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E Kkulu Ke Ea:1 Hawaii's Duty to Fund Kahoolawe's Restoration Following the Navy's Incomplete Cleanup

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E Kkulu Ke Ea:1 Hawaii's Duty to Fund Kahoolawe's Restoration Following the Navy's Incomplete Cleanup 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
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