herein. See Tax Found., 144 Hawai‘i at
194–95, 439 P.3d at 146–47 (discussing the requirements of HRS §
91-7 and HRS § 632-1 separately).
Further, even if Asato had been brought under HRS §
632-1, its holding is not helpful to the State. Although the
Asato court invalidated the challenged administrative rule, it
declined to declare that the contracts entered into under the
regulation were void, noting that no connection had been alleged
between the plaintiff and any of the individual contracts. Id.
at 355, 322 P.3d at 250. The court determined that, without
43
HRS § 91-7(a) provides as follows:
(a) Any interested person may obtain a judicial declaration
as to the validity of an agency rule as provided in
subsection (b) by bringing an action against the agency in
the circuit court or, if applicable, the environmental
court, of the county in which the petitioner resides or has
its principal place of business. The action may be
maintained whether or not the petitioner has first
requested the agency to pass upon the validity of the rule
in question.
64
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
knowing the plaintiff’s relation to each contract, it could not
identify any controversy that could be ended by a declaration
that the contracts were void. Id. (“Absent any rendition of the
circumstances surrounding each contract, it cannot be determined
from the allegations whether there is a substantial controversy
as to a particular contract that is of sufficient immediacy and
reality to warrant a declaratory judgment.” (internal quotations
omitted)).
By contrast, the Plaintiffs here are connected to the
PTA and the manner in which the State manages it because the PTA
is held in trust by the State for the Plaintiffs’ benefit. This
is to say that the trust duty that the Plaintiffs allege the
State has breached is a duty the State owes to the Plaintiffs,
and a declaration regarding whether the State has breached that
duty would terminate the controversy by clarifying the contours
of that duty.
The State also relies on Kau, in which this court
considered a Honolulu ordinance that permitted the lessees of
condominium units to purchase fee simple interests through a
condemnation proceeding. 104 Hawai‘i at 472, 92 P.3d at 481.
The case began when the fee simple owners of a condominium
project brought an action seeking a declaration that the
subdivision of the property into individual units would end upon
the expiration of the developer’s master lease in 2014, and thus
65
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the sublessees of the individual units would not acquire fee
simple interests in their individual units if they were
condemned under the ordinance. Id. The Kau court held that,
because the fee simple owners were “requesting a judgment based
on the expiration of the Master Lease, an event that [would]
occur at some time in the future; there [wa]s no actual
controversy in existence at th[at] time.” Id. at 475, 92 P.3d
at 484. Specifically, the court noted that the declaration
would require speculation as to the conditions that would exist
when the master lease expired. Id. During the interim, the
court reasoned, the city could condemn the fee owner’s interest
or the fee owners could make the appropriate filings to make the
subdivision permanent, thereby avoiding the situation that the
fee simple owners wished the court to rule on. Id.Unlike in Kau, the Plaintiffs’ breach of trust claim
based on a failure to reasonably monitor the United States’
compliance with the lease does not require the court to
speculate about future conditions--nor even the present
likelihood that the United States is currently in breach of the
lease.44 Rather, the Plaintiffs alleged that the State has
44
The circuit court additionally determined that the State would
further breach [its] trust duties if [it] were to execute
an extension, renewal, or any other change to the State
General Lease No. S-3849, or enter into a new lease of the
(continued . . .)
66
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
already breached its duty as a trustee by failing to monitor
compliance with the provisions of the lease, irrespective of
whether the United States actually complied with the lease
terms. This case thus presents the type of controversy that is
necessary to qualify for relief under HRS § 632-1(b).
b. The Alleged Breach of Trust Does Not Present a Political
Question
Under the political question doctrine, courts refrain
from deciding certain matters that are committed to the
discretion of the other branches of government, reasoning that
government action in these areas is properly addressed through
democratic processes. See Trs. of Office of Hawaiian Affairs v.
Yamasaki, 69 Haw. 154, 171, 737 P.2d 446, 456 (1987). This
court has adopted the test for identifying a political question
articulated by the United States Supreme Court in Baker v. Carr,
369 U.S. 186, 217 (1962). Under the Carr formulation, a
political question may be found when “on the surface of [a]
case” there is 1) “a textually demonstrable constitutional
(. . . continued)
PTA, without first determining (in writing) that the terms
of the existing lease have been satisfactorily fulfilled,
particularly with respect to any lease provision that has
an impact upon the condition of the [PTA] leased lands.
As discussed in more detail infra, Part V.B.4, any breach of trust claim
regarding the State’s renewal of the lease is speculative and not ripe for
review, and thus this aspect of the Plaintiffs’ claim does not present a
controversy susceptible to declaratory relief under HRS § 632-1.
67
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
commitment of the issue to a coordinate political department;”
2) “a lack of judicially discoverable and manageable standards
for resolving it;” 3) “the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial
discretion;” 4) “an unusual need for unquestioning adherence to
a political decision already made;” or 5) “the potentiality of
embarrassment from multifarious pronouncements by various
departments on one question.” Yamasaki, 69 Haw. at 169-70, 737
P.2d at 455 (quoting Carr, 369 U.S. at 217).
The State contends that Plaintiffs’ claim that it
violated its constitutional public trust duties is a
nonjusticiable political question under Yamasaki and Nelson v.
Hawaiian Homes Commission. In Yamasaki, the Trustees of the
Office of Hawaiian Affairs brought suit seeking 20% of the
proceeds derived by the State as damages from an illegal sand
mining operation taking place on ceded lands. 69 Haw. at 165-
67, 737 P.2d at 452-54. Although HRS § 10-13.5 provided that
“[t]wenty per cent of all funds derived from the public land
trust . . . shall be expended by the [O]ffice of Hawaiian
Affairs,” the court held that the case presented a political
question because no judicially discoverable and manageable
standards existed for determining whether the damages amounted
to “funds derived from the public land trust.” Id. at 174, 737
P.2d at 458. Resolving the case would require an initial policy
68
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
determination that was typically reserved for nonjudicial
discretion, the court held. Id. at 174-75, 737 P.2d at 458. In
Nelson, the court held that determining what constitutes
“sufficient funds” for three of the four purposes set forth in
article XII, section 1 of the Hawaii Constitution45 was a
political question not suited for judicial resolution. 127
Hawai‘i at 188, 277 P.3d at 282. The court held that, even were
it to declare that the amount of funds currently dedicated to
three of the four purposes was insufficient, there were no
discoverable standards in the text or constitutional history of
the provision for a court to affirmatively determine the amount
that would be sufficient. Id. at 206, 277 P.3d at 300.
These cited cases are plainly distinguishable. Unlike
in Yamasaki and Nelson, this court’s precedents interpreting the
State’s constitutional trust obligations and the widely
developed common law of trusts provide many judicially
45
Article XII, section 1 of the Hawaii Constitution provides in
relevant part as follows:
The legislature shall make sufficient sums available for
the following purposes: (1) development of home,
agriculture, farm and ranch lots; (2) home, agriculture,
aquaculture, farm and ranch loans; (3) rehabilitation
projects to include, but not limited to, educational,
economic, political, social and cultural processes by which
the general welfare and conditions of native Hawaiians are
thereby improved; (4) the administration and operating
budget of the department of Hawaiian home lands; in
furtherance of (1), (2), (3) and (4) herein, by
appropriating the same in the manner provided by law.
69
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
discoverable and manageable standards for determining whether
the State breached its trust duties. “It is well settled that
the determination of whether or not a particular proposed
action, by the trustee of a charitable trust, would constitute a
breach of that trust, is a matter to be determined by the
courts, as a part of their inherent jurisdiction.” Kapiolani
Park Pres. Soc. v. City & Cty. of Honolulu, 69 Haw. 569, 571,
751 P.2d 1022, 1024 (1988) (citing 15 Am.Jur.2d Charities § 135
(1976); 14 C.J.S. Charities § 49 (1939)).
The State points to the Ninth Circuit decision in
Price v. Hawaii, in which the court held that as a matter of
federal law, section 5(f) of the Admission Act46 did not
incorporate “all provisions of the common law of trusts” because
to do so “would manacle the State as it attempted to deal with
the vast quantity of land conveyed to it.” 921 F.2d 950, 954-56
(9th Cir. 1990). While this court has approvingly quoted this
passage when examining the State’s obligations when
administering a different, statutorily created trust, see
46
“Article XII, § 4 was added to the Hawaii Constitution to
expressly recognize the trust purposes and trust beneficiaries of the § 5(f)
trust, clarifying that the State’s trust obligations extend beyond the
Hawaiian Homes Land Trust.” Pele Def. Fund, 73 Haw. at 603, 837 P.2d at 1263
(citing Stand. Comm. Rep. No. 59 in I Proceedings of the Constitutional
Convention of Hawaii of 1978, 643-44 (1980)). “In article XVI, [section] 7,
referred to by article XII, [section] 4, the State affirmatively assumes the
[section] 5(f) trust responsibilities.” Id. at 586 n.2, 837 P.2d at 1254
n.2.
70
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Awakuni v. Awana, 115 Hawai‘i 126, 133, 165 P.3d 1027, 1034
(2007), this does not establish that the common law of trusts is
wholly inapplicable. This is to say that a ruling that not all
provisions of the common law apply does not equate to a ruling
that none of the provisions of the common law apply. Indeed,
the same year that the Ninth Circuit decided Price v. Hawaii, it
relied in part on the common law of trusts when it held in a
related case that the same plaintiff stated a claim against the
Office of Hawaiian Affairs based on an alleged breach of its
section 5(f) trust duties. See Price v. Akaka, 928 F.2d 824,
826–27 (9th Cir. 1990) (“In addition, allowing Price to enforce
§ 5(f) is consistent with the common law of trusts, in which one
whose status as a beneficiary depends upon the discretion of the
trustee nevertheless may sue to compel the trustee to abide by
the terms of the trust.” (citing Restatement (Second) of Trusts
§§ 214(1) cmt. a, 391)).
Further, this court may draw upon its own case law
interpreting the State’s constitutional trust obligations for
administrable standards, including instances in which we have
explicitly stated that beneficiaries of the ceded land trust may
bring actions to determine whether executive branch agencies
have breached their constitutional trust duties. See, e.g.,
Pele Def. Fund, 73 Haw. 578, 605, 837 P.2d 1247, 1264 (1992)
(“We find that the actions of state officials, acting in their
71
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
official capacities, should not be invulnerable to
constitutional scrutiny. Article XII, § 4 imposes a fiduciary
duty on Hawai‘i’s officials to hold ceded lands in accordance
with the § 5(f) trust provisions, and the citizens of the state
must have a means to mandate compliance.”). The State’s
contention that this case presents a nonjusticiable political
question is thus without merit.
3. The Circuit Court Did Not Err in Concluding the State
Breached Its Trust Duties
a. The Circuit Court Correctly Determined that the State has a
Trust Duty To Reasonably Monitor the Trust Property, Including
the United States’ Compliance with the Terms of the Lease that
Protect the Trust Property
In its conclusions of law, the circuit court
determined that the State’s trust duties include using
“reasonable efforts” to preserve trust property and to take a
proactive role in the management and protection of the leased
PTA land. The court ruled that one aspect of this duty is an
obligation “to use reasonable efforts to ensure that Said Lease
provisions that affect or impact the condition of ceded lands
and all living things thereon are being followed and
discharged.” Further, the court concluded that the State has a
duty to consider the cumulative effects of the United States’
use of the land upon the condition of the land and upon “the
indigenous plants, animals, and insects, as well as the invasion
to Plaintiffs’ cultural interests in the Subject Land.”
72
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Although the State blends its arguments regarding the nature of
its legal trustee duties with those regarding the underlying
justiciability of the case, the State appears to dispute these
rulings and to argue that its trustee duties do not include an
obligation to reasonably monitor the leased PTA land.
The State’s duties with respect to the leased PTA land
are derived in part from the properties’ status as “ceded land”-
-which are lands that were held by the civil government or the
monarchy of the Hawaiian Kingdom at the time of the 1893
overthrow of the Hawaiian monarchy. See Pele Def. Fund, 73 Haw.
at 585, 837 P.2d at 1254. When the United States annexed Hawai‘i
by a joint resolution of Congress in 1898, real property that
had been classified as government lands or crown lands was ceded
to the federal government. Id. Recognizing their special
character, the Joint Resolution of Annexation exempted these
lands from the general laws of the United States that governed
federal land. State ex rel. Kobayashi v. Zimring, 58 Haw. 106,
124, 566 P.2d 725, 736 (1977) (citing Joint Resolution of July
7, 1898, 30 Stat. 750). Instead, the resolution specified that
these lands should be held in a “special trust” for the benefit
of the people of Hawai‘i. Id. When Hawai‘i was admitted into
the Union as a state in 1959, these ceded lands were transferred
back to the newly established state, subject to the trust
provisions set forth in section 5(f) of the Admission Act. Pele
73
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Def. Fund, 73 Haw. at 585, 837 P.2d at 1254 (citing Hawaii
Admission Act, Pub. L. No. 86–3, 73 Stat. 4, 6 (1959)). Article
XII, section 4 was later added to the Hawai‘i Constitution to
formally recognize these responsibilities, specifying that the
land “shall be held by the State as a public trust for native
Hawaiians and the general public.”47 Id. at 586, 837 P.2d at
1254 (quoting Haw. Const. art. XII, § 4). At that same time,
the framers and the people of Hawai‘i adopted article XI, section
1, which created a public trust consisting of “all public
natural resources” to be administered by the State for the
benefit of the people.48 Haw. Const. art. XI, § 1.
47
Article XII, section 4 of the Hawai‘i Constitution provides in
full as follows:
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.
48
Article XI, section 1 of the Hawai‘i Constitution provides in full
as follows:
For the benefit of present and future generations, the
State and its political subdivisions shall conserve and
protect Hawaii’s natural beauty and all natural resources,
including land, water, air, minerals and energy sources,
and shall promote the development and utilization of these
resources in a manner consistent with their conservation
and in furtherance of the self-sufficiency of the State.
All public natural resources are held in trust by the State
for the benefit of the people.
74
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
As the State concedes, our case law and the common law
of trusts make the State “subject to certain general trust
duties, such as a general duty to preserve trust property.”
See, e.g., Zimring, 58 Haw. at 121, 566 P.2d at 735 (“Under
public trust principles, the State as trustee has the duty to
protect and maintain the trust property and regulate its use.”);
Kaho‘ohanohano v. State, 114 Hawai‘i 302, 325, 162 P.3d 696, 719
(2007) (“[It] is always the duty of a trustee to protect the
trust property . . . .” (quoting Brenizer v. Supreme Council,
Royal Arcanum, 53 S.E. 835, 838 (N.C. 1906))); In re Estate of
Dwight, 67 Haw. 139, 146, 681 P.2d 563, 568 (1984) (“A trustee
is under a duty to use the care and skill of a [person] of
ordinary prudence to preserve the trust property.” (citing
Bishop v. Pittman, 33 Haw. 647, 654 (Haw. Terr. 1935));
Restatement (Second) of Trusts § 176 (“The trustee is under a
duty to the beneficiary to use reasonable care and skill to
preserve the trust property.”).49 As trustee, the State must
49
The State’s duty of care is especially heightened in the context
of ceded land held in trust for the benefit of native Hawaiians and the
general public under article XII, section 4. This court has approvingly
quoted the following in considering the ceded land trust:
The native Hawaiian people continue to be a unique and
distinct people with their own language, social system,
ancestral and national lands, customs, practices and
institutions. The health and well-being of the native
Hawaiian people is intrinsically tied to their deep
feelings and attachment to the land. ‘Aina, or land, is of
crucial importance to the native Hawaiian people--to their
(continued . . .)
75
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
take an active role in preserving trust property and may not
passively allow it to fall into ruin. United States v. White
Mt. Apache Tribe, 537 U.S. 465, 475 (2003) (“[E]lementary trust
law, after all, confirms the commonsense assumption that a
fiduciary actually administering trust property may not allow it
to fall into ruin on [the fiduciary’s] watch.”). It is self-
evident that an obligation to reasonably monitor trust property
to ensure it is not harmed is a necessary component of this
general duty, as is a duty to investigate upon being made aware
of evidence of possible damage. This obligation inherently
includes a duty to make reasonable efforts to monitor third-
parties’ compliance with the terms of agreements designed to
protect trust property.
(. . . continued)
culture, their religion, their economic self-sufficiency
and their sense of personal and community well-being. ‘Aina
is a living and vital part of the native Hawaiian
cosmology, and is irreplaceable. The natural elements—
land, air, water, ocean—are interconnected and
interdependent. To native Hawaiians, land is not a
commodity; it is the foundation of their cultural and
spiritual identity as Hawaiians. The ‘aina is part of their
‘ohana, and they care for it as they do for other members of
their families. For them, the land and the natural
environment is alive, respected, treasured, praised, and
even worshiped.
Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp. of Hawai‘i, 121 Hawai‘i
324, 333, 219 P.3d 1111, 1120 (2009) (alterations omitted) (quoting Office of
Hawaiian Affairs v. Hous. & Cmty. Dev. Corp. of Hawaii, 117 Hawai‘i 174, 214,
177 P.3d 884, 924 (2008)).
76
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
This court held as much in Kelly v. 1250 Oceanside
Partners, in which it considered the article XI, section 1
public trust duties of the Hawai‘i Department of Health (DOH)
with respect to a private development abutting coastal waters
that the State had classified as “AA,” meaning the waters were
legally required to be kept as nearly as possible in their
natural, pristine condition. 111 Hawai‘i 205, 227-29, 140 P.3d
985, 1007-09 (2006). Although DOH had issued a permit to the
developer that included provisions requiring the developer to
abide by State regulations prohibiting the pollution of AA
waters, this court held that including the provisions in the
permit was not the end of DOH’s duties as trustee. Id. Under
public trust principles, we held, DOH was required to “not only
issue permits after prescribed measures appear to be in
compliance with state regulation, but also to ensure that the
prescribed measures are actually being implemented after a
thorough assessment of the possible adverse impacts the
development would have on the State’s natural resources.” Id.
at 231, 140 P.3d at 1011 (emphasis added). We thus effectively
held that the State had a continuing public trust duty to
reasonably monitor the developer to ensure it was complying with
the permit. See id.The present case presents close parallels to Oceanside
Partners. As in Oceanside Partners, the State entered into an
77
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
agreement to allow a third party to use land for a particular
purpose provided the third party complied with certain
conditions intended to protect trust property. And as in
Oceanside Partners, the State has a continuing trust duty to
make reasonable efforts to ensure that the third party actually
complies with those conditions. Thus, the State has a
constitutional trust obligation to reasonably monitor the
United States’ compliance with the lease.
The State’s attempts to distinguish Oceanside Partners
are unavailing. As a threshold matter, the State is incorrect
that no statute exists setting forth the State’s obligations
with respect to ensuring the United States’ compliance with the
lease; HRS § 171-7(5) provides that, “[e]xcept as provided by
law the board of land and natural resources through the
chairperson shall: . . . [e]nforce contracts respecting sales,
leases, licenses, permits, or other disposition of public
lands[.]” Moreover, this court has made clear that while
overlap may occur, the State’s constitutional public trust
obligations exist independent of any statutory mandate and must
be fulfilled regardless of whether they coincide with any other
legal duty. Kauai Springs, Inc. v. Planning Comm’n of Kaua‘i,
133 Hawai‘i 141, 172, 324 P.3d 951, 982 (2014) (“As the public
trust arises out of a constitutional mandate, the duty and
authority of the state and its subdivisions to weigh competing
78
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
public and private uses on a case-by-case basis is independent
of statutory duties and authorities created by the
legislature.”); see also In re TMT, 143 Hawaii 379, 416, 431
P.3d 752, 789 (2018) (Pollack, J., concurring) (“Thus, although
some congruence exists, BLNR’s and the University of Hawai‘i at
Hilo’s public trust obligations are distinct from their
obligations under [Hawaii Administrative Rules] § 13-5-
30(c).”).
Additionally, the fact that Paragraph 9 of the lease
only requires the United States 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” does not render
the State powerless to respond to a breach of this provision as
the State contends. It is well settled that an agreement by
one party to use “reasonable” or “best efforts” generally
creates an enforceable obligation as a matter of contract law.
See, e.g., Soroof Trading Dev. Co. v. GE Fuel Cell Sys., LLC,
842 F.Supp.2d 502, 511 (S.D.N.Y. 2012) (“New York courts use
the term ‘reasonable efforts’ interchangeably with ‘best
efforts’ . . . [and] a ‘best efforts’ clause imposes an
obligation to act with good faith in light of one’s own
capabilities.” (quoting Monex Fin. Serv. Ltd. v. Nova Info.
79
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
Sys., Inc., 657 F.Supp.2d 447, 454 (S.D.N.Y. 2009))); Allview
Acres, Inc. v. Howard Inv. Corp., 182 A.2d 793, 796 (Md. 1962)
(“What will constitute reasonable efforts under a contract
expressly or impliedly calling for them is largely a question
of fact in each particular case and entails a showing by the
party required to make them of ‘activity reasonably calculated
to obtain the approval by action or expenditure not
disproportionate in the circumstances.’” (quoting Stabile v.
McCarthy, 145 N.E.2d 821, 824 (Mass. 1957))). And, while the
lease may not contain a provision expressly allowing the State
to terminate the lease, it does contain a dispute resolution
mechanism in Paragraph 30. This mechanism appears to
specifically contemplate the possibility of judicial
enforcement, setting forth the conditions under which “a court
of competent jurisdiction” may set aside the administrative
factual findings and specifying that administrative decisions
on questions of law shall not be final.
Moreover, the State errs by presuming that initiating
a formal action to enforce the lease is the only possible
response it could undertake to preserve and protect the PTA
land if it discovers the United States is in noncompliance with
the relevant provisions of the lease. A range of other options
may be available that could satisfy its public trust
obligations under the circumstances, including seeking to
80
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
obtain the United States’ voluntary cooperation. As the
Plaintiffs argued during the summary judgment hearing, how the
State responds if reasonable monitoring and investigation lead
to a discovery that the United States is not in compliance with
the lease could potentially be a separate breach of the State’s
public trust duties, and this court need not speculate about
what hypothetical future actions are reasonable in order to
resolve this case.
The State is therefore wrong to suggest that
reasonably monitoring the United States’ compliance with the
lease is a futile or pointless endeavor, and Oceanside
Partners’ holding that the State has an ongoing trust
obligation to ensure third-party compliance with provisions
designed to protect trust property is dispositive as to the
existence of this obligation.
b. The Circuit Court Did Not Err in Determining that the State
Did Not Reasonably Monitor the Trust Property, Including the
United States’ Compliance with the Lease Terms that Protect
Trust Property
The State appears to argue next that, even if it does
have a trust duty to reasonably monitor the United States’
compliance with the lease, the circuit court erred in finding
that it breached that duty by failing to conduct regular
inspections of the PTA and by failing to investigate when it was
made aware of evidence that the United States may have violated
81
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
provisions of the lease designed to protect the leased PTA land.
“Typically, whether a fiduciary acted prudently--or in other
words, as a reasonably prudent fiduciary--is a question of
fact.” Harley v. Minn. Mining & Mfg. Co., 42 F.Supp.2d 898, 907
(D. Minn. 1999); see also Knodle v. Waikiki Gateway Hotel, Inc.,
69 Haw. 376, 385, 742 P.2d 377, 383 (1987) (“Whether there was a
breach of duty or not, i.e. whether there was a failure on the
defendant’s part to exercise reasonable care, is a question for
the trier of fact.”). Accordingly, the circuit court’s
determination that the State did not reasonably monitor the
United States’ compliance with the lease terms must be upheld if
it is not clearly erroneous.
The circuit court specifically found that the State
had breached its trust duties by failing to, inter alia:
(a) conduct regular reasonable (in terms of frequency and
scope), periodic monitoring and inspection of the condition
of subject public trust lands . . . ;
(b) ensure that the terms of the lease that impact the
condition of the leased lands or preserving Plaintiffs’
cultural interests are being followed;
(c) take prompt and appropriate follow up steps with
military or other federal government officials when [the
State] obtain[s] or [is] made aware of evidence or
information that the lease may have been violated with
respect to protecting the condition of the [PTA] leased
50
lands[. ]
50
The circuit court additionally found that the State had breached
its trust duties by failing to consistently make reasonably detailed and
complete records of its actions to ensure compliance with the lease and by
failing to initiate or assist with the appropriation of necessary funding to
(continued . . .)
82
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
(Line breaks added.) In making this determination, the court
relied on the fact that “[o]nly three [inspection] reports of
any significance, for 1984, 1994, and 2014, were introduced into
evidence.” Of these, “[t]he 1984 and 1994 reports were grossly
inadequate and, in the case of the 1994 report, virtually
nonexistent because of its lack of information pertaining to the
1994 inspection.” The court stated that it was not considering
“other studies or site visits in connection with other business
regarding the [PTA], such as environmental impact statements,
[because] the court did not view these events as being
undertaken as part of [the State’s] effort to discharge” its
trust duties.
The State argues that the circuit court’s
determination was clearly erroneous because it explicitly
disregarded the State’s reliance on cooperative agreements,
environmental reports, and archeological surveys to supervise
(. . . continued)
undertake cleanup of the PTA. And the court held that the State would breach
its trust duties if it were to extend or renew the lease “without first
determining (in writing) that the terms of the existing lease have been
satisfactorily fulfilled, particularly with respect to any lease provision
that has an impact upon the condition of the” PTA. The State does not appear
to challenge these conclusions on appeal, raising in their point of error
regarding the breach only that “[t]he circuit court erred in finding that the
State breached its trust duties by failing to perform adequate inspections of
the Subject Land.” Nevertheless, as discussed below, the circuit court’s
order regarding the securing of funding for cleanup was not suited to remedy
the breach alleged by the Plaintiffs, and any holding regarding a future
breach of the State’s trust duties is speculative.
83
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the United States’ use of the PTA.51 Under the circumstances,
the State contends, it was reasonable for the State to delegate
its duties52 and rely on its review of ancillary documents to
monitor the PTA.
51
These documents included a copy of the United States training
regulations and procedures from 1970, an environmental assessment for a
training exercise in 1982, a 1984 archeological survey report, a 2002
Integrated Natural Resources Management Plan, a 2004 environmental impact
statement, and a 2004-2010 “Programmatic Agreement” to provide additional
protection to cultural sites.
52
The State cites Restatement (Second) of Trusts § 171 for the
proposition that a trustee has authority to cooperate, consult, and delegate
to others tasks relating to trust administration when it is reasonable to do
so. However, this is not an accurate description of Restatement (Second) of
Trusts § 171, which is entitled “Duty Not to Delegate.” (Emphasis added.)
Under the approach taken by the First and Second Restatement, “[t]he trustee
is under a duty to the beneficiary not to delegate to others the doing of
acts which the trustee can reasonably be required personally to perform.”
Id.; Restatement (First) of Trusts § 171. However, “[t]he position of The
American Law Institute was fundamentally changed in 1992,” and Restatement
(Third) of Trusts § 80, “Duty with Respect to Delegation,” provides as
follows:
(1) A trustee has a duty to perform the responsibilities of
the trusteeship personally, except as a prudent person of
comparable skill might delegate those responsibilities to
others.
(2) In deciding whether, to whom, and in what manner to
delegate fiduciary authority in the administration of a
trust, and thereafter in supervising or monitoring agents,
the trustee has a duty to exercise fiduciary discretion and
to act as a prudent person of comparable skill would act in
similar circumstances.
Restatement (Third) of Trusts § 80 and Reporter’s Notes on § 80. Hawai‘i
courts have not explicitly adopted either the Restatement’s original position
or the new position set forth in the Third Restatement, though many older
cases make clear that at least some of a trustee’s duties are non-delegable.
See Hartmann v. Bertelmann, 39 Haw. 619, 627 (Haw. Terr. 1952) (“[T]he
primary responsibility of administering the trust is the trustee’s, which he
cannot delegate . . . .”); In re Banning’s Estate, 9 Haw. 453, 463 (Haw. Rep.
1894) (“The duties and powers of trustees cannot be delegated.”).
84
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
To the extent the State argues that it can delegate
its public trust duty to reasonably monitor the PTA to protect
and preserve trust property, this contention is squarely counter
to our precedent indicating that the State may not delegate its
constitutional duties to third-parties. See Ka Pa‘akai O Ka‘Aina
v. Land Use Comm’n, 94 Hawaii 31, 50-51, 7 P.3d 1068, 1087-88
(2000) (holding that the Land Use Commission improperly
delegated its article XII, section 7 “responsibility for the
preservation and protection of native Hawaiian rights” by
authorizing a land reclassification on the promise that the
developer would later create a program to accommodate native
practitioners, as the “balancing of the developer’s interests
with the needs of native Hawaiians should have been performed,
in the first instance, by the” State agency). The Ka Pa‘akai
court held that the Hawai‘i Constitution places “an affirmative
duty on the State and its agencies to preserve and protect
traditional and customary native Hawaiian rights.” Id. at 45, 7
P.3d at 1082 (emphasis added). At the core of this affirmative
duty, as explained by the Ka Pa‘akai court, is the responsibility
of the State and its constituent agencies to act only after
“independently considering the effect of their actions on
Hawaiian traditions and practices.” Id. at 46, 7 P.3d at 1083.
85
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
An affirmative duty of the State to protect and preserve
constitutional rights is by its very nature non-delegable.
Even if such a delegation were not inherently invalid
under the Hawai‘i Constitution and permitted under our common law
of trusts, that delegation would itself have to be reasonable
under the prudent person standard, and the State would maintain
a trust duty to reasonably supervise the agent in its
performance of the monitoring. See supra note 52. It is self-
evident that, as a general matter, it is not reasonable for a
trustee to delegate the supervision of a lessee’s compliance
with the terms of a lease of trust property to the lessee. Cf.
Halderman v. Pennhurst State Sch. & Hosp., 526 F. Supp. 428, 433
(E.D. Pa. 1981) (“The Commonwealth defendants appear to take the
position that they should be able to monitor their own
compliance with the Court’s Orders. This would be somewhat akin
to requesting the fox to guard the henhouse.”). This is
especially true given the circuit court’s findings that the
State was aware of the United States’ history of failing to
prevent environmental damage and clean up the remnants of
military exercises on other State-owned land that it leases,
including Mākua and the Waikāne Valley.
Nevertheless, it is generally not considered a breach
of duty for a fiduciary to rely in part on reports prepared by a
person as to matters that the fiduciary reasonably believes to
86
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
be within that person’s expertise. Cf. HRS § 414D-155(b)(2)
(Supp. 2018);53 HRS § 414D-149(b)(2) (Supp. 2018).54 Democratic
principles and the checks and balances of government may
arguably serve to make a governmental entity like the United
States more accountable than the average lessee, and some of the
documents authored on behalf of the United States included
observations by independent third parties. If the State took
appropriate action to verify the content, it may have reasonably
concluded that the reports were reliable, and it could have
validly considered them in the course of fulfilling its non-
delegable trust duties. The circuit court therefore appears to
have erred in disregarding the State’s review of these ancillary
documents in assessing whether the State had fulfilled its trust
duty to reasonably monitor the PTA solely on the basis that
these other reports were not “undertaken as part of [the
State’s] effort to discharge” its trust duties.
But the State’s efforts were clearly inadequate in any
event. The ancillary reports occurred very infrequently and in
53
HRS § 414D-155(b)(2) provides that, in the course of discharging
the officer’s duties, an officer of a nonprofit corporation may “rely on
information, opinions, reports, or statements, including financial statements
and other financial data, if prepared or presented by . . . [l]egal counsel,
public accountants, or other persons as to matters the officer reasonably
believes are within the person’s professional or expert competence.”
54
HRS § 414D-149(b)(2) provides the same right to rely on
information from professionals regarding matters within their expertise to
directors of a non-profit corporation.
87
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
some cases cited evidence of damage and suggested that the
United States may not have been in compliance with the lease.
Indeed, the circuit court made specific findings regarding
adverse environmental information included in two of the United
States’ reports. It noted that a 2010 archaeological and
cultural monitoring report stated,
The Military needs to implement some kind of cleanup
process as part of their training in PTA. Remnants of
military trash is everywhere.
. . . .
Another major concern is the military debris that is left
behind after training including [UXO] that is carelessly
discarded. There is a need to have some type of cleanup
plan implemented in the military training process.
(Emphasis omitted.) The court also found that a second
archaeological and cultural monitoring report made four years
later expressed many of the same concerns with specific regard
to the United States’ obligations under the lease:
Remnants of live fire training are present within the BAX,
including stationary targets, junk cars, an old tank,
crudely built rock shelters, and miscellaneous military
rubbish. Spent ammunition is scattered across the
landscape.
. . . .
This lease . . . requires the land to be restored to its
original state when returned. This cannot occur if the
land remains so littered with UXO that it is unsafe for
anyone to go on the land. If this is the case, the land
will be rendered unusable forever--one eighth of our island
will become unavailable for use by any of our future
generations. This is not acceptable nor could it be
construed in any way to be in compliance with the Statehood
compact.
Therefore, in order for the Army to meet the lease
termination deadline, we strongly recommend the Army begin
now to seek funding to initiate a serious cleanup effort
88
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
throughout the leased training areas bounding the impact
areas: that major impact/UXO areas be subjected to thorough
cleanup[.]
(Emphasis and some alterations in original.)55 There was no
indication the State ever followed up on these reports.
The circuit court found that the State breached its
trust duties: by failing to conduct regular monitoring and
inspections that were reasonable in frequency and scope to
examine the condition of the leased PTA land; by failing to
ensure that the terms of the lease that impact the condition
of the leased PTA land were being followed; and by failing to
take prompt and appropriate follow-up steps when it was made
aware of evidence that the lease may have been violated with
respect to protecting the condition of the leased PTA land.
In light of the foregoing, the circuit court did not err in
these findings.
4. The Injunctive Relief Ordered by the Circuit Court Was Not
Entirely Suited To Remedy the Demonstrated Breach
The circuit court ordered the State to rectify its
breach of its constitutional public trust duties by “promptly
initiat[ing] and undertak[ing] affirmative activity to malama
55
Although the court did not make any specific findings regarding
the other reports on which the State claims it relied, several of these also
documented substantial environmental problems with the leased PTA land. For
example, the 2002 Integrated Natural Resources Management Plan noted in a
section setting forth the “Adverse Effects” of the “Military Mission on
Natural Resources” that 22.9% of the ground cover in the surveyed area
consisted of litter and “[t]here was virtually no evidence of maintenance
activity.”
89
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
‘aina the” PTA. According to the court, this includes but is not
limited to developing a written plan to care for the land. The
court stated that the plan must include the following:
 regular, periodic on-site monitoring and inspection;
 the making of inspection reports that at minimum
include a set of specified information,
recommendations for appropriate action, and a
nonbinding estimated timeline for when such action
should be undertaken;
 a protocol of appropriate action that will be
undertaken if the State discovers an “actual,
apparent, or probable breach of any provision” of the
lease by the United States, [UXO] or debris deposited
during training exercises, any other foreign or non-
natural item or contaminate connected with the lease,
or any other condition adversely affecting the PTA;
 a protocol or other assurance to bring any
nonconforming condition found that is likely caused by
the United States under the lease into pre-lease
condition on a reasonable timetable;
 a set of steps the State will take to obtain or assist
in securing adequate funding for a comprehensive
cleanup of the PTA; and
 a procedure to provide reasonable transparency to the
Plaintiffs and the general public with regard to the
State’s progress in fulfilling the court’s order.
The court also ordered the State to initiate HRS Chapter 91
rulemaking to establish a contested case procedure, if not
already in existence, through which the Plaintiffs or any member
of the general public with standing could challenge the State’s
decisions in the course of discharging its trust duty to care
90
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
for the leased PTA lands. Lastly, the court ordered that the
State submit its plan to care for the land to the court for
approval prior to executing it.
The form and scope of injunctions issued by Hawai‘i
courts are governed by HRCP Rule 65(d), which provides as
follows:
Every order granting an injunction and every restraining
order shall set forth the reasons for its issuance; shall
be specific in terms; shall describe in reasonable detail,
and not by reference to the complaint or other document,
the act or acts sought to be restrained; and is binding
only upon the parties to the action, their officers,
agents, servants, employees, and attorneys, and upon those
persons in active concert or participation with them who
receive actual notice of the order by personal service or
otherwise.
(Emphases added). We have stated that, when granting an
injunction, a court should adopt relief and “mold[] its decree
to satisfy the requirement[s] of th[e] particular case and
thereby conserve the equities of all of the parties.” Fleming
v. Napili Kai, Ltd., 50 Haw. 66, 70, 430 P.2d 316, 319 (1967);
see also Moffat v. Speidel, 2 Haw. App. 334, 335, 631 P.2d 1205,
1206 (1981) (holding that a court’s failure to “mold its decree
and the relief granted to satisfy the requirements of the case”
violates HRCP Rule 65(d)). In interpreting the substantively
identical federal rule, federal courts have consistently held
that injunctions must “remedy only the specific harms shown by
the plaintiffs.” Price v. City of Stockton, 390 F.3d 1105, 1117
(9th Cir. 2004) (internal quotes and citations omitted). An
91
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
overbroad injunction is an abuse of discretion. Kohl v.
Legoullan, 936 P.2d 514, 519 (Alaska 1997).
As discussed supra, the circuit court correctly
determined that the State breached its constitutional trust
duties by failing to reasonably monitor the PTA, including by
failing to inspect the land to ensure the United States’
compliance with the lease terms intended to protect and preserve
trust property. Much of the circuit court’s order was
appropriately tailored to address this breach. By requiring the
State to develop and execute a plan to conduct regular, periodic
monitoring and inspection, the court’s order ensured that the
State would fulfill its trust duty to inform itself of the
present condition of the leased PTA land and whether the United
States was in compliance with the relevant terms of the lease so
that it might take further action if needed to protect and
preserve trust property.56 By requiring these inspections to be
56
The circuit court’s order included several specific details as to
how the inspections should be carried out, including that
the monitoring should involve direct (in person) or
indirect (via videographic or live remote viewing)
observation of actual military training exercises
(including live fire exercises of all types using live
and/or explosive munitions, as well as the use of heavy
vehicles or equipment above and upon the land) so that the
monitors and/or inspectors can observe and appreciate the
destructive effects, if any, of all such training and use
of equipment[.]
While these measures may represent the quality of monitoring that the State
should aspire to, we hold that the circuit court’s order should be
(continued . . .)
92
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
documented in detailed inspection reports, the order assures
that the inspections are meaningful and allows trust
beneficiaries to evaluate the State’s response to what it
discovers, enabling the bringing of a future action to enforce
the State’s trust duties if it fails to fulfill them. And by
requiring the State to establish a procedure to ensure
reasonable transparency to the Plaintiffs and general public
regarding the State’s progress with complying with the court’s
order, the order ensures its own effectiveness through public
oversight.
The State contends that because the circuit court’s
order does not specify how often the periodic inspections must
take place, it is impermissibly vague.57 But it is not uncommon
for courts to issue generally-stated orders requiring government
agencies to submit plans to remedy constitutional violations and
then evaluate the adequacy of the plans prior to their
(. . . continued)
interpreted to require monitoring to the fullest extent consistent with the
State’s right of reasonable entry under the lease and no more.
57
The State argues that this requirement ensures further litigation
and indicates the relief does not “terminate the uncertainty or controversy
giving rise to the proceeding” as required by HRS § 632-1. As stated,
however, the Plaintiffs have a constitutional cause of action for prospective
injunctive relief that exists independently of HRS § 632-1. See supra note
41.
93
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
implementation.58 And this court has prescribed substantially
more intensive monitoring to ensure specific compliance with
terms of a broadly phrased order. See Konno v. Cty. of Hawai‘i,
85 Hawai‘i 61, 79, 937 P.2d 397, 415 (1997) (“We further instruct
the circuit court to fashion injunctive relief requiring the
landfill to be transferred from private operation to County
operation as rapidly as possible but consistent with practical
and public interest concerns. The circuit court shall also
monitor the transition and may impose sanctions for non–
compliance.”); see also Tugaeff v. Tugaeff, 42 Haw. 455, 459
(Haw. Terr. 1958) (“A court of equity, having once assumed
jurisdiction of a case, will retain the case to afford complete
relief.”) The State’s objections are thus without merit. Under
the circumstances of this case, the court did not abuse its
discretion in ordering these remedies.
Many other portions of the circuit court’s order,
however, appear designed to remedy breaches of the State’s trust
duties that the Plaintiffs did not allege, including some that
have not and may not occur. Foremost among these is the circuit
58
See, e.g., Sanchez v. McDaniel, 615 F.2d 1023, 1024 (5th Cir.
1980) (“The district court determined that the 1968 Kleberg County, Texas,
apportionment plan violated the constitutional principle of one man, one
vote. It directed the appellees to submit a proposed reapportionment plan by
November 13, 1979.”); Bd. of Pub. Instruction of Duval Cty. v. Braxton, 326
F.2d 616, 619-21 (5th Cir. 1964) (affirming court order requiring school
board “to submit to the Court for its consideration a detailed and
comprehensive plan” for ending school segregation).
94
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
court’s statement that its order to care for the land “includes,
but is not necessarily limited to” the measures specifically
described therein. Courts have generally held that injunctions
cannot be “so vague that they have no reasonably specific
meaning.” E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d
1280, 1297 (9th Cir. 1992). “The aims of Rule 65(d) are to
minimize the occasion for follow-on proceedings to the issuance
of an injunction and to protect defendants from being held in
contempt for failure to follow a directive that was a trap
because of its ambiguity.” United States v. Apex Oil Co., 579
F.3d 734, 739 (7th Cir. 2009). The circuit court’s order did
not give the State any notice of what other, unstated measures
the State was required to comply with, and the order thus must
be limited to those remedies it expressly described.
Additionally, a number of the remedies ordered by the
circuit court were unconnected with the State’s breach of its
duty to monitor and inspect the leased PTA land. The court
ordered the State to develop and potentially execute a protocol
to obtain, or assist in securing, adequate funding for a
comprehensive cleanup of the leased PTA land. And the circuit
court ordered the State to initiate rulemaking to establish a
contested case procedure through which the public could
challenge the State’s decisions in generally caring for the
leased PTA land, if such a procedure did not already exist. Yet
95
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
the Plaintiffs in this case did not allege that the State had
violated its trust duties by allowing or failing to rectify
damage to the leased PTA land. Nor did the Plaintiffs contend
that the State was constitutionally required to allow the public
a voice in its general decisions regarding its care for the
leased PTA land. Rather, the Plaintiffs argued only that the
State breached its duty to inspect and monitor the leased PTA
land. The State may very well have a public trust obligation to
rectify damage to the leased PTA land, and the public may have
some right to be heard on decisions that implicate the State’s
trust obligations with respect to the leased PTA land. But
these are not the claims that were brought in this case, and the
remedies ordered by the circuit court are thus not “tailored to
eliminate only the specific harm alleged.”59 Quiksilver, Inc. v.
Kymsta Corp., 360 F. App’x 886, 889 (9th Cir. 2009) (quoting E.
& J. Gallo, 967 F.2d at 1297).
The circuit court also ordered a range of injunctive
relief concerning the State’s duties upon discovering damage or
noncompliance during its inspections. The court required the
State to set forth a binding plan of action that it would
59
Because these remedies are not tailored to address the specific
breaches identified by the circuit court, we need not address the State’s
contention that the circuit court’s cleanup orders violated sovereign
immunity or that the order to initiate rulemaking impinged on the
legislatures exclusive authority.
96
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
undertake if it were to discover unexploded ordnance, debris, or
any other foreign or non-natural item or contaminate connected
with the lease, as well as a plan to bring any “nonconforming”
condition likely caused by the United States into pre-lease
condition. And the circuit court ordered the State to set forth
in a binding plan the actions that it would take upon
specifically discovering a breach of the lease terms by the
United States. However, as stated, the Plaintiffs have not
alleged any breach of trustee duties related to the State’s
allowance or failure to rectify actual damage, and the
Plaintiffs have adamantly maintained throughout these
proceedings that they are not alleging that the United States
has actually breached the lease. Rather, the Plaintiffs argued
only that the State had a trust duty to “determine for itself
whether the terms of the lease are being fulfilled.”
As the Plaintiffs acknowledged during the hearing on
their motion for summary judgment, how the State responds if it
does later determine that the United States is not in compliance
with the lease may result in a separate breach of the State’s
trust duties. The same holds true for any other damage to the
leased PTA land the State may discover during its monitoring and
inspections. Evaluating this hypothetical separate breach would
require the circuit court to speculate about various questions
that it cannot currently resolve, including whether the State’s
97
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
monitoring will lead to the discovery of damage or noncompliance
of lease terms by the United States, whether the United States
will cure the damage or noncompliance on its own accord, and
whether any further action by the State will be reasonable given
the circumstances at that time. As this court has held, courts
are not at liberty to grant relief based on “an event that [may]
occur at some time in the future” because “there is no actual
controversy in existence at this time.” Kau v. City & Cty. of
Honolulu, 104 Hawaii 468, 472, 92 P.3d 477, 481 (2004). For the
same reason, the circuit court’s conclusion that the State would
breach its trust duties if it were to renew the lease without
first determining that the United States was in compliance with
the existing lease was impermissibly speculative.
Thus, to the extent the circuit court made the
provisions of its order that were not tailored to address the
established breach binding upon the State, it strayed beyond its
valid discretion in fashioning the injunction. Nevertheless,
given the circumstances, including the length of time during
which the State has failed to fulfill its trust duties and the
State’s claim to having near total discretion in its management
of the public ceded land at issue in this case, it was not
inappropriate for the circuit court to provide guidance as to
how the State may fulfil its trust obligations in the future.
See Beneficial Hawaii, Inc. v. Kida, 96 Hawai‘i 289, 312, 30 P.3d
98***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
895, 918 (2001) (“Equity jurisprudence is not bound by strict
rules of law, but can mold its decree ‘to do justice[.]’”
(quoting Bank of Hawaii v. Davis Radio Sales & Serv., Inc., 6
Haw. App. 469, 481, 727 P.2d 419, 427 (1986))). We therefore
hold that the portions of the court’s order directing the State
to undertake specific actions that were not tailored to remedy
the established breach of the State’s trust duties are
nonbinding recommendations to be considered by the State going
forward in its management of the leased PTA lands.
VI. CONCLUSION
Based on the foregoing, the Plaintiffs’ motions to
dismiss the appeal respectively filed on July 27, 2018, and
August 10, 2018, are denied. The circuit court’s January 14,
2015 Order Denying Defendants’ Motion for Judgment on the
Pleadings, or in the Alternative, for Summary Judgment, Filed
October 7, 2014 is affirmed. The circuit court’s April 24, 2015
Order Denying Defendants’ Motion to Add United States as a
Party, or in the Alternative, for Dismissal Filed February 26,
2015 is also affirmed. This court rules as follows regarding
the circuit court’s April 3, 2018 Findings of Fact, Conclusion
of Law and Order and the circuit court’s April 24, 2018 Final
Judgment:
 Denial of the State’s motion to add the United
States as a party: Affirmed
99
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
 Denial of the State’s motion to dismiss the case
for failing to join an indispensable party: Affirmed
 Denial of the State’s motion for summary
judgment: Affirmed
 Finding that the State had breached its trust
duties: Affirmed
 Order requiring the State to undertake any
activities not expressly stated therein: Vacated
 Order requiring the State to submit a plan that
must include the following:
o Regular, periodic on-site monitoring and
inspection of the leased PTA land and the United
States’ compliance with relevant lease
provisions: Affirmed
o The making of detailed reports for each such
monitoring or inspection event: Affirmed
o A protocol of appropriate action in the
event the State discovers an actual or apparent
breach of lease terms, any condition or situation
adversely affecting the PTA, unexploded ordnance
or debris, or any other foreign or non-natural
item or contaminant: Vacated with Instructions to
Render as a Non-binding Recommendation
o A plan or other assurance that any
nonconforming condition likely caused by the
United States be reasonably brought to pre-lease
condition: Vacated with Instructions to Render as
a Non-binding Recommendation
o A procedure to provide reasonable
transparency to the Plaintiffs and the general
public with respect to the requirements of the
order: Affirmed
o If not already in existence, the institution
of a contested case procedure adopted pursuant to
HRS Chapter 91 for Plaintiffs or other members of
the public to contest the State’s decisions in
100
***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***
managing the PTA: Vacated with Instructions to
Render as a Non-binding Recommendation
o The steps the State shall take to explore,
evaluate, make application for, or secure
adequate funding to conduct a comprehensive
cleanup of the PTA: Vacated with Instructions to
Render as a Non-binding Recommendation
 Order requiring the State to execute the plan
once it is approved by the circuit court: Affirmed
This case is accordingly remanded to the circuit court for
further proceedings consistent with this opinion.
Ewan C. Rayner /s/ Mark E. Recktenwald
(Daniel A. Morris, Clyde J.
Wadsworth, and William J. /s/ Paula A. Nakayama
Wynhoff with him on the briefs)
for appellants /s/ Sabrina S. McKenna
David Kimo Frankel /s/ Richard W. Pollack
(Summer L.H. Sylva with him on
the briefs) /s/ Michael D. Wilson
for appellees
101