E K ūkulu ke Ea: 1 Hawai ʻi’s Duty to Fund Kaho ʻolawe’s Restoration Following the Navy’s Incomplete Cleanup Jordan Kealaikalani Inafuku *

E h ōʻ ea ke ola i ka ʻā ina a Kanaloa. 2

I. INTRODUCTION ...... 23 II. KAHO ʻOLAWE : THE TARGET ISLE ...... 26 A. Kaho ʻolawe is a Cultural Focal Point for Native Hawaiians .... 27 B. The Navy Used Kaho ʻolawe for Bomb Training ...... 32 C. Native Hawaiians Ended U.S. Bombing on Kaho ʻolawe and Negotiated Its Cleanup ...... 34 III. THE STATE OF HAWAI ʻI HAS A FIDUCIARY DUTY TO RESTORE KAHO ʻOLAWE ...... 40 A. The State May Be in Breach of its Fiduciary Duties ...... 43 B. The State’s Breach is Exacerbated by Trust Fund’s Rapid Depletion ...... 44 IV. THE STATE OF HAWAI ʻI MUST FULFILL ITS FIDUCIARY DUTIES ...... 48 A. The State Should Appropriate Moneys from the General Fund to Support KIRC ...... 49 B. The State Should Commit a Percentage of State Conveyance Tax Revenues to Replenish the KRTF ...... 52 C. The State Should Pursue Use of Public Land Trust Revenue for the KRTF ...... 56

1 To restore life or spirit. Taken from Kūkulu ke ea a Kanaloa (the life and spirit of Kanaloa builds and takes form). See SOCIAL SCIENCE RESEARCH INSTITUTE , UNIVERSITY OF HAWAI ʻI AT MĀNOA , HOʻŌLA HOU I KE KINO O KANALOA : KAHO ʻOLAWE ENVIRONMENTAL RESTORATION PLAN (1998), available at http://kahoolawe.hawaii.gov/plans/restoration_plan.html [hereinafter Ho ʻōla Hou ]. * J.D. candidate, class of 2015, University of Hawaiʻi at M ānoa William S. Richardson School of Law; B.A., class of 2011, Stanford University. Thank you to Professor Melody Kapilialoha MacKenzie and Associate Professor D. Kapua ʻala Sproat for their patienc e and guidance throughout this process; to Sadaf Kashfi for her assistance; to Hans Wilhelm and ʻOlu Campbell for giving me the opportunity to serve on Kahoʻolawe; to my family for their love and support; and to Shayna M.M. Kapaona. Any errors are the author’s alone. 2 Bring life to the land of Kanaloa. Nalani Kanakaʻole, Pule Ho ʻouluulu Ai, Preface to Ho ʻōla Hou , supra note 1. The island of Kaho ʻolawe is a kino lau (body form) of Kanaloa, the Hawaiian god of the ocean. Noa Emmett Aluli & Davianna Pōmaika ʻi McGregor, Mai Ke Kai Mai Ke Ola, From the Ocean Comes Life: Hawaiian Customs, Uses, and Practices on Kaho ʻolawe Relating to the Surrounding Ocean , 26 HAW . J. OF HIST . 231, 235 (1992). 2015 Inafuku 23

1. Creation of Hawai ʻi’s Public Land Trust ...... 56 2. Use of the Public Land Trust Revenues ...... 59 D. The State Should Pursue Additional Funding from the Federal Government ...... 62 1. Bring Suit Against the Federal Government ...... 63 2. By Petitioning Congress for Additional Funds ...... 67 V. CONCLUSION ...... 68

I. INTRODUCTION Kaho ʻolawe, 3 the Hawaiian island infamously known as the “Target Isle,”4 is disappearing. Fifty years of uninterupted use as a U.S. Navy bombing range has stripped the island of its ability to secure its soil from wind and rain erosion.5 Standing on the red hardpan 6 at Kanapou, volunteer workers witness Kaho ʻolawe’s struggle with their own eyes. As they work to mitigate the massive erosion, a relentless twenty-five mile per hour wind peppers Kaho ʻolawe’s desolate landscape and violently flings needed soil over the southern sea cliffs and into the vast Pacific Ocean. A trail of red soil mixes in with the otherwise pristine southern waters as the island bleeds out. Every year, Kaho ʻolawe loses 1.9 million tons of soil due to wind and rain erosion. 7 With each passing moment, Hawai ʻi and its people are literally losing an island.

3 The proper pronunciation of Kaho ʻolawe is: Kah-hoh-oh-lah-vey, available at http://dictionary.reference.com/browse/kahoolawe. The Hawaiian language is an official language of the State of Hawai ʻi. HAW . CONST . art. XV, § 4 (“English and Hawaiian shall be the official languages of Hawai ʻi.”). As such, the author has chosen to include all Hawaiian words using regular font type and appropriate kahak ō and ʻokina, or glottal stops, regardless of the format recommended by THE BLUEBOOK : A UNIFORM SYSTEM OF CITATION (Columbia Law Review Ass’n et al. eds., 19th ed. 2010) or applicable style guides. The author, however, has chosen to respect the spelling choices in the sources cited throughout this paper. Thus, if a Hawaiian word or place name is misspelled in the title of a source or in the direct quotation of a source, the original spelling has been preserved.

4 See Eileen Chao, Protecting and Restoring Kaho ʻolawe , THE MAUI NEWS , Jan. 18, 2015, A3, available at http://www.mauinews.com/page/content.detail/id/594164/Protecting---restoring- Kahoolawe.html?nav=10. 5 Ho ʻōla Hou , supra note 1. 6 A cemented or compacted and often clayey layer in soil that is impenetrable by roots. Hardpan Definition , MERRIAM -WEBSTER .COM , available at www.merriam- webster.com/dictionary/hardpan.

7 Anita Hofschneider, Promised Land: Will Kaho ʻolawe Ever Be Saved?, CIVIL BEAT , Oct. 20, 2014, http://www.civilbeat.com/2014/10/promised-land-will-kahoolawe- ever-be-saved; Sheila Sarhangi, Saving Kaho ʻolawe , HONOLULU MAGAZINE , Nov. 1, 2006, available at http://www.honolulumagazine.com/Honolulu-Magazine/November- 2006/Saving-Kaho-8216olawe/. 24 Asian-Pacific Law & Policy Journal Vol. 16:2

After dropping and firing “nearly every type of conventional ordnance used by the U[.]S[.] military and its allies” on Kaho ʻolawe, 8 U.S. President George H. W. Bush discontinued military use of the island in 1990 in response to decades of vocal resistance from Native Hawaiians.9 In 1993, Title X of the Department of Defense (“DOD”) Appropriations Act Fiscal Year (“FY”) 1994 secured federal funds for the purpose of ordnance clearance 10 and promised to achieve one hundred percent surface clearance and thirty percent clearance to a depth of four feet before conveying the island back to the State of Hawai ʻi (“the State”) in ten years. 11 Instead, after a decade of work, the Navy transferred to the State an uninhabitable and mostly inaccessible Kaho ʻolawe 12 after completing only seventy-five percent surface clearance and nine percent subsurface clearance. 13 To facilitate its restoration efforts, the Hawai ʻi State Legislature passed chapter 6K of the Hawai ʻi Revised Statutes (“HRS”), which created the Kaho ʻolawe Island Reserve Commission (“KIRC”) and

8 Ho ʻō la Hou , supra note 1 at 17. 9 On October 22, 1990, President George H. W. Bush issued a Memorandum to Secretary of Defense Richard Cheney directing the Secretary to discontinue use of Kaho ʻolawe as a weapons range effective immediately. Memorandum on the Kaho ʻolawe, Hawaii, Weapons Range from President George Bush to Secretary of Defense Richard Cheney, Oct. 22, 1990; KAHO ʻOLAWE ISLAND CONVEYANCE COMMISSION , KAHO ʻOLAWE ISLAND : RESTORING A CULTURAL TREASURE : FINAL REPORT OF THE KAHO ʻOLAWE ISLAND CONVEYANCE COMMISSION TO THE CONGRESS OF THE UNITED STATES app. 2 (1993). 10 FY 1994 Dep’t of Defense Appropriations Act, Pub. L. No. 103-139, § 10003 (establishing on the books of the Treasury of the United States the Kaho ʻolawe Island Conveyance, Remediation, and Environmental Restoration Fund and authorizing $400,000,000 either as a lump sum or in annual increments). 11 Memorandum of Understanding Between the United States Department of the Navy and the State of Hawaii Concerning the Island of Kaho ʻolawe, Hawaii, art. VI, May 6, 1994, available at http://kahoolawe.hawaii.gov/rules/leg.htm#Memorandum [hereinafter MOU Between the Navy and the State ]. 12 Quitclaim Deed from the United States of America to the State of Hawaii for the Island of Kaho ʻolawe, Hawaii, State of Hawaii Bureau of Conveyances, May 9, 1994, Doc. No. 94-076277 [hereinafter Quitclaim Deed ]. See Sophie Cocke, State Senators: Sue Navy for $100 Million Over Kahoolawe Cleanup , CIVIL BEAT , Aug. 28, 2013, http://www.civilbeat.com/articles/2013/08/28/19779-state-senators-may-sue-navy-for- 100-million-over-kahoolawe-cleanup). 13 Cocke, supra note 12. See also KAHO ʻOLAWE ISLAND RESERVE COMM ’N, STATE OF HAWAI ʻI, ACCESS & RISK MANAGEMENT PLAN FOR THE KAHO ʻOLAWE ISLAND RESERVE 12 (2005) (“In June 2000, the Navy informed the KIRC of its inability to complete the cleanup to the MOU-established levels before 2003. Despite this cleanup shortfall, the Congressional legislation specifies that the United States is responsible, in perpetuity, for the removal and disposition of UXO [(unexploded ordnance)] that was not recovered by the Navy.”). 2015 Inafuku 25 administratively attached the commission to the Hawai ʻi Department of Land and Natural Resources (“DLNR”). 14 Because Kaho ʻolawe is part of Hawai ʻi’s public land trust, the State is entrusted with specific fiduciary duties to manage the island productively for both of the trust beneficiaries, Native Hawaiians and the general public.15 The State created KIRC to help fulfill these responsibilities, but despite its fiduciary duties, the State has yet to appropriate regular funding for KIRC.16 Instead, KIRC relies substantially on the Kaho ʻolawe Rehabilitation Trust Fund (“the KRTF” or “trust fund”), composed of the federal funds appropriated by Congress back in 1993.17 The KRTF is projected to run out in 2016, 18 and as it nears depletion, the dreams of a restored and revitalized Kaho ʻolawe quickly erode with it. This article argues that the State’s trust responsibilities require it to pursue alternative funding options for KIRC so that it may fulfill its fiduciary duties regarding Kaho ʻolawe. Part II provides background information about the history of Kaho ʻolawe, and describes the cultural and educational importance of the island to both Native Hawaiians and the general public. 19 This background includes Kaho ʻolawe’s historical importance throughout the twentieth century as it relates to the U.S. Navy. 20 Finally, Part II describes the community movement against Kaho ʻolawe’s military occupation leading to the eventual Memorandum of Understanding (“MOU”) between the United States and the State requiring restoration of the island before its return to the State. 21

14 Kaho ʻolawe: About the KIRC , KIRC, http://kahoolawe.hawaii.gov/aboutkirc-overview.shtml (last visited Feb. 20, 2015). 15 The Kaho ʻolawe Island Reserve encompasses the entire island of Kaho ʻolawe plus the submerged lands and waters surrounding the island for two miles from its shoreline. HAW . REV . STAT . § 6K-2 (2009). The reserve is held in trust as part of the State’s public land trust, with the State to transfer management and control of the reserve to a sovereign “native Hawaiian entity upon its recognition by the United States and the State of Hawai ʻi.” Id. § 6K-9 (2009).

16 THE AUDITOR , STATE OF HAWAI ʻI, REP . NO. 13-06, AUDIT OF THE KAHO ʻOLAWE REHABILITATION TRUST FUND 15 (2013) [hereinafter 2013 AUDIT ] (“[KIRC] does not receive regular funding from the State and therefore relies on the limited resources of the trust fund” composed primarily of federal appropriations.).

17 HAW . REV . STAT . § 6K-9.5 (2009); 2013 AUDIT , supra note 16, at 13 (“The ten-year effort had a budget of $400 million, with 11 percent ($44 million) set aside for the State . . . . The $44 million, which was distributed over ten years, became the Kaho ʻolawe Rehabilitation Trust Fund.”).

18 See 2013 AUDIT , supra note 16, at 14 (“[T]he trust fund will be completely exhausted by 2016.”). 19 See infra Part II.A. 20 See infra Part II.C. 21 See id. 26 Asian-Pacific Law & Policy Journal Vol. 16:2

Part III analyzes the State’s duty as trustee of Hawai ʻi’s public lands. The State is responsible to act reasonably to manage Kaho ʻolawe productively for the benefit of the general public and Native Hawaiians. 22 This duty includes the sufficient funding of Kahoolawe’s restoration. 23 Aware of both its fiduciary duties and KIRC’s financial need, the State has failed to provide regular contributions to the KRTF. 24 Part III argues that this failure represents a breach of the State’s fiduciary duty, one which is particularly egregious given the diminishing KRTF.25 Part IV offers four options the State should pursue to fulfill its fiduciary duties and procure funding for the restoration of Kaho ʻolawe. The State should (1) appropriate moneys from the State’s general fund to support KIRC’s administrative and operating costs; (2) replenish the KRTF by earmarking a percentage of the State’s conveyance tax revenue for the trust fund; (3) explore use of public land trust revenue to fund its public trust duties; and (4) pursue additional federal funds through litigation related to the quality of the Navy’s cleanup and through a petition to Congress for further appropriations. 26 Part V concludes that the State’s duty compels it to pursue all three options to provide funding for Kaho ʻolawe’s restoration. 27 The State’s financial inaction has contributed significantly to Kaho ʻolawe’s continued destruction. With each passing moment, Kaho ʻolawe loses more land as wind and rain shove chunks of its decimated landscape into the ocean. The time is long past for the State to fulfill its moral and legal responsibilities before the island, and all that it symbolizes, disappears. II. KAHO ʻOLAWE : THE TARGET ISLE Kaho ʻolawe, located approximately eight miles southwest of the island of Maui, consists of forty-five square miles of volcanic craters, valleys, hills, and rugged cliffs. 28 Currently, the public is not allowed access to Kaho ʻolawe due to safety concerns raised by the presence of unexploded ordinance left over from decades of military training.29 The

22 See infra Part III.A. 23 See id. 24 See id. 25 See infra Part III.B. 26 See infra Part IV. 27 See infra Part V.

28 Kaho ʻolawe measures eleven miles long and seven miles wide. KAHO ʻOLAWE ISLAND CONVEYANCE COMMISSION , supra note 9 at 16. 29 Quitclaim Deed , supra note 12, at 2 (explaining that unless certified in documents to the State that “ordnance clearance or removal or environmental restoration actions under Title X and the MOU have been completed, areas . . . remain DANGEROUS TO THE PUBLIC AND ARE NOT SAFE.”) (emphasis in original). 2015 Inafuku 27 island once served as a vital source of important natural resources, as a forum for cultural training, and as a home to small Native Hawaiian communities.30 In the 1970s, 1980s, and 1990s, the Native Hawaiian community’s stance against continued bombings transformed Kaho ʻolawe into “a focal point of a major political movement challenging American control of Hawai ʻi” generally.31 The Navy’s use of Kaho ʻolawe has inflicted substantial harm both to the island and to the morale and cultural identity of Native Hawaiians. Native Hawaiians are genealogical descendants of the earth, sea, sky, and natural life forces. 32 This relationship imbues an important kuleana (privilege and responsibility) 33 to protect and preserve natural resources for future generations. 34 Accordingly, Native Hawaiians feel a moral responsibility to ‘āina 35 (land).36 “[T]here is man and there is environment. One does not supercede [sic] the other. The breath in man is the breath of [the earth]. Man is merely the caretaker of the land that maintains his life and nourishes his soul. Therefore, ʻā ina is sacred.”37 This section provides the historical context necessary to understand the significant harm caused by the Navy. A. Kaho ʻolawe is a Cultural Focal Point for Native Hawaiians Centuries ago, Native Hawaiians settled on the island of Kaho ʻolawe and dedicated it to “Kanaloa, the god of the ocean, ocean currents, and navigation.”38 The island is a kino lau (one of the many forms taken by a supernatural body)39 of Kanaloa and holds his mana (supernatural or divine power),40 making the entire island a wahi pana 41

30 See generally Aluli & McGregor, supra note 2.

31 DAVIANNA PŌMAIKA ʻI MCGREGOR , Kaho ʻolawe: Rebirth of the Sacred , NĀ KUA ʻĀINA : LIVING HAWAIIAN CULTURE 249 (Univ. of Haw. Press 2007). 32 Id.

33 MARY KAWENA PUKUI , & SAMUEL H. ELBERT , HAWAIIAN DICTIONARY 179 (1986).

34 MCGREGOR , supra note 31 at 264-65.

35 PUKUI & ELBERT , supra note 33, at 11. 36 George Helm, Personal Statement—Reasons for Fourth Occupation of Kahoolawe, available at http://kapalama.ksbe.edu/faculty/ryoishi/docs/HoihoiHou.pdf. 37 Id. 38 Melody Kapilialoha MacKenzie, Susan K. Serrano & Koalani Laura Kaulukukui, Environmental Justice for Indigenous Hawaiians: Reclaiming Land and Resources , 21 NAT . RESOURCES & ENV ʻT 37, 41 (2007). See generally MARTHA WARREN BECKWITH , HAWAIIAN MYTHOLOGY 60-66 (Univ. of Haw. Press 1976).

39 Aluli & McGregor, supra note 2 at 235; PUKUI & ELBERT , supra note 33, at 153.

40 PUKUI & ELBERT , supra note 33, at 235. 28 Asian-Pacific Law & Policy Journal Vol. 16:2

(legendary place).42 It is the only island in the Pacific Ocean entirely dedicated to one god. 43 While all land is considered sacred to Native Hawaiians, Kaho ʻolawe’s connection to Kanaloa further elevated its status.44 The island continues to be a refuge for Native Hawaiian spiritual customs and practices, 45 and both the State and federal governments recognize Kaho ʻolawe as an island of great religious, cultural, and historical importance. 46 Native Hawaiians began living on Kaho’olawe around 1000 A.D. 47 Expansion and settlement in the mauka (inland)48 areas peaked in the 1600s during which time parts of the original forest were converted to dryland agriculture. 49 Using an understanding of wind and water cycles and recognizing their interdependency with the ʻāina, 50 Native Hawaiians grew a variety of food crops that sustained their small settlements. 51 Water was never abundant on Kaho ʻolawe, and even today, the island averages only twenty-five inches of rain annually. 52 Despite low rainfall, Native Hawaiians sufficiently managed the island to sustain communities by practicing traditions of fishing, gathering limu (plants living under water, both fr esh and salt; seaweed), 53 and subsisting on marine resources provided by Kanaloa. 54 Early Native Hawaiians constructed sixty-nine coastal fishing shrines around the island to mark grounds for distinct varieties of fish. 55 While out in canoes, Native Hawaiians used the shrines to align themselves with the best fishing locations while carefully

41 Id. at 377.

42 MCGREGOR , supra note 31, at 255. 43 Id. 44 Kaho ʻolawe is also referred to as Kohemalamalama O Kanaloa (the shining womb of Kanaloa). Id. at 253. 45 Id. at 252-53. 46 MOU Between the Navy and the State , supra note 11, at art. VI(D). 47 Ho’ōla Hou , supra note 1, at 11.

48 PUKUI & ELBERT , supra note 33, at 242. 49 Ho ʻō la Hou, supra note 1, at 11 . 50 “ʻĀ ina” supra note Error! Bookmark not defined. at 11. 51 These food crops included ʻuala (sweet potato), uhi (yam), k ō (sugar cane), kalo (taro), and mai ʻa (banana). Ho ʻō la Hou, supra note 1, at 11 . 52 Water was so scarce that in 1834, Reverend William Richards observed island residents harvesting dew from oiled kapa for drinking water. Id. Kapa is cloth made from wauke bark. PUKUI & ELBERT , supra note 33, at 130.

53 PUKUI & ELBERT , supra note 33, at 207.

54 MCGREGOR , supra note 31, at 254. 55 Id. at 253. 2015 Inafuku 29 considering the life cycles of the fish to most effectively manage the population of the resource. 56 By living in harmony with the land and ocean, Native Hawaiians thrived physically and spiritually.57 Additionally, Kaho ʻolawe served as the center for training in the art of non-instrument navigation using the heavenly bodies. 58 Mastery of navigation requires mastery of many natural elements controlled by Kanaloa—ocean, wind, currents, stars, moon, and sun. 59 Kaho ʻolawe provided the ideal location to immerse oneself in all the elements while observing an unencumbered panoramic view of the neighboring islands, the interconnecting channels and currents, and the entire southern horizon. 60 Notably, the southwestern tip of Kaho ʻolawe, Lae O Kealaikahiki, was the major departure point from which Native Hawaiians sailed when they traveled from Hawai ʻi to the south Pacific islands because the channel provided favorable winds and currents for the journey. 61 Just above the high water mark at Lae O Kealaikahiki, four large boulders form a traditional compass site that marks true north, south, east, and west. 62 Kaho ʻolawe is also home to hundreds of recorded archaeological and historical sites as well as thousands of features associated with traditional and historic Hawaiian land use, ranching, and military activities. 63 One of the most famous sites is Pōkāneloa, or Loa ʻa, a large flat boulder on the southwestern slope of Pu ʻu Moa ʻulanui on the road to

56 Id. 57 Id. at 264.

58 MCGREGOR , supra note 31, at 252-53. 59 Id. 60 A view of the entire southern horizon is important to navigators because the stars within the first ten degrees of the horizon are the most useful for navigation. The famous priest Keaweiki taught many navigators at Moa ʻula Iki, the smaller of two mountain peaks in the middle of the island. A unique feature at this site is a bell stone that was broken in half and carried separately to this point before being placed back together. The stone is called Pōhaku ʻAhu ʻAik ūpele K āpili O Keaweiki (the put-together rock that kneads the knowledge of the priest Keaweiki). Archaeologists have located foundations of a platform and a housesite that may have belonged to Keaweiki. Aluli & McGregor, supra note 2, at 243. 61 “Members of the H ōkūle ʻa, the double-hulled canoe that retraced the 6,000 mile voyage in 1976, estimate that they could have saved five days sailing if they had left from [Kealaikahiki] rather than from [Hawai ʻi] Island.” Id. 62 The compass site is called P ōhaku Kuhi Ke ʻe I Kahiki (the rock that points the way to Tahiti). Id. at 244.

63 PARSONS -UXB JOINT VENTURE , CONTRACT NO. N62742-95-D-1369, CLEANUP PLAN : UXO CLEARANCE PROJECT , KAHO ʻOLAWE ISLAND RESERVE , HAWAII 8 (1998). 30 Asian-Pacific Law & Policy Journal Vol. 16:2

Kanapou. 64 The boulder, only ten meters from the edge of an eroding 350- meter cliff, 65 features a collection of petroglyphs and cupules on its surface that may possess archaeological or astronomical significance in Hawaiian culture. 66 While cultural and archaeological experts are unsureof the site’s exact meaning, the great effort required to create such a feature is nevertheless impressive and represents a truly unique aspect of this site that distinguishes it from other archaeological sites in the State. 67 Ranching was prevalent on Kaho ʻolawe as early as 1793.68 In 1848, the Kingdom of Hawai ʻi, then a sovereign and internationally- recognized constitutional monarchy, 69 changed its land tenure system, identified existing interests in land, and established the foundation for a private ownership system.70 Kaho ʻolawe was classified as government land belonging to the Kingdom of Hawai ʻi,71 and in 1858, the Kingdom of

64 GEORGIA LEE & EDWARD STASACK , KAHO ʻOLAWE ISLAND CONVEYANCE COMMISSION CONSULTANT REPORT NO. 21, THE PETROGLYPHS OF KAHO ʻOLAWE , HAWAI ʻI 54 (1993). 65 Pōkāneloa “is in danger of falling” into a gulch. Id. at 60. 66 Id. at 59 (“Because of the proliferation of cupules on [P ōkāneloa], the imaginative and well-designed figures, and the bell-like qualities when struck, this site stands apart from the other rock art sites on Kaho ʻolawe. The cupules by themselves represent a unique grouping in Hawai ʻi.”). Pōkāneloa may be legally significant if continued erosion damages or destroys the archaeological site. The damage may represent a specific and cognizable injury to the beneficiaries of the KRTF trust. 67 Id. 68 Ho ʻōla Hou , supra note 1, at 11. In 1793, Maui chief Kahekili received goats from British Captain George Vancouver and sent the goats to Kaho ʻolawe to graze. 69 The Kingdom of Hawai ʻi received formal recognition as a sovereign, independent nation through treaties with nearly every major world power in the nineteenth century. These treaties included the following countries: Austria-Hungary (June 18, 1875); Belgium (October 19, 1846); Japan (August 19, 1870); Portugal ( May 5, 1882); Italy (July 22, 1863); The Netherlands (October 14, 1862); Russia (June 19, 1869); Switzerland (July 20, 1864); Spain (October 29, 1863); and Sweden (July 1, 1852). See DAVIANNA PŌMAIKA ʻI MCGREGOR & MELODY KAPILIALOHA MAC KENZIE , MOʻOLELO EA O NĀ HAWAI ʻI: HISTORY OF NATIVE HAWAIIAN GOVERNANCE IN HAWAI ʻI (forthcoming 2015). The United States also recognized the independence of the Kingdom of Hawai ʻi and extended diplomatic recognition through five agreements and treaties relating to friendship, commerce, and navigation. See e.g. , Treaty with Hawaii on Friendship, Commerce and Navigation, 9 Stat. 977 (1850); Convention Between the United States and His Majesty the King of the Hawaiian Islands, 19 Stat. 625 (1875); Supplementary Convention Between the United States of America and His majesty the King of the Hawaiian Islands to Limit the Duration of the Convention Respecting Commercial Reciprocity Concluded January 30, 1875, 25 Stat. 1399 (1884).

70 See NATIVE HAWAIIAN RIGHTS HANDBOOK 6-8 (Melody Kapilialoha MacKenzie ed., 1991).

71 KAHO ʻOLAWE ISLAND CONVEYANCE COMMISSION , supra note 9, at app. 6. 2015 Inafuku 31

Hawai ʻi leased the entire island to sheep ranchers.72 This marked the beginning of Kaho ʻolawe’s ranching period, throughout which the uncontrolled grazing of sheep, goats, and cattle denuded the island of its vegetation and contributed to its environmental degradation. 73 In 1893, the United States participated in an illegal overthrow of the Kingdom of Hawai ʻi and its constitutional monarchy.74 The American usurpers established a provisional government and proclaimed the islands the Republic of Hawai ʻi in 1894. 75 In 1898, the United States claims to have annexed Hawai ʻi through the Newlands Resolution, a joint resolution between both houses of the U.S. Senate. 76 After annexation, the Hawaiian Islands became the Territory of Hawaiʻi, a U.S. territory, in 1900. 77 While these events are of questionable legal validity, 78 they provide the premise upon which the United States acquired title to the Hawaiian Islands and

72 Id. ; MacKenzie, Serrano & Kaulukukui, supra note 38, at 41. 73 Historic accounts of goat-induced wind and water erosion begin as early as the 1800s. In 1880, cattle ranching began, and the island suffered typical challenges of overgrazing, which led to wind and gully erosion. By 1890, ranching on Kaho ʻolawe ballooned to include over 9,000 goats, 12,000 sheep, and 900 cattle. KAHO ʻOLAWE ISLAND CONVEYANCE COMMISSION , supra note 9, at app. 6; MacKenzie, Serrano & Kaulukukui, supra note 38 at 41. 74 Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 166 (2009). See Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893, Overthrow of the Kingdom of Hawaii (Apology Resolution), Pub. L. No. 103-150, 107 Stat. 1510 (1993). 75 Rice v. Cayetano, 528 U.S. 495, 505 (2000). 76 Office of Hawaiian Affairs , 556 U.S. at 167. 77 Id. 78 Memorandum for Abraham D. Sofaer, U.S. Dep’t of State, Legal Issues Raised by the Proposed Presidential Proclamation to Extend the territorial Sea, 12 Op. Off. Legal Counsel 238, 319 (1988). The memo states in relevant part: Congress acted in explicit reliance on the procedure followed for the acquisition of Texas . . . . This argument, however, neglected one significant nuance: Hawai ʻi was not being acquired as a State. Because the joint resolution annexing Texas relied on Congress’ power to admit new states, ‘the method of annexing Texas did not constitute a proper precedent for the annexation of a land and people to be retained as a possession or in a territorial condition.’ Only by means of treaties, it was asserted, can the relations between States be governed, for a legislative act is necessarily without extraterritorial force—confined in its operation to the territory of the State by whose legislature it is enacted. Notwithstanding these constitutional objections, Congress approved the joint resolution and President McKinley signed the measure in 1898. Nevertheless, whether this action demonstrates the constitutional power of Congress to acquire territory is certainly questionable. . . . It is therefore unclear which constitutional power Congress exercised when it acquired Hawai ʻi by joint resolution. 32 Asian-Pacific Law & Policy Journal Vol. 16:2 explains the shift to American control of Kaho ʻolawe. As government land belonging to the Kingdom of Hawaiʻi, title to Kaho ʻolawe transferred to the U.S. provisional government, then to the Republic of Hawaiʻi, and finally to the Territory of Hawai ʻi. 79 In 1901, Hawai ʻi’s territorial House of Representatives recognized that unrestrained ranching imposed erosion issues on Kaho ʻolawe and passed a resolution stating that “every effort should be made by the proper authorities for the . . . improvement and restoration of the plant life.”80 Within a year, territorial Governor Walter Frear designated Kaho ʻolawe a forest reserve. 81 While brief, the forest reserve period did achieve progress toward restoration: the sheep and goat populations were reduced and revegetation of the island began, albeit with alien species. 82 By 1918, however, Territorial Governor Lucius Pinkham withdrew Kaho ʻolawe’s legislative protection and offered a government lease for the entire island to Kaho ʻolawe Ranch Company. 83 Ranching continued through World War II and contributed to Kaho ʻolawe’s degradation.84 B. The Navy Used Kaho ʻolawe for Bomb Training Kaho ʻolawe’s erosion problems, however, stem mainly from decades of uninterrupted military bomb training. Seven months before the Japanese bombed Pearl Harbor, the United States began using part of Kaho ʻolawe as a live ordnance training range. 85 After December 7, 1941, the U.S. military declared martial law and seized the remainder of Kaho ʻolawe for its military purposes. 86 U.S. President Dwight D. Eisenhower cemented the taking of Kaho ʻolawe through an executive order authorizing the island’s use for target practice by Navy bombers,87 including ship-to-shore bombardment, “surface-to-air missiles[,] and

79 JOEL E. AUGUST , KAHO ʻOLAWE ISLAND CONVEYANCE COMMISSION CONSULTANT REPORT NO. 1: COMPREHENSIVE LEGAL RESEARCH MEMORANDUM 22-24 (1992). 80 H.R. Con. Res. 19, 5th Leg. Sess. (Haw. Terr. 1909) (enacted). See Ho ʻōla Hou , supra note 1, at 12. 81 Ho ʻōla Hou , supra note 1, at 12. 82 Id.

83 KAHO ʻOLAWE ISLAND CONVEYANCE COMMISSION , supra note 9, at app. 6. 84 Ho ʻōla Hou , supra note 1, at 12. 85 Id. at 13. 86 Id. 87 The Executive Order promises that “[w]hen there is no longer a need for the use of the area . . . the Department of the Navy shall . . . render such area, or portion thereof, reasonably safe for human habitation, without cost to [Hawai ʻi].” Exec. Order No. 10436, 18 Fed. Reg. 1051 (Feb. 25, 1953). 2015 Inafuku 33 underwater and surface high-explosive detonations.”88 The U.S. Government banned all public access to Kaho ʻolawe and closed traditional fishing areas along the coastline. 89 All restoration work on the island ceased. 90 For decades spanning World War II, the Korean War, Vietnam, and the Cold War, the military dropped or fired “nearly every type of conventional ordnance used by the U[.]S[.] military and its allies” on Kaho ʻolawe, 91 destroying “hundreds of cultural sites and fragile environmental resources.”92 Beginning in 1941 and intensifying in 1943, the U.S. Navy commenced ship-to-shore bombardment of the island in preparation for landings across the Pacific Ocean. 93 By 1945, 150 pilots, the crews of 532 major ships, and 350 Navy, Marine, and Army fire control officers had trained at Kaho ʻolawe and 730 more service members had trained at joint signal operations on the island. 94 From 1943 to the 1960s, American submarine commanders tested torpedoes by firing them at the shoreline cliffs at Kanapou. 95 During the Korean War, weapons testing shifted from naval projectiles to air-dropped, general purpose bombs. 96 Kaho ʻolawe transformed into a scattering of targets and mock airfields as bombs rained from above. 97 During the Vietnam War in the late 1960s, surface-to-air targets were constructed and the entire island became open for target locations.98 In 1965, hoping to simulate the force of an atomic bomb to test its effect on ships parked offshore, the Navy executed Operation Sailor Hat. 99 Conducted by the U.S. Navy Bureau of Ships and sponsored by the Defense Atomic Support Agency, the U.S. Navy constructed three 500-ton

88 MacKenzie, Serrano & Kaulukukui, supra note 38, at 41. 89 Id. 90 Ho’ʻō ola Hou, supra note 1, at 13 .

91 Id. at 17 (emphasis added). See also ENVIRONMENT IMPACT STUDY , ENVIRONMENTAL IMPACT STATEMENT MILITARY USE OF KAHOOLAWE TRAINING AREA 1- 30-37 (1979) (listing and describing the types of ordnances used). 92 MacKenzie, Serrano & Kaulukukui, supra note 38, at 41.

93 PARSONS -UXB JOINT VENTURE , supra note 63, at 7.

94 MCGREGOR , supra note 31, at 251.

95 PARSONS -UXB JOINT VENTURE , supra note 63, at 7. 96 Id. 97 Id. 98 After numerous citizen complaints of noise from the live fire activities and an accidental dropping of bombs on neighboring Maui, the U.S. Navy concentrated targets to the central southern third of the island. Id. 99 Id. 34 Asian-Pacific Law & Policy Journal Vol. 16:2 dome of trinitrotoluene (“TNT”) on Kaho ʻolawe’s southwestern coast.100 The series of explosions from Operation Sailor Hat left a massive and lasting scar—a large coastline crater nearly thirty feet deep—but, more devastatingly, the blast cracked the island’s freshwater aquifer, allowing ocean water to seep through and ruining Kaho ʻolawe’s ability to hold freshwater. 101 Operation Sailor Hat provides a clear illustration of the minimal concern the United States had for its impact on the island’s well- being. C. Native Hawaiians Ended U.S. Bombing on Kaho ʻolawe and Negotiated Its Cleanup Although public concern for the island began much earlier, it was not until 1976 that people organized formal protests in opposition to the U.S. Navy’s bombing of Kaho ʻolawe. 102 In 1971, Maui Mayor Elmer Cravalho and the nonprofit environmental organization Life of the Land sued the U.S. DOD under the newly enacted National Environmental Protection Act (“NEPA”). 103 Mayor Cravalho and Life of the Land argued that the DOD’s use of Kaho ʻolawe violated NEPA because no environmental impact statement (“EIS”) had been prepared to predict and prepare for the effects of military use on Kaho ʻolawe’s environment.104 The DOD countered by stating training on Kaho ʻolawe was vital to national defense, and if it were denied use of Kahoʻolawe, it might also be forced to cut back the use of Pearl Harbor. 105 The DOD argued this with full awareness that such a cut back would deprive the State of a major source of income. 106 Mayor Cravalho described the Secretary of the U.S.

100 Id. 101 Phil Boucher, The island of Kaho ʻolawe: Back from oblivion , The Independent, July 27, 2006, http://www.independent.co.uk/environment/the-island-of- kahoolawe-back-from-oblivion-409473.html; Sheila Sarhangi, Saving Kahoʻolawe, Nov. 1, 2006, http://www.honolulumagazine.com/Honolulu-Magazine/November- 2006/Saving-Kaho-8216olawe/. 102 Natalie Barefoot-Watambwa, Who is Encroaching Who? The Balance Between Our Naval Security Needs and the Environment: The 2004 RRPI Provisions as a Response to Encroachment Concerns , 59 U. MIAMI L. REV . 577, 591 n.92 (2005) (citing Bruce Dunford, Ceremony to Mark Return of Kahoolawe to the State , HONOLULU STAR -BULLETIN (Oct. 23, 2003)), available at http://starbulletin.com/2003/10/23/news/index14.html). 103 MacKenzie, Serrano & Kaulukukui, supra note 38, at 42 (citing Cravalho v. Laird, Civ. No. 71-3391 (1972)). See Aluli v. Brown, 437 F.Supp. 602 (D. Haw. 1979), rev’d, 602 F.3d 876 (9th Cir. 1979) (citing Cravalho v. Laird, Civ. No. 71-3391 (1972)). 104 MacKenzie, Serrano & Kaulukukui, supra note 38, at 42 105 Id. 106 Id. Military defense spending ranks second behind tourism in Hawai ʻi’s economy. Brian Dunford, Hawaii’s ‘Target Island’ Finds Some Peace: Environment: After 20 years of protests over military bombing practice, Kahoolawe finally has been set 2015 Inafuku 35

Navy’s response to issues concerning Kaho ʻolawe as arrogant in its indifference. 107 The federal district court did not order a halt to the bombing on Kaho ʻolawe, but before it dismissed the case, the court ordered the U.S. Navy to produce an EIS, which forced the United States to finally consider and study the effects of its military training on the island.108 Significantly, Cravalho v. Laird occurred concurrently with a Native Hawaiian cultural rennaissance. From 1976 through the 1990s, a general cultural resurgence spread through the State as the number of hālau hula (house for instruction in traditional Hawaiian dance and chant) 109 increased, Hawaiian language and music gained popularity, 110 and traditional Hawaiian healers began training a new generation in lāʻ au lapa ʻau (medicine). 111 Of international significance, Native Hawaiians revived traditional navigational skills and showed the world the ability to travel the Pacific Ocean without the aid of instruments. 112 After decades of purposeful cultural suppression by American government leaders, Native Hawaiians regained passion and pride for their culture. 113 Inspired by this renewed cultural pride and appalled by the indifferent desecration of Kaho ʻolawe’s natural resources and cultural sites, George Helm and a group of young Native Hawaiians founded the Protect Kaho ʻolawe ʻOhana (“PKO”) in 1976.114 Dedicated to stopping the bombing on Kaho ʻolawe and reclaiming the island for the Native aside for cultural, religious and educational uses. Still, there is a lot of cleaning up to be done , LOS ANGELES TIMES , Jan. 22, 1995, at B5. 107 Mansel G. Blackford, Environmental Justice, Native Rights, Tourism and Opposition to Military Control: The Case of Kaho ʻolawe, 91 J AM. HIST . 1, 20 (2004). 108 MacKenzie, Serrano & Kaulukukui, supra note 38, at 42 (citing Cravalho v. Laird, Civ. No. 71-3391 (1972)).

109 PUKUI & ELBERT , supra note 33 , at 52; id. at 88. 110 Id . at 189.

111 MCGREGOR , supra note 31, at 276-77. 112 Traditional Hawaiian sailing canoes such as the Hōkūle ʻa, the Hawai ʻi Loa, and the Makali ʻi spread the Hawaiian cultural renaissance throughout the Pacific, making transpacific journeys to Marquesas, Tahiti, the Cook Islands, New Zealand, Australia, and Rapa Nui using only the heavenly bodies. Id. 113 Id.

114 JONATHAN KAMAKAWIWO ʻOLE OSORIO , Hawaiian Souls: The Movement to Stop the U.S. Military Bombing of Kaho ʻolawe , in NATION RISING : HAWAIIAN MOVEMENTS FOR LIFE , LAND , AND SOVEREIGNTY 143 (2014) (referring to Helm as one of the “originators of the PKO ”); PROTECT KAHO ʻOLAWE ʻOHANA 2 (2013), available at http://www.protectkahoolaweohana.org/uploads/1/3/4/4/13443852/2013pkolegpamphlet_ final.pdf; Kamuela Vance, George Helm-A Hawaiian Legacy , KINGDOM OF HAWAII , https://kingdomofhawaii.wordpress.com/2011/03/07/george-helm-a-hawaiian-legacy-by- kamuela-vance/. 36 Asian-Pacific Law & Policy Journal Vol. 16:2

Hawaiian people, Helm and PKO became an integral part of the growing political and cultural resurgence among Native Hawaiians. 115 Helm used his gift for music to lead a grassroots campaign in raising awareness of the United State’s destruction of Kaho ʻolawe and to inspire organized efforts to protest that destruction.116 PKO embraced the environmental, political, and spiritual meaning of aloha ʻā ina (to protect the physical sustainability of the land and its resources). 117 Taken deeper, aloha ʻā ina represents a duty to organize and rally the people around Native Hawaiian rights and sovereignty in order to achieve the political standing necessary to protect the land. 118 Helm explained his commitment to aloha ʻā ina regarding Kaho ʻolawe in the following way: “I am a Hawaiian and I’ve inherited the soul of my kūpuna (ancestors).119 It is my moral responsibility to attempt an ending to this desecration of our sacred ʻā ina, Kohe M ālamalama O Kanaloa (Kaho ʻolawe), for each bomb dropped adds further injury to an already wounded soul.”120 On January 4, 1976, Helm led a group of approximately one hundred people from Ma ʻalaea Harbor on Maui to stage a peaceful occupation protest on Kaho ʻolawe. 121 But, as their boats approached the island, a Coast Guard helicopter intercepted them and threatened to confiscate their boats. 122 The majority of boats were forced to turn back, but the boat that held Helm, Walter Ritte, Dr. Noa Emmett Aluli, and six others made it through to the island. 123 Seven of the nine were immediately taken by the Coast Guard, but Ritte and Dr. Aluli eluded capture for two days and experienced the island before turning themselves

115 MacKenzie, Serrano & Kaulukukui, supra note 38, at 42.

116 Id. ; MCGREGOR , supra note 31, at 265. See also Kamuela Vance, George Helm-A Hawaiian Legacy , KINGDOM OF HAWAII , https://kingdomofhawaii.wordpress.com/2011/03/07/george-helm-a-hawaiian-legacy-by- kamuela-vance/. 117 Aloha ʻā ina encompasses “[t]he work to protect Hawaiian ancestral lands from development; to perpetuate traditional Hawaiian spiritual relationships to the land, including religious ceremonies; and to continue traditional subsistence economic activities.” MCGREGOR , supra note 31, at 270. 118 Id.

119 PUKUI & ELBERT , supra note 33, at 186.

120 MCGREGOR , supra note 31, at 249

121 Kahoolawe 9 , FIRST LANDING , http://firstlandingmovie.com/kahoolawe-9/ (last visited Apr. 27, 2014). 122 Id. 123 The individuals who successfully landed on Kaho ʻolawe are known as the “Kaho ʻolawe 9” and include George Helm, Dr. Noa Emmett Aluli, Walter Ritte, Gail Kawaipuna Prejean, Stephen K. Morse, Kimo Aluli, Ellen Miles, Ian Lind, and Karla Villalba. Id. ; MacKenzie, Serrano & Kaulukukui, supra note 38, at 42. 2015 Inafuku 37 in to the Marines. 124 Inspired by what the island had shown them, Ritte and Dr. Aluli returned to PKO more invested than ever to stopping the U.S. Navy’s bombings. 125 PKO continued similar peaceful occupations throughout 1976. 126 In early 1977, upon returning from another peaceful occupation, Helm and his cousin Kimo Mitchell, discovered that some PKO members had not yet returned from Kaho ʻolawe.127 Fearing that the military would continue its ordnance training with those members still on the island, Helm and Mitchell attempted to paddle surf back from Maui to retrieve them. 128 In their rescue attempt, Helm and Mitchell mysteriously disappeared. 129 Although a massive search was conducted, the two men were never found. 130 Their sacrifice marked an emotional turning point in PKO’s effort to halt the bombings and reclaim Kaho ʻolawe. 131 In 1976, Dr. Aluli, on behalf of PKO, filed a federal lawsuit against the DOD to enjoin the U.S. Navy from further bombing.132 In Aluli v. Brown , the U.S. District Court of Hawai ʻi found that the Navy violated NEPA and Executive Order No. 11593 and its implementing regulations. 133 Despite the finding, the court denied injunctive relief for PKO, accepting the Navy’s assertion that “the military readiness of the Third Fleet would be reduced by 30 to 40 percent” if they were enjoined from training at Kaho ʻolawe. 134 The court found this reduction in military readiness substantial enough to overcome the weight of the competing harm to the island. 135 The court did, however, order the Navy to comply with the requirements set forth in NEPA and Executive Order No. 11593.136 NEPA required that the U.S. Navy produce an EIS while the executive order required federal agencies to locate and identify potential

124 Kahoolawe 9 , supra note 121.

125 OSORIO , supra note 114, at 144. 126 Id. ; MacKenzie, Serrano & Kaulukukui, supra note 38, at 42. 127 MacKenzie, Serrano & Kaulukukui, supra note 38, at 42. 128 Id. 129 Id.

130 Kamuela Vance, George Helm – A Hawaiian Legacy , KINGDOM OF HAWAII , http://kingdomofhawaii.wordpress.com/2011/03/07/george-helm-a-hawaiian-legacy-by- kamuela-vance/. 131 MacKenzie, Serrano & Kaulukukui, supra note 38, at 42. 132 Aluli v. Brown, 437 F. Supp. 602, 604 (D. Haw. 1997). 133 Id. at 610. 134 Id. at 611. 135 Id. 136 Id. at 612. 38 Asian-Pacific Law & Policy Journal Vol. 16:2 sites on the island for the National Register of Historic Places and to exercise caution in its activities until inventories and evaluations could be performed on those sites. 137 While the Aluli appeal was pending in May 1979, PKO and the Navy began settlement negotiations, and in October 1980, the parties entered into a Consent Decree.138 While the Navy did not agree to cease all live-fire training, it agreed to use inert ordnance “to the maximum extent possible,” to prevent ordnance from landing in Kaho ʻolawe’s surrounding waters, and to clear ordnance from approximately 10,000 acres of PKO’s choosing for “religious, cultural, scientific, and educational purposes.”139 PKO received limited access to the island to implement its own environmental and cultural restoration plan, and the U.S. Navy also promised to take measures to protect historic sites, specifically adze quarries and burial sites. 140 As a result of research done in compliance with the Consent Decree, the entire island of Kaho ʻolawe was listed on the National Register for Historic Places and designated as the Kaho ʻolawe Archaeological District in 1981. 141 In the early 1990s, Kaho ʻolawe benefited from the intricacies of American politics. In 1990, one of Hawai ʻi’s Democratic senators passed away and the National Republican Party and President George H. W. Bush made a push to replace him with a Republican to gain a majority in the U.S. Senate. 142 In an attempt to gain the public’s support for a Republican candidate, President Bush discontinued use of the island for bombing practice a day before he set out from Washington, D.C. to campaign for the Republican candidate in Hawai ʻi. 143 Hawai ʻi instead elected

137 Id. 138 MacKenzie, Serrano & Kaulukukui, supra note 38, at 42 (citing Aluli v. Brown Consent Decree and Order, Civ. No. 76-0380 (1980), at 4-5). The Consent Decree is not publically available.

139 Id. 140 Id. 141 The Kaho ʻolawe Archaeological District contains hundreds of recorded archaeological and historical sites and thousands of features. PARSONS -UXB JOINT VENTURE , supra note 63, at 8.

142 MCGREGOR , supra note 31, at 274. 143 Id. at 275; Memorandum on the Kaho ʻolawe, Hawaii, Weapons Range from President George Bush to Secretary of Defense Richard Cheney, supra note 9. You are directed to discontinue use of Kaho ʻolawe as a weapons range effective immediately. This directive extends to use of the island for small arms, artillery, naval gunfire support, and aerial ordnance training. In addition, you are directed to establish a joint Department of Defense-State of Hawaii commission to examine the future status of Kaho ʻolawe and related issues. 2015 Inafuku 39

Democratic Senator Daniel Akaka, who sought to achieve greater things for Kaho ʻolawe and to separate himself further from his Republican challengers. 144 In 1990, Senator Akaka worked with Senator Daniel Inouye to pass an act recognizing Kaho ʻolawe as a national cultural treasure and ceased all military training on the island for 2 years and 120 days. 145 The act also established the Kaho ʻolawe Island Conveyance Commission (“Conveyance Commission”), which was tasked with “making recommendations on the island’s future, researching and reporting the best conveyance strategy, and determining the requisite time and funds for the island’s restoration.”146 Following the Conveyance Commission’s recommendation, Congress agreed to convey the island back to the State and to appropriate $400 million to conduct a ten-year ordnance cleanup. 147 On May 9, 1994, the U.S. Navy formally returned the island to the State in a ceremony at Palauea, Maui across the channel from Kaho ʻolawe. 148 To facilitate the ordnance cleanup, the United States entered into a joint venture with the State through an MOU. 149 The U.S. Navy agreed to the recommended $400 million cleanup and promised to complete a one hundred percent surface clearance and thirty percent subsurface clearance of unexploded ordnance. 150 The momentum continued in the Hawai ʻi State Legislature when it passed chapter 6K of the HRS, which established the Kaho ʻolawe Island Reserve. According to Chapter 6K, the State holds the reserve in trust as part of the State’s public land trust. 151 The Kaho ʻolawe Island Reserve includes the entire island of Kaho ʻolawe plus the submerged lands and waters surrounding the island two miles from the shoreline. 152 Chapter 6K

144 MCGREGOR , supra note 31, at 275.

145 S. 3088, 101st Cong. (1990) (enacted); MCGREGOR , supra note 31, at 275.

146 MCGREGOR , supra note 31, at 275.

147 KAHO ʻOLAWE ISLAND CONVEYANCE COMMISSION , supra note 9, at 42. 148 The U.S. Navy and State agreed that conveyance would occur in two steps. The 1993 conveyance transferred title of Kaho ʻolawe back to the State, but kept access rights with the Navy. In 1994, after the Navy “completed” its cleanup, the Navy conveyed access control of the island back to the State as well. MCGREGOR , supra note 31, at 275. 149 MacKenzie, Serrano & Kaulukukui, supra note 38, at 42. 150 The Navy promised to “provide for the removal of all unexploded ordnance form the surface of the island in accordance with the Tier One standard” and to clear “no more than 25 per cent” of the island “to the Tier Two standard.” MOU Between the Navy and the State , supra note 11, art. VI (emphasis added).

151 HAW . REV . STAT . § 6K-9 (2009). 152 The island is approximately eleven miles long, seven miles wide, and comprised of about 28,800 acres. The submerged land and ocean area surrounding the 40 Asian-Pacific Law & Policy Journal Vol. 16:2 also established KIRC 153 and charged it with administering the reserve and establishing criteria, policies, and controls for permissible uses of the island.154 Yet, despite federal appropriations and legislative support from both Congress and the Hawai ʻi State Legislature, the U.S. Navy declared its cleanup complete in April 2004, having only achieved seventy percent surface clearance and nine percent subsurface clearance. 155 The Navy promptly transferred access control on Kaho ʻolawe to the State. 156 Since 2004, the State, through KIRC, has assumed cleanup responsibilities on Kaho ʻolawe. 157 While PKO and Native Hawaiians were able to achieve a monstrous victory when they brought an end to the bombing of Kaho ʻolawe, that glimmer of restorative justice is largely overshadowed by the new and equally formidable task of inspiring the State to finish a restoration effort that the Navy left incomplete. III. THE STATE OF HAWAI ʻI HAS A FIDUCIARY DUTY TO RESTORE KAHO ʻOLAWE As trustee of the Kaho ʻolawe Island Reserve, the State is duty- bound to manage and care for its restoration and preservation for the benefit of the public and Native Hawaiians. Because the State Legislature has assigned management and care of the island to KIRC, the State must either provide funding to ensure KIRC’s continued existence or find another vessel through which it may fulfill its trust duties. Both the Supreme Court of the United States and the Hawai ʻi Supreme Court look to classic trust law, or the law relating to private and island is approximately 49,200 acres. The total reserve covers about 78,000 acres. 2013 AUDIT , supra note 16, at 2-3.

153 HAW . REV . STAT . § 6K-5 (2009). 154 KIRC is made up of five major programs: Restoration, Ocean, Cultural, Reserve Operations, and Volunteer. The Restoration Program focuses on the restoration of native, land-based habitats and watersheds. The Ocean Program develops and implements comprehensive ocean resource management regime that emphasizes ancestral and traditional knowledge and integrates ancient and modern management. The Cultural Program is responsible for the care and protection of Kahoolawe’s cultural resources, which include archaeological and historic remnants of the island’s early inhabitants. The Reserve operations Program provides transportation, accommodations, maintenance, general support, and a workforce. Finally, the Volunteer Program ensures the availability of a large pool of volunteers and matches the skill and labor requirements of each project to the capability of volunteers. KAHO ʻOLAWE CORE PROGRAMS , http:// http://kahoolawe.hawaii.gov/coreprograms.shtml (last visited Mar. 19, 2015). 155 MacKenzie, Serrano & Kaulukukui, supra note 38, at 42 (citing Timothy Hurley, Contractor Concludes Kaho ʻolawe Cleanup , HONOLULU ADVERTISER , Apr. 9, 2004, at B-1).

156 MCGREGOR , supra note 31, at 275. 157 Hofschneider, supra note 7. 2015 Inafuku 41 charitable trusts, to determine the obligations and responsibilities of the State to protect and use the public trust property.158 Applying classic trust principles serves a dual purpose of providing general guidance in resolving trust issues while also strengthening the public trust doctrine’s viability as a mechanism in ensuring government accountability of public lands. 159 A trust creates a fiduciary relationship in which a trustee is empowered to manage the property but only in favor of the beneficiaries. 160 The Supreme Court of the United States has described the trust relationship as one “measured by the same strict standards applicable to private trustees.”161 Similarly, the Hawai ʻi Supreme Court in Ahuna v. Department of Hawaiian Homelands , recognized three “high fiduciary duties normally owed by a trustee to its beneficiaries,” which it derived from federal trust and Indian jurisprudence.162 First, the trustee has a duty to “administer the trust solely in the interest of the beneficiary.”163 Second, the trustee must “use reasonable skill and care to make trust property productive” and “act as an ordinary and prudent person would in dealing with his own property.”164 Finally, the trustee has a duty to “deal impartially” when responsible for acting on behalf of two or more beneficiaries. 165 In Ahuna , the Hawai ʻi Supreme Court recognized the State’s trust responsibilities in the Hawaiian homelands trust, a separate trust founded in Congress’s 1920 Hawaiian Homes Commission Act (“HHCA”). 166 The HHCA set aside 200,000 acres of government land to provide lease homestead lots for native Hawaiians of at least fifty percent Hawaiian blood. 167

158 Ahuna v. Dep’t of Hawaiian Home Lands, 64 Haw. 327, 339, 640 P.2d 1161, 1169 (1982) (citing United States v. Mason, 412 U.S. 391, 398 (1973) (holding that the United States serves in a fiduciary capacity with respect to Indian tribes based on the same duty of care owed in the context of a private trust)). 159 James T. Paul, The Public Trust Doctrine: Who Has the Burden of Proof, PRECAUTION .ORG (1996), available at http://www.precautions.org/lib/hawaii.19960701.pdf. 160 Id. 161 Ahuna , 64 Haw. at 339, 640 P.2d at 1169 (citing Mason , 412 U.S. 391, 398). 162 Id. at 338, 640 P.2d at 1168. 163 Id. at 340, 640 P.2d at 1169 (citations omitted); Pele Def. Fund v. Paty, 73 Haw. 578, 605 n.18, 837 P.2d 1247, 1264 n.18 (1992). 164 Ahuna , 64 Haw. at 340, 640 P.2d at 1169 (citations omitted). 165 Id. at 340, 640 P.2d at 1170 (citation omitted). 166 Id. 167 Id. at 337, 640 P.2d at 1167-68. The term “native Hawaiian” is distinguished from “Native Hawaiian.” 42 Asian-Pacific Law & Policy Journal Vol. 16:2

The State’s responsibility as to Kaho ʻolawe does not stem from its Hawaiian homelands commitment, but rather from the State’s commitment to nearly two million acres of ceded lands. 168 Ceded lands are lands formerly belonging to the Kingdom of Hawai ʻi, which upon annexation of Hawai ʻi as a United States territory in 1898 were “ceded” to the United States. 169 When Hawai ʻi became a state in 1959, a large portion of these ceded lands became a public land trust, over which the State also serves as trustee. 170 The State must use the trust property and its revenues for one of five trust purposes outlined in section 5(f) of the Admissions Act. 171 In 1978, following a constitutional convention, the people of Hawai ʻi amended the state constitution to specifically reflect the two beneficiaries of this trust: Native Hawaiians (as defined as any person with Hawaiian blood) and the general public. 172 In Pele Defense Fund v. Paty , ten years after the Hawai ʻi Supreme Court recognized a cause of action for breach of the Hawaiian homelands trust, the supreme court extended access to the courts by recognizing a beneficiary’s cause of action for breach of the public land trust. 173 The State argued that because the Ninth Circuit previously ruled that the Admission Act created no private implied right of action, there could be no right of action to enforce the public land trust under Hawai ʻi law. 174 The Hawai ʻi Supreme Court, however, disagreed, and refused to render the State’s trust provisions “meaningless.”175 By holding that the public had “a right to bring suit under the Hawaii Constitution to prospectively enjoin the State from violating the terms of the [public] lands trust,” the supreme court ensured that the people of Hawai ʻi had “the means to hold their government to these promises.”176

168 Act of Mar. 18, 1959, Pub. L. No. 86-3, § 5, 73 Stat. 4 (1959) (providing for the Admission of the State of Hawai ʻi into the Union) [hereinafter Admission Act ]. 169 Id. 170 Admission Act , Pub. L. No. 86-3, § 5, 73 Stat. 4 (1959). 171 Id. § 5(f).

172 HAW . CONST . art. XII, § 4. 173 Pele Def. Fund v. Paty , 73 Haw. 578, 601, 837 P.2d 1247, 1262 (1992). 174 See Keaukaha-Panaewa Cmty. Ass’n v. Hawaiian Homes Comm’n, 588 F.2d 1216, 1226-27 (9th Cir. 1978). 175 Pele Def. Fund , 73 Haw. at 601, 837 P.2d at 1262.

176 Id.; see HAW . CONST . art. XII, § 4 (imposing a fiduciary duty on Hawaiʻi officials to hold ceded lands in accordance with the Admission Act § 5(f) trust provisions). In Pele Defense Fund , the supreme court held that Pele Defense Fund, “whose members are beneficiaries of the trust, may bring suit for the limited purpose of enjoining State officials’ breach of trust.” The holding did not allow for money damages barred by sovereign immunity. Pele Def. Fund , 73 Haw. at 606-07, 837 P.2d at 1264-65 (1992). This paper seeks to demonstrate that the State has breached its fiduciary duties and seeks to offer ways in which the State might fulfill those duties. It does not offer an 2015 Inafuku 43

A. The State May Be in Breach of its Fiduciary Duties Kaho ʻolawe became part of the public land trust by statute. 177 Thus, the State assumed fiduciary duties over Kaho ʻolawe, and the public the ability to hold the State accountable for satisfaction of these duties. Trust law favors preservation of the trust property’s value for current and future generations. 178 Accordingly, in cases involving breach of the public trust, the burden of proof is on the State to show it has met its “high fiduciary duties.”179 If challenged regarding its fiduciary duties to Kaho ʻolawe, the State must prove that it met the standard of care owed to Native Hawaiians and the general public. For two reasons, the State will find great difficulty arguing that it has fulfilled its fiduciary duties, particularly its duty to reasonably act as an ordinary and prudent person to make the trust property productive. First, Kaho ʻolawe remains dangerous to the general public and is largely uninhabitable. 180 The island and its surrounding waters continue to contain quantities of unexploded ordnance that may cause severe injury or death. 181 Second, the State has failed to provide reasonable financial support to KIRC, the state agency charged with Kahoʻolawe’s restoration. It has never allocated regular funding for KIRC’s operational or administrative expenses, and has instead relied on federal appropriations to fund its trust responsibilities. 182

analysis of how a beneficiary may sue the State for breach of fiduciary duties.

177 HAW . REV . STAT . § 6K-9 (2009). 178 Bernard S. Cohen, The Constitution, The Public Trust Doctrine, and the Environment , 1970 UTAH L. REV . 388, 392 (1970). 179 Ahuna v. Dep’t of Hawaiian Home Lands, 64 Haw. 327, 338, 640 P.2d 1161, 1168 (1982).

180 STATE OF HAWAI ʻI, KAHO ʻOLAWE ISLAND RESERVE COMMISSION , ACCESS & RISK MANAGEMENT PLAN FOR THE KAHO ʻOLAWE ISLAND RESERVE vii (2005), available at http://kahoolawe.hawaii.gov/plans/ARMPNov2005.pdf [hereinafter Access & Risk Management Plan ]. 181 Id. Additionally, the reserve “poses severe natural and environmental hazards to humans in the form of rough seas, dangerous ocean currents, arid conditions, no potable water, steep and uneven terrain, and geographic isolation.” Id.

182 See 2013 AUDIT , supra note 17, at 14. During publication of this article, in May 2015, the Hawai ʻi State Legislature committed $2 million to KIRC in its bienniel state budget, $1 million in FY2016 and FY2017 respectively. H.B. 500, 28th Leg. (Haw. 2015). KIRC “had been hoping to receive at least $6 million for the state Legislature to maintain operations for the next two years,” but considered the commitment “good news” because KIRC had “never gotten money from the state before.” Eileen Chao, Legislature Approves $2 Million for Kahoolawe Commission , MAUI NEWS , May 4, 2015, http://www.mauinews.com/page/content.detail/id/597699/Legislature-approves--2- million-for-Kahoolawe-commission.html?nav=10. 44 Asian-Pacific Law & Policy Journal Vol. 16:2

This article focuses on the latter breach, which fails both Hawai ʻi’s general public, who are deprived of access and benefits according to the five trust purposes, and the Native Hawaiian people, who may receive Kaho ʻolawe upon federal and state recognition of a Native Hawaiian governing entity. B. The State’s Breach is Exacerbated by Trust Fund’s Rapid Depletion The State’s failure to contribute financially to Kaho ʻolawe’s restoration becomes more egregious as the KRTF, composed predominantly of the original federal appropriation, nears depletion. In 1994, Congress dedicated $44 million, or eleven percent of the $400 million federal appropriation, to the State of Hawai ʻi and KIRC to carry out long-term planning, environmental restoration, and other archaeological and educational activities relating to Kaho ʻolawe. 183 The State and KIRC received these moneys through the KRTF over the span of ten years, from 1995 to 2004.184 KIRC uses the KRTF to pay for the salaries of its operational and administrative employees, base camp operations, and other expenses related to its restoration and cultural programs. 185 Expenses, however, are especially high due to the “unique safety issues related to unexploded ordnance [which] require robust planning and staffing at high, additional cost[s].”186 These expenses include the cost to transport, house, feed, and supervise volunteer workers, the cost to maintain dormitories, bathrooms, and a commercial kitchen, and the cost of hiring third-party contractors to provide equipment and building maintenance services. 187 In recognition of these high costs and the dwindling trust fund, KIRC reduced its costs from just over $5.5 million in 2008 to under $2.8 million in 2012. 188 This reduction slowed, but could not prevent, the continued depletion of the KRTF. 189 With the reduced budget, however, KIRC necessarily had less money for restoration projects and progress suffered accordingly.190

183 Id. at 8.

184 HAW . REV . STAT . § 6K-9.5 (2009) (“There is created in the state treasury a trust fund to be designated as the Kaho ʻolawe rehabilitation trust fund to be administered by the department with the prior approval of the commission.”). The KRTF is included in DLNR’s financial statements as a non-major governmental fund. 2013 AUDIT , supra note 16, at 10.

185 2013 AUDIT , supra note 16, at 14. 186 Id. at 21. 187 Id. 188 Id. at 9. 189 Id. at 13. 190 See id. at 9. 2015 Inafuku 45

In 2008, KIRC published its strategic plan for 2009 to 2013 where it prioritized its mission to “[i]ncrease the size, diversity and sustainability of the trust fund” and sought to develop sufficient annual income to offset expenditures through fundraising within five years.191 KIRC lobbied the federal government and the Hawai ʻi State Legislature, the Office of Hawaiian Affairs (“OHA”), the State Department of Defense, and other state departments in its effort to secure regular funding. 192 Disappointingly, even at its reduced approximation of $3 million annually, the State offered KIRC no secure support for its general administrative and operating costs. 193 These costs, which for most agencies are borne by the State, account for more than seventy percent of KIRC’s annual budget, leaving only the remaining thirty percent for actual restoration projects and significantly eating away at the KRTF. 194 In sum, the federal government’s $44 million appropriation is not enough to reasonably expect KIRC to complete Kaho ʻolawe’s cleanup, especially given the average annual administrative and operating costs. Given that the U.S. Navy spent $400 million during approximately the same time frame, it is absurd to think restoration could be accomplished with that small amount. Even after KIRC completes the level of ordnance clearance promised by the Navy, substantial work will be required before the island is habitable or even publically accessible. Considering the work required to make the property productive, arguments that $44 million was sufficient for restoration become exponentially absurd. None of the parties negotiating the MOU expected that $44 million would be sufficient. In fact, the expectation was that “in the short term, federal funds [would] provide the bulk of the program support,” but in the long term, State support would follow “to continue and enhance those activities initiated with federal funds.”195 As the federal funds runs out, the State must provide this expected financial support to fulfill its fiduciary duty as Kaho ʻolawe’s trustee. In 2012, in response to KIRC’s efforts to secure regular funding from the legislature, the Hawai ʻi State Senate asked the State Auditor to conduct a fiscal audit of the KRTF.196 The audit was to include a determination of whether the trust fund was being used in compliance with state laws and applicable grant agreements, and whether the funds were being properly managed to effectuate the duties and responsibilities of

191 KAHO ʻOLAWE ISLAND RESERVE COMMISSION , KAHO ʻOLAWE ISLAND RESERVE STRATEGIC PLAN 2009-2013 5 (2008) [hereinafter 2009-2013 STRATEGIC PLAN ].

192 2013 AUDIT , supra note 16, at 16-17. 193 Id. at 14. 194 Id. at 16-17.

195 KAHO ʻOLAWE ISLAND CONVEYANCE COMMISSION , supra note 9, at 51.

196 2013 AUDIT , supra note 16, at 1. 46 Asian-Pacific Law & Policy Journal Vol. 16:2

KIRC. 197 The report from the Auditor confirmed the problem that KIRC already recognized: the KRTF was nearly depleted and the future of Kaho ʻolawe’s restoration lay on uncertain financial grounds. 198 The audit focused on KIRC’s fiscal, compliance, and restoration issues related to the trust fund through examination of prior audits of the KRTF and KIRC’s financial accounting systems, policies, procedures, and internal controls during FY2012.199 Using this information, the Auditor found two things: (1) “[a]t its current rate of spending, the Kaho ʻolawe Island Reserve Commission will drain the remaining balance of the Kaho ʻolawe Rehabilitation Trust Fund by 2016” and (2) “[t]he Kaho ʻolawe Island Reserve Commission has not developed a comprehensive and measurable restoration plan, including estimated costs and timeframes for completion.”200 The response from the State Legislature is particularly concerning considering the State’s responsibility as trustee of the Kaho ʻolawe Island Reserve. For the past twenty years, KIRC has relied on federal funds in the KRTF and independent fundraising to carry out its restoration. 201 While it has established many innovative programs that utilize a cultural approach of respect and connectivity to the environment, KIRC remains far from realizing its ambitious vision of safe public access to a Kaho ʻolawe full of “[f]orest and shrublands of native plants and other biota.”202 The audit clearly shows that KIRC cannot rely on the trust fund and must seek a regular source of funding if it is to continue operations. To the extent it is able, KIRC has pursued the sources of funding specified in HRS section 6K-9.5(a), which specifically identifies four sources of funding for the KRTF.203 While KIRC continues its lobbying efforts, it

197 Id. 198 See id. 199 Id. at 10. 200 Id. at 13.

201 See 2013 AUDIT , supra note 16, at 14-17 (describing the KIRC’s expenses in relation to its private fundraising efforts and highlighting its inability to “secure any other federal or state support for its general administrative and operating costs”).

202 2009-2013 STRATEGIC PLAN , supra note 191, at 1.

203 2013 AUDIT , supra note 16, at 13. HAW . REV . STAT . § 6K-9.5(a) (2009) (1) All moneys received from the federal government for the rehabilitation and environmental restoration of the island of Kahoʻolawe . . . ; (2) A ny moneys appropriated by the legislature to the trust fund; (3) Any moneys received from grants, donations, or the proceeds from contributions; and (4) The interest or return on investments earned from moneys in the trust fund, shall be deposited in the trust fund and shall be used to fulfill the purposes of this chapter. 2015 Inafuku 47 has yet to successfully secure a permanent source of funding that would allow for continued operations.204 KIRC currently receives limited federal grants from the National Oceanic Atmospheric Administration for marine debris removal and coastal habitat restoration, and from the Native Hawaiian Education Act for continuing technical education internships. 205 KIRC also receives limited State and County grants from the Department of Health Clean Water Branch for surface water run-off reduction and from Maui County for a demonstration photovoltaic system. 206 Grants provide needed funding support, but are often limited to paying the direct costs of performing specific restoration activities and are unable to fund administrative or operational costs. 207 While KIRC is sometimes successful in securing grants, these grants do not help to offset the significant general costs that drain the KRTF. The Hawai ʻi State Legislature has been reluctant to fund KIRC while money remains in the trust fund. Some legislators have asked KIRC to refrain from submitting further funding requests until the trust fund has been completely depleted. 208 At its May 15, 2012 meeting, the KIRC Commissioners reviewed its proposed FY2013 budget of $2.79 million. 209 The proposed budget, a three percent reduction from the year before, represented the “threshold of where [KIRC] can operate and provide necessary services. If the budget were any smaller it would be necessary [for KIRC] to rethink what services KIRC would provide.”210 The KIRC

204 2013 AUDIT , supra note 16, at 14. KIRC introduced six bills during the 2015 Hawai ʻi State Legislative Session: S.B. 867 and H.B. 1235 allocating portions of the conveyance tax revenues to the KRTF; S.B. 897 and H.B. 438 appropriating funds to KIRC for management, restoration, and preservation; S.B. 470 clarifying that property used or taken in violation of laws applicable to the Kaho ʻolawe Island Reserve are subject to seizure, disposal, and forfeiture; and H.B. 1480 appropriating funds for a Kaho ʻolawe education and operation center in Kihei, Maui. None of KIRC’s bills passed, but KIRC did receive a $2 million commitment in H.B. 500, the biennial state budget, fro FY 2016-2017. Chao supra note 182. 205 Relating to the Kaho ʻolawe Island Reserve: Hearing on S.B. 2743_S.D. 1 Before the S. Comm. On Ways & Means , 27th Leg. (Haw. 2014) (testimony of Michael K. Naho ʻopi ʻi, Exec. Dir., Kaho ʻolawe Island Reserve Comm’n), available at http://www.capitol.hawaii.gov/Session2014/Testimony/SB2743_SD1_TESTIMONY_W AM_02-25-14.PDF. 206 Id. 207 Id.

208 See KAHO ʻOLAWE ISLAND RESERVE COMMISSION , MEETING MINUTES FOR MAY 15, 2012 2 (2012). 209 Id. 210 Id. While the $2.79 million budget was considered the “threshold” operating budget at the time, KIRC further reduced its budget in FY2014 to $1.36 million after the State again provided no financial support. Hofschneider, supra note 7. 48 Asian-Pacific Law & Policy Journal Vol. 16:2

Commissioners discussed two options: whether (1) it would be more prudent to reduce the budget and preserve the trust fund for more years or (2) keep current staffing levels and exhaust the trust fund more quickly. 211 Two commissioners expressed that quickly spending the remainder of the KRTF might be advantageous: Commissioner Aila observed if the Commission is looking at dedicated funding from the legislature, the further the trust fund is stretched, the less likely the legislature will take the funding issue seriously . . . . Chair McLean stated she is afraid of paring the budget down and then seeking funding based on the reduced budget. 212 KIRC should never find itself in a position to contemplate this issue. It is important to keep in mind that this is not about funding for special restoration efforts or for technological upgrades to facilitate more effective reforestation and erosion control. KIRC is seeking financial support from its trustee, the State, merely for the purpose of continued existence. KIRC needs State support for its basic administrative and operating costs. Trust funds, like the KRTF, create a fiduciary duty in its designated trustee to use reasonable care in making the trust property productive, and the State’s failure to financially support KIRC represents a breach of that duty. 213 IV. THE STATE OF HAWAI ʻI MUST FULFILL ITS FIDUCIARY DUTIES To fulfill its high fiduciary duties, the State must use reasonable skill to make the trust property productive. Although it created KIRC to administer the Kaho ʻolawe Island Reserve, 214 the State remains ultimately responsible for the fulfillment of its trust duties and must, at a minimum, provide KIRC with sufficient resources to do its job. This section offers four options the State should pursue to replenish the KRTF and fulfill its promise to Hawaiʻi’s people. First, it argues for a general appropriation from the State Legislature to support KIRC’s operations. Second, it analyzes the current legislative proposal to use state conveyance tax revenues to replenish the KRTF. Third, it offers an alternative method to replenish the KRTF: allocate a portion of the public land trust revenues. Finally, this section briefly addresses the State’s ability to get additional funding from the federal government. The State should pursue all four options, but action on any one would be a

211 KAHO ʻOLAWE ISLAND RESERVE COMMISSION , MEETING MINUTES FOR MAY 15, 2012 3 (2012), available at http://kahoolawe.hawaii.gov/agendas/Minutes%20051512.pdf. 212 Id. at 4. 213 Paul, supra note 159. See discussion supra Part III.B. 214 Id. 2015 Inafuku 49 marked improvement from the State’s current inattention to its fiduciary duties. A. The State Should Appropriate Moneys from the General Fund to Support KIRC The simplest way for the State to fulfill its fiduciary duties is to make an appropriation from the State’s general fund to support KIRC and its restoration projects. While a decision to fund is obviously foundational for this strategy, two additional issues have prevented its adoption by the State Legislature: (1) whether general appropriations will replace the KRTF as KIRC’s primary funding source; and (2) the amount of money necessary to meet its fiduciary responsibility. In 2015, Hawai ʻi state representatives introduced bills in both the Senate and House of Representatives to appropriate general funds to KIRC for the current fiscal year to “effectively meet the unique challenges of restoring, preserving, and determining the appropriate uses of Kaho ʻolawe” for the people of Hawai ʻi through restoration projects. 215 In testimony offering comments on the house bill, the State Auditor “raise[d] the question whether the [KRTF] is needed or should be repealed” should it required annual appropriations from the State Legislature to continue.216 Restating the findings of the audit, the testimony reiterated that KIRC’s rate of spending and inability to raise funds resulted in the KRTF’s depletion. 217 The Auditor suggested that the KRTF may no longer be necessary—KIRC “could be supported through general fund appropriations.”218 Seemingly wary of annual appropriations to KIRC, the State House Committee on Hawaiian Affairs and the State Senate Ways and Means Committee amended each of their respective bills to include a requirement that KIRC “submit a financial self-sufficiency and sustainability plan . . . to the legislature . . . prior to the convening of the” 2016 legislative session. 219 The amendment reflected a fundamental issue regarding Kaho ʻolawe’s restoration: whether it should be funded by the State’s general funds or whether KIRC should be self-sufficient through its

215 H.B. 438, 28th Leg. (Haw. 2015); S.B. 897, 28th Leg. (Haw. 2015). 216 Making an Appropriation to the Kaho ʻolawe Island Reserve Commission: Hearing on H.B. 438, S.D. 1 Before the S. Comm. on Ways and Means , 28th Leg. (Haw. 2015) [hereinafter Auditor Testimony ] (testimony of Jan K. Yamane, Acting State Auditor), available at http://www.capitol.hawaii.gov/Session2015/Testimony/HB438_HD1_SD1_TESTIMON Y_WAM_04-01-15.PDF. 217 Id. 218 Id. 219 H.B. 438 S.D. 1, 28th Leg. (Haw. 2015); S.B. 897 S.D. 2, 28th Leg. (Haw. 2015). 50 Asian-Pacific Law & Policy Journal Vol. 16:2 fundraising or investing. Navigating this issue, Committee on Hawaiian Affairs also proposed an amendment to allow “limited commercial activities” within the Kaho ʻolawe Island Reserve to allow KIRC a mechanism to generate revenue and attain self-sufficiency. 220 Whether through annual appropriations or self-sufficient mechanisms, the State must ensure continued funding for Kaho ʻolawe’s restoration. An annual general appropriation is an acceptable method for the State to meet its trust responsibility, but employing the method does not alone fulfill that responsibility, however. The amount of the appropriation will factor in to an analysis of whether the State has used reasonable care to make the trust property productive. Here, the most appropriate benchmark for reasonability is the annual budget for KIRC. While considering that KIRC reduced its budget to $1.36 million in FY2014, 221 a similar appropriation could be an appropriate figure for reasonability. Arguments can be made, however, for both an increase or decrease of this figure. To increase the figure, KIRC may argue that the FY2014 figure is not an accurate reflection of its operating budget; rather, that it represents a severely pared down budget in an attempt to preserve the dwindling KRTF. 222 To decrease the figure, the State may take a closer look at KIRC’s budget and make adjustments according to more specific, incremental goals. One of the Auditor’s main conclusions was that KIRC had “not developed a comprehensive and measurable restoration plan, including estimated costs and timeframes for completion.”223 A revised budget based on “a comprehensive and measurable restoration plan” may not require a $1.36 million appropriation. While KIRC may benefit from a reassessment of its goals, it seems that the dwindling KRTF has already forced this process upon the KIRC commissioners. 224 KIRC must also be wary of reducing goals and expectations too much; it must continue to balance its financial constraints with what is necessary to continue progress against the erosion Kaho ʻolawe faces.

220 S.B. 897, S.D. 1, 28th Leg. (Haw. 2015). The “[l]imited commercial activities” language was further amended in S.D. 2 to “[l]imited revenue-generating activities.” S.B. 897, S.D. 2, 28th Leg. (Haw. 2015). The amendment, which sought to amend HRS § 6K-3, seemed to address testimony seeking to preserve the clear prohibition against commercial use within the reserve. HAW . REV . STAT . § 6K-3 (2009). S.B. 897 did not was not scheduled for a hearing upon crossover to the State House of Representatives. H.B. 438, which was still alive at the time of publication, did not contain similar language regarding commercial or revenue-generating activities. 221 Hofschneider, supra note 7.

222 See KAHO ʻOLAWE ISLAND RESERVE COMMISSION , MEETING MINUTES FOR MAY 15, 2012 2 (2012).

223 2013 AUDIT , supra note 16, at 13. 224 Id. 2015 Inafuku 51

Additionally, the State may look to other ordnance clearance projects to determine the reasonable sum required to support such an effort on Kaho ʻolawe. Two such examples are the military cleanups at Fort Ord, a 28,000-acre base in central California used for training exercises for the 7th Infantry Division of the U.S. Army,225 and Vieques Island in Puerto Rico, where the U.S. Navy used approximately 25,000 acres for naval gunfire support and air-to-ground training. 226 While Kaho ʻolawe is uniquely difficult to clean because of its hilly terrain and high iron content of the soil,227 both Fort Ord and Vieques may offer helpful financial figures. The base at Fort Ord is roughly the same size as Kaho ʻolawe, but only less than 7,000 acres contained munitions, since the base was not subjected to the same level of aerial bombing. 228 In comparison, Kaho ʻolawe is approximately 28,000 acres and the munition area includes a two-mile perimeter in the offshore ocean. The Army began clearing unexploded ordnance there in 2008, and work is expected to last another eight to ten years—significantly longer than the Navy’s ten-year effort on Kaho ʻolawe. 229 For one-quarter the area of Kaho ʻolawe, the Environmental Protection Agency estimated the cost of the Fort Ord cleanup at $750 million.230 The Navy cleanup on Vieques is currently taking place on 15,000 acres, less than half the size of Kaho ʻolawe. 231 The Navy plans to spend over $500 million on that project. 232 The $44 million that KIRC received from the federal government is part of the $400 million federal appropriation for Kaho ʻolawe’s cleanup, a curiously low amount when comparing the relative size of Fort Ord and Vieques and considering the unique difficulties of Kaho ʻolawe’s terrain and lack of infrastructure. John Waihe ʻe, Governor of Hawai ʻi in the early 1990s, recalled that State estimates for the cleanup on Kaho ʻolawe

225 See generally FORT ORD CLEANUP : THE ENVIRONMENTAL CLEANUP OF THE FORMER FORT ORD , http://www.fortordcleanup.com (last visited Apr. 27, 2015). 226 Vieques Island/Atlantic Fleet Weapons Training Area, http://www.epa.gov/region2/vieques/ (last visited Apr. 27, 2015). 227 See Gary T. Kubota, Kahoolawe in Transition: The Island Transfers to State Control This Week as the Clearing of Ordnance Continues , HONOLULU STAR -BULLETIN , Nov. 9, 2003, available at archives.starbulletin.com/2003/11/09/news/story2.html .

228 Anita Hofschneider, Promised Land: The Navy and the Damage Done , CIVIL BEAT , Oct. 22, 2014, www.civilbeat.com/2014/10/promised-land-the-navy-and-the- damage-done/. 229 See id. 230 Id. 231 See id. 232 Id. 52 Asian-Pacific Law & Policy Journal Vol. 16:2 approached $2 billion. 233 Rather than a reduction in KIRC’s budget, the comparisons support an increase in KIRC’s annual budget, and thus an increase in a proposed annual appropriation.234 B. The State Should Commit a Percentage of State Conveyance Tax Revenues to Replenish the KRTF Rather than an appropriation from the general fund, the State may look to assign portions of its tax revenue to Kaho ʻolawe’s restoration. In 2014, a group of Hawai ʻi state representatives introduced a bill authorizing a portion of state conveyance tax revenues to be used to replenish the KRTF.235 The bill’s language recognizes that “[a]lthough considerable, federal appropriations . . . are now dwindling and have not established a sustainable endowment for the long-term restoration of Kaho ʻolawe.”236 The bill also cites the Kaho ʻolawe Island Conveyance Commission’s final report to Congress in 1993, stating that “in the short term, federal funds will provide the bulk of the program support, . . . [but] [i]n the longer-term, . . . state revenues will be needed to continue and enhance those activities initiated with federal funds.”237 Following the original intention, this bill proposes adding to the list of funding sources for the KRTF: “[a] portion of the conveyance tax under section 247-7 [of the HRS].” 238 Corresponding language would also be added to section 247-7, reading: “Ten per[sic]cent shall be paid into the Kaho ʻolawe rehabilitation trust fund established by section 6K-9.5., provided that the payments shall not exceed $3,500,000 annually.”239 The State Legislature initially enacted the conveyance tax in 1966 after the federal government repealed a law requiring stamps for all transfers of real property. 240 The tax provided the Department of Taxation

233 Id. 234 While these facts give context to the seemingly large appropriations for Kaho ʻolawe’s cleanup, a more nuanced comparison will consider operating expenses and restoration expenses, the types of ordnance being cleared, the equipment necessary, etc. The differences between the sites may be explored in further detail to increase the effectiveness of this comparison. 235 H.B. 2101, 27th Leg. (Haw. 2014). 236 Id . 237 Id . (internal quotation marks omitted).

238 Id. ; see HAW . REV . STAT . § 6K-9.5 (2009); HAW . REV . STAT . § 247-7 (1993). 239 S.B. 2743, 27th Leg. (Haw. 2014). S.B. 2743 and H.B. 2101 both failed to pass during the 27th Legislature. 240 Lowell L. Kalapa, Lawmakers Target Conveyance Tax as a Source of New Revenue , HAWAII REPORTER , June 2, 2013, available at http://www.hawaiireporter.com/lawmakers-target-conveyance-tax-as-a-source-of-new- revenue. 2015 Inafuku 53 with additional data and funds to determine the market value of transferred properties so it could establish accurate real property assessed values. 241 The tax is imposed each time property changes title or ownership. 242 Although the State Legislature did not intend the conveyance tax to be a revenue-raising device, it began earmarking portions of the tax for other funds in 1993. 243 There are currently two recipients of conveyance tax revenues with similar missions to KIRC, the Land Conservation Fund and the Natural Area Reserve Fund. 244 The Land Conservation Fund acquires and manages lands that have “natural, environmental, recreational, scenic, or historic value” to the State. 245 Conveyance tax revenues cover the “cost . . . necessary to protect, maintain, or restore resources at risk on these lands, or that provide for greater public access and enjoyment of these lands.”246 Often, they are used for invasive species control, reforestation, and erosion mitigation, all of which are similar functions of and great challenges for KIRC.247 Similarly, the Natural Area Reserve Fund protects and preserves unique natural assets for the enjoyment of future generations and provides baseline information against which environmental changes can be measured. 248 This bill would assign a percentage of the conveyance tax revenue to KIRC for a nearly identical purpose on Kaho ʻolawe.249 KIRC, DLNR, the Department of Planning, and OHA all strongly support use of the conveyance tax revenue as the most “logical method to fund resources protection” on Kaho ʻolawe. 250

241 Id. 242 Id.

243 Lowell L. Kalapa, Backfiring of Earmarks and Checkoffs , TAX FOUNDATION OF HAWAII , http://www.tfhawaii.org/cols/2004/021504.shtml.

244 HAW . REV . STAT . § 247-7 (1993). Relating to the Kaho ʻolawe Island Reserve: Hearing on S.B. 2743 Before the S. Comm. on Water & Land and S. Comm. on Hawaiian Affairs , 27th Leg. (Haw. 2014) [hereinafter Naho ʻopi ʻi Testimony ] (testimony of Michael K. Naho ʻopi ʻi, Exec. Dir., Kaho ʻolawe Island Reserve Comm’n), available at http://www.capitol.hawaii.gov/Session2014/Testimony/SB2743_TESTIMONY_WTL- HWN_02-03-14.PDF.

245 HAW . REV . STAT . § 173A-1 (2007). 246 Id. § 173A-5. 247 Naho ʻopi ʻi Testimony , supra note 244.

248 HAW . REV . STAT . § 195-1 (2007). 249 See Naho ʻopi ʻi Testimony , supra note 244 (“Both [the Land Conservation Fund and the Natural Area Reserve Fund] echo the KIRC’s mission and vision for the restoration and preservation of [Kaho ʻolawe.]”). 250 Relating to the Kaho ʻolawe Island Reserve: Hearing on S.B. 2743, S.D. 2 Before the H. Comm. on Ocean, Marine Resources, and Hawaiian Affairs , 27th Leg. (Haw. 2014) (testimony of Michele McLean, Deputy Planning Director, County of Maui, County of Maui Department of Planning), available at 54 Asian-Pacific Law & Policy Journal Vol. 16:2

Conversely, the Tax Foundation of Hawai ʻi opposes the use of conveyance tax revenues to replenish the KRTF.251 While lending support to the bill’s purpose, the Tax Foundation disagreed with its selection of the conveyance tax because the conveyance tax revenues are highly dependant on the changing real estate market. 252 Since the conveyance tax became revenue-generating, the tax rate has continually increased and the revenues have been redistributed three times to respond to the demands of the general fund. 253 Thus, consideration of those programs’ dependence on conveyance tax revenues has influenced the conveyance tax rate at the expense of Hawai ʻi’s real estate market. Currently, ten percent of conveyance tax revenues are earmarked for the Land Conservation Fund, thirty percent for the Rental-Housing Trust Fund, and twenty-five percent for the Natural Area Reserve Fund with the remaining thirty-five percent deposited into the general fund. 254 Earmarking another ten percent to the KRTF would reduce the conveyance tax’s revenue contribution to the general fund to only a quarter of its original commitment and further complicate calculation of the conveyance tax rate. Generally, earmarking tax revenue is dangerous because it absolves elected officials from setting priorities for how to spend the general fund. 255 Specifically, in this situation, the real estate market directly affects conveyance tax revenue and encourages additional amendments to the revenue’s distribution whenever a slow market yields low contributions to the struggling general fund. 256 The Tax Foundation argued that if the State Legislature found the restoration of Kaho ʻolawe to be of great importance, then they should allocate money from the general fund instead of “[e]armarking resources . . . that bear little relationship to the program being funded,” which, in its opinion, “represents poor public finance policy.”257 http://www.capitol.hawaii.gov/Session2014/Testimony/SB2743_SD2_TESTIMONY_O MH_03-12-14_.PDF. 251 Id. (testimony of Tax Foundation of Hawaii). 252 Id. 253 The State Legislature amended HRS § 247-7 in 2005, 2007, and 2009 to redistribute the revenue to various earmarked funds in response to the demands of the general fund and the real estate market. Id.

254 HAW . REV . STAT . § 247-7 (1993). 255 Relating to the Kaho ʻolawe Island Reserve: Hearing on S.B. 2743,S.D. 2 Before the H. Comm. on Ocean, Marine Resources, and Hawaiian Affairs , 27th Leg. (Haw. 2014) (testimony of Tax Foundation of Hawaii), available at http://www.capitol.hawaii.gov/Session2014/Testimony/SB2743_SD2_TESTIMONY_O MH_03-12-14_.PDF. 256 Id. 257 Id. 2015 Inafuku 55

Far from being poor public finance policy, “earmarking portions of conveyance tax receipts to support environmental conservation and cultural restoration efforts are particularly appropriate uses of conveyance tax revenues, because they internalize to the [non-owner occupants] real estate investment . . . costs that have long been externalized onto Hawai ʻi residents.”258 Speculative real estate development in Hawai ʻi has used property as an investment commodity rather than as a source of housing for residents, and the corresponding increase in property values has priced many local citizens out of the real estate market. 259 Interestingly, the increase in property value is directly tied to development of scenic places, which has for decades resulted in the “systematic destruction or degradation of religiously and culturally significant places” that are most prevalent in these areas. 260 Many of the chief beneficiaries of speculative real estate investment are nonresidents who pay no state income tax and thus do not contribute to the restoration or preservation of the culturally significant places their investments have damaged or destroyed. 261 Thus, using conveyance tax revenue to supplement land conservation and natural reserve restoration is a fitting means to address fiscal, environmental, and cultural costs that speculative real estate investment has long externalized to Hawai ʻi’s resources and people. 262 While fitting and helpful, conveyance tax revenue will not provide the necessary funds for continued restoration on Kaho ʻolawe. KIRC may welcome any regular funding it can secure, but even based on its lowest projected budget, a $3.5 million cap will barely cover administrative and operating costs. The conveyance tax’s fluctuating revenue further reduces the predictability and attainment of the capped amount. Although FY2013 brought in $54.7 million in conveyance tax revenue (which would transfer the capped amount of $3.5 million to the KRTF), FY2004 brought only

258 Relating to the Kaho ʻolawe Island Reserve: Hearing on S.B. 2743 Before the S. Comm. on Water & Land and Hawaiian Affairs , 27th Leg. (Haw. 2014) (testimony of Linda H. Krieger, Professor of Law at the University of Hawai ʻi at M ānoa William S. Richardson School of Law), available at http://www.capitol.hawaii.gov/Session2014/Testimony/SB2743_TESTIMONY_WTL- HWN_02-03-14.PDF. 259 Id. 260 Id. 261 Id. 262 Economist refer to taxes that correct these types of market externalities as “Pegovian” taxes, or taxes used to correct a free market failure where an economic activity reaps gains for some while externalizing costs onto others. The Pegovian tax corrects the market failure by taxing the economic activity that is externalizing costs, resulting in a re-internalization of those costs to the activity itself. The Pegovian tax forces the activity to bear its true costs. Id. 56 Asian-Pacific Law & Policy Journal Vol. 16:2

$15.8 million and FY2009 only $23.8 million, 263 which would have transferred less than the amount needed for KIRC’s basic operations. Even if allocation of a portion of the conveyance tax revenue could ensure sufficient annual funds to cover KIRC’s administrative and operating costs, it would represent only a first step in fulfilling the State’s fiduciary duties because this money would mainly support KIRC’s administrative and operational costs. 264 The proposed bill only relieves the State of its responsibility to fund KIRC, the agency established to help fulfill its trust duties. To meet its high moral and legal responsibilities, the State must secure a sufficiently large funding source to additionally contribute to the KIRC’s substantial restoration projects. C. The State Should Pursue Use of Public Land Trust Revenue for the KRTF Hawai ʻi’s public land trust may be the only already existing fund with both a sufficiently large revenue stream and a strong nexus to Kaho ʻolawe’s restoration. To understand the viability of such an option, this section provides a brief discussion of Hawai ʻi’s history, which is the least known and possibly the most egregious of any people in the United States. 265 This history serves the dual purpose of permitting a deeper understanding of public land trust revenues while also providing vital context in understanding the Native Hawaiian community’s perspective on its relationship with the United States. While the issues regarding Kaho ʻolawe’s restoration are independently alarming, they are amplified by the greater injustice of the United States’ overthrow of the Kingdom of Hawai ʻi, illegal annexation of the Republic of Hawai ʻi, and theft of millions of acres of private property meant for Native Hawaiians. This history demonstrates the need for the State’s fiduciary duties and why fulfilling those duties serves as minimal reconciliation for past injustices. 1. Creation of Hawai ʻi’s Public Land Trust In 1825, when Kamehameha III was the ruling monarch, he established the Kingdom of Hawai ʻi as a fully independent constitutional

263 DEPARTMENT OF TAXATION , STATE OF HAWAI ʻI, ANNUAL REPORT 2012-2013 31 (2014). 264 In 2015, the State Legislature considered two bills seeking to allocate a portion of the state conveyance tax to replenish the KRTF. S.B. 867, 28th Leg. (Haw. 2015); H.B. 1235, 28th Leg. (Haw. 2015). H.B. 1235 reduced the percentage allocated to the KRTF to 7.5 percent. Neither bill garnered a committee hearing during the 28th Legislature. 265 Bradley Hideo Keikiokalani Cooper, A Trust Divided Cannot Stand - An Analysis of Native Hawaiian Land Rights , 67 TEMP . L. REV . 699, 699 (1994) (citing Mililani B. Trask, Historical and Contemporary Hawaiian Self-Determination: A Native Hawaiian Perspective , 8 ARIZ . J. INT ’L & COMP . L. 77, 80 (1991)). 2015 Inafuku 57 monarchy amongst the world’s nations. 266 In 1848, facing the rapid population decline of his people due to foreign diseases, the pressures brought by foreign imperialist powers, and the tactics of Americans seeking economic advancement in Hawai ʻi, Kamehameha III decided to change Hawai ʻi’s land tenure system from a trust system managed by the sovereign to a system of private ownership. 267 The change and resulting division of Hawai ʻi’s roughly four million acres of land was called “the Māhele” and effected massive changes for Native Hawaiians who had never before considered ʻā ina (land) as a commodity capable of being owned. 268 The Māhele created two important categories of land: almost a million acres of crown lands, or the monarch’s personal private lands, and more than 1.5 million acres of government lands for the Hawaiian Kingdom. 269 By separating the crown lands from the government lands, Kamehameha III clearly intended to protect his private lands from the danger of being treated as public domain. 270 Establishing crown lands as private property would protect it from confiscation under international law if Hawai ʻi’s sovereignty needed to yield to a superior foreign force.271 Unfortunately, Kamehameha III’s deliberate classification of crown lands as private property did not achieve its desired effect.

266 RALPH S. KUYKENDALL & A. GROVE DAY , HAWAII : A HISTORY , FROM POLYNESIAN KINGDOM TO AMERICAN COMMONWEALTH 156-57, 167-69, 227 (Prentice Hall, 1948) (explaining that Kamehameha III divided the government into three bodies, enacted a Hawaiian Magna Carta or Declaration of Rights, and adopted a Constitution). In the next few decades, nearly every major sovereign, independent, co-equal European nation formally recognized the Kingdom of Hawai ʻi in the international community. The first country to formally recognize the independence of the Kingdom of Hawai ʻi was the United Kingdom in 1842. Id. at 194. Over the next decade, numerous European powers also recognized the Kingdom of Hawai ʻi’s independence, including: Belgium, France, Denmark, Sweden, and Norway. Id. at 198, 202-203, 374, 381.

267 William S. Richardson, Foreword to JON VAN DYKE , WHO OWNS THE CROWN LANDS OF HAWAI ʻI? vii (Univ. of Haw. Press 2008). 268 See Melody Kapilialoha MacKenzie, Ke Ala Pono – The Path of Justice: The Moon Court’s Native Hawaiian Rights Decisions , 33 U. HAW . L. REV . 447, 450 (2011).

269 See JON VAN DYKE , WHO OWNS THE CROWN LANDS OF HAWAI ʻI? 42 (Univ. of Haw. Press 2008). There are many theories regarding the division of land at the Māhele. See generally Donovan C. Preza, The Emperical Writes Back: Re-Examining Hawaiian Dispossession Resulting from the M āhele of 1848 (May 2010) (unpublished M.A. thesis, University of Hawaiʻi at Mānoa) (on file with the author); JON J. CHINEN , THE GREAT MAHELE : HAWAII ’S LAND DIVISION OF 1848 (1958). 270 In the Matter of the Estate of His Majesty Kamehameha IV., Late Deceased, 2 Haw. 715, 722 (Sup. Ct. Haw. Kingdom 1864); see supra note 267, William S. Richardson, Foreword to JON VAN DYKE , WHO OWNS THE CROWN LANDS OF HAWAI ʻI? vii (Univ. of Haw. Press 2008). 271 Liliuokalani v. U.S., 45 Ct. Cl. 418, 421 (1910). 58 Asian-Pacific Law & Policy Journal Vol. 16:2

In January 1893, U.S. military forces, led by U.S. Minister to the Hawaiian Kingdom John L. Stevens, landed in Honolulu and helped a group of American businessmen illegally overthrow the Kingdom of Hawai ʻi and Queen Lydia Kamaka ʻeha Lili ʻuōkalani.272 Without the authorization of its Commander-in-Chief, the U.S. military helped overthrow an internationally-recognized constitutional monarchy, strip the Queen of both her sovereign authority and her private property, and establish a new government that the people had not chosen. The United States acquired Hawai ʻi through a joint resolution, passed by a simple majority of both the House of Representatives and the Senate in 1898.273 Under the joint resolution, the Republic of Hawaiʻi ceded approximately 1.8 million acres of government, and crown lands to the United States. 274 Federal public land laws, however, were not applied to these lands. 275 Instead, the joint resolution called for Congress to enact

272 The United States admitted its contribution to the overthrow of the Kingdom of Hawai ʻi in 1993 when Congress passed a joint resolution “[t]o acknowledge the 100th anniversary of the January 17, 1893 overthrow of the Kingdom of Hawaii, and to offer an apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii.” 100th Anniversary of the Overthrow of the Hawaiian Kingdom [hereinafter Apology Resolution ], S.J. Res. 19, 103d Cong., Pub. L. No. 103-150, 107 Stat. 1510, 1513 (1993) (recounting the events surrounding the overthrow in detail, including the direct participation of U.S. military forces, and admitting that the overthrow was illegal, that without its assistance the overthrow would have failed, and that the United States, as a result, took 1.8 million acres of land belonging to the Kingdom of Hawai ʻi without the consent of or compensation to Native Hawaiians). 273 Joint Resolution to Provide for Annexing the Hawaiian Islands to the United States [hereinafter Joint Resolution ], 30 Stat. 750 (1898). See Melody Kapilialoha MacKenzie, Ke Ala Loa - The Long Road: Native Hawaiian Sovereignty and the State of Hawai ʻi, 47 TULSA L. REV . 621, 627 (2012) (“The annexation of Hawai ʻi by joint resolution was hotly debated in the U.S. Senate, with many arguing that the United States could acquire territory only under the treaty-making power of the U.S. Constitution, requiring ratification by two-thirds of the Senate.”) (citation omitted). A joint resolution was necessary because Congress received petitions opposing an annexation treaty. Senator George Hoar presented the text of these Hui Aloha ʻĀ ina petitions during the U.S. Senate debate on annexation. The 21,000 signatures contained in these petitions represented a congressional record. A second group, Hui K ālai ʻā ina, gathered an additional 17,000 signatures against annexation. NOENOE K. SILVA , ALOHA BETRAYED : NATIVE HAWAIIAN RESISTANCE TO AMERICAN COLONIALISM 157-59 (Duke Univ. Press Books 2004); see also Jennifer M.L. Chock, One Hundred Years of Illegitimacy: International Legal Analysis of the Illegal Overthrow of the Hawaiian Monarchy, Hawai ʻi’s Annexation, and Possible Reparations , 17 U. HAW . L. REV . 463, 490-93 (1995) (explaining that a majority of Hawai ʻi’s citizens did not approve of annexation into the United States); Jon M. Van Dyke, The Political Status of the Native Hawaiian People , 17 YALE L. & POL ’Y REV . 95, 103 (1998). 274 Apology Resolution , Pub. L. No. 103-150, para. 25, 107 Stat. 1510 (1993). 275 Joint Resolution , 30 Stat. 750 (1898). 2015 Inafuku 59

“special laws for [the] management and disposition” of ceded lands 276 and established a special trust for the benefit of Hawai ʻi’s inhabitants. 277 In 1959, the Hawai ʻi Admission Act admitted Hawai ʻi as the fiftieth state and continued to recognize the special trust status of Hawai ʻi’s ceded lands.278 Section 5(f) of the Admission Act further defined this special status by commanding the State to hold ceded lands as a public trust for the support of the public schools and other public institutions, for the betterment of the conditions of native Hawaiians, . . . for the development of farm and home ownership on as widespread a basis as possible[,] for the making of public improvements, and for the provision of lands for public use. 279 The federal government transferred almost all of the ceded lands to the State upon statehood, but lands that had been set aside pursuant to executive order remained the property of the United States. 280 Kaho ʻolawe, set aside for military use pursuant to Executive Order No. 10436, 281 was not transferred upon statehood; however, it became part of the public land trust corpus following the State Legislature’s passage of HRS chapter 6K.282 Thus, in 1993, the State assumed its fiduciary duties over Kaho ʻolawe. 2. Use of the Public Land Trust Revenues To fulfill its fiduciary duties to Kaho ʻolawe, the State should pursue use of public trust revenues for Kaho ʻolawe’s restoration. Presently, nearly every state agency utilizes this fund to finance activities that fall within the section 5(f) trust purposes. 283 KIRC’s mission satisfies

276 Id. 277 Hawaii-Public Lands., 22 Op. Att’y. Gen. 574 (1899). In 1898, these special laws required revenues from the ceded lands to be used “solely for . . . educational and other public purposes.” Joint Resolution , 30 Stat. 750 (1898). The Organic Act, enacted by Congress in 1900, established the Territory of Hawai ʻi and gave it possession, use, and control, over the ceded lands while continuing to recognize that these lands were part of a special trust. Hawaiian Organic A ct, April 30, 1900, ch. 339, 31 Stat. 141 (1900); see Comment, Hawaii’s Ceded Lands , 3 U. HAW . L. REV . 101, 115-18 (1981) (concluding that the federal government had become in effect the trustee over the ceded lands, holding absolute but naked title for the benefit of the people). 278 Admission Act , Pub. L. No. 86-3, § 5, 73 Stat. 4 (1959). 279 Id. § 5(f). 280 Id. § 5(c). 281 Exec. Order No. 10436, 18 Fed. Reg. 1051 (Feb. 25, 1953).

282 HAW . REV . STAT . § 6K-9 (2009). 283 Telephone Interview with Koa Kaulukukui, Office of Hawaiian Affairs (Mar. 27, 2014). 60 Asian-Pacific Law & Policy Journal Vol. 16:2 more than one of these five purposes: it can support the public schools and other public institutions, it will provide lands for public use, and it will benefit Native Hawaiians. One of KIRC’s main goals is “to develop and implement a measurable education and communication program to deepen understanding for the children and people of Hawai ʻi and the world of the natural, cultural, historical and spiritual significance of Kaho ʻolawe.”284 KIRC could strengthen its nexus with the public education trust purpose by connecting this goal with public schools or public institutions. The island offers unique educational opportunities that allow students to immerse themselves in various fields of study. 285 Students enter a “living museum [or] huge classroom,” where they are exposed to “exhibits” scattered around archaeological sites.286 Intersecting education and wonder, “a piece of stone used to make an adze, an ʻopihi shell from someone’s meal” and native plants struggling to find root in the red hardpan can serve to illustrate topics in archaeology, anthropology, biology, conservation, and cultural practice. 287 Secondly, KIRC’s mission to remove ordnances, restore the “natural resources of the Reserve,” and establish an “environmentally sustainable infrastructure,” all work to transform currently inaccessible public land into land safe for public access and use. 288 Finally, KIRC’s use of public land trust revenues would benefit Native Hawaiians. KIRC envisions Kaho ʻolawe as a vessel to spread “the Native Hawaiian lifestyle . . . throughout the islands.”289 KIRC “embrace[s] and honor[s] Kaho ʻolawe’s significant role in perpetuating Hawaiian culture” and seeks to incorporate its values, practices and protocols” in its actions. 290 Moreover, the State holds the island for the future Native Hawaiian governing entity. 291 Self-government is one of the premier avenues sought to better the conditions of Native Hawaiians. Thus, restoration of land reserved for that purpose falls directly under section 5(f) trust purposes.

284 2009-2013 STRATEGIC Plan , supra note 191, at 4-5 (emphasis added).

285 Lee Cataluna, Kaho ʻolawe Showing Signs of Healing , HONOLULU ADVERTISER , Nov. 11, 2003, available at http://the.honoluluadvertiser.com/article/2003/Nov/11/ln/ln05alee.html. 286 Id. 287 Id.

288 2009-2013 STRATEGIC Plan , supra note 191, at 4. 289 Id. at 1. 290 Id.

291 HAW . REV . STAT . § 6K-9 (2009). 2015 Inafuku 61

Relying on the provision for the betterment of Native Hawaiians in section 5(f) may not be the best strategy, however, because the State Legislature passed legislation stating that “a pro rata portion of all the funds derived from the public land trust . . . shall be held and used solely as a public trust for the betterment of conditions of native Hawaiians” under OHA. 292 The State Legislature defined the revenue due to OHA as “[t]wenty percent of all funds derived from the public land trust,” presumably apportioning a percentage of the revenues to match its standing as one of five trust purposes. 293 Because revenues intended to benefit Native Hawaiians are administered through OHA, KIRC’s reliance on this trust purpose may require petitioning OHA for funds, a process that would essentially transfer the State’s fiduciary duties and place them squarely on Native Hawaiians. OHA’s unique position also demonstrates that public land trust revenues are very difficult to access and that a push to reallocate trust revenues amongst state agencies will likely be met with great resistance. Created during Hawai ʻi’s 1978 Constitutional Convention, OHA is statutorily entitled to twenty percent of the public land trust revenues but has yet to receive a true accounting of that amount. 294 After decades of litigation to receive the appropriate pro rata share, OHA receives only a settlement-decided sum of $15.1 million per year, 295 merely ten percent of the estimated $150 million in annual public land trust revenues. 296 The legal issues plaguing OHA’s ability to get its statutory amount stem from an astounding factual deficiency: “THERE HAS NEVER BEEN AN ACCURATE INVENTORY OF THE CEDED LANDS” that make up the public land trust. 297 The Tax Map Key system that identifies parcels of property does not differentiate between ceded and non-ceded land, making identification of revenues more complicated. 298 Additionally, state agencies are responsible for self-reporting their public land trust revenues, but there is no effective enforcement of this responsibility and many fail to report anything at all. 299 Each agency is

292 HAW . REV . STAT . § 10-3(1) (2009).

293 See HAW . REV . STAT . § 10-13.5 (2009). 294 Dante Carpenter, Ceded Lands Inventory Should Be OHA’s Top Fiscal Priority , KA WAI OLA , Dec. 2006 (emphasis in original). 295 Act of June 7, 2006, No. 178, Haw. Sess. Laws 702. 296 Telephone Interview with Koalani Laura Kaulukukui, Office of Hawaiian Affairs (Mar. 27, 2014) (explaining the progress of her project to inventory the ceded lands and the revenues from each state agency). 297 Carpenter, supra note 299. 298 Id. 299 Telephone Interview with Koalani Laura Kaulukukui, Office of Hawaiian Affairs (Mar. 27, 2014). 62 Asian-Pacific Law & Policy Journal Vol. 16:2 supposed to report all receipts for revenues associated with public trust land to DLNR. 300 DLNR then compiles the information and gives it to the Hawai ʻi State Legislature, who then gives twenty percent of the amount to OHA. 301 Of the nineteen state agencies that have jurisdiction over public trust land, only ten to twelve agencies report something annually. 302 While encouragement from OHA has resulted in increased agency participation, the reports remain incomplete or faulty. 303 OHA is currently working on compiling new data on ceded land inventory, so that it can more effectively enforce agency reporting and get a better idea of what a twenty percent pro rata share should be. 304 Until a proper inventory is completed, KIRC will face two major roadblocks in attaining public land trust revenues: opposition from agencies currently receiving those revenues and confusion regarding how much money is available. Regardless of the roadblocks, the State should pursue this option as one of the largest state funds available to fulfill its fiduciary duties through KIRC. D. The State Should Pursue Additional Funding from the Federal Government Yet another way the State could fulfill its fiduciary duty to care for Kaho ʻolawe is by pursuing additional funds from the federal government either through litigation or through a simple petition to Congress. Both options remain legally viable making continued inaction a breach of its fiduciary duties. The purpose of this section is to highlight the viability of additional funding from the federal government as an option to appropriate sufficient funds and fulfill the State’s fiduciary duties. 305 It does not focus on the specific process that such a suit or petition might go through to overcome procedural and political hurdles, but seeks only to highlight the bases for both options and their general pros and cons. Those involved in negotiations between the State and Navy in the early 1990s expected that the initial federal appropriation may not be enough. 306 Thus, the idea that

300 Id. 301 Id. 302 Id. 303 Id. 304 Id. 305 The State should, at a minimum, perform appropriate legal research to further explore this option. 306 Interview with Davianna P ōmaika ʻi McGregor, Professor at the University of Hawai ʻi at M ānoa, Co-Coordinator of Huaka ʻi (Access) for the Protect Kaho ʻolawe ʻOhana, and Secretary-Treasurer for the Kohe Malamalama O Kanaloa Protect Kaho ʻolawe Fund, in Mānoa, Haw. (Apr. 25, 2014). 2015 Inafuku 63 the federal government would provide additional funds for Kaho ʻolawe’s restoration, and specifically for ordnance cleanup, is not novel. 1. Bring Suit Against the Federal Government There are several legal claims available to the State against the federal government: (1) a suit against the Navy for its failure to meet the narrow terms of the MOU between the Navy and the State; (2) a suit against the federal government to enforce the restoration standards of Executive Order 10436 and Title X of the FY1994 DOD Appropriations Act (Title X); and (3) a sui t against Parsons-UXB, the Navy’s subcontractor. i. On the Memorandum of Understanding. In the MOU, the Navy agreed to “provide for the removal or clearance of all unexploded ordnance from the surface of the island in accordance with [] Tier One standards[s]” and to similarly clean twenty-five percent of the island “to the Tier Two standard.”307 The Tier One standard refers to clearance of the surface of the island and Tier Two refers to restoration “which allows the reasonably safe use of the site or area for . . . human habitation,”308 which typically requires clearance to a depth of four feet. 309 The Navy agreed to “satisfactorily implement” this agreement, which was defined in the MOU as implementation according to those tiered standards. 310 At the conclusion of its ten-year restoration, however, the U.S. Navy transferred access to the State after completing only seventy-five percent of the Tier One restoration and only nine percent of the Tier Two restoration. 311 The Navy’s failure to fulfill the terms of the MOU represents one of the State’s bases for a suit against the federal government. While MOUs are not always enforceable against the parties involved, this MOU is “judicially enforceable by both the Navy and the State in the Federal courts.”312 The MOU, however, limits this private right of action only to the “Navy and the State or any successor or assign,” and does not allow citizens or entities a cause of action. 313

307 MOU Between the Navy and the State , supra note 11, art. VI(A) & (B) (emphasis added). The MOU requires twenty-five percent of the island to be cleaned to the Tier Two standard. Additionally, KIRC was allowed to identify an additional five percent to be cleared to the Tier Two standard. Id. art. VI(A)(1). Combined, the Navy committed to clear thirty percent of the island to the Tier Two standard. 308 Id. art. VI(C)(1) & (2).

309 PARSONS -UXB JOINT VENTURE , supra note 65, at 93. 310 MOU Between the Navy and the State , supra note 11, art. VI(M).

311 See PARSONS -UXB JOINT VENTURE , supra note 65, at 5 (summarizing ordnance clearance in a table showing the number of acres cleared to each standard). 312 MOU Between the Navy and the State , supra note 11, art. XVII. 313 Id. art. XVI. 64 Asian-Pacific Law & Policy Journal Vol. 16:2

To defend against a suit based on the MOU, the Navy may assert that the MOU is no longer effective because the cleanup, removal, or environmental restoration activities were completed in 2004, marking the end of the MOU’s enforceability.314 In accordance with the MOU, the Navy provided “certification to the State that the ordnance clearance or removal or environmental restoration performed pursuant to this MOU and Title X ha[d] been completed with respect to each particular area or site.”315 The State then filed “the certification documents with the State Bureau of Conveyances.”316 The Navy may assert that the State’s filing of these certifications signals its acceptance of the Navy’s cleanup. Then-Attorney General of the State of Hawai ʻi Mark J. Bennett, however, expressly refuted that argument in a memo to the Navy following such certification. 317 He wrote: The State’s act of filing [certification] documents is a requirement under the MOU and should not be interpreted or deemed as an agreement or acceptance as to the Navy’s compliance with its obligations and responsibilities under Title X . . . , the MOU or the Cleanup Plan. Such filing by the State of Hawai ʻi . . . should not be interpreted as a waiver by the State of Hawai ʻi as to the Navy’s obligations or responsibilities to clean up 100% of Kaho ʻolawe Island to the Tier one standard and 25%-30% of the Island to the Tier two standard, nor should it be interpreted as a release of responsibilities or an acquiescence to any standard of cleanup that is less than that stated in the MOU. 318 The language of the MOU, however, poses other difficulties for the State because it specifies that the cleanup will be completed “based upon the State’s planned uses of the island and available specific Congressional appropriations .” 319 This language softens the promised Tier One and Tier Two standards previously described in the MOU by linking their satisfactory implementation with available congressional appropriations. According to Navy spokesperson Lieutenant Commander Jane Campbell,

314 See id. art. XIV(A). 315 Id. art. VI(K). 316 Id. 317 Memorandum from Mark J. Bennett, Att’y Gen., State of Hawai ʻi to Adm. Bernard J. McCullough, III, Commander, Navy Region Hawaii re: Response to Notice and Certification of Lua Makika Parcel (Mar. 24, 2004). 318 Id. 319 MOU Between the Navy and the State , supra note 11 , art. VI(K); FY 1994 Dep’t of Defense Appropriations Act, Pub. L. No. 103-139, § 10003 (emphasis added). 2015 Inafuku 65 the MOU merely established “goals.” 320 She shared that a variety of factors, including the fact that the island is “not a benign environment” and is composed of hilly terrain with high iron content affected the Navy’s ability to achieve those goals and clear ordnance.321 Yet, even the Navy was not entirely satisfied with its work after ten years. Rear Admiral Barry McCullough, Commander of Navy Region Hawai ʻi admitted that while he thought “given the time and available money,” the Navy “had achieved its goal of making the island safe for meaningful use,” he could “understand why the people of Hawai ʻi would think [the Navy] was abandoning them” when “only [seventy] percent of the former bombing range [is] cleared of unexploded ordnance.”322 Still, the Navy will argue that it fulfilled the terms of the MOU to the extent possible given time and available Congressional appropriations. The suit may then require an in-depth look at the Navy’s expenditures during its ten-year cleanup to determine whether the standards of the MOU were, in fact, “satisfactorily implemented,” as defined in the MOU. 323 For example, the fact that Navy subcontractor Parsons-UXB Joint Venture spent $80 million of the $400 million appropriation on helicopter transportation across the six-mile channel from Maui to Kaho ʻolawe may be important in determining whether the cleanup was complete and reasonable based upon available Congressional funds. 324 ii. On Executive Order 10436 and Title X. While the MOU standards are specific and narrowly tailored to ordnance removal, Executive Order 10436 and Title X provided broader standards to measure completed restoration. President Eisenhower’s Executive Order 10436 states that “[w]hen there is no longer a need for the use of [Kaho ʻolawe], or any portion thereof, for naval purposes of the United States, the Department of the Navy . . . shall, upon seasonable request of the Territory, render such area, or such portion thereof, reasonably safe for human habitation, without cost to the Territory .” 325 Title X additional support for the heightened standard of restoration required:

320 Kubota, supra note 227. 321 Id.

322 Timothy Hurley, Navy Says Kaho ʻolawe Work Fulfilled , HONOLULU ADVERTISER , Nov. 7, 2003, available at http://the.honoluluadvertiser.com/article/2003/Nov/07/ln/ln18a.html. 323 MOU Between the Navy and the State , supra note 11, art. VI(M). 324 See Hofschneider, supra note 228. 325 18 Fed. Reg. 1051 (Feb. 25, 1953) (emphasis added). 66 Asian-Pacific Law & Policy Journal Vol. 16:2

It is also in the national interest and an obligation undertaken by Congress . . . to recognize the cultural and humanitarian value of assuring meaningful safe use of [Kaho ʻolawe] for appropriate cultural, historical, archaeological and educational purposes . . . and to provide for the clearance or removal of unexploded ordnance and for the environmental restoration of [Kaho ʻolawe] for such purposes. 326 Both Executive Order 10436 and Title X provide additional standards of restoration that the Navy has failed to meet. Following the Navy’s cleanup, only nine percent of the island was accessible to the public without the need of an explosive ordnance disposal escort. 327 Even within that nine percent of land, the area cannot be reasonably safe for human habitation when safety concerns limit activity to the first twelve inches of soil. 328 Such safety restrictions place prohibitive limitations on construction, agriculture, and human habitation. iii. The Subcontractor: Parsons-UXB Joint Venture. The State may also seek to investigate the Navy’s subcontractor, Parsons-UXB Joint Venture (“Parsons-UXB”) to determine whether it appropriately managed the congressional funds it received. Parsons-UXB received money from Title X’s $400 million appropriation, which was placed into the federal Kaho ʻolawe Island Conveyance, Remediation, and Environmental Restoration Trust Fund—the $44 million given to the State was transferred from that fund into the State’s KRTF. 329 If Parsons-UXB mismanaged or wasted funds, it may have breached fiduciary duties under federal trust law. The State could seek recovery either from Parsons-UXB directly or through the federal government by impleader. Again, the particulars of each option require further investigation and legal research, but the State has a fiduciary duty to perform this type of investigation. Their inaction is a breach of its fiduciary duties, especially when the State contributes no financial support for KIRC. In 2013, several Hawai ʻi state senators called for the State to “sue the U.S. Navy for roughly $100 million” because of its incomplete cleanup. 330 The State Attorney General’s Office commented that it had previously determined, in 2004, that the State did indeed have a basis for a lawsuit, but then-Governor Linda Lingle had chosen not to pursue it at that

326 FY 1994 Dep’t of Defense Appropriations Act, Pub. L. No. 103-139, § 10001(a) (emphasis added).

327 PARSONS -UXB JOINT VENTURE , supra note 65, at 8. 328 Id. 329 FY 1994 Dep’t of Defense Appropriations Act, Pub. L. No. 103-139, § 10003. 330 Cocke, supra note 12. 2015 Inafuku 67 time. 331 Because a suit against the federal government would likely be based on the MOU, Hawai ʻi’s Governor must ultimately decide whether to move forward with a lawsuit. 332 But the attorney general’s opinion and the Governor’s decision both further accentuate the State’s inaction. If a good legal basis exists for a suit against the Navy, then the State’s failure to follow through on it while the KRTF diminishes is a breach of its duty to act as a reasonably prudent person to make its trust property productive. 2. By Petitioning Congress for Additional Funds Concurrently, the State should also be petitioning Congress for additional federal funds to clear ordnance from Kaho ʻolawe. Both the Navy and the State recognized that “nothing in the MOU prevents the State from exercising its right to petition Congress for additional funds for further ordnance clearance, removal, or environmental restoration on the island of Kaho ʻolawe or in its surrounding waters.”333 Similarly, Title X states that additional funds “may be provided to the State of Hawai ʻi upon the submission of an acceptable plan . . . demonstrating, to the satisfaction of the Secretary [of the Navy], that such funds are necessary to the proper fulfillment of such elements and the purposes of this Act.”334 While the Secretary has sole discretion to award such additional funds, “the award of such funds shall not be unreasonably withheld.”335 Additionally, at the time of the MOU, both parties understood that additional federal funding would likely be available because of Hawai ʻi’s political positioning in Congress. 336 Both of Hawai ʻi’s Senators, Senator Daniel Inouye and Senator Daniel Akaka, supported further federal funding, and given Senator Inouye’s position as Chairman of the U.S. Senate Committee on Appropriations, the prospect of additional funds were promising.337 Even comments from the Navy made additional federal funds seem forthcoming. In 2003, Assistant Secretary of the Navy, Hansford T. Johnson indicated, “the Navy would continue to pay for cleanup of ordnance even after the trust fund runs out.”338 Rear Admiral

331 Id. 332 Id. 333 MOU Between the Navy and the State , supra note 11, art. VI(O). 334 FY 1994 Dep’t of Defense Appropriations Act, Pub. L. No. 103-139, § 10003(h). 335 Id . 336 Interview with Davianna P ōmaika ʻi McGregor, Professor at the University of Hawai ʻi at M ānoa, Co-Coordinator of Huaka ʻi (Access) for the Protect Kaho ʻolawe ʻOhana, and Secretary-Treasurer for the Kohe Malamalama O Kanaloa Protect Kaho ʻolawe Fund, in Mānoa, Haw. (Apr. 25, 2014). 337 Id.

338 Vicki Viotti, Rites Mark Kaho ʻolawe Transfer , HONOLULU ADVERTISER , 68 Asian-Pacific Law & Policy Journal Vol. 16:2

McCullough added that more cleanup “money could become available someday . . . . The [MOU] allows for the State to petition the Department of Defense for more money, and the island will soon be eligible as a candidate for money from the department’s environmental restoration program, which distributes millions of dollars each year.”339 The State has the legal authority to ask for additional funds and persuasive arguments for why those funds are needed to finish the Navy’s incomplete restoration. Hawai ʻi’s current congressional delegation must continue the work of Senator Inouye and Senator Akaka and fight for Kaho ʻolawe’s restoration. V. CONCLUSION Standing on the hardpan at Kanapou and squinting to keep the flying dust out of their eyes, volunteers wrap up another long day of work with KIRC, their sweat quickly drying from the constant beating breeze from Haleakal ā. Hands calloused, muscles aching, the volunteers have given all of themselves to help Kaho ʻolawe, but the mood remains somber. Dirt flies across the plain, over the sea cliff, and into the ocean, and they remember that Kaho ʻolawe will again lose two million tons of soil in the next year. Now their physical aches and pains fade to make room for the growing discomfort in their na ʻau (mind, heart). 340 Yes, bombing the ʻā ina hurt, but not because it was a bomb or because it was from the Navy. Destruction of the ʻā ina is the exact antithesis of the Hawaiian people, whether bombs, natural erosion, or State inaction causes it. Anything that desecrates the ʻā ina is a direct affront to the entire culture of Hawai ʻi and its people. Given the historical and cultural importance of Kaho ʻolawe and its role in the future Native Hawaiian governing entity, the State should actively pursue all the options available to provide KIRC with the necessary resources to restore Kaho ʻolawe. General appropriations or conveyance tax revenue can provide for KIRC’s administrative and operational needs, public land trust revenue can fund restoration projects and erosion control, and additional federal funds can complete the ordnance cleanup necessary to make the island safe and accessible. Ultimately, with the KRTF set to run out by 2016, action is needed now. Progress on any one of these options would be a marked improvement on the State’s inattention to its trust responsibilities. The general public and Native Hawaiians have entrusted the State with moral responsibilities of the highest degree, and the State’s inaction is an

Nov. 13, 2003, available at http://the.honoluluadvertiser.com/article/2003/Nov/13/ln/ln08a.html. 339 Hurley, supra note 322.

340 PUKUI & ELBERT , supra note 33, at 257. 2015 Inafuku 69 unacceptable response to that kuleana (privilege and responsibility). 341 After enduring so much in order to end military bombings and secure title to Kaho ʻolawe, the people of Hawai ʻi need the State to fulfill its fiduciary duties and help them bring life back to the island.

341 PUKUI & ELBERT , supra note 33, at 179.