Ching v. Case

449 P.3d 1146, 145 Haw. 148

• Court: Hawaii Supreme Court
• Decided: August 23, 2019
• Docket: SCAP-18-0000432
• Status: Published

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 23-AUG-2019 09:05 AM

IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o---

CLARENCE CHING and MARY MAXINE KAHAULELIO, Plaintiffs-Appellees,

vs.

SUZANNE CASE, in her official capacity as Chairperson of the Board of Land and Natural Resources and State Historic Preservation Officer, BOARD OF LAND AND NATURAL RESOURCES, and DEPARTMENT OF LAND AND NATURAL RESOURCES, Defendants-Appellants.

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-XX-XXXXXXX; CIV. NO. 14-1-1085-04)

AUGUST 23, 2019

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J. I. INTRODUCTION

Under the Hawai‘i Constitution, all public natural

resources are held in trust by the State for the common benefit

of Hawai‘i’s people and the generations to come. Additionally, ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

the constitution specifies that the public lands ceded to the

United States following the overthrow of the Hawaiian Monarchy

and returned to Hawai‘i upon its admission to the Union hold a

special status under our law. These lands are held by the State

in trust for the benefit of Native Hawaiians and the general

public. Accordingly, our constitution places upon the State

duties with respect to these trusts much like those of a common

law trustee, including an obligation to protect and preserve the

resources however they are utilized.

Several parcels of ceded land on the island of Hawai‘i

that are indisputably held in public trust by the State have

been leased to the federal government of the United States of

America for military training purposes, subject to a number of

lease conditions designed to protect the land from long-term

damage or contamination. This case concerns the degree to which

the State must monitor the leased trust land and the United

States’ compliance with the lease terms to ensure the trust

property is ultimately safeguarded for the benefit of Hawai‘i’s

people.

We hold that an essential component of the State’s

duty to protect and preserve trust land is an obligation to

reasonably monitor a third party’s use of the property, and that

this duty exists independent of whether the third party has in

fact violated the terms of any agreement governing its use of 2 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

the land. To hold otherwise would permit the State to ignore

the risk of impending damage to the land, leaving trust

beneficiaries powerless to prevent irreparable harm before it

occurs. We therefore affirm the trial court’s determination

that the State breached its constitutional trust duties by

failing to reasonably monitor or inspect the trust land at

issue.

II. BACKGROUND

A. Lease No. S-3849

On August 17, 1964, the State of Hawaii Department of

Land and Natural Resources (DLNR) entered into a written

agreement to lease three tracts of ceded land situated at Kaohe,

Hāmākua and Puuanahulu, North Kona, Hawaii to the United States

for military purposes.1 The 22,900 acre tract of land, which is

contained within the Pōhakuloa Training Area (PTA),2 was leased

to the United States for a term of sixty-five years, to expire 1 Hawaii’s ceded lands are lands which were classified as government or crown lands prior to the overthrow of the Hawaiian monarchy in 1893. Upon annexation in 1898, the Republic of Hawaii ceded these lands to the United States. In 1959, when Hawaii was admitted into the Union, the ceded lands were transferred to the newly created state, subject to the trust provisions set forth in § 5(f) of the Admission Act.

Pele Def. Fund v. Paty, 73 Haw. 578, 585, 837 P.2d 1247, 1254 (1992). 2 The PTA as a whole is approximately 134,000 acres and includes land ceded to the United States military by Presidential and Governor’s Executive Orders, land purchased by the United States in fee simple from a private owner, and land that is leased from the State.

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on August 16, 2029. In exchange, the United States paid the

DLNR one dollar.

The lease gives the United States the right to “have

unrestricted control and use of the demised premises.” The

lease also establishes several duties that the United States is

obligated to fulfill during the course of the lease. Most

notably for purposes of this appeal, Paragraph 9 of the lease

requires that the United States “make every reasonable effort to

. . . remove and deactivate all live or blank ammunition upon

completion of a training exercise or prior to entry by the []

public, whichever is sooner.”3 In Paragraph 14 of the lease, the

United States agrees to “take reasonable action during its use

of the premises herein demised to prevent unnecessary damage to

or destruction of vegetation, wildlife and forest cover,

geological features and related natural resources” and to “avoid

pollution or contamination of all ground and surface waters and

remove or bury all trash, garbage and other waste materials

3 Paragraph 9 of the lease states the following:

In recognition of public use of the demised premises, the Government shall make every reasonable effort to stockpile supplies and equipment in an orderly fashion and away from established road and trails and to remove or deactivate all live or blank ammunition upon completion of a training exercise or prior to entry by the said public, whichever is sooner.

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resulting from [the United States’] use of the said premises.”4

And, in Paragraph 29 of the lease, the United States agrees

that, if required by the State upon the surrender of the

property at the termination of the lease, it will “remove

weapons and shells used in connection with its training

activities to the extent that a technical and economic

capability exists and provided that expenditures for removal of

shells will not exceed the fair market value of the land.”5

4 Paragraph 14 provides the following:

In recognition of the limited amount of land available for public use, of the importance of forest reserves and watersheds in Hawaii, and of the necessity for preventing or controlling erosion, the Government hereby agrees that, commensurate with training activities, it will take reasonable action during its use of the premises herein demised to prevent unnecessary damage to or destruction of vegetation, wildlife and forest cover, geological features and related natural resources and improvements constructed by the Lessor, help preserve the natural beauty of the premises, avoid pollution or contamination of all ground and surface waters and remove or bury all trash, garbage and other waste materials resulting from Government use of the said premises. 5 Paragraph 29 provides the following:

The Government shall surrender possession of the premises upon the expiration or sooner termination of this lease and, if required by the Lessor, shall within sixty (60) days thereafter, or within such additional time as may be mutually agreed upon, remove its signs and other structures; provided that in lieu of removal of structures the Government abandon them in place. The Government shall also remove weapons and shells used in connection with its training activities to the extent that a technical and economic capability exists and provided that expenditures for removal of shells will not exceed the fair market value of the land.

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The lease also places a number of corresponding rights

and duties on the DLNR. The most relevant to the present case

is established in Paragraph 18, in which the DLNR agrees to

“take reasonable action during the use of the said premises by

the general public, to remove or bury trash, garbage and other

waste materials resulting from use of the said premises by the

general public.”6 In Paragraph 19, the lease also grants the

DLNR the “right to enter upon the demised premises at all

reasonable times to conduct any operations that will not unduly

interfere with activities of the [United States] under the terms

of the lease,” subject to “obtaining advance clearance” from the

United States.7

Additionally, the lease provides in Paragraph 30 that

any dispute over a question of fact regarding the lease must be 6 Paragraph 18 provides the following:

The Lessor hereby agrees that, commensurate with the public use of the premises herein demised, it will take reasonable action during the use of said premises by the general public, to remove or bury trash, garbage and other waste materials resulting from use of the said premises by the general public. 7 Paragraph 19 provides the following:

Subject to obtaining advance clearance from the plans and training office of the Government’s controlling agency, or any other designated Government agency, officials and employees of the Lessor shall have the right to enter upon the demised premises at all reasonable times to conduct any operations that will not unduly interfere with activities of the Government under the terms of this lease; provided however, that such advance clearance shall not be unreasonably held.

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

with a right of appeal to the Secretary of the Army.8 Paragraph

30 further provides that the decision of the Secretary or a duly

authorized representative “shall be final and conclusive unless

determined by a court of competent jurisdiction to have been

fraudulent, or capricious, or arbitrary, or so grossly erroneous

as necessarily to imply bad faith, or not supported by

substantial evidence.” The paragraph clarifies that questions

8 Paragraph 30 provides the following:

(a) That, except as otherwise provided in this lease, any dispute concerning a question of fact arising under this lease which is not disposed of by agreement shall be decided by the Division Engineer, U.S. Army Engineer Division, Pacific Ocean, Honolulu, Hawaii, hereinafter referred to as said officer, who shall within a reasonable time reduce his decision and the reasons therefor to writing and mail or otherwise furnish a copy thereof to the Lessor. The decision of the said officer shall be final and conclusive unless, within thirty (30) days from the date of receipt of such copy, the Lessor mails or otherwise furnishes to the said officer a written appeal addressed to the Secretary of the Army. The decision of the Secretary or his duly authorized representative for the determination of such appeals shall be final and conclusive unless determined by a court of competent jurisdiction to have been fraudulent, or capricious, or arbitrary, or so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. In connection with any appeal proceeding under this condition, the Lessor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal.

(b) This Condition does not preclude consideration of law questions in connection with decisions provided for in paragraph (a) above: Provided, that nothing in this Condition shall be construed as making final the decision of any administrative official, representative, or board on a question of law.

(c) That all appeals under this provision shall be processed expeditiously.

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of law may also be considered in connection with a dispute’s

resolution, but the decision of any administrative party on a

question of law shall not be final. It further guarantees the

State’s right to be heard and to offer evidence in support of

the appeal.

B. The Plaintiffs’ Request to Access Government Records

In January 2014, Clarence Ching filed a request with

the Chairperson of the Board of Land and Natural Resources

(BLNR) to access government records. Ching requested the

following government records:

1. Paragraph 9 of State General Lease No. S-3849 (with the U.S. Army relating to Pohakuloa) requires the United States Government to “make every reasonable effort to . . . remove or deactivate all live or blank ammunition upon completion of a training exercise or prior to entry by the said public, whichever is sooner.” Please provide all government records that show (a) the U.S. Government’s compliance or non-compliance with this lease term and (b) the Department of Land and Natural Resources or Board of Land and Natural Resources efforts at ensuring compliance with this term of the 1964 lease. This would include, but [is] not limited to, correspondence, inspection and monitoring reports, and meeting notes.

2. Paragraph 14 of the same lease requires the U.S. Government to “remove or bury all trash, garbage or other waste materials.” Please provide all government records that show (a) the U.S. Government’s compliance or non- compliance with this lease term and (b) the Department of Land and Natural Resources or Board of Land and Natural Resources efforts at ensuring compliance with this term of the 1964 lease. This would include, but [is] not limited to, correspondence, inspection and monitoring reports, and meeting notes.

The DLNR responded that the request would be granted in its

entirety. The response stated that the DLNR was providing its

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entire file on the lease (the lease file), which, based on its

review, contained no records responsive to Ching’s request.

C. The Circuit Court Action

1. Complaint

Three months later, Ching and Mary Maxine Kahaulelio

(collectively, “the Plaintiffs”) filed a complaint in the

Circuit Court of the First Circuit (circuit court) against the

BLNR, DLNR, and William J. Aila, Jr., in his official capacity

as Chairperson of the BLNR and State Historic Preservation

Officer (collectively, “the State”).9 In their complaint, the

Plaintiffs alleged that the State, as trustee of the state’s

ceded lands, breached its trust duty “to protect and maintain

the[] public trust lands” in the PTA. The complaint specified

that it was not alleging that the United States had violated the

terms of its lease, but rather that the State has reason to

believe that the lease terms may have been violated and has a

trust duty to investigate and take all necessary steps to ensure

compliance with the terms of the lease.

According to the complaint, Ching is a descendant of

the aboriginal people of Hawaii and engages in native Hawaiian

9 Under Hawaii Rules of Appellate Procedure Rule 43(c), a public officer named in a case is automatically substituted by his or her successor when the holder of the office ceases to hold office on appeal. Accordingly, Suzanne Case has been substituted for William J. Aila, Jr., whom she succeeded as Chairperson.

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cultural practices, which includes walking in the footsteps of

his ancestors on hiking trails located within the PTA. He also

participates in other “traditional and customary services”

within the PTA, the complaint explained. Kahaulelio is also a

descendant of the aboriginal people of Hawaii, the complaint

stated. She is at least 50% native Hawaiian and a beneficiary

of the Hawaiian Home Lands Trust, the complaint continued, as

well as a Hawaiian Home Lands lessee. The complaint further

stated that both Ching and Kahaulelio are beneficiaries of the

ceded trust lands.

Citing a March 2013 letter by a DLNR staff member, the

complaint alleged that the State was aware of the possibility

that the land leased to the United States was littered with

unexploded ordnance (UXO) and “munitions and explosives of

concern.”10 The Plaintiffs asserted that the State did not know

whether the United States had complied with the lease because

they had taken “no concrete steps to investigate, monitor or

ensure compliance” with the lease. Because the State was

obligated to protect, care for, and maintain trust property by

investigating the United States’ compliance with the lease and

10 The Plaintiffs’ First Amended Complaint added four paragraphs citing a state-run website and several federal cases that allegedly demonstrated that the State was aware that the United States’ military had failed to clean up ordnance on other land leased to the United States.

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failed to do so, the Plaintiffs contended that the State “failed

to fulfill [its] trust duties with respect to the ceded land

leased” to the United States.

The Plaintiffs requested a declaration that the State

breached its trust obligations, an order to require the State to

fulfill its trust duties with respect to the leased land, and an

injunction to bar the State from negotiating an extension of the

lease or from entering into a new lease of the PTA until the

State ensures that the terms of the existing lease have been

fulfilled.11

2. Motions for Summary Judgment

a. The Motions

After the State filed its answer, the Plaintiffs filed

a Motion for Summary Judgment. In their motion, the Plaintiffs

asserted that under article XII, section 4 and article XI,

section 1 of the Hawaii Constitution, the State is the trustee

of the public ceded lands trust and of public natural resources,

and it therefore has a trust duty to “monitor, inspect and

investigate to ensure that public trust lands are not being

11 Approximately one month after the Plaintiffs filed their complaint, the State filed a notice of removal from the circuit court to the United States District Court for the District of Hawai‘i. The Plaintiffs subsequently filed a motion to remand the case back to circuit court. The federal district court granted the Plaintiffs’ motion, concluding that “at issue is a purely state-law breach of trust claim raising numerous questions of fact and substantial questions of Hawaii law regarding the State’s obligations as to ceded lands.”

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damaged--particularly if [it] has reason to believe that trust

property is at risk.” Despite the State’s awareness of the

possibility that the terms of the lease may have been violated,

the Plaintiffs argued, the State took no steps to ensure

compliance with the lease terms. Its failure to investigate the

condition of the land, the Plaintiffs contended, fell well below

its standard of care and constituted a breach of its trust

duties. The Plaintiffs concluded that the equitable relief

requested was warranted because they were entitled to prevail on

the merits, there was a grave risk posed to the ceded land, and

the public interest weighed in their favor.

In its Memorandum in Opposition, the State argued that

the Plaintiffs’ Motion for Summary Judgment should be denied

because the Plaintiffs did not allege that any provision of the

lease had been violated, and it asserted that the United States’

obligation to clean the leased property will not arise until

2029. In the absence of an alleged breach, the State maintained

that the Plaintiffs’ claims amounted to “speculation or

predictions about future harm” that did not present an “actual

controversy” suitable for judicial resolution.

The State also contended that the Plaintiffs were

seeking relief that was unavailable under Hawaii Revised

Statutes (HRS) § 632-1 (1993), as the relief requested would not

bring an end to the controversy or resolve the dispute with 12 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

finality.12 The State posited that “even if the injunctive

relief sought by Plaintiffs is ordered by the Court, Plaintiffs

will still dispute the extent of any cleanup efforts by the

United States” because the requested relief would require “the

State to engage in some undefined form of oversight of the

United States military.” Therefore, the State concluded, the

Plaintiffs’ concerns and the underlying controversy did not meet

the statutory requirements for declaratory relief.

Additionally, the State argued that the Plaintiffs

were not entitled to declaratory relief because the declaratory

judgment statute limits declaratory actions to claims for which

no alternative statutory relief is available. Here, the State

concluded, HRS § 673-1 (1993) provides a cause of action for

native Hawaiians’ to bring a claim for breaches of relevant

12 HRS § 632-1 provides the following in relevant part:

Relief by declaratory judgment may be granted in civil cases where an actual controversy exists between contending parties, or where the court is satisfied that antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation, or where in any such case the court is satisfied that a party asserts a legal relation, status, right, or privilege in which the party has a concrete interest and that there is a challenge or denial of the asserted relation, status, right, or privilege by an adversary party who also has or asserts a concrete interest therein, and the court is satisfied also that a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to the proceeding. Where, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed[.]

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constitutional trusts, and the Plaintiffs were thus obligated to

proceed under that statutory framework.13

In reply, the Plaintiffs contended that the State was

incorrect in asserting that the duty of the United States to

clean the property did not arise until the lease expired because

Paragraph 9 of the lease required the United States to clean the

land during the lease--specifically, when it completed a

training exercise. The Plaintiffs also argued that injunctive

relief is appropriate “in a case involving a traditional

equitable claim when a trustee breaches its fiduciary

obligations,” noting that HRS § 632-3 (1993)14 empowers courts to

grant ancillary equitable relief. (Citing Food Pantry, Ltd. v.

Waikiki Bus. Plaza, Inc., 58 Haw. 606, 613-14, 575 P.2d 869,

875-76 (1978); Natatorium Pres. Comm. v. Edelstein, 55 Haw. 55,

13 HRS § 673-1 provides in relevant part as follows:

(a) The State waives its immunity for any breach of trust or fiduciary duty resulting from the acts or omissions of its agents, officers and employees in the management and disposition of trust funds and resources of:

. . . .

(2) The native Hawaiian public trust under article XII, sections 4, 5, and 6 of the Constitution of the State of Hawaii implementing section 5(f) of the Admission Act[.] 14 HRS § 632-3 provides that “[f]urther relief based on a declaratory judgment may be granted whenever necessary or proper, after reasonable notice and hearing, against any adverse party whose rights have been adjudicated by the judgment.”

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515 P.2d 621 (1973); King v. Oahu Ry. & Land Co., 11 Haw. 717,

738 (Haw. Rep. 1899).)

The State filed its own Motion for Summary Judgment

that restated the arguments from the State’s Memorandum in

Opposition to the Plaintiffs’ Motion for Summary Judgment

verbatim.15

b. Supplemental Briefing

After a hearing,16 the Plaintiffs submitted a

Supplemental Memorandum in Support of their Motion for Summary

Judgment, which argued that further discovered evidence

demonstrated that the DLNR had not conducted an inspection of

the PTA since 1984. For example, between 1984 and the start of

the current litigation, there had been no communication between

the State and the United States regarding compliance with the

lease, the Plaintiffs asserted.17 This demonstrated that the

15 At a hearing regarding the motions, the State also argued that it should prevail on the merits because an internal memorandum attached to its Memorandum in Opposition showed that there were internal discussions at the DLNR regarding the monitoring of the United States’ compliance with the lease. This memorandum was sent from the Acting Hawai‘i Branch Manager of the Division of Forestry and Wildlife (DOFAW) to the DLNR regarding DOFAW’s comments on cancellation and issuance of a new lease with the United States for the PTA. One concern noted by DOFAW was that the United States “should sweep the lands . . . for UXO and remove any UXO found at their expense to make the area safe for the public.” 16 The Honorable Gary W.B. Chang presided. 17 On November 14, 2014, approximately one month after the hearing and one week before the Plaintiffs filed their supplemental memorandum, the DLNR sent a letter to a United States Army officer requesting the following:

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State had not made a sufficient effort to protect the trust

land, the Plaintiffs contended.

In the State’s Supplemental Memorandum, it asserted

that several records from the lease file showed that it had

actively engaged in monitoring since the execution of the lease,

including records of one formal inspection of the PTA, maps

indicating locations where UXO may be located, reviews of the

United States’ compliance done in connection with amendments to

the lease, and “informal communications” relating to the lease.

The State also pointed to a written request it had sent to the

United States for a description of its procedures to comply with

the lease provisions at issue. The State asserted that the

United States responded to the letter “with detailed information

about their clean-up and post-training procedures.” Because the

letter demonstrated that the State had undertaken monitoring of

the PTA, it concluded, there was no longer a justiciable

controversy.

(. . . continued)

[A] description of the procedures utilized to comply with the[] provisions of Lease No. S-3849, including detailed information about any action taken by the United States following training exercises to remove or deactivate ordnance, as well as actions taken to remove trash or garbage resulting from Government use of the lease premises.

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In the Plaintiffs’ Reply, they contended that even if

the 1984 inspection was “complete and thorough,” it is not

sufficient to show that the State is currently fulfilling its

trust duties because there was no evidence of an inspection

since 1984. Thus, the State failed to demonstrate that it had

fulfilled its trust duties, the Plaintiffs concluded.

c. Orders Denying Summary Judgment

The circuit court denied the Plaintiffs’ Motion for

Summary Judgment, stating that there were genuine issues of

material fact as to whether the State had discharged its trust

duties. The court also denied the State’s Motion for Summary

Judgment because the court found, inter alia, that there was an

“actual controversy regarding whether or not the State ha[d]

discharged its responsibilities as a trustee of public lands.”

3. Motions to Join the United States as a Party

After its Motion for Summary Judgment was denied, the

State filed a Motion to Add the United States as a Party or, in

the Alternative, for Dismissal in which it argued that under

Hawaii Rules of Civil Procedure (HRCP) Rule 21 (1980), adding

the United States was appropriate because, as the lessee of the

leased land within the PTA, the United States had a legal and

beneficial interest in the subject matter of the Plaintiffs’

complaint. The State also contended that the United States was

a necessary party under HRCP Rule 19(a) (2000) because complete 17 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

relief could not be accorded in its absence. Resolution of the

action would necessarily include an interpretation of the lease

provisions, the State contended, and the United States would not

be able to defend its interests under the lease if it were not

added as a party. And, asserted the State, in the context of

leases, Hawaii courts have held that all parties to a lease are

necessary parties in any equitable action that interprets or

touches upon the lease. (Citing Foster v. Kaneohe Ranch Co., 12

Haw. 363, 365 (Haw. Rep. 1900).)

Finally, the State argued that the United States is an

indispensable party under HRCP Rule 19(b) and therefore the suit

should be dismissed if it cannot be joined.18 Under the first

factor of HRCP Rule 19(b), a judgment rendered in the absence of

the United States would be prejudicial to it because it “would

be forced to accept factual findings that directly bear on

whether the United States has breached the Lease,” the State

asserted. Under the rule’s second factor, a court could not

18 HRCP Rule 19(b) provides that courts should weigh the following factors when determining whether a party is indispensable:

[F]irst, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

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shape the relief to ameliorate the prejudicial effect of the

judgment because “[n]ew or different monitoring” or limitations

on the United States’ current use of the land were fundamental

to the relief sought by the Plaintiffs, the State argued.

Applying the third factor, the State asserted that a judgment

rendered in the absence of the United States would be inadequate

because the United States was ultimately the party that the

Plaintiffs sought to hold responsible for causing the waste of

the trust property. And fourth, the State contended that the

Plaintiffs had an alternate remedy for their breach of trust

claims: an action in federal court that also names the United

States or an action brought in state court pursuant to HRS

§ 673-1.

The Plaintiffs responded that the circuit court should

deny the State’s motion because, contrary to the State’s

argument that the Plaintiffs’ complaint was based on a violation

of the lease, they were asserting “a basic state-law breach of

trust claim.” The United States was not a necessary nor

indispensable party to the case under HRCP Rule 19(a), the

Plaintiffs argued, because any effect on federal interests was

“purely speculative,” and any relief that would require the

State to increase its monitoring would not impinge on the United

States’ rights under the lease because the State already has a

right of entry under the lease. And, even assuming the State

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were to eventually take actions that affect the United States’

interests as a result of a judicial ruling in this case, the

United States was well protected because any dispute between it

and the State would be decided by an agent of the United States

under the lease, the Plaintiffs contended.

Next, the Plaintiffs contended that even if the United

States was a party that should be joined if possible under HRCP

Rule 19(a), it was not an indispensable party under HRCP Rule

19(b). The rule’s first factor weighed against the State, the

Plaintiffs argued, because a “judgment [would] not prejudice the

interests of the U.S. whatsoever” as it would “not [be] bound by

any findings made to a case in which it is not a party.”

Second, the Plaintiffs asserted that the court could fashion its

relief to ensure that the United States does not suffer any

prejudice by, for example, ordering the State to provide a

report to the court thirty days prior to an annual evidentiary

hearing to ensure the State’s compliance with the lease. Third,

the Plaintiffs stated that it would be able to obtain adequate

relief in the absence of the United States. Fourth, the

Plaintiffs asserted that they would be “deprived of their day in

court if th[e] action were dismissed,” which would be

inconsistent with Hawaii Supreme Court decisions holding that

beneficiaries must be able to keep government trustees

accountable. 20 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

The United States then filed a statement of interest

in which it asserted that it “unquestionably has an interest” in

the subject matter of the litigation that was “clearly

sufficient” for joinder, if it were feasible.19 But joinder was

not feasible, it explained, because “such a state action against

the United States is barred by its sovereign immunity” and

neither party had identified a congressional waiver of sovereign

immunity.20 The United States asserted that disposition of the

action in its absence may impair its ability to protect its

interest, making it a necessary party under HRCP Rule 19(a).21

19 Prior to this filing, the court denied without prejudice the State’s Motion to Add the United States as a Party, or in the Alternative, for Dismissal “because of the possibility that the United States will make a determination that it has a sufficient interest to appear in this case.” After the United States filed its Statement of Interest, the State filed a Motion to Dismiss for Failure to Join an Indispensable Party, or in the Alternative, for Summary Judgment in which it made substantially similar arguments to those made in its first motion as to why the United States was a necessary and indispensable party under HRCP Rule 19. The latter motion also argued that the action was nonjusticiable because, inter alia, it presented a political question falling within the discretion of the executive branch and the court could not resolve an “actual controversy” due to the vagueness of the requested relief. For the sake of clarity, this opinion addresses the two motions together with respect to the necessity and indispensability of the United States as a party. 20 The United States noted that filing a statement of interest neither constitutes a formal intervention nor makes the United States a party to the proceedings and thus does not amount to a waiver of sovereign immunity. (Citing M.R. v. Dreyfus, 697 F.3d 706, 735 (9th Cir. 2012).) 21 The United States used the PTA, it stated, for “combined live- fire and maneuver training,” which “is critical because military operations require significant coordination.” Additionally, the United States explained that the PTA cannot operate as an effective training area without the land leased from the State, because, for safety purposes, the artillery firing ranges contained within the PTA must be situated so that the artillery lands in areas in which soldiers and the general public do not travel. The leased land provides such safety, the United States noted. The leased land was also

(continued . . .) 21 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

The United States contended that the court could not assess the

Plaintiffs’ breach of trust claim without “directly or

indirectly interpreting the lease and determining factual issues

regarding whether the United States has complied with the

lease.” The Plaintiffs were therefore improperly asking a state

court to interpret the United States’ obligations under the

lease, the United States argued.

The United States also maintained that when a non-

party cannot be joined due to sovereign immunity, the first

factor--the “extent a judgment rendered in the [party’s] absence

might be prejudicial to the [party] or those already parties”--

takes primary importance and “should weigh heavily in the Rule

19(b) analysis.” The Plaintiffs’ relief would cause “serious

harm” to it, the United States contended, for several reasons.

An injunction barring the State from renegotiating the lease

would seriously harm the United States because the PTA “is

essential for readiness of all the forces” in the Pacific region

and there is no other location in the Pacific at which the

crucial to the United States training operations, it explained, because the land contains (1) a “Battle Area Complex,” which “allows soldiers to train and test their ability to detect, identify, engage and defeat stationary and moving targets in both open and urban terrain environments,” (2) a “Modular Military Operations in Urban Terrain,” which “is designed to look like villages/towns and contains different types of buildings to practice military operations,” and (3) the Cooper Airstrip, which “is used to practice launches and recovery of Shadow Unmanned Aircraft.”

22 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

training done at the PTA could be accomplished, the United

States asserted. Additionally, if the court instead ordered the

State to conduct inspections of the leased land, such

inspections could burden the United States, it contended,

because it could disrupt critical training and raise safety

issues.

As to the second factor in the HRCP Rule 19(b)

analysis, the extent that prejudice can be avoided through the

shaping of relief, the United States contended that the

Plaintiffs’ proffered shaping of relief would put the extension

of the lease in doubt or disrupt the military’s training.22 And

as to the fourth factor in the HRCP Rule 19(b) analysis, the

adequacy of available remedies should the suit be dismissed, the

United States argued that “[c]ourts have recognized . . . that

the lack of an alternative forum does not automatically prevent

dismissal of a suit where the inability results from the non-

party’s sovereign immunity.”23

22 As stated, the Plaintiffs asserted that injunctive relief regarding the lease could be shaped by “enjoin[ing] the defendants from executing an agreement extending the lease or entering into a new lease until the defendants ensure that the terms of the existing lease have been fulfilled.” They also contended that the court could shape relief in regards to monitoring by ordering that “the defendants provide a report to [the circuit] court thirty days prior to annual evidentiary hearings on defendants’ efforts to ensure compliance with the lease.” 23 The United States did not address the third factor of HRCP Rule 19(b), the adequacy of a judgment rendered in the party’s absence.

23 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

The United States further stated that, in the event

the case were permitted to go forward and “relief were entered

that impacted the interests of the United States,” the United

States “would at that time consider what action to take,

including whether to file a motion to intervene as a party for

the purpose of removing the case to United States District Court

pursuant to 28 U.S.C. § 1442(a).”

The court denied the State’s motion without prejudice,

determining that “things may unfold as a matter of proof during

the trial that may implicate some of the arguments being

raised.” Based on the pre-trial record, “the Court believe[d]

it would be improvident to dismiss any of the claims.”

4. Trial

A bench trial commenced, during which the Plaintiffs

presented a series of witnesses who testified regarding the

DLNR’s management of the leased PTA lands.

The Plaintiffs first called Kevin Moore, the DLNR’s

custodian of records who responded to the request for government

records that Ching filed before the start of litigation. Moore

testified that although DLNR’s normal practice is to attempt to

inspect leased lands at least once every two years, the leased

PTA land is more difficult to inspect and therefore inspections

are conducted less frequently. Moore stated that the DLNR’s

lease file contained records of only three inspections of the

24 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

leased PTA land: one from 1984 that indicated the inspection

lasted “no more than one day,” which Moore acknowledged was not

enough time for an inspector to inspect the 22,900-acre property

on foot;24 one from 1994 that was not signed and did not have

anything written in the spaces denoted for the condition of the

land or the findings of the inspection; and one from December

2014 that indicated that the premises were in unsatisfactory

condition but did not contain any determination as to whether

the United States was in compliance with the lease. Moore also

testified that a 2013 memorandum circulated within the DLNR

suggested the leased PTA land should be swept for UXO to be

removed at the United States’ expense, but DLNR did not ask the

United States Army (Army) to clean up any ammunition as a result

of the memorandum.

Moore related that the State had coordinated with the

federal government and its various agencies to undertake a

number of projects concerning the condition of the leased PTA

land. Archeological surveys were done in 2001 as part of a

Natural Resource Management Plan created by the United States,

for instance, and a Programmatic Agreement between state and

federal agencies permitted “cultural monitors” to be involved

24 Moore stated that it would be difficult for an inspector to inspect the leased land in a motor vehicle due to the rugged terrain.

25 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

with inspections. According to Moore, these plans and programs

ultimately demonstrated that the Army was the agency primarily

responsible for environmental cleanup of the PTA leased land,

but they also established that the Hawaii Department of Health

shared responsibility by providing support and regulatory

oversight.

The Plaintiffs also called Kealoha Pisciotta, a former

cultural monitor for the battle area complex (BAX) within the

PTA. Pisciotta testified that during her inspections she

observed and noted in her reports a range of debris left over

from military exercises, including munitions and UXO, stationary

targets, junk cars, an old tank, crudely built rock shelters,

and other miscellaneous military rubbish. She testified that

some of her reports recommended that the debris be cleaned up,

but not all of the UXO that she observed was removed.

Next, the Plaintiffs called Suzanne Case, Chair of the

BLNR and the Director of the DLNR. Plaintiffs’ counsel showed

Case a 2014 action memorandum from the Army addressed to the

DLNR stating that a bazooka range within the PTA was heavily

contaminated with explosive hazards, ammunitions, and debris

that posed a significant danger to public health and welfare.

Case testified that she did not remember receiving or having

been shown the memorandum by DLNR staff and that she was not

aware of any lease compliance issues that had been raised to the 26 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

BLNR regarding the PTA lease during her tenure as Chair. She

also testified that the DLNR did not have a written policy

regarding when inspections of leased premises were to be

conducted and instead chose which leases to inspect based on

available resources, the risks involved, and whether the public

had drawn attention to a specific property.

The Plaintiffs then called Deputy Attorney General

William Wynhoff, who had previously testified in a pretrial

deposition on behalf of the DLNR. Wynhoff testified that to the

best of his knowledge, the DLNR did not have a written procedure

to ensure compliance with all terms of the PTA lease. DLNR's

practice, Wynhoff stated, is to keep all records related to

leases in the lease file. Wynhoff acknowledged that prior to

the filing of this suit, there were no documents in the PTA

lease file indicating that the DLNR had asked for or received

assurances from the United States that it was in compliance with

the lease.

Ching testified next. Ching, who is part Hawaiian,

stated he was a member of the Pōhakuloa Cultural Advisory

Committee, which advised the Army of cultural concerns related

to its activities within the PTA. Ching testified that, during

his bimonthly trips to the PTA as a member of the committee, he

witnessed blank ammunition and other trash and military debris

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“strewn around” that negatively affected his spiritual and

traditional practices.

After Ching’s testimony, the Plaintiffs called

Kahaulelio. Kahaulelio testified that she was at least fifty

percent Hawaiian and that, to her, caring for the land at

Pōhakuloa was a cultural practice. She explained that she and

other Hawaiian practitioners participate in cultural ceremonies

at Pōhakuloa, which she compared to going to church. Kahaulelio

testified that, during one such cultural trip to Pōhakuloa in

November 2014, she observed debris and blank ammunition on the

ground and that this destruction of the land made her feel

“angry” and “hurt.”

The Plaintiffs’ final witness was Russell Tsuji, a

former Deputy Attorney General, State Land Administrator at the

DLNR, and Deputy Director of the DLNR. Tsuji stated that, while

he was employed at the DLNR, he was in charge of managing state-

owned lands and was a custodian of records contained in the PTA

lease file. None of the files in the PTA lease file, Tsuji

testified, mentioned paragraphs 9 and 14 of the lease. He was

also unaware of any conversations that occurred during his

employment at the DLNR regarding compliance with these lease

provisions. Tsuji explained that his goal was to have land

agents inspect leases at least once every two years while he was

employed at the DLNR, but he stated that this target was

28 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

“aspirational” rather than a mandatory rule. Tsuji acknowledged

that prior to the initiation of the lawsuit, the leased PTA land

had not been inspected during his tenure at the DLNR, which

spanned ten years.

Tsuji testified that the DLNR’s PTA lease file

contained a series of letters and reports from the United States

Army that documented a need to clean up the leased PTA land,

including a 2006 report indicating that there was debris in the

BAX within the PTA; a 2008 report stating that there may have

been munitions on PTA land; a 2013 final environmental impact

statement (EIS) stating that UXO was “known to exist in impact

area” and that “there [was] also a medium risk of finding [UXO]

outside [the construction] area”; and a 2014 report stating that

“[t]he military need[ed] to implement some kind of clean-up

process as part of their training in PTA” because “[r]emnants of

military trash [was] everywhere . . . . including unexploded

ordnance that [was] carelessly discarded.” When asked about the

DLNR’s response to one of the reports, Tsuji testified that he

did not know if anyone at the DLNR “actually read” the report

and noted that there was no record on file that the DLNR ever

responded to the report.

Tsuji testified that, after the lawsuit was filed, he

sent a letter to the Army requesting its procedures for cleaning

munitions after training exercises. Tsuji indicated that the

29 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

Army responded by sending a letter setting forth its cleanup

procedures. Tsuji also testified that he conducted an

inspection of the leased PTA land in December 2014,

approximately one year after receiving the Army’s response. One

of the reasons for the inspection was the lawsuit, Tsuji

acknowledged. During this inspection, he observed trash,

“[s]pent shells,” “shell debris,” and “derelict vehicles” used

as target practice at the bazooka range. According to Tsuji, a

draft inspection report was created after the inspection, which

was revised after he conducted another inspection in January

2015. Tsuji indicated that the final report stated that the

land condition was “unsatisfactory,” but he testified that the

DLNR did not issue a default notice to the Army.25

At the conclusion of Tsuji’s testimony, the Plaintiffs

rested. The State did not call any witnesses.

5. The Circuit Court Decision

On April 3, 2018, the circuit court issued its

Findings of Fact, Conclusions of Law and Order.

a. Findings of Fact

The circuit court made the following relevant findings

of fact.

25 Tsuji testified that the report was written by a land agent and that he had no input in the report’s conclusion that the land was “unsatisfactory.”

30 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

In 1964, the State entered into a sixty-five year

lease of three parcels of land in the Pōhakuloa area with the

United States for military training purposes. These land

parcels are ceded lands owned by the State that are part of the

public lands trust. The public trust lands are state-owned

lands held for the use and benefit of the people of the State of

Hawaii, and the State is the trustee of such lands.

Accordingly, the State has “the highest duty to preserve and

maintain the trust lands.”26

The Plaintiffs had in the past and continued to be

actively engaged in cultural practices upon the leased PTA land.

These cultural practices included song, dance, and chant about

the PTA area, walking upon and celebrating the land and the

flora and fauna that grow upon it, and honoring the current and

historic cultural significance of the area.

The State was aware of the United States’ failure to

clean up other sites in the state27 and of the possibility that

26 Throughout its findings of fact and conclusions of law, the circuit court referred to this obligation as the duty to “malama ‘aina,” which the court translated as “to care for the land.” 27 Specifically, the court found that the previous Chair of the DLNR, William Aila, Jr., was aware of the United States’ failure to clean up other sites in the state such as Kaho‘olawe, Mākua, and the Waikāne Valley, and the court imputed this knowledge to the State in this case. The court noted that a website maintained by the State contained a history of the island of Kahoolawe that explained that the United States Navy did not clear all UXO from 25 percent of the surface of the island. Additionally the court found that the United States’ failure to properly clean the Mākua area was

(continued . . .) 31 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

UXO and munitions were present on the leased PTA land. Cultural

monitors spent “extensive time” at the leased PTA land and

observed military debris on the ground, including UXO and “spent

shell casings, scattered across” the land. The concerns of the

cultural monitors were documented in a number of federal

reports. For example, the United States prepared a November

2010 report entitled “Final Archaeological and Cultural

Monitoring of Construction of Battle Area Complex (BAX) for

Stryker Brigade Combat Team (SBCT), Pohakuloa Training Area,

Hawaii Island, Hawaii” that included a recommendation from

cultural monitors that “[t]he Military needs to implement some

kind of cleanup process as part of their training in PTA.

Remnants of military trash are everywhere.” (Emphasis omitted.)

The report also stated that the cultural monitors voiced the

following: “Another major concern is the military debris that is

left behind after training including [UXO] that is carelessly

discarded. There is a need to have some type of cleanup plan

implemented in the military training process.”

documented in the federal court decisions in Makua v. Rumsfeld, 163 F. Supp. 2d 1202 (D. Haw. 2001), Mâkua v. Gates, Civ. No. 08-00327 SOM/LEK, 2009 WL 196206 (D. Haw. Jan. 23, 2009), and Mâkua v. Gates, Civ. No. 00-00813 SOM, 2008 WL 696093 (D. Haw. Mar. 11, 2008).

32 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

These concerns were reiterated four years later in a

second, similarly titled report. This report contained

observations from cultural monitors who stated that “[r]emnants

of live fire training are present within the BAX, including

stationary targets, junk cars, an old tank, crudely built rock

shelters, and miscellaneous military rubbish. Spent ammunition

is scattered across the landscape.” The report noted the

cultural monitors feared that if the litter continued to remain

on the land, “the land will be rendered unusable forever--one

eighth of our island will become unavailable for use by any of

our future generations.” The cultural monitors therefore

“strongly recommend[ed] the Army begin now to seek funding to

initiate a serious cleanup effort throughout the leased training

areas.” (Emphasis in report.)

Additionally, a March 2015 draft report stated that,

based on a 2014 inspection by the DLNR and the Army, a bazooka

range contained on the leased PTA land was “heavily contaminated

on the surface with material potentially presenting an explosive

hazard [] and munition debris [].” A subsequent inspection of

the bazooka range by military explosive ordnance disposal units

found mortars, bazooka rounds, and white phosphorous on the

land. The Army determined that the debris found at the bazooka

range “coupled with the accessibility to the public make for the

potential for significant danger to public health and welfare.”

33 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

The State’s awareness of the potential contamination

of the leased PTA land was also demonstrated by a March 2013

letter from the Acting Hawaii Branch Manager for the DLNR to the

State Lands Assistant Administrator. The Branch Manager

recommended that “PTA should sweep the lands North of the saddle

road for UXO and remove any UXO found at their expense to make

the area safe for the public.”28 Additionally, a March 2013

Final EIS stated that “[d]ecades of using PTA as a training area

have introduced a significant risk of encountering

[munitions]/UXO. [Munitions]/UXO [are] known to exist in the

impact area and [are] expected to be encountered during range

construction activities; but there is also a medium risk of

finding [munitions]/UXO outside the impact area.” The EIS also

stated that “[p]ast and current activities at PTA have resulted

in contamination of soil by explosives and other chemicals.”

Therefore, the State was aware that military training activities

on the leased PTA land “pose[d] a significant and substantial

risk of harm or damage to [the PTA], and persons who may come

upon” the land, and “to public health, safety, and welfare, as

well as to the Plaintiffs’ cultural interests in the [land].”

28 Although the letter stated, “PTA should sweep,” it appears that the Branch Manager was referring to the United States.

34 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

Proper stewardship of the leased land includes

“periodic and meaningful inspection and monitoring of the

military training activities and their aftermath upon the

Subject Lands and reasonably accurate documentation of such

activities and the effects of such activities to achieve

transparency of [the State’s] inspection and monitoring

actions.” Inspections must occur with “a reasonable frequency”

for the State to satisfy its duty. The DLNR did not meet its

informal goal of inspecting the leased PTA land once every two

years, nor did it adequately document its inspection efforts “so

as to provide rudimentary transparency into the DLNR’s efforts.”

An inspection of the PTA occurred on December 19, 1984, for

which a “sparse” report was generated that stated only the

following: “Property being used for Military training purposes

per lease terms.” Another inspection “appear[ed] to have been

conducted” in 1994, although the “findings” and “inspected by”

sections of the inspection form were blank.

A third inspection occurred on December 23, 2014,

after the litigation in this case had begun, and this inspection

resulted in a report that “contained much more information” than

those created from the two previous inspections. The 2014

Inspection Report stated that the condition of the land was “not

35 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

satisfactory.”29 The report indicated that debris was

“extensive” at the bazooka range, that there were “derelict

vehicles” at one of the target ranges, and that an area was used

for dumping spent artillery shells.

“The lack of regular, meaningful inspection and

monitoring of the” leased PTA land contributed to the breach of

the State’s trust duties, which in turn “harmed, impaired,

diminished, or otherwise adversely affected Plaintiffs’ cultural

interest in the” leased land.

b. Conclusions of Law

The circuit court rendered the following relevant

conclusions of law.

The Plaintiffs had standing to enforce a breach of

trust claim against the State, and the United States was not an

indispensable party to the case because the Plaintiffs’ claim

concerned only the State’s trust obligations. The State, as

trustee of the ceded land, owed a “high standard of care when

managing public trust ceded lands.” The State’s trust duties

include but are not limited to using “reasonable efforts” to (1)

preserve and protect trust property, and (2) take a proactive

29 The court found that the Army’s assertion recorded in the report that it “regularly inspected and cleaned up after [an] exercise was complete” was contradicted by evidence that there was a significant amount of debris and ammunition on the land.

36 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

role in management and protection of the trust property. The

State had a duty to consider the cumulative effects of the

United States’ use of the land upon the condition of the land

and upon “the indigenous plants, animals, and insects, as well

as the invasion to Plaintiffs’ cultural interests in the Subject

Land.” Additionally, the State had a duty to determine whether

the lessee was in compliance with the terms of the lease. And

the Chair of the BLNR specifically had a duty to “[e]nforce

contracts respecting . . . leases . . . or other disposition of

public lands.” (Quoting HRS § 171-7(5).30)

As part of its trust duties, the State was required,

to enforce paragraphs 9, 14, 18, and 19 of the PTA lease. The

State’s records regarding its efforts to inspect the leased land

and report its findings “were spotty at best” and in some cases

“grossly inadequate.”31 Although there were studies and

inspections completed regarding “other business” on the leased

land, such as the EIS, these were not conducted to fulfill the

State’s trust duties.

30 HRS § 171-7(5) (2011) provides, in relevant part, “Except as provided by law the board of land and natural resources through the chairperson shall: . . . (5) Enforce contracts respecting sales, leases, licenses, permits, or other disposition of public lands[.]” 31 The court found that, given “the virtual nonexistent nature of the 1994 inspection report” and “the sparse and incomplete nature of the 1984 inspection report,” there was an unrebutted presumption that the State had failed to conduct any inspections prior to December 2014 to monitor or confirm the United States’ compliance with paragraphs 9, 14, 18, and 19.

37 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

The State therefore breached its duties by failing to

(1) conduct reasonable (in terms of frequency and scope)

inspections of the condition of the leased PTA land or

observations of the military training exercises, (2) ensure that

the terms of the lease were being followed, (3) take prompt and

appropriate follow-up steps with the United States when the

State became aware of potential violations of the lease, (4)

create detailed reports of the State’s efforts to ensure

compliance with the lease, and (5) initiate or assist with the

appropriation of necessary funding to conduct cleanup or

maintenance activities on the land. The court stated that the

State would further breach its trust duties “if they were to

execute an extension, renewal, or any other change to the State

General Lease No. S-3849, or enter into a new lease of the PTA,

without first determining (in writing) that the terms of the

existing lease have been satisfactorily fulfilled.”

c. Order

The court explained that because the Plaintiffs

prevailed on the merits, the appropriate remedy was for the

court to issue an order directing the State to perform its trust

duties with respect to the leased PTA land. The court concluded

that the balance of harm favored the issuance of a mandatory

injunction and that protection of the public trust lands was in

the public interest. The court therefore ordered that the State

38 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

promptly initiate affirmative activity at the PTA in accordance

with its trust duties by developing a written plan to fulfill

such duties. The plan was required to include provisions for

(1) on-site monitoring and inspections, (2) the creation of

written inspection reports with recommendations, (3) a written

protocol of appropriate action to be taken if the United States

is to be found to be in breach of the lease, (4) a procedure to

provide for “reasonable transparency” to the Plaintiffs and the

general public with respect to compliance with the injunction,

and (5) all steps that the State takes to “secur[e] adequate

funding, from any and all appropriate funding sources, to plan,

initiate, and conduct all appropriate comprehensive cleanup.”

The plan was required to be submitted to the court for approval.

Additionally, the court ordered the State to create contested

case procedures pursuant to HRS Chapter 91, if not already in

existence, “for Plaintiffs or any member of the general public

with standing to initiate such process in the event that

Plaintiffs or other interested party may contest the decisions

made by the [State] in the course of discharging” their trust

duties.

The circuit court entered Final Judgment on April 24,

2018.

39 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

D. The Appeal and Motions to Dismiss

The Department of the Attorney General (AG) filed a

timely Notice of Appeal. The Plaintiffs filed a Motion to

Dismiss the Appeal and argued that the AG did not have the

authority to file an appeal “on behalf of BLNR or DLNR without

BLNR’s consent.”32 (Citing Chun v. Bd. of Trs. of the Emps.’

Ret. Sys., 87 Hawaii 152, 952 P.2d 1215 (1998).) The State

replied that the AG was authorized to appeal the decision

because the AG “has authority to manage and control all phases

of litigation” in suits against state officials. (Citing

Island-Gentry Joint Venture v. State, 57 Haw. 259, 554 P.2d 761

(1976).)

The Plaintiffs filed an application for transfer to

this court, which the State did not oppose. This court granted

the application on December 20, 2018.

IV. STANDARD OF REVIEW

Certain decisions regarding the orderly administration

of trial and the selection of an appropriate remedy to redress

an injury “rest[] with the sound discretion of the trial

court[,] and the trial court’s decision will be sustained absent

32 The Plaintiffs later filed a second motion to dismiss to “follow[] up” on the first, making substantially similar arguments with respect to the AG’s authority to appeal on behalf of the Chair of BLNR without her express consent.

40 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

a showing of manifest abuse of discretion.” Hawaii Pub. Emp’t

Relations Bd. v. United Pub. Workers, Local 646, 66 Haw. 461,

467, 667 P.2d 783, 788 (1983). For instance, this court applies

an abuse of discretion standard when it reviews a trial court’s

determination as to whether to dismiss a case pursuant to HRCP

Rule 19(b) for a party’s failure to join an indispensable party.

UFJ Bank Ltd. v. Ieda, 109 Hawai‘i 137, 142, 123 P.3d 1232, 1237

(2005) (citing Takabuki v. Ching, 67 Haw. 515, 529, 695 P.2d

319, 328 (1985)). Similarly, a trial court’s grant of equitable

relief, including a declaratory judgment or a mandatory

injunction, will be upheld unless an abuse of discretion is

demonstrated. Kau v. City & Cty. of Honolulu, 104 Hawai‘i 468,

473, 92 P.3d 477, 482 (2004) (citing Shanghai Inv. Co. v. Alteka

Co., 92 Hawai‘i 482, 492, 993 P.2d 516, 526 (2000)); United Pub.

Workers, 66 Haw. at 467, 667 P.2d at 788.

By contrast, we review a trial court’s conclusions of

law de novo. Narayan v. Ass’n of Apartment Owners of Kapalua

Bay Condo., 140 Hawai‘i 75, 83, 398 P.3d 664, 672 (2017) (citing

Nordic PCL Constr., Inc. v. LPIHGC, LLC, 136 Hawaii 29, 41, 358

P.3d 1, 13 (2015)). Thus, a trial court’s grant or denial of

summary judgment is reviewable using our independent judgment

under the right/wrong standard, as are the statutory and

constitutional interpretations underlying the court’s

41 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

determinations. Id.; State v. March, 94 Hawai‘i 250, 253, 11

P.3d 1094, 1097 (2000). But this court will uphold the findings

of fact to which the trial court applies these interpretations

unless they are clearly erroneous. Noel Madamba Contracting LLC

v. Romero, 137 Hawai‘i 1, 8, 364 P.3d 518, 525 (2015).

V. DISCUSSION

A. The Motions to Dismiss

Before addressing the merits of the State’s appeal in

this case, we must first consider the Plaintiffs’ motions to

dismiss asserting that the AG lacked authority to bring the

appeal without the express authorization of the BLNR and,

derivatively, the authorization of the Board’s Chairperson and

the DLNR, which the Board heads. This court first addressed the

allocation of litigation authority between the AG and other

government agencies in Island-Gentry Joint Venture v. State, 57

Haw. 259, 264, 554 P.2d 761, 765 (1976). In Island-Gentry, the

BLNR agreed to a financial settlement with a landowner after it

breached a purchase agreement to acquire the owner’s property in

order to build a school. Id. at 261, 554 P.2d at 763. Upon

discovering that the landowner had thereafter sold the land to a

third party for over twice the BLNR’s agreed-upon purchase

price, the AG declined to pay the agreed-upon settlement,

reasoning that the landowner had “suffered no damage resulting

from [the] State’s failure to honor its agreement to purchase 42 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

the land.” Id. at 262, 554 P.2d at 764. The landowner brought

suit to enforce the settlement.

This court held that under the general grant of

authority contained in HRS § 26-7 (Supp. 1975),33 the AG “has

exclusive authority to control and manage for the State all

phases of civil litigation in which the State has an interest,

unless authority to do so in specific matters has been expressly

or impliedly granted to another department or agency.” Id. at

264-65, 554 P.2d at 765-66. We held that this authority

necessarily includes the authority to control the settlement of

actions against the State. Id. at 265, 554 P.2d at 766. The

same section also grants the AG “exclusive authority to approve

as to the legality and form of all documents relating to the

33 The portions of HRS § 26-7 cited in Island-Gentry have not been amended since this court’s decision in the case. The statute provides in relevant part as follows:

The department of the attorney general shall be headed by a single executive to be known as the attorney general.

The department shall administer and render state legal services, including furnishing of written legal opinions to the governor, legislature, and such state departments and officers as the governor may direct; represent the State in all civil actions in which the State is a party; approve as to legality and form all documents relating to the acquisition of any land or interest in lands by the State; and, unless otherwise provided by law, prosecute cases involving violations of state laws and cases involving agreements, uniform laws, or other matters which are enforceable in the courts of the State. The attorney general shall be charged with such other duties and have such authority as heretofore provided by common law or statute.

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acquisition of any land or interest in land by the State,” we

noted. Id. This court held that implicit in these express

grants of authority was the “sole power to approve or to refuse

to approve as to the legality and form of any compromise

settlement effectuated by the [BLNR] in regards to the [BLNR]’s

breach of a contract to purchase land for the State.” Id.

Because the record identified that “no other department or

agency ha[d] been expressly or impliedly granted the authority

to approve or to disapprove as to the legality and form of the

settlement in question,” we held that the BLNR was without

authority to bind the State to the settlement. Id.

Chun v. Board of Trustees of the Employees’ Retirement

System, 87 Hawai‘i 152, 952 P.2d 1215 (1998), on which the

Plaintiffs rely, stands in tension with Island-Gentry. In Chun,

the circuit court vacated a decision of the Board of Trustees of

the Employees Retirement System concerning the retirement

benefits of a group of teachers and school administrators,

finding that the Board had miscalculated the benefits as a

result of its misinterpretation of the applicable statute. Id.

at 158, 952 P.2d at 1221. During the pendency of the case, the

composition of the Board had changed, and the newly constituted

Board deadlocked in a four-to-four vote on a motion to authorize

an appeal of the circuit court’s decision. Id. at 160, 952 P.2d

at 1223. The Chairperson of the Board thus sent a letter 44 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

informing the AG that the “motion failed because it did not

receive the necessary majority vote.” Id. at 161, 952 P.2d at

1224. When the AG nevertheless filed a notice of appeal, the

retirees filed a motion to dismiss the appeal, arguing that the

AG had no independent authority to pursue it without the Board’s

consent. Id.

This court held that a distinction exists between, on

the one hand, the AG’s duty under HRS § 28-1 (1993)34 and the

common law to represent the State in furtherance of the public

interest as the AG deems it to be, and on the other hand, the

AG’s duty under HRS § 26-7 to serve as legal counsel to the

public officials and instrumentalities of the State, inter alia,

when they are sued in their professional capacity. Id. at 170,

952 P.2d at 1233. Extensively quoting the Supreme Court of West

Virginia, we stated,

When the Attorney General appears in a proceeding on behalf of the state in her name, she exercises her discretion as to the course and conduct of the litigation. She assumes the role of a litigant and she is entitled to represent what she perceives to be the interest of the state and the public at large.

The Attorney General performs quite a different function when she appears to defend a state officer or

34 HRS § 28-1, which has not been amended since this court’s decision in Chun, provides as follows: “The attorney general shall appear for the State personally or by deputy, in all the courts of record, in all cases criminal or civil in which the State may be a party, or be interested, and may in like manner appear in the district courts in such cases.”

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instrumentality sued in their official capacity. In this circumstance the Attorney General does not appear as a party to the action. That role is filled by the state officer or instrumentality against whom the suit is brought. Rather, the Attorney General’s function is to act as legal advisor and agent of the litigant and to prosecute or defend, within the bounds of the law, the decision or policy of such officer or instrumentality which is called into question by such lawsuit.

The Legislature has designated the Attorney General as the legal representative of state officers and instrumentalities sued in their official capacities. In the absence of other statutory or constitutional provision to the contrary, she is their sole legal representative in the courts and they are her clients. When the Attorney General appears in litigation in this capacity, she does so as a lawyer and an officer of the court. Her primary responsibility is to provide proper representation and competent counsel to the officer or instrumentality on whose behalf she appears. The Attorney General’s role in this capacity is not to make public policy in her own right on behalf of the state. It is presumed, in the absence of a contrary showing, that the officer made a party to the suit has, in the performance of his or her official duties, acted in contemplation of the relevant laws and in the best interests of the state. The Attorney General’s role and duty is to exercise her skill as the state chief lawyer to zealously advocate and defend the policy position of the officer or agency in the litigation.

The Legislature has thus created a traditional attorney- client relationship between the Attorney General and the state officers or instrumentalities she is required to represent. It is well settled that in the control of litigation, the Attorney General has the duty to conform her conduct to that prescribed by the rules of professional ethics. As a lawyer and an officer of the courts of this State, the Attorney General is subject to the rules of this Court governing the practice of law and the conduct of lawyers, which have the force and effect of law.

Id. at 171-73, 952 P.2d at 1234-36 (quoting Manchin v. Browning,

296 S.E.2d 909, 918-20 (W. Va. 1982)) (alterations omitted)

(emphases added). This court thus held that when the AG

represents a state official or instrumentality in its official

capacity, the official or instrumentality is the AG’s client and

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the allocation of authority in that relationship is governed by

at least some provisions of the Hawai‘i Rules of Professional

Conduct (HRPC). Id. at 173-74, 952 P.2d at 1236-37.

Applying HRPC Rule 1.7, which governs conflicts, this

court held that, once the AG has informed the state official or

instrumentality of the different legal strategies and defenses

available and provided a professional opinion as to their

advisability, the AG “should then stand aside and allow [the]

client to exercise [] independent judgment on which course to

pursue.” Id. at 174, 952 P.2d at 1237 (emphasis and alterations

omitted) (quoting Manchin, 296 S.E.2d at 920). Because the AG’s

position in pursuing the appeal was at odds with the Board’s

wishes, this court held that the AG “was ethically obligated to

recommend the retention of other counsel to represent the Board

and to take such other action as, in her opinion, the

circumstances required.” Id. at 176, 952 P.2d at 1239. The AG

lacked authority, however, to pursue the appeal without the

Board’s consent. Id. at 177, 952 P.2d at 1240.

In a footnote in Chun, the court asserted that its

holding was consistent with Island-Gentry, focusing on the

Island-Gentry court’s statement that the AG has ultimate

authority to make litigation decisions “unless authority to do

so in specific matters has been expressly or impliedly granted

to another department or agency.” 87 Hawai‘i at 171 n.21, 952 47 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

P.2d at 1234 n.21 (emphasis omitted) (quoting Island-Gentry, 57

Haw. at 264–65, 554 P.2d at 765–66). The court stated that,

unlike with the BLNR in Island-Gentry, the legislature had

enacted a series of laws that conferred upon the Board of

Trustees of the Employees Retirement System “the powers and

privileges of a corporation,” including the powers to “sue or be

sued and transact all of its business.” Id. (citing HRS §§ 88–

22, 88–23, 88-110). These statutes acted to divest the AG of

the authority to control litigation with respect to the Board,

the court reasoned. Id.

This distinction is problematic, however. Analogous

statutes existed conferring substantially the same authority on

the BLNR at the time Island-Gentry was decided. See, e.g., HRS

§ 171-7(8) (1968) (“Except as provided by law the board of land

and natural resources through the chairman shall: . . . (8)

Bring such actions and proceedings as may be necessary to carry

out the powers and duties of the board in the name of the State

and to defend such actions brought against the State as may be

authorized[.]”). Moreover, the Chun court based its analysis

not on the withdrawal of the general authority of the AG under

HRS §§ 28-1 and 26-7 by another statute, but rather on the

distinction between the different aspects of that authority.

See 87 Hawai‘i at 169-70, 952 P.2d at 1232-33 (“Thus, by [its]

terms, HRS § 26–7 . . . designate[s] the attorney general as 48 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

legal counsel for ‘public officers’ and instrumentalities of the

state[.] . . . At the same time, however, HRS § 28–1 mandates

that the attorney general ‘represent the State in all . . .

civil matters where the State . . . may be an interested

party.’” (some alterations original)).

The cases can be more logically reconciled in two

ways. First, because Island-Gentry concerned the settlement of

litigation arising directly from a breach of a contract to

acquire public lands, approval of the settlement agreement fell

within the AG’s “exclusive authority” under HRS § 26-7 “to

approve as to the legality and form of all documents relating to

the acquisition of any land or interest in land by the State.”

And second, the settlement agreement essentially “commit[ed] the

State to an obligation to pay a sum of money out of State

funds”--which was authority that had not been granted to BLNR.

Island-Gentry, 57 Haw. at 264, 554 P.2d at 765.

Thus, Chun should be read as limiting Island-Gentry to

situations when the AG appears on behalf of the State generally

(as opposed to on behalf of a specific State public official or

instrumentality), when the action falls within the AG’s

exclusive statutory authority, or when the result of the action

would commit the State to pay public funds that have not been

appropriated to the represented State official or

instrumentality. By contrast, when the AG appears on behalf of

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a specific State official or instrumentality and the above

exceptions do not apply, the AG has a duty to comply with the

wishes of the represented party that is loosely analogous to the

duty a private attorney owes a client under the HRPC and other

professional standards.35 Chun, 87 Hawaii at 173, 952 P.2d at

1236.

The Plaintiffs argue that, in the absence of an

affirmative vote by the BLNR, the AG was not authorized to bring

an appeal in the present case. Yet our precedent and legal

professional standards more generally permit--and in some cases

require--an attorney to take the procedural steps necessary to

protect a client’s right to appeal. See Maddox v. State, 141

Hawai‘i 196, 204, 407 P.3d 152, 160 (2017) (“Defense counsel

should take ‘whatever steps are necessary’ to protect the

client’s right to appeal . . . .” (quoting ABA Standards for

Criminal Justice: Prosecution and Defense Function, Standards 4–

8.2(b), 4–8.3(c) (3d ed. 1993))). Unlike in Chun, in which the

Chairperson of the Board sent a letter “informing [the AG] of

35 By so holding, the autonomy of the various agencies that are headed by boards instead of a single executive is preserved, as the framers intended such boards to maintain a level of independence from the governor and officials like the AG who are directly answerable to the governor. See Stand. Comm. Rep. No. 67 in I Proceedings of the Constitutional Convention of Hawaii of 1950, at 217 (1960) (“Your committee has followed the principle that the Governor should be strong in his branch of the government but that he should be precluded from infringing upon the other branches, for example, the power to remove members of the boards and commissions.”).

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the Board’s refusal to authorize an appeal of [the circuit

court’s] decisions,” there is no indication in the record that

the BLNR communicated to the AG a desire not to pursue the

present appeal--nor is there any evidence that the appeal is at

odds with the BLNR’s wishes. 87 Hawai‘i at 161, 952 P.2d at 1224

(second alteration original). “[W]here no conflict plainly

appears . . . it is generally presumed ‘that the actions and

determinations of the Attorney General in . . . a lawsuit are

made both as a representative of the public interest and as

counsel for the state agency or officer.’” Id. at 170, 952 P.2d

at 1233 (some alterations in original) (quoting D’Amico v. Bd.

of Med. Exam’rs, 11 Cal.3d 1, 112 (1974)). Accordingly, we deny

the Plaintiffs’ two motions to dismiss the appeal.

B. The State’s Appeal

The State argues that the circuit court erred by

failing to dismiss the case or grant summary judgment to the

State on the grounds that 1) the United States was a necessary

and indispensable party under HRCP Rule 19 whose joinder was not

feasible due to its sovereign immunity; 2) the case presented a

nonjusticiable political question regarding how the State should

manage the leased PTA land; and 3) the case did not present an

“actual controversy” in which a declaration could “terminate the

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uncertainty or controversy giving rise to the proceeding” as is

required for declaratory relief under HRS § 632-1.36 The State

additionally challenges the circuit court’s findings and

conclusions insofar as the court found that the State breached

its trust duties by failing to perform adequate inspections of

the leased PTA land and declined to consider the State’s

cooperative activities with entities other than the State in

determining whether the State had violated its trust

obligations. Lastly, the State argues that the injunctive

relief granted by the circuit court was improper because it was

tantamount to an award of damages barred by the State’s

sovereign immunity and the order granting relief was vague,

overbroad, and improperly intruded on legislative prerogatives.

This opinion will address the State’s contentions

alleging related errors together.

1. The United States Is Not a “Necessary” Party and Therefore Is Not “Indispensable”

The State contends that the United States is a

necessary and indispensable party to the present case under HRCP

Rule 19 and that the circuit court reversibly erred by failing

36 Under Hawai‘i law, the denial of a summary judgment motion can be appealed following a trial on the merits only if the appeal centers on a question of law rather than the existence of a disputed material fact. See Larsen v. Pacesetter Sys., Inc., 74 Haw. 1, 17-18, 837 P.2d 1273, 1282-83 (1992). Here, the State’s contentions are rooted in questions of law, and we accordingly conclude that it is entitled to review of the circuit court’s denial of its summary judgment motion on the challenged grounds.

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to either join the United States or dismiss the case due to its

absence. Under our precedents, an analysis under HRCP Rule 19

follows two steps. Kellberg v. Yuen, 135 Hawai‘i 236, 250-51,

349 P.3d 343, 357-58 (2015). First, courts must determine if

the party is a “necessary” party under part (a) of the rule, and

if so, whether joinder of the party is feasible. Id. If the

court finds that a party is necessary and joinder is not

feasible, it then proceeds to part (b) of the rule, under which

it analyzes whether “in equity and good conscience” the case can

continue in the party’s absence. Id. at 252, 349 P.3d at 359

(quoting HRCP Rule 19(b)). “If, under this second step, the

court dismisses the action rather than moving forward without

the absent party, the nonparty is described as ‘indispensable.’”

Id. (quoting Marvin v. Pflueger, 127 Hawai‘i 490, 499, 280 P.3d

88, 97 (2012)).

HRCP Rule 19(a) sets forth a number of factors for

courts to consider in evaluating whether an entity is a

necessary party who should be joined if feasible. The rule

provides, in relevant part, as follows:

(a) Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (A) as a practical matter impair or impede the person’s ability to protect that interest or (B) leave any of the persons already parties subject to a substantial risk of incurring double,

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multiple, or otherwise inconsistent obligations by reason of the claimed interest.

With respect to HRCP Rule 19(a)(2),37 this court does

not need to speculate as to the interest claimed by the United

States in the subject matter of this case because the United

States filed a statement of interest in the circuit court.

Before this court, the State repeats the United States’

assertion that “[t]he action here relates to the public land

leased by the State to the United States for military purposes

and puts directly at issue the United States’ compliance with

the terms of the lease.” The State contends that the United

States clearly has an interest in an action “forcing the State

to initiate rigorous enforcement action against” the United

States.

But determining whether the State fulfilled its duties

as trustee in this case does not require determining whether the

United States in fact complied with the lease, however, and if a

breach of the State’s trustee duties is found, the appropriate

remedy would not be an order requiring the State to initiate an

enforcement action. Article XI, section 1 of the Hawai‘i

Constitution places upon the State a fiduciary duty analogous to

37 Neither the State nor the United States make any arguments with respect to HRCP Rule 19(a)(1), under which the court would consider whether the United States’ absence would prevent complete relief from being afforded in this case.

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the common law duty of a trustee with respect to lands held in

public trust. See In re Conservation Dist. Use Application HA-

3568 (In re TMT), 143 Hawai‘i 379, 400, 431 P.3d 752, 773 (2018);

State ex rel. Kobayashi v. Zimring, 58 Haw. 106, 121, 566 P.2d

725, 735 (1977). Article XII, section 4 imposes a similar duty

regarding lands ceded to the State under Section 5(b) of the

Admission Act. It is undisputed that the leased PTA land at

issue in this case is trust land within the meaning of these

constitutional provisions.

The most basic aspect of the State’s trust duties is

the obligation “to protect and maintain the trust property and

regulate its use.” Zimring, 58 Haw. at 121, 566 P.2d at 735;

accord Restatement (Second) of Trusts § 176 (1959) (“The trustee

is under a duty to the beneficiary to use reasonable care and

skill to preserve the trust property.”). Under the common law,

this obligation includes an obligation to reasonably monitor the

trust property. See Restatement (Third) of Trusts § 90 cmt. b

(2007); Tibble v. Edison Int’l, 135 S.Ct. 1823, 1828 (2015).

This duty exists regardless of whether the property is being

used by a third party pursuant to a lease.

Reasonable monitoring ensures that a trustee fulfills

the mandate of “elementary trust law” that trust property not be

permitted to “fall into ruin on [the trustee’s] watch.” United

States v. White Mt. Apache Tribe, 537 U.S. 465, 475 (2003). To 55 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

hold that the State does not have an independent trust

obligation to reasonably monitor the trust property would be

counter to our precedents and would allow the State to turn a

blind eye to imminent damage, leaving beneficiaries powerless to

prevent damage before it occurs. Cf. Kelly v. 1250 Oceanside

Partners, 111 Hawai‘i 205, 231, 140 P.3d 985, 1011 (2006)

(holding that the Department of Health’s article XI, section 1

public trust duty to protect coastal waters required it to “not

only issue permits after prescribed measures appear to be in

compliance with state regulation, but also to ensure that the

prescribed measures are actually being implemented.” (emphasis

added)).

Thus, the State might breach its fiduciary duty by

failing to reasonably monitor public ceded lands, including the

public ceded lands within the PTA that the United States

utilizes pursuant to its lease with the State. Such a breach

would be complete upon the State’s failure to reasonably monitor

the ceded land--irrespective of whether the United States

actually violated the lease. A determination of whether the

State breached its duty by failing to monitor the United States’

compliance with the lease therefore will not require a

subsidiary determination that the United States breached the

terms of the lease, and thus it will not impair the United

States’ ability to defend itself against any such speculative 56 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

future claim. And because the court would not be determining

whether the United States violated the terms of the lease, the

appropriate remedy for the alleged breach of the State’s trust

duties would be an order requiring the State to initiate

appropriate monitoring--and not an order requiring the State to

initiate an enforcement action.

The United States further asserted in its statement of

interest that an order requiring the State to inspect or monitor

the United States’ use of the PTA “at specified times” has the

potential to disrupt critical training exercises. In a similar

vein, the State argues that the disposition of the case could

put the State at risk of incurring inconsistent obligations

because the United States may deem the required monitoring to be

“[un]reasonable” or determine that it “unduly interfere[s]” with

training operations, ultimately leading to a separate

determination under the lease’s dispute resolution mechanism.

However, these concerns were speculative. Under paragraph 19 of

the lease, the State “shall have the right to enter upon the

demised premises at all reasonable times to conduct any

operations that will not unduly interfere with activities of the

[United States].” And while this right of entry is subject to

advance clearance from the United States, the lease specifies

“that such advance clearance shall not be unreasonably held.”

There was no indication at the time the State’s motions were

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determined that the extent of the monitoring the court might

order would necessarily be inconsistent with the State’s rights

under the lease so as to prejudice the United States’ interests

or subject the State to conflicting obligations.38

The United States also asserted in its statement of

interest that courts have recognized that all parties to a

contract are necessary parties in any equitable action that

requires interpretation of the contract. As an initial matter,

a reading of the unambiguous text on the face of the lease does

not require “interpretation” of the contract. See Airgo, Inc.

v. Horizon Cargo Transp., Inc., 66 Haw. 590, 594, 670 P.2d 1277,

1280 (1983) (stating that a contract is ambiguous “when the

terms of the contract are reasonably susceptible to more than

one meaning”). Further, the cases cited by the United States

are inapposite and do not support its position. Each case

involved an action that sought to invalidate, enforce, or

38 Even if concerns that the State would be subject to inconsistent obligations resulting from the dispute resolution mechanism were sufficient to make the United States a necessary party, the United States correctly asserts that it is not feasible to join it as a party because Congress has not waived sovereign immunity to allow the United States to be involuntarily made a party to the case in Hawai‘i state courts. See Minnesota v. United States, 305 U.S. 382, 388 (1939). In determining whether a case should be dismissed for failure to join an indispensable party under HRCP Rule 19(b), courts must consider “the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided.” In this case, the remedy could be tailored to avoid subjecting the State to inconsistent obligations by simply ordering the State to engage in monitoring consistent with its rights under the lease. Thus, dismissal would not be warranted even if the United States were to be considered a necessary party.

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establish a breach of the terms of the contract at issue.39

These cases did not hold that parties to a contract must be

joined in any action regarding a trustee’s duty to reasonably

monitor the property that is the subject of the contract.

Unlike the cited cases, this action seeks neither to invalidate

the lease nor to directly enforce its terms but rather to

require the State to monitor the leased PTA land and the United

States’ compliance with the lease. The cited cases thus do not

apply.40

The United States contended and the State similarly

argues that an injunction barring the State from renegotiating

the lease until any breach of its terms is cured would adversely

impact the United States’ interests directly by inhibiting its

right to renew the lease and indirectly by undermining its

ability to make future plans for the PTA. This presumes, 39 See Dawavendewa v. Salt River Project Agr. Imp. & Power Dist., 276 F.3d 1150, 1157 (9th Cir. 2002) (holding that a Native American tribe was necessary and indispensable in a suit alleging that hiring preference for Native Americans in contract between the tribe and public power company violated civil rights laws); McClendon v. United States, 885 F.2d 627, 633 (9th Cir. 1989) (holding a Native American tribe indispensable in an action to enforce the terms of a rental lease to which the tribe was a party); Queen’s Med. Ctr. v. Kaiser Found. Health Plan, Inc., 948 F.Supp.2d 1131, 1165 (D. Haw. 2013) (holding that a health management network was a necessary party in a suit that required demonstrating it had breached the contract to which it was a party). 40 To be clear, this opinion does not find or conclude that the United States has breached the lease, nor does it enforce or invalidate any provision of the lease. To the extent any portion of the circuit court’s judgment can be interpreted as rendering such a finding, conclusion, or order, we hold that this interpretation is incorrect, and the circuit court’s judgment shall be construed consistent with this opinion.

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however, that the court was required to provide all of the

precise remedies that the Plaintiffs requested. It is well

settled that in an equitable action, a court has “broad

discretionary power to . . . craft remedies to preserve equity.”

Ito v. Inv’rs Equity Life Holding Co., 135 Hawai‘i 49, 62, 346

P.3d 118, 131 (2015). Courts may use this discretion to devise

remedies that avoid prejudicing the rights of an absent party,

and this latitude should be considered in determining whether a

party is necessary and should be joined if feasible. See Salt

Lake Tribune Pub. Co. v. AT&T Corp., 320 F.3d 1081, 1097 (10th

Cir. 2003) (“Tribune Publishing mistakenly assumes that the only

remedy that will give it complete relief is an order compelling

KTLLC to specifically perform under the Option Agreement with

respect to every Tribune Asset it owns. An order of complete

specific performance is one way in which Tribune Publishing can

receive complete relief, but it is not the only way.”). Thus,

the fact that the Plaintiffs requested a remedy barring the

renegotiation of the lease does not alter our determination that

the circuit court did not abuse its discretion in concluding

that the United States is not a necessary party to the action.

(Indeed, the circuit court did not ultimately issue an

injunction barring the State from renegotiating the lease until

it determines that the United States has complied with its

terms, notwithstanding the Plaintiffs’ request for such relief.) 60 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

Lastly, it is noted that the United States stated in

its filing that “if relief were entered that impacted the

interests of the United States, the Government would at that

time consider what action to take, including whether to file a

motion to intervene as a party for the purpose of removing the

case to United States District Court pursuant to 28 U.S.C.

§ 1442(a).” And, in denying the State’s motion to add the

United States as a party without prejudice, the circuit court

stated that the United States would have an “automatic right to

intervene” if it chose to. Nevertheless, the United States has

not filed a motion to intervene in the present case, nor even

requested permission to participate as amicus curiae--which

would avoid any waiver of sovereign immunity. See Sch. Dist. of

Pontiac v. Sec'y of U.S. Dept. of Educ., 584 F.3d 253, 266 (6th

Cir. 2009). In determining whether the circuit court erred in

permitting the case to proceed in the United States’ absence, it

is appropriate for this court to consider that, “even if the

[United] States ha[d] a particular interest in this dispute,

[it] had the opportunity to intervene to protect that interest

but declined to participate.” Id. “[I]t would turn Rule 19

analysis on its head to argue that the [United] States’

interests are now impaired because [it] declined to participate

in this much-publicized case.” Id.

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Based on the foregoing, we affirm the circuit court’s

denial of the State’s motions to join the United States as a

necessary party and to dismiss the case for failure to join an

indispensable party.

2. The Case Presents a Justiciable Controversy

a. The Alleged Breach of Trust Is an Actual Controversy for Purposes of HRS § 632-1

The State argues that, because the Plaintiffs have not

alleged that the United States actually violated the terms of

the lease, there is no controversy between the parties of

sufficient immediacy and reality to warrant declaratory

judgment.41 The State relies on Asato v. Procurement Policy

41 In response, the Plaintiffs argue that the court’s jurisdiction over their claims is not dependent on HRS § 632-1. This court has recognized that the beneficiaries of the article XII, section 4 ceded land trust possess a constitutional cause of action against state officials to prospectively enjoin violations of their trust duties. Pele Def. Fund v. Paty, 73 Haw. 578, 601-06, 837 P.2d 1247, 1261–64 (1992). Thus, the Plaintiffs’ request for an order requiring the State to prospectively fulfill its trust duties and enjoining future trust violations is not dependent on HRS § 632-1.

We have clarified, however, that the implied constitutional right of action does not permit a court to “turn back the clock” to grant retrospective relief for “actions already taken by the State.” Id. at 601, 837 P.2d at 1262. And we have indicated that suits seeking retrospective declaratory relief based on an alleged constitutional violation that has already occurred are governed by HRS § 632-1. See Nelson v. Hawaiian Homes Comm’n, 127 Hawai‘i 185, 205, 277 P.3d 279, 299 (2012) (applying HRS § 632-1 in a suit seeking a declaration that the State had violated its duty to afford “sufficient sums” to the Office of Hawaiian Affairs under article XII, section 1 of the Hawai‘i Constitution); Kaho‘ohanohano v. State, 114 Hawai‘i 302, 332, 162 P.3d 696, 726 (2007) (applying HRS § 632-1 in a suit seeking a declaration that the State had violated the article XVI, section 2 prohibition on the impairment of accrued retirement system benefits). Therefore, to the extent the Plaintiffs are seeking a declaration that the State has already violated its trust duties, this relief is dependent on satisfying the requirements of HRS § 632-1.

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Board, 132 Hawai‘i 333, 322 P.3d 228 (2014) and Kau v. City and

County of Hawai‘i, 104 Hawai‘i 468, 92 P.3d 477 (2004), which it

contends demonstrate that the Plaintiffs’ claim is too

speculative to qualify for declaratory relief under HRS § 632-1.

Recently, this court considered the requirements that

must be met to demonstrate a controversy that is subject to a

request for declaratory relief under HRS § 632-1(b). We held

that

a party has standing to seek declaratory relief in a civil case brought pursuant to HRS § 632-1 (1) where antagonistic claims exist between the parties (a) that indicate imminent and inevitable litigation, or (b) where the party seeking declaratory relief has a concrete interest in a legal relation, status, right, or privilege that is challenged or denied by the other party, who has or asserts a concrete interest in the same legal relation, status, right, or privilege; and (2) a declaratory judgment will serve to terminate the uncertainty or controversy giving rise to the proceeding.

Tax Found. of Hawai‘i v. State, 144 Hawai‘i 175, 202, 439 P.3d

127, 154 (2019).42 It is clear that the Plaintiffs’ assertion

that the State breached the trust duty that it owes to them as

beneficiaries meets these requirements, and additionally, the

cases relied upon by the State are inapposite.

42 Hawai‘i state courts are not subject to a constitutional “case or controversy” jurisdictional limitation. See Haw. Const. art. VI, § 1 (“The several courts shall have original and appellate jurisdiction as provided by law . . . .”); Trs. of Office of Hawaiian Affairs v. Yamasaki, 69 Haw. 154, 170 n.17, 737 P.2d 446, 456 n.17 (1987); Tax Found., 144 Hawai‘i at 190, 439 P.3d at 142.

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In Asato, the plaintiff brought suit seeking to

invalidate an administrative rule relating to the State’s

contracting policies and to void every contract that the State

had entered into under the regulation. 132 Hawai‘i at 337, 322

P.3d at 232. Notably, the claim in Asato was brought under HRS

§ 91-7(a), which allows “any interested person” to challenge an

agency rule.43 Asato did not concern HRS § 632-1, and it thus

does not provide guidance herein. See Tax Found., 144 Hawai‘i at

194–95, 439 P.3d at 146–47 (discussing the requirements of HRS §

91-7 and HRS § 632-1 separately).

Further, even if Asato had been brought under HRS §

632-1, its holding is not helpful to the State. Although the

Asato court invalidated the challenged administrative rule, it

declined to declare that the contracts entered into under the

regulation were void, noting that no connection had been alleged

between the plaintiff and any of the individual contracts. Id.

at 355, 322 P.3d at 250. The court determined that, without

43 HRS § 91-7(a) provides as follows:

(a) Any interested person may obtain a judicial declaration as to the validity of an agency rule as provided in subsection (b) by bringing an action against the agency in the circuit court or, if applicable, the environmental court, of the county in which the petitioner resides or has its principal place of business. The action may be maintained whether or not the petitioner has first requested the agency to pass upon the validity of the rule in question.

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knowing the plaintiff’s relation to each contract, it could not

identify any controversy that could be ended by a declaration

that the contracts were void. Id. (“Absent any rendition of the

circumstances surrounding each contract, it cannot be determined

from the allegations whether there is a substantial controversy

as to a particular contract that is of sufficient immediacy and

reality to warrant a declaratory judgment.” (internal quotations

omitted)).

By contrast, the Plaintiffs here are connected to the

PTA and the manner in which the State manages it because the PTA

is held in trust by the State for the Plaintiffs’ benefit. This

is to say that the trust duty that the Plaintiffs allege the

State has breached is a duty the State owes to the Plaintiffs,

and a declaration regarding whether the State has breached that

duty would terminate the controversy by clarifying the contours

of that duty.

The State also relies on Kau, in which this court

considered a Honolulu ordinance that permitted the lessees of

condominium units to purchase fee simple interests through a

condemnation proceeding. 104 Hawai‘i at 472, 92 P.3d at 481.

The case began when the fee simple owners of a condominium

project brought an action seeking a declaration that the

subdivision of the property into individual units would end upon

the expiration of the developer’s master lease in 2014, and thus 65 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

the sublessees of the individual units would not acquire fee

simple interests in their individual units if they were

condemned under the ordinance. Id. The Kau court held that,

because the fee simple owners were “requesting a judgment based

on the expiration of the Master Lease, an event that [would]

occur at some time in the future; there [wa]s no actual

controversy in existence at th[at] time.” Id. at 475, 92 P.3d

at 484. Specifically, the court noted that the declaration

would require speculation as to the conditions that would exist

when the master lease expired. Id. During the interim, the

court reasoned, the city could condemn the fee owner’s interest

or the fee owners could make the appropriate filings to make the

subdivision permanent, thereby avoiding the situation that the

fee simple owners wished the court to rule on. Id.

Unlike in Kau, the Plaintiffs’ breach of trust claim

based on a failure to reasonably monitor the United States’

compliance with the lease does not require the court to

speculate about future conditions--nor even the present

likelihood that the United States is currently in breach of the

lease.44 Rather, the Plaintiffs alleged that the State has

44 The circuit court additionally determined that the State would

further breach [its] trust duties if [it] were to execute an extension, renewal, or any other change to the State General Lease No. S-3849, or enter into a new lease of the

(continued . . .) 66 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

already breached its duty as a trustee by failing to monitor

compliance with the provisions of the lease, irrespective of

whether the United States actually complied with the lease

terms. This case thus presents the type of controversy that is

necessary to qualify for relief under HRS § 632-1(b).

b. The Alleged Breach of Trust Does Not Present a Political Question

Under the political question doctrine, courts refrain

from deciding certain matters that are committed to the

discretion of the other branches of government, reasoning that

government action in these areas is properly addressed through

democratic processes. See Trs. of Office of Hawaiian Affairs v.

Yamasaki, 69 Haw. 154, 171, 737 P.2d 446, 456 (1987). This

court has adopted the test for identifying a political question

articulated by the United States Supreme Court in Baker v. Carr,

369 U.S. 186, 217 (1962). Under the Carr formulation, a

political question may be found when “on the surface of [a]

case” there is 1) “a textually demonstrable constitutional

PTA, without first determining (in writing) that the terms of the existing lease have been satisfactorily fulfilled, particularly with respect to any lease provision that has an impact upon the condition of the [PTA] leased lands.

As discussed in more detail infra, Part V.B.4, any breach of trust claim regarding the State’s renewal of the lease is speculative and not ripe for review, and thus this aspect of the Plaintiffs’ claim does not present a controversy susceptible to declaratory relief under HRS § 632-1.

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commitment of the issue to a coordinate political department;”

2) “a lack of judicially discoverable and manageable standards

for resolving it;” 3) “the impossibility of deciding without an

initial policy determination of a kind clearly for nonjudicial

discretion;” 4) “an unusual need for unquestioning adherence to

a political decision already made;” or 5) “the potentiality of

embarrassment from multifarious pronouncements by various

departments on one question.” Yamasaki, 69 Haw. at 169-70, 737

P.2d at 455 (quoting Carr, 369 U.S. at 217).

The State contends that Plaintiffs’ claim that it

violated its constitutional public trust duties is a

nonjusticiable political question under Yamasaki and Nelson v.

Hawaiian Homes Commission. In Yamasaki, the Trustees of the

Office of Hawaiian Affairs brought suit seeking 20% of the

proceeds derived by the State as damages from an illegal sand

mining operation taking place on ceded lands. 69 Haw. at 165-

67, 737 P.2d at 452-54. Although HRS § 10-13.5 provided that

“[t]wenty per cent of all funds derived from the public land

trust . . . shall be expended by the [O]ffice of Hawaiian

Affairs,” the court held that the case presented a political

question because no judicially discoverable and manageable

standards existed for determining whether the damages amounted

to “funds derived from the public land trust.” Id. at 174, 737

P.2d at 458. Resolving the case would require an initial policy

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determination that was typically reserved for nonjudicial

discretion, the court held. Id. at 174-75, 737 P.2d at 458. In

Nelson, the court held that determining what constitutes

“sufficient funds” for three of the four purposes set forth in

article XII, section 1 of the Hawaii Constitution45 was a

political question not suited for judicial resolution. 127

Hawai‘i at 188, 277 P.3d at 282. The court held that, even were

it to declare that the amount of funds currently dedicated to

three of the four purposes was insufficient, there were no

discoverable standards in the text or constitutional history of

the provision for a court to affirmatively determine the amount

that would be sufficient. Id. at 206, 277 P.3d at 300.

These cited cases are plainly distinguishable. Unlike

in Yamasaki and Nelson, this court’s precedents interpreting the

State’s constitutional trust obligations and the widely

developed common law of trusts provide many judicially

45 Article XII, section 1 of the Hawaii Constitution provides in relevant part as follows:

The legislature shall make sufficient sums available for the following purposes: (1) development of home, agriculture, farm and ranch lots; (2) home, agriculture, aquaculture, farm and ranch loans; (3) rehabilitation projects to include, but not limited to, educational, economic, political, social and cultural processes by which the general welfare and conditions of native Hawaiians are thereby improved; (4) the administration and operating budget of the department of Hawaiian home lands; in furtherance of (1), (2), (3) and (4) herein, by appropriating the same in the manner provided by law.

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discoverable and manageable standards for determining whether

the State breached its trust duties. “It is well settled that

the determination of whether or not a particular proposed

action, by the trustee of a charitable trust, would constitute a

breach of that trust, is a matter to be determined by the

courts, as a part of their inherent jurisdiction.” Kapiolani

Park Pres. Soc. v. City & Cty. of Honolulu, 69 Haw. 569, 571,

751 P.2d 1022, 1024 (1988) (citing 15 Am.Jur.2d Charities § 135

(1976); 14 C.J.S. Charities § 49 (1939)).

The State points to the Ninth Circuit decision in

Price v. Hawaii, in which the court held that as a matter of

federal law, section 5(f) of the Admission Act46 did not

incorporate “all provisions of the common law of trusts” because

to do so “would manacle the State as it attempted to deal with

the vast quantity of land conveyed to it.” 921 F.2d 950, 954-56

(9th Cir. 1990). While this court has approvingly quoted this

passage when examining the State’s obligations when

administering a different, statutorily created trust, see

46 “Article XII, § 4 was added to the Hawaii Constitution to expressly recognize the trust purposes and trust beneficiaries of the § 5(f) trust, clarifying that the State’s trust obligations extend beyond the Hawaiian Homes Land Trust.” Pele Def. Fund, 73 Haw. at 603, 837 P.2d at 1263 (citing Stand. Comm. Rep. No. 59 in I Proceedings of the Constitutional Convention of Hawaii of 1978, 643-44 (1980)). “In article XVI, [section] 7, referred to by article XII, [section] 4, the State affirmatively assumes the [section] 5(f) trust responsibilities.” Id. at 586 n.2, 837 P.2d at 1254 n.2.

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Awakuni v. Awana, 115 Hawai‘i 126, 133, 165 P.3d 1027, 1034

(2007), this does not establish that the common law of trusts is

wholly inapplicable. This is to say that a ruling that not all

provisions of the common law apply does not equate to a ruling

that none of the provisions of the common law apply. Indeed,

the same year that the Ninth Circuit decided Price v. Hawaii, it

relied in part on the common law of trusts when it held in a

related case that the same plaintiff stated a claim against the

Office of Hawaiian Affairs based on an alleged breach of its

section 5(f) trust duties. See Price v. Akaka, 928 F.2d 824,

826–27 (9th Cir. 1990) (“In addition, allowing Price to enforce

§ 5(f) is consistent with the common law of trusts, in which one

whose status as a beneficiary depends upon the discretion of the

trustee nevertheless may sue to compel the trustee to abide by

the terms of the trust.” (citing Restatement (Second) of Trusts

§§ 214(1) cmt. a, 391)).

Further, this court may draw upon its own case law

interpreting the State’s constitutional trust obligations for

administrable standards, including instances in which we have

explicitly stated that beneficiaries of the ceded land trust may

bring actions to determine whether executive branch agencies

have breached their constitutional trust duties. See, e.g.,

Pele Def. Fund, 73 Haw. 578, 605, 837 P.2d 1247, 1264 (1992)

(“We find that the actions of state officials, acting in their 71 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

official capacities, should not be invulnerable to

constitutional scrutiny. Article XII, § 4 imposes a fiduciary

duty on Hawai‘i’s officials to hold ceded lands in accordance

with the § 5(f) trust provisions, and the citizens of the state

must have a means to mandate compliance.”). The State’s

contention that this case presents a nonjusticiable political

question is thus without merit.

3. The Circuit Court Did Not Err in Concluding the State Breached Its Trust Duties

a. The Circuit Court Correctly Determined that the State has a Trust Duty To Reasonably Monitor the Trust Property, Including the United States’ Compliance with the Terms of the Lease that Protect the Trust Property

In its conclusions of law, the circuit court

determined that the State’s trust duties include using

“reasonable efforts” to preserve trust property and to take a

proactive role in the management and protection of the leased

PTA land. The court ruled that one aspect of this duty is an

obligation “to use reasonable efforts to ensure that Said Lease

provisions that affect or impact the condition of ceded lands

and all living things thereon are being followed and

discharged.” Further, the court concluded that the State has a

duty to consider the cumulative effects of the United States’

use of the land upon the condition of the land and upon “the

indigenous plants, animals, and insects, as well as the invasion

to Plaintiffs’ cultural interests in the Subject Land.”

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Although the State blends its arguments regarding the nature of

its legal trustee duties with those regarding the underlying

justiciability of the case, the State appears to dispute these

rulings and to argue that its trustee duties do not include an

obligation to reasonably monitor the leased PTA land.

The State’s duties with respect to the leased PTA land

are derived in part from the properties’ status as “ceded land”-

-which are lands that were held by the civil government or the

monarchy of the Hawaiian Kingdom at the time of the 1893

overthrow of the Hawaiian monarchy. See Pele Def. Fund, 73 Haw.

at 585, 837 P.2d at 1254. When the United States annexed Hawai‘i

by a joint resolution of Congress in 1898, real property that

had been classified as government lands or crown lands was ceded

to the federal government. Id. Recognizing their special

character, the Joint Resolution of Annexation exempted these

lands from the general laws of the United States that governed

federal land. State ex rel. Kobayashi v. Zimring, 58 Haw. 106,

124, 566 P.2d 725, 736 (1977) (citing Joint Resolution of July

7, 1898, 30 Stat. 750). Instead, the resolution specified that

these lands should be held in a “special trust” for the benefit

of the people of Hawai‘i. Id. When Hawai‘i was admitted into

the Union as a state in 1959, these ceded lands were transferred

back to the newly established state, subject to the trust

provisions set forth in section 5(f) of the Admission Act. Pele 73 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

Def. Fund, 73 Haw. at 585, 837 P.2d at 1254 (citing Hawaii

Admission Act, Pub. L. No. 86–3, 73 Stat. 4, 6 (1959)). Article

XII, section 4 was later added to the Hawai‘i Constitution to

formally recognize these responsibilities, specifying that the

land “shall be held by the State as a public trust for native

Hawaiians and the general public.”47 Id. at 586, 837 P.2d at

1254 (quoting Haw. Const. art. XII, § 4). At that same time,

the framers and the people of Hawai‘i adopted article XI, section

1, which created a public trust consisting of “all public

natural resources” to be administered by the State for the

benefit of the people.48 Haw. Const. art. XI, § 1.

47 Article XII, section 4 of the Hawai‘i Constitution provides in full as follows:

The lands granted to the State of Hawaii by Section 5(b) of the Admission Act and pursuant to Article XVI, Section 7, of the State Constitution, excluding therefrom lands defined as “available lands” by Section 203 of the Hawaiian Homes Commission Act, 1920, as amended, shall be held by the State as a public trust for native Hawaiians and the general public. 48 Article XI, section 1 of the Hawai‘i Constitution provides in full as follows:

For the benefit of present and future generations, the State and its political subdivisions shall conserve and protect Hawaii’s natural beauty and all natural resources, including land, water, air, minerals and energy sources, and shall promote the development and utilization of these resources in a manner consistent with their conservation and in furtherance of the self-sufficiency of the State.

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

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As the State concedes, our case law and the common law

of trusts make the State “subject to certain general trust

duties, such as a general duty to preserve trust property.”

See, e.g., Zimring, 58 Haw. at 121, 566 P.2d at 735 (“Under

public trust principles, the State as trustee has the duty to

protect and maintain the trust property and regulate its use.”);

Kaho‘ohanohano v. State, 114 Hawai‘i 302, 325, 162 P.3d 696, 719

(2007) (“[It] is always the duty of a trustee to protect the

trust property . . . .” (quoting Brenizer v. Supreme Council,

Royal Arcanum, 53 S.E. 835, 838 (N.C. 1906))); In re Estate of

Dwight, 67 Haw. 139, 146, 681 P.2d 563, 568 (1984) (“A trustee

is under a duty to use the care and skill of a [person] of

ordinary prudence to preserve the trust property.” (citing

Bishop v. Pittman, 33 Haw. 647, 654 (Haw. Terr. 1935));

Restatement (Second) of Trusts § 176 (“The trustee is under a

duty to the beneficiary to use reasonable care and skill to

preserve the trust property.”).49 As trustee, the State must

49 The State’s duty of care is especially heightened in the context of ceded land held in trust for the benefit of native Hawaiians and the general public under article XII, section 4. This court has approvingly quoted the following in considering the ceded land trust:

The native Hawaiian people continue to be a unique and distinct people with their own language, social system, ancestral and national lands, customs, practices and institutions. The health and well-being of the native Hawaiian people is intrinsically tied to their deep feelings and attachment to the land. ‘Aina, or land, is of crucial importance to the native Hawaiian people--to their

(continued . . .) 75 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

take an active role in preserving trust property and may not

passively allow it to fall into ruin. United States v. White

Mt. Apache Tribe, 537 U.S. 465, 475 (2003) (“[E]lementary trust

law, after all, confirms the commonsense assumption that a

fiduciary actually administering trust property may not allow it

to fall into ruin on [the fiduciary’s] watch.”). It is self-

evident that an obligation to reasonably monitor trust property

to ensure it is not harmed is a necessary component of this

general duty, as is a duty to investigate upon being made aware

of evidence of possible damage. This obligation inherently

includes a duty to make reasonable efforts to monitor third-

parties’ compliance with the terms of agreements designed to

protect trust property.

culture, their religion, their economic self-sufficiency and their sense of personal and community well-being. ‘Aina is a living and vital part of the native Hawaiian cosmology, and is irreplaceable. The natural elements— land, air, water, ocean—are interconnected and interdependent. To native Hawaiians, land is not a commodity; it is the foundation of their cultural and spiritual identity as Hawaiians. The ‘aina is part of their ‘ohana, and they care for it as they do for other members of their families. For them, the land and the natural environment is alive, respected, treasured, praised, and even worshiped.

Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp. of Hawai‘i, 121 Hawai‘i 324, 333, 219 P.3d 1111, 1120 (2009) (alterations omitted) (quoting Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp. of Hawaii, 117 Hawai‘i 174, 214, 177 P.3d 884, 924 (2008)).

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This court held as much in Kelly v. 1250 Oceanside

Partners, in which it considered the article XI, section 1

public trust duties of the Hawai‘i Department of Health (DOH)

with respect to a private development abutting coastal waters

that the State had classified as “AA,” meaning the waters were

legally required to be kept as nearly as possible in their

natural, pristine condition. 111 Hawai‘i 205, 227-29, 140 P.3d

985, 1007-09 (2006). Although DOH had issued a permit to the

developer that included provisions requiring the developer to

abide by State regulations prohibiting the pollution of AA

waters, this court held that including the provisions in the

permit was not the end of DOH’s duties as trustee. Id. Under

public trust principles, we held, DOH was required to “not only

issue permits after prescribed measures appear to be in

compliance with state regulation, but also to ensure that the

prescribed measures are actually being implemented after a

thorough assessment of the possible adverse impacts the

development would have on the State’s natural resources.” Id.

at 231, 140 P.3d at 1011 (emphasis added). We thus effectively

held that the State had a continuing public trust duty to

reasonably monitor the developer to ensure it was complying with

the permit. See id.

The present case presents close parallels to Oceanside

Partners. As in Oceanside Partners, the State entered into an 77 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

agreement to allow a third party to use land for a particular

purpose provided the third party complied with certain

conditions intended to protect trust property. And as in

Oceanside Partners, the State has a continuing trust duty to

make reasonable efforts to ensure that the third party actually

complies with those conditions. Thus, the State has a

constitutional trust obligation to reasonably monitor the

United States’ compliance with the lease.

The State’s attempts to distinguish Oceanside Partners

are unavailing. As a threshold matter, the State is incorrect

that no statute exists setting forth the State’s obligations

with respect to ensuring the United States’ compliance with the

lease; HRS § 171-7(5) provides that, “[e]xcept as provided by

law the board of land and natural resources through the

chairperson shall: . . . [e]nforce contracts respecting sales,

leases, licenses, permits, or other disposition of public

lands[.]” Moreover, this court has made clear that while

overlap may occur, the State’s constitutional public trust

obligations exist independent of any statutory mandate and must

be fulfilled regardless of whether they coincide with any other

legal duty. Kauai Springs, Inc. v. Planning Comm’n of Kaua‘i,

133 Hawai‘i 141, 172, 324 P.3d 951, 982 (2014) (“As the public

trust arises out of a constitutional mandate, the duty and

authority of the state and its subdivisions to weigh competing 78 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

public and private uses on a case-by-case basis is independent

of statutory duties and authorities created by the

legislature.”); see also In re TMT, 143 Hawaii 379, 416, 431

P.3d 752, 789 (2018) (Pollack, J., concurring) (“Thus, although

some congruence exists, BLNR’s and the University of Hawai‘i at

Hilo’s public trust obligations are distinct from their

obligations under [Hawaii Administrative Rules] § 13-5-

30(c).”).

Additionally, the fact that Paragraph 9 of the lease

only requires the United States to “make every reasonable

effort to . . . remove or deactivate all live or blank

ammunition upon completion of a training exercise or prior to

entry by the said public, whichever is sooner” does not render

the State powerless to respond to a breach of this provision as

the State contends. It is well settled that an agreement by

one party to use “reasonable” or “best efforts” generally

creates an enforceable obligation as a matter of contract law.

See, e.g., Soroof Trading Dev. Co. v. GE Fuel Cell Sys., LLC,

842 F.Supp.2d 502, 511 (S.D.N.Y. 2012) (“New York courts use

the term ‘reasonable efforts’ interchangeably with ‘best

efforts’ . . . [and] a ‘best efforts’ clause imposes an

obligation to act with good faith in light of one’s own

capabilities.” (quoting Monex Fin. Serv. Ltd. v. Nova Info.

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Sys., Inc., 657 F.Supp.2d 447, 454 (S.D.N.Y. 2009))); Allview

Acres, Inc. v. Howard Inv. Corp., 182 A.2d 793, 796 (Md. 1962)

(“What will constitute reasonable efforts under a contract

expressly or impliedly calling for them is largely a question

of fact in each particular case and entails a showing by the

party required to make them of ‘activity reasonably calculated

to obtain the approval by action or expenditure not

disproportionate in the circumstances.’” (quoting Stabile v.

McCarthy, 145 N.E.2d 821, 824 (Mass. 1957))). And, while the

lease may not contain a provision expressly allowing the State

to terminate the lease, it does contain a dispute resolution

mechanism in Paragraph 30. This mechanism appears to

specifically contemplate the possibility of judicial

enforcement, setting forth the conditions under which “a court

of competent jurisdiction” may set aside the administrative

factual findings and specifying that administrative decisions

on questions of law shall not be final.

Moreover, the State errs by presuming that initiating

a formal action to enforce the lease is the only possible

response it could undertake to preserve and protect the PTA

land if it discovers the United States is in noncompliance with

the relevant provisions of the lease. A range of other options

may be available that could satisfy its public trust

obligations under the circumstances, including seeking to

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obtain the United States’ voluntary cooperation. As the

Plaintiffs argued during the summary judgment hearing, how the

State responds if reasonable monitoring and investigation lead

to a discovery that the United States is not in compliance with

the lease could potentially be a separate breach of the State’s

public trust duties, and this court need not speculate about

what hypothetical future actions are reasonable in order to

resolve this case.

The State is therefore wrong to suggest that

reasonably monitoring the United States’ compliance with the

lease is a futile or pointless endeavor, and Oceanside

Partners’ holding that the State has an ongoing trust

obligation to ensure third-party compliance with provisions

designed to protect trust property is dispositive as to the

existence of this obligation.

b. The Circuit Court Did Not Err in Determining that the State Did Not Reasonably Monitor the Trust Property, Including the United States’ Compliance with the Lease Terms that Protect Trust Property

The State appears to argue next that, even if it does

have a trust duty to reasonably monitor the United States’

compliance with the lease, the circuit court erred in finding

that it breached that duty by failing to conduct regular

inspections of the PTA and by failing to investigate when it was

made aware of evidence that the United States may have violated

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provisions of the lease designed to protect the leased PTA land.

“Typically, whether a fiduciary acted prudently--or in other

words, as a reasonably prudent fiduciary--is a question of

fact.” Harley v. Minn. Mining & Mfg. Co., 42 F.Supp.2d 898, 907

(D. Minn. 1999); see also Knodle v. Waikiki Gateway Hotel, Inc.,

69 Haw. 376, 385, 742 P.2d 377, 383 (1987) (“Whether there was a

breach of duty or not, i.e. whether there was a failure on the

defendant’s part to exercise reasonable care, is a question for

the trier of fact.”). Accordingly, the circuit court’s

determination that the State did not reasonably monitor the

United States’ compliance with the lease terms must be upheld if

it is not clearly erroneous.

The circuit court specifically found that the State

had breached its trust duties by failing to, inter alia:

(a) conduct regular reasonable (in terms of frequency and scope), periodic monitoring and inspection of the condition of subject public trust lands . . . ;

(b) ensure that the terms of the lease that impact the condition of the leased lands or preserving Plaintiffs’ cultural interests are being followed;

(c) take prompt and appropriate follow up steps with military or other federal government officials when [the State] obtain[s] or [is] made aware of evidence or information that the lease may have been violated with respect to protecting the condition of the [PTA] leased 50 lands[. ]

50 The circuit court additionally found that the State had breached its trust duties by failing to consistently make reasonably detailed and complete records of its actions to ensure compliance with the lease and by failing to initiate or assist with the appropriation of necessary funding to

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(Line breaks added.) In making this determination, the court

relied on the fact that “[o]nly three [inspection] reports of

any significance, for 1984, 1994, and 2014, were introduced into

evidence.” Of these, “[t]he 1984 and 1994 reports were grossly

inadequate and, in the case of the 1994 report, virtually

nonexistent because of its lack of information pertaining to the

1994 inspection.” The court stated that it was not considering

“other studies or site visits in connection with other business

regarding the [PTA], such as environmental impact statements,

[because] the court did not view these events as being

undertaken as part of [the State’s] effort to discharge” its

trust duties.

The State argues that the circuit court’s

determination was clearly erroneous because it explicitly

disregarded the State’s reliance on cooperative agreements,

environmental reports, and archeological surveys to supervise

undertake cleanup of the PTA. And the court held that the State would breach its trust duties if it were to extend or renew the lease “without first determining (in writing) that the terms of the existing lease have been satisfactorily fulfilled, particularly with respect to any lease provision that has an impact upon the condition of the” PTA. The State does not appear to challenge these conclusions on appeal, raising in their point of error regarding the breach only that “[t]he circuit court erred in finding that the State breached its trust duties by failing to perform adequate inspections of the Subject Land.” Nevertheless, as discussed below, the circuit court’s order regarding the securing of funding for cleanup was not suited to remedy the breach alleged by the Plaintiffs, and any holding regarding a future breach of the State’s trust duties is speculative.

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the United States’ use of the PTA.51 Under the circumstances,

the State contends, it was reasonable for the State to delegate

its duties52 and rely on its review of ancillary documents to

monitor the PTA.

51 These documents included a copy of the United States training regulations and procedures from 1970, an environmental assessment for a training exercise in 1982, a 1984 archeological survey report, a 2002 Integrated Natural Resources Management Plan, a 2004 environmental impact statement, and a 2004-2010 “Programmatic Agreement” to provide additional protection to cultural sites. 52 The State cites Restatement (Second) of Trusts § 171 for the proposition that a trustee has authority to cooperate, consult, and delegate to others tasks relating to trust administration when it is reasonable to do so. However, this is not an accurate description of Restatement (Second) of Trusts § 171, which is entitled “Duty Not to Delegate.” (Emphasis added.) Under the approach taken by the First and Second Restatement, “[t]he trustee is under a duty to the beneficiary not to delegate to others the doing of acts which the trustee can reasonably be required personally to perform.” Id.; Restatement (First) of Trusts § 171. However, “[t]he position of The American Law Institute was fundamentally changed in 1992,” and Restatement (Third) of Trusts § 80, “Duty with Respect to Delegation,” provides as follows:

(1) A trustee has a duty to perform the responsibilities of the trusteeship personally, except as a prudent person of comparable skill might delegate those responsibilities to others.

(2) In deciding whether, to whom, and in what manner to delegate fiduciary authority in the administration of a trust, and thereafter in supervising or monitoring agents, the trustee has a duty to exercise fiduciary discretion and to act as a prudent person of comparable skill would act in similar circumstances.

Restatement (Third) of Trusts § 80 and Reporter’s Notes on § 80. Hawai‘i courts have not explicitly adopted either the Restatement’s original position or the new position set forth in the Third Restatement, though many older cases make clear that at least some of a trustee’s duties are non-delegable. See Hartmann v. Bertelmann, 39 Haw. 619, 627 (Haw. Terr. 1952) (“[T]he primary responsibility of administering the trust is the trustee’s, which he cannot delegate . . . .”); In re Banning’s Estate, 9 Haw. 453, 463 (Haw. Rep. 1894) (“The duties and powers of trustees cannot be delegated.”).

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To the extent the State argues that it can delegate

its public trust duty to reasonably monitor the PTA to protect

and preserve trust property, this contention is squarely counter

to our precedent indicating that the State may not delegate its

constitutional duties to third-parties. See Ka Pa‘akai O Ka‘Aina

v. Land Use Comm’n, 94 Hawaii 31, 50-51, 7 P.3d 1068, 1087-88

(2000) (holding that the Land Use Commission improperly

delegated its article XII, section 7 “responsibility for the

preservation and protection of native Hawaiian rights” by

authorizing a land reclassification on the promise that the

developer would later create a program to accommodate native

practitioners, as the “balancing of the developer’s interests

with the needs of native Hawaiians should have been performed,

in the first instance, by the” State agency). The Ka Pa‘akai

court held that the Hawai‘i Constitution places “an affirmative

duty on the State and its agencies to preserve and protect

traditional and customary native Hawaiian rights.” Id. at 45, 7

P.3d at 1082 (emphasis added). At the core of this affirmative

duty, as explained by the Ka Pa‘akai court, is the responsibility

of the State and its constituent agencies to act only after

“independently considering the effect of their actions on

Hawaiian traditions and practices.” Id. at 46, 7 P.3d at 1083.

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An affirmative duty of the State to protect and preserve

constitutional rights is by its very nature non-delegable.

Even if such a delegation were not inherently invalid

under the Hawai‘i Constitution and permitted under our common law

of trusts, that delegation would itself have to be reasonable

under the prudent person standard, and the State would maintain

a trust duty to reasonably supervise the agent in its

performance of the monitoring. See supra note 52. It is self-

evident that, as a general matter, it is not reasonable for a

trustee to delegate the supervision of a lessee’s compliance

with the terms of a lease of trust property to the lessee. Cf.

Halderman v. Pennhurst State Sch. & Hosp., 526 F. Supp. 428, 433

(E.D. Pa. 1981) (“The Commonwealth defendants appear to take the

position that they should be able to monitor their own

compliance with the Court’s Orders. This would be somewhat akin

to requesting the fox to guard the henhouse.”). This is

especially true given the circuit court’s findings that the

State was aware of the United States’ history of failing to

prevent environmental damage and clean up the remnants of

military exercises on other State-owned land that it leases,

including Mākua and the Waikāne Valley.

Nevertheless, it is generally not considered a breach

of duty for a fiduciary to rely in part on reports prepared by a

person as to matters that the fiduciary reasonably believes to 86 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

be within that person’s expertise. Cf. HRS § 414D-155(b)(2)

(Supp. 2018);53 HRS § 414D-149(b)(2) (Supp. 2018).54 Democratic

principles and the checks and balances of government may

arguably serve to make a governmental entity like the United

States more accountable than the average lessee, and some of the

documents authored on behalf of the United States included

observations by independent third parties. If the State took

appropriate action to verify the content, it may have reasonably

concluded that the reports were reliable, and it could have

validly considered them in the course of fulfilling its non-

delegable trust duties. The circuit court therefore appears to

have erred in disregarding the State’s review of these ancillary

documents in assessing whether the State had fulfilled its trust

duty to reasonably monitor the PTA solely on the basis that

these other reports were not “undertaken as part of [the

State’s] effort to discharge” its trust duties.

But the State’s efforts were clearly inadequate in any

event. The ancillary reports occurred very infrequently and in

53 HRS § 414D-155(b)(2) provides that, in the course of discharging the officer’s duties, an officer of a nonprofit corporation may “rely on information, opinions, reports, or statements, including financial statements and other financial data, if prepared or presented by . . . [l]egal counsel, public accountants, or other persons as to matters the officer reasonably believes are within the person’s professional or expert competence.” 54 HRS § 414D-149(b)(2) provides the same right to rely on information from professionals regarding matters within their expertise to directors of a non-profit corporation.

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some cases cited evidence of damage and suggested that the

United States may not have been in compliance with the lease.

Indeed, the circuit court made specific findings regarding

adverse environmental information included in two of the United

States’ reports. It noted that a 2010 archaeological and

cultural monitoring report stated,

The Military needs to implement some kind of cleanup process as part of their training in PTA. Remnants of military trash is everywhere.

Another major concern is the military debris that is left behind after training including [UXO] that is carelessly discarded. There is a need to have some type of cleanup plan implemented in the military training process.

(Emphasis omitted.) The court also found that a second

archaeological and cultural monitoring report made four years

later expressed many of the same concerns with specific regard

to the United States’ obligations under the lease:

Remnants of live fire training are present within the BAX, including stationary targets, junk cars, an old tank, crudely built rock shelters, and miscellaneous military rubbish. Spent ammunition is scattered across the landscape.

This lease . . . requires the land to be restored to its original state when returned. This cannot occur if the land remains so littered with UXO that it is unsafe for anyone to go on the land. If this is the case, the land will be rendered unusable forever--one eighth of our island will become unavailable for use by any of our future generations. This is not acceptable nor could it be construed in any way to be in compliance with the Statehood compact.

Therefore, in order for the Army to meet the lease termination deadline, we strongly recommend the Army begin now to seek funding to initiate a serious cleanup effort

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throughout the leased training areas bounding the impact areas: that major impact/UXO areas be subjected to thorough cleanup[.]

(Emphasis and some alterations in original.)55 There was no

indication the State ever followed up on these reports.

The circuit court found that the State breached its

trust duties: by failing to conduct regular monitoring and

inspections that were reasonable in frequency and scope to

examine the condition of the leased PTA land; by failing to

ensure that the terms of the lease that impact the condition

of the leased PTA land were being followed; and by failing to

take prompt and appropriate follow-up steps when it was made

aware of evidence that the lease may have been violated with

respect to protecting the condition of the leased PTA land.

In light of the foregoing, the circuit court did not err in

these findings.

4. The Injunctive Relief Ordered by the Circuit Court Was Not Entirely Suited To Remedy the Demonstrated Breach

The circuit court ordered the State to rectify its

breach of its constitutional public trust duties by “promptly

initiat[ing] and undertak[ing] affirmative activity to malama 55 Although the court did not make any specific findings regarding the other reports on which the State claims it relied, several of these also documented substantial environmental problems with the leased PTA land. For example, the 2002 Integrated Natural Resources Management Plan noted in a section setting forth the “Adverse Effects” of the “Military Mission on Natural Resources” that 22.9% of the ground cover in the surveyed area consisted of litter and “[t]here was virtually no evidence of maintenance activity.”

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‘aina the” PTA. According to the court, this includes but is not

limited to developing a written plan to care for the land. The

court stated that the plan must include the following:

 regular, periodic on-site monitoring and inspection;

 the making of inspection reports that at minimum include a set of specified information, recommendations for appropriate action, and a nonbinding estimated timeline for when such action should be undertaken;

 a protocol of appropriate action that will be undertaken if the State discovers an “actual, apparent, or probable breach of any provision” of the lease by the United States, [UXO] or debris deposited during training exercises, any other foreign or non- natural item or contaminate connected with the lease, or any other condition adversely affecting the PTA;

 a protocol or other assurance to bring any nonconforming condition found that is likely caused by the United States under the lease into pre-lease condition on a reasonable timetable;

 a set of steps the State will take to obtain or assist in securing adequate funding for a comprehensive cleanup of the PTA; and

 a procedure to provide reasonable transparency to the Plaintiffs and the general public with regard to the State’s progress in fulfilling the court’s order.

The court also ordered the State to initiate HRS Chapter 91

rulemaking to establish a contested case procedure, if not

already in existence, through which the Plaintiffs or any member

of the general public with standing could challenge the State’s

decisions in the course of discharging its trust duty to care 90 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

for the leased PTA lands. Lastly, the court ordered that the

State submit its plan to care for the land to the court for

approval prior to executing it.

The form and scope of injunctions issued by Hawai‘i

courts are governed by HRCP Rule 65(d), which provides as

follows:

Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.

(Emphases added). We have stated that, when granting an

injunction, a court should adopt relief and “mold[] its decree

to satisfy the requirement[s] of th[e] particular case and

thereby conserve the equities of all of the parties.” Fleming

v. Napili Kai, Ltd., 50 Haw. 66, 70, 430 P.2d 316, 319 (1967);

see also Moffat v. Speidel, 2 Haw. App. 334, 335, 631 P.2d 1205,

1206 (1981) (holding that a court’s failure to “mold its decree

and the relief granted to satisfy the requirements of the case”

violates HRCP Rule 65(d)). In interpreting the substantively

identical federal rule, federal courts have consistently held

that injunctions must “remedy only the specific harms shown by

the plaintiffs.” Price v. City of Stockton, 390 F.3d 1105, 1117

(9th Cir. 2004) (internal quotes and citations omitted). An

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overbroad injunction is an abuse of discretion. Kohl v.

Legoullan, 936 P.2d 514, 519 (Alaska 1997).

As discussed supra, the circuit court correctly

determined that the State breached its constitutional trust

duties by failing to reasonably monitor the PTA, including by

failing to inspect the land to ensure the United States’

compliance with the lease terms intended to protect and preserve

trust property. Much of the circuit court’s order was

appropriately tailored to address this breach. By requiring the

State to develop and execute a plan to conduct regular, periodic

monitoring and inspection, the court’s order ensured that the

State would fulfill its trust duty to inform itself of the

present condition of the leased PTA land and whether the United

States was in compliance with the relevant terms of the lease so

that it might take further action if needed to protect and

preserve trust property.56 By requiring these inspections to be

56 The circuit court’s order included several specific details as to how the inspections should be carried out, including that

the monitoring should involve direct (in person) or indirect (via videographic or live remote viewing) observation of actual military training exercises (including live fire exercises of all types using live and/or explosive munitions, as well as the use of heavy vehicles or equipment above and upon the land) so that the monitors and/or inspectors can observe and appreciate the destructive effects, if any, of all such training and use of equipment[.]

While these measures may represent the quality of monitoring that the State should aspire to, we hold that the circuit court’s order should be

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documented in detailed inspection reports, the order assures

that the inspections are meaningful and allows trust

beneficiaries to evaluate the State’s response to what it

discovers, enabling the bringing of a future action to enforce

the State’s trust duties if it fails to fulfill them. And by

requiring the State to establish a procedure to ensure

reasonable transparency to the Plaintiffs and general public

regarding the State’s progress with complying with the court’s

order, the order ensures its own effectiveness through public

The State contends that because the circuit court’s

order does not specify how often the periodic inspections must

take place, it is impermissibly vague.57 But it is not uncommon

for courts to issue generally-stated orders requiring government

agencies to submit plans to remedy constitutional violations and

then evaluate the adequacy of the plans prior to their

interpreted to require monitoring to the fullest extent consistent with the State’s right of reasonable entry under the lease and no more. 57 The State argues that this requirement ensures further litigation and indicates the relief does not “terminate the uncertainty or controversy giving rise to the proceeding” as required by HRS § 632-1. As stated, however, the Plaintiffs have a constitutional cause of action for prospective injunctive relief that exists independently of HRS § 632-1. See supra note 41.

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implementation.58 And this court has prescribed substantially

more intensive monitoring to ensure specific compliance with

terms of a broadly phrased order. See Konno v. Cty. of Hawai‘i,

85 Hawai‘i 61, 79, 937 P.2d 397, 415 (1997) (“We further instruct

the circuit court to fashion injunctive relief requiring the

landfill to be transferred from private operation to County

operation as rapidly as possible but consistent with practical

and public interest concerns. The circuit court shall also

monitor the transition and may impose sanctions for non–

compliance.”); see also Tugaeff v. Tugaeff, 42 Haw. 455, 459

(Haw. Terr. 1958) (“A court of equity, having once assumed

jurisdiction of a case, will retain the case to afford complete

relief.”) The State’s objections are thus without merit. Under

the circumstances of this case, the court did not abuse its

discretion in ordering these remedies.

Many other portions of the circuit court’s order,

however, appear designed to remedy breaches of the State’s trust

duties that the Plaintiffs did not allege, including some that

have not and may not occur. Foremost among these is the circuit 58 See, e.g., Sanchez v. McDaniel, 615 F.2d 1023, 1024 (5th Cir. 1980) (“The district court determined that the 1968 Kleberg County, Texas, apportionment plan violated the constitutional principle of one man, one vote. It directed the appellees to submit a proposed reapportionment plan by November 13, 1979.”); Bd. of Pub. Instruction of Duval Cty. v. Braxton, 326 F.2d 616, 619-21 (5th Cir. 1964) (affirming court order requiring school board “to submit to the Court for its consideration a detailed and comprehensive plan” for ending school segregation).

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court’s statement that its order to care for the land “includes,

but is not necessarily limited to” the measures specifically

described therein. Courts have generally held that injunctions

cannot be “so vague that they have no reasonably specific

meaning.” E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d

1280, 1297 (9th Cir. 1992). “The aims of Rule 65(d) are to

minimize the occasion for follow-on proceedings to the issuance

of an injunction and to protect defendants from being held in

contempt for failure to follow a directive that was a trap

because of its ambiguity.” United States v. Apex Oil Co., 579

F.3d 734, 739 (7th Cir. 2009). The circuit court’s order did

not give the State any notice of what other, unstated measures

the State was required to comply with, and the order thus must

be limited to those remedies it expressly described.

Additionally, a number of the remedies ordered by the

circuit court were unconnected with the State’s breach of its

duty to monitor and inspect the leased PTA land. The court

ordered the State to develop and potentially execute a protocol

to obtain, or assist in securing, adequate funding for a

comprehensive cleanup of the leased PTA land. And the circuit

court ordered the State to initiate rulemaking to establish a

contested case procedure through which the public could

challenge the State’s decisions in generally caring for the

leased PTA land, if such a procedure did not already exist. Yet

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the Plaintiffs in this case did not allege that the State had

violated its trust duties by allowing or failing to rectify

damage to the leased PTA land. Nor did the Plaintiffs contend

that the State was constitutionally required to allow the public

a voice in its general decisions regarding its care for the

leased PTA land. Rather, the Plaintiffs argued only that the

State breached its duty to inspect and monitor the leased PTA

land. The State may very well have a public trust obligation to

rectify damage to the leased PTA land, and the public may have

some right to be heard on decisions that implicate the State’s

trust obligations with respect to the leased PTA land. But

these are not the claims that were brought in this case, and the

remedies ordered by the circuit court are thus not “tailored to

eliminate only the specific harm alleged.”59 Quiksilver, Inc. v.

Kymsta Corp., 360 F. App’x 886, 889 (9th Cir. 2009) (quoting E.

& J. Gallo, 967 F.2d at 1297).

The circuit court also ordered a range of injunctive

relief concerning the State’s duties upon discovering damage or

noncompliance during its inspections. The court required the

State to set forth a binding plan of action that it would

59 Because these remedies are not tailored to address the specific breaches identified by the circuit court, we need not address the State’s contention that the circuit court’s cleanup orders violated sovereign immunity or that the order to initiate rulemaking impinged on the legislatures exclusive authority.

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undertake if it were to discover unexploded ordnance, debris, or

any other foreign or non-natural item or contaminate connected

with the lease, as well as a plan to bring any “nonconforming”

condition likely caused by the United States into pre-lease

condition. And the circuit court ordered the State to set forth

in a binding plan the actions that it would take upon

specifically discovering a breach of the lease terms by the

United States. However, as stated, the Plaintiffs have not

alleged any breach of trustee duties related to the State’s

allowance or failure to rectify actual damage, and the

Plaintiffs have adamantly maintained throughout these

proceedings that they are not alleging that the United States

has actually breached the lease. Rather, the Plaintiffs argued

only that the State had a trust duty to “determine for itself

whether the terms of the lease are being fulfilled.”

As the Plaintiffs acknowledged during the hearing on

their motion for summary judgment, how the State responds if it

does later determine that the United States is not in compliance

with the lease may result in a separate breach of the State’s

trust duties. The same holds true for any other damage to the

leased PTA land the State may discover during its monitoring and

inspections. Evaluating this hypothetical separate breach would

require the circuit court to speculate about various questions

that it cannot currently resolve, including whether the State’s

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monitoring will lead to the discovery of damage or noncompliance

of lease terms by the United States, whether the United States

will cure the damage or noncompliance on its own accord, and

whether any further action by the State will be reasonable given

the circumstances at that time. As this court has held, courts

are not at liberty to grant relief based on “an event that [may]

occur at some time in the future” because “there is no actual

controversy in existence at this time.” Kau v. City & Cty. of

Honolulu, 104 Hawaii 468, 472, 92 P.3d 477, 481 (2004). For the

same reason, the circuit court’s conclusion that the State would

breach its trust duties if it were to renew the lease without

first determining that the United States was in compliance with

the existing lease was impermissibly speculative.

Thus, to the extent the circuit court made the

provisions of its order that were not tailored to address the

established breach binding upon the State, it strayed beyond its

valid discretion in fashioning the injunction. Nevertheless,

given the circumstances, including the length of time during

which the State has failed to fulfill its trust duties and the

State’s claim to having near total discretion in its management

of the public ceded land at issue in this case, it was not

inappropriate for the circuit court to provide guidance as to

how the State may fulfil its trust obligations in the future.

See Beneficial Hawaii, Inc. v. Kida, 96 Hawai‘i 289, 312, 30 P.3d 98 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

895, 918 (2001) (“Equity jurisprudence is not bound by strict

rules of law, but can mold its decree ‘to do justice[.]’”

(quoting Bank of Hawaii v. Davis Radio Sales & Serv., Inc., 6

Haw. App. 469, 481, 727 P.2d 419, 427 (1986))). We therefore

hold that the portions of the court’s order directing the State

to undertake specific actions that were not tailored to remedy

the established breach of the State’s trust duties are

nonbinding recommendations to be considered by the State going

forward in its management of the leased PTA lands.

VI. CONCLUSION

Based on the foregoing, the Plaintiffs’ motions to

dismiss the appeal respectively filed on July 27, 2018, and

August 10, 2018, are denied. The circuit court’s January 14,

2015 Order Denying Defendants’ Motion for Judgment on the

Pleadings, or in the Alternative, for Summary Judgment, Filed

October 7, 2014 is affirmed. The circuit court’s April 24, 2015

Order Denying Defendants’ Motion to Add United States as a

Party, or in the Alternative, for Dismissal Filed February 26,

2015 is also affirmed. This court rules as follows regarding

the circuit court’s April 3, 2018 Findings of Fact, Conclusion

of Law and Order and the circuit court’s April 24, 2018 Final

Judgment:

 Denial of the State’s motion to add the United States as a party: Affirmed

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 Denial of the State’s motion to dismiss the case for failing to join an indispensable party: Affirmed

 Denial of the State’s motion for summary judgment: Affirmed

 Finding that the State had breached its trust duties: Affirmed

 Order requiring the State to undertake any activities not expressly stated therein: Vacated

 Order requiring the State to submit a plan that must include the following:

o Regular, periodic on-site monitoring and inspection of the leased PTA land and the United States’ compliance with relevant lease provisions: Affirmed

o The making of detailed reports for each such monitoring or inspection event: Affirmed

o A protocol of appropriate action in the event the State discovers an actual or apparent breach of lease terms, any condition or situation adversely affecting the PTA, unexploded ordnance or debris, or any other foreign or non-natural item or contaminant: Vacated with Instructions to Render as a Non-binding Recommendation

o A plan or other assurance that any nonconforming condition likely caused by the United States be reasonably brought to pre-lease condition: Vacated with Instructions to Render as a Non-binding Recommendation

o A procedure to provide reasonable transparency to the Plaintiffs and the general public with respect to the requirements of the order: Affirmed

o If not already in existence, the institution of a contested case procedure adopted pursuant to HRS Chapter 91 for Plaintiffs or other members of the public to contest the State’s decisions in

100 ***FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER***

managing the PTA: Vacated with Instructions to Render as a Non-binding Recommendation

o The steps the State shall take to explore, evaluate, make application for, or secure adequate funding to conduct a comprehensive cleanup of the PTA: Vacated with Instructions to Render as a Non-binding Recommendation

 Order requiring the State to execute the plan once it is approved by the circuit court: Affirmed

This case is accordingly remanded to the circuit court for

further proceedings consistent with this opinion.

Ewan C. Rayner /s/ Mark E. Recktenwald (Daniel A. Morris, Clyde J. Wadsworth, and William J. /s/ Paula A. Nakayama Wynhoff with him on the briefs) for appellants /s/ Sabrina S. McKenna

David Kimo Frankel /s/ Richard W. Pollack (Summer L.H. Sylva with him on the briefs) /s/ Michael D. Wilson for appellees