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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-18-0000432

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT

(CAAP-18-0000432; 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, 

Electronically Filed

Supreme Court

SCAP-18-0000432

23-AUG-2019

09:05 AM
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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 
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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 noncompliance 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 
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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:

(continued . . .)
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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 
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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.
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21

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 livefire 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 . . .)
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22

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 nonparty cannot be joined due to sovereign immunity, the first 

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

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

takes primary importance and “should weigh heavily in the Rule 

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

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

An injunction barring the State from renegotiating the lease 

would seriously harm the United States because the PTA “is 

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

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

 

(. . . continued)

crucial to the United States training operations, it explained, because the 

land contains (1) a “Battle Area Complex,” which “allows soldiers to train 

and test their ability to detect, identify, engage and defeat stationary and 

moving targets in both open and urban terrain environments,” (2) a “Modular 

Military Operations in Urban Terrain,” which “is designed to look like 

villages/towns and contains different types of buildings to practice military 

operations,” and (3) the Cooper Airstrip, which “is used to practice launches 

and recovery of Shadow Unmanned Aircraft.” 
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23

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 nonparty’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.
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24

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
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25

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.
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26

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 
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27

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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28

“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 stateowned 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 
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29

“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 
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30

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.”
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31

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 . . .)
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32

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

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

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

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

cultural monitors were documented in a number of federal 

reports. For example, the United States prepared a November 

2010 report entitled “Final Archaeological and Cultural 

Monitoring of Construction of Battle Area Complex (BAX) for 

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

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

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

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

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

The report also stated that the cultural monitors voiced the 

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

left behind after training including [UXO] that is carelessly 

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

implemented in the military training process.”

 

(. . . continued)

documented in the federal court decisions in Makua v. Rumsfeld, 163 F. Supp. 

2d 1202 (D. Haw. 2001), Mâkua v. Gates, Civ. No. 08-00327 SOM/LEK, 2009 WL 

196206 (D. Haw. Jan. 23, 2009), and Mâkua v. Gates, Civ. No. 00-00813 SOM, 

2008 WL 696093 (D. Haw. Mar. 11, 2008). 
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33

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.” 
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34

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. 
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35

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 
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36

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. 
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37

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. 
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38

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
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39

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.
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40

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.
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41

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 
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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 
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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 
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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 attorneyclient 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 
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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 
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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 HA3568 (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 
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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 
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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.)
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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 
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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 . . .)
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already breached its duty as a trustee by failing to monitor 

compliance with the provisions of the lease, irrespective of 

whether the United States actually complied with the lease 

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

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

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

Question

Under the political question doctrine, courts refrain 

from deciding certain matters that are committed to the 

discretion of the other branches of government, reasoning that 

government action in these areas is properly addressed through 

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

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

court has adopted the test for identifying a political question 

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

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

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

case” there is 1) “a textually demonstrable constitutional 

 

(. . . continued)

PTA, without first determining (in writing) that the terms 

of the existing lease have been satisfactorily fulfilled, 

particularly with respect to any lease provision that has 

an impact upon the condition of the [PTA] leased lands.

As discussed in more detail infra, Part V.B.4, any breach of trust claim 

regarding the State’s renewal of the lease is speculative and not ripe for 

review, and thus this aspect of the Plaintiffs’ claim does not present a 

controversy susceptible to declaratory relief under HRS § 632-1.
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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 
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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 
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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 . . .)
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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 selfevident 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 thirdparties’ compliance with the terms of agreements designed to 

protect trust property.

 

(. . . continued)

culture, their religion, their economic self-sufficiency 

and their sense of personal and community well-being. ‘Aina 

is a living and vital part of the native Hawaiian 

cosmology, and is irreplaceable. The natural elements—

land, air, water, ocean—are interconnected and 

interdependent. To native Hawaiians, land is not a 

commodity; it is the foundation of their cultural and 

spiritual identity as Hawaiians. The ‘aina is part of their 

‘ohana, and they care for it as they do for other members of 

their families. For them, the land and the natural 

environment is alive, respected, treasured, praised, and 

even worshiped.

Office of Hawaiian Affairs v. Hous. & Cmty. Dev. Corp. of Hawai‘i, 121 Hawai‘i 

324, 333, 219 P.3d 1111, 1120 (2009) (alterations omitted) (quoting Office of 

Hawaiian Affairs v. Hous. & Cmty. Dev. Corp. of Hawaii, 117 Hawai‘i 174, 214, 

177 P.3d 884, 924 (2008)). 
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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 
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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 
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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 

lands[.50]

 

50 The circuit court additionally found that the State had breached 

its trust duties by failing to consistently make reasonably detailed and 

complete records of its actions to ensure compliance with the lease and by 

failing to initiate or assist with the appropriation of necessary funding to 

(continued . . .)
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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 

 

(. . . continued)

undertake cleanup of the PTA. And the court held that the State would breach 

its trust duties if it were to extend or renew the lease “without first 

determining (in writing) that the terms of the existing lease have been 

satisfactorily fulfilled, particularly with respect to any lease provision 

that has an impact upon the condition of the” PTA. The State does not appear 

to challenge these conclusions on appeal, raising in their point of error 

regarding the breach only that “[t]he circuit court erred in finding that the 

State breached its trust duties by failing to perform adequate inspections of 

the Subject Land.” Nevertheless, as discussed below, the circuit court’s 

order regarding the securing of funding for cleanup was not suited to remedy 

the breach alleged by the Plaintiffs, and any holding regarding a future 

breach of the State’s trust duties is speculative. 
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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 selfevident 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 
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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 nondelegable 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 nonnatural 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 
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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 

(continued . . .)
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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 

oversight.

The State contends that because the circuit court’s 

order does not specify how often the periodic inspections must 

take place, it is impermissibly vague.57 But it is not uncommon 

for courts to issue generally-stated orders requiring government 

agencies to submit plans to remedy constitutional violations and 

then evaluate the adequacy of the plans prior to their 

 

(. . . continued)

interpreted to require monitoring to the fullest extent consistent with the 

State’s right of reasonable entry under the lease and no more.

57 The State argues that this requirement ensures further litigation 

and indicates the relief does not “terminate the uncertainty or controversy 

giving rise to the proceeding” as required by HRS § 632-1. As stated, 

however, the Plaintiffs have a constitutional cause of action for prospective 

injunctive relief that exists independently of HRS § 632-1. See supra note 

41. 
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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 
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99

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 
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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

(Daniel A. Morris, Clyde J. 

Wadsworth, and William J. 

Wynhoff with him on the briefs)

for appellants 

David Kimo Frankel

(Summer L.H. Sylva with him on 

the briefs)

for appellees

/s/ Mark E. Recktenwald

/s/ Paula A. Nakayama

/s/ Sabrina S. McKenna

/s/ Richard W. Pollack

/s/ Michael D. Wilson