SB2758

SECTION 1. The legislature finds that Article XI, Section 1 of the Hawaii State Constitution provides that: "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." Additionally, Article XII, Section 4 of the Hawaii State Constitution provides that: "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."

The legislature further finds that as the Hawaii Supreme Court recognized in the landmark Ching v. Case decision, the State's duty of care as trustee of the public lands trust is especially heightened in the context of ceded land held in trust for the benefit of native Hawaiians and the public under Article XII, Section 4 of the Hawaii State Constitution. The ceded lands recognized by this section are comprised of the former crown and government lands of the Hawaiian Kingdom.

In 1993, both the United States Congress and the legislature recognized the Native Hawaiian community's unrelinquished claims to the former crown and government lands of the Hawaiian Kingdom - the United States Congress through the "Apology Resolution" (Public Law 103-150, November 23, 1993), and the legislature through Acts 354, 359, 329, and 340, Session Laws of Hawaii 1993. With respect to the overthrow of the Hawaiian Kingdom, the legislature found that "the actions by the United States were illegal and immoral" and pledged "its continued support to the native Hawaiian community by taking steps to promote the restoration of the rights and dignity of native Hawaiians."

The legislature additionally finds that in 1997, the legislature again found that the events of history relating to the State and native Hawaiians, including those set forth in the Apology Resolution, continue to contribute today to a deep sense of injustice among many native Hawaiians and others. The legislature also recognized that the lasting reconciliation so desired by all people of the State is possible only if it fairly acknowledges the past while moving into the State's future. Additionally, the legislature finds that "[O]ver the last few decades, the people of Hawaii through amendments to their state constitution, the acts of their legislature, and other means, have moved substantially toward this permanent reconciliation. Foremost among these achievements have been the creation of the office of Hawaiian affairs and the allocation by legislative action to the office of Hawaiian affairs of substantial funds out of a portion of the public lands trust established by section 5(f) of the Admission Act. The overriding purpose of this Act is to continue this momentum, through further executive and legislative action in conjunction with the people of Hawaii, toward a comprehensive, just, and lasting resolution."

The legislature finds that, consistent with the Hawaii State Constitution, decisions of the Hawaii Supreme Court, and recognized principles of prudent fiduciary care and action, public lands should be managed in the spirit of mālama ʻāina and in a manner that does not cause the permanent alienation of ceded lands prior to resolution of native Hawaiians' unrelinquished claims to those lands. The legislature believes that the bombing of public land and other live-fire activities are inconsistent with the principle of mālama ʻāina and other constitutional rights. The legacy of military use of Kahoʻolawe, Waikāne, Mākua, and Pōhakuloa illustrate the tragic effects of live-fire training and bombing on public lands, including precluding Native Hawaiians and members of the public from freely accessing those lands for, among other purposes, the exercise of traditional and customary rights.

Moreover, the legislature finds that the effects of live‑fire activities are long-lasting and have generational effects that are often irreparable even when returned and after the cessation of live-fire activities. For example, the Navy failed to clear all unexploded ordnance from Kahoʻolawe, which has rendered free-ranging access unsafe to this day. Additionally, a federal court determined that in Mākua Valley, the Army "failed to use good faith efforts to develop a plan and secure funding for clearing UXO from the high priority sites that the Army was supposed to identify" as required by a settlement agreement limiting even hosted access to sacred and historical sites. Portions of the state public lands at Pōhakuloa are, according to a state circuit court, heavily contaminated on the surface with material potentially presenting an explosive hazard which poses a significant danger to public health and welfare.

The legislature finds that it is time to ensure the proper stewardship of public lands and preservation of Hawaiian Kingdom crown and government lands by prohibiting live-fire training activities and requiring the board of land and natural resources to consult with the office of Hawaiian affairs prior to approving lease dispositions to other governments, governmental agencies, public utilities, and renewable energy producers.

Accordingly, the purpose of this Act is to:

(1) Require the board of land and natural resources to consult with the office of Hawaiian affairs before approving a long-term lease of public lands to another government, governmental agency, utility, or renewable energy developer;

(2) Prohibit the board of land and natural resources from extending leases allowing the live-fire training and bombing of public lands, except for a one-time extension of up to five years to phase out existing leases allowing the live-fire training and bombing of public lands; and

(3) Exclude lands set aside to the department of Hawaiian home lands or lands designated for return to the State from the one-time extension.

SECTION 2. Section 171-95, Hawaii Revised Statutes, is amended to read as follows:

"§171-95 Disposition to governments, governmental agencies, public utilities, and renewable energy producers. (a) Notwithstanding any limitations to the contrary, the board of land and natural resources may, without public auction:

(1) Sell public lands at such price and on such other terms and conditions as the board may deem proper to governments, including the United States, city and county, counties, other governmental agencies authorized to hold lands in fee simple and public utilities[;] after consultation with the office of Hawaiian affairs;

(2) Lease to the governments, agencies, public utilities, and renewable energy producers public lands for terms up to, but not in excess of, sixty-five years at such rental and on such other terms and conditions as the board may determine[;] after consultation with the office of Hawaiian affairs;

(3) Grant licenses and easements to the governments, agencies, public utilities, and renewable energy producers on such terms and conditions as the board may determine for road, pipeline, utility, communication cable, and other rights-of-way;

(4) Exchange public lands with the governments and agencies;

(5) Execute quitclaim deeds to the governments and agencies, with or without consideration, releasing any claim to the property involved made upon disputed legal or equitable grounds, whenever the board in its discretion deems it beneficial to the State; and

(6) Waive or modify building and other requirements and conditions contained in deeds, patents, sales agreements, or leases held by the governments and agencies whenever such waiver or modification is beneficial to the State.

(b) In any disposition to public utilities under this section:

(1) The sale price or lease rental shall be no less than the value determined in accordance with section 171‑17(b); provided that such sale price or lease rental may be on a nominal basis, if the board finds that such easement is required in connection with a government project;

(2) The board shall provide that in case the land ceases to be used at any future time for the use for which the disposition was made, the board shall have the right to repurchase the land at the original sale price or fair market value, whichever is lower, and to purchase improvements thereon at the depreciated value or fair market value, whichever is lower;

(3) Disposition shall not be made to any public utility if the utility has suitable lands of its own;

(4) The disposition to public utilities shall be subject to disapproval by the legislature by two-thirds vote of either the senate or the house of representatives or by majority vote of both, in any regular or special session next following the date of the disposition; and

(5) For the purposes of this section, the definition of "public utility" as defined in section 269-1 is hereby incorporated herein by reference.

(1) Any producer or developer of renewable energy, as defined in section 269-91;

(2) Any grower or producer of plant or animal materials used primarily for the production of biofuels or other fuels; provided that nothing herein is intended to prevent the waste product or byproduct of the plant or animal material grown or produced for the production of biofuel, biogas, hydrogen, or other fuels from being used for other useful purposes; or

(3) Any producer of renewable energy, as defined in section 269-91, that uses the renewable energy to provide district heating or cooling services;

provided that nothing in this definition shall be construed to allow wheeling of electricity over electric public utility lines or infrastructure that is not otherwise authorized by law or rule or order of the public utilities commission.

(d) The board of land and natural resources shall not approve any land disposition that allows for or facilitates the bombing of public land or any live-fire training activity, except as authorized under section 171-95.1."

SECTION 3. Section 171-95.1, Hawaii Revised Statutes, is amended to read as follows:

"[[]§171-95.1[]] Authority of board to extend leases under certain circumstances. (a) Notwithstanding the lease restrictions established pursuant to section 171-36, the board may, without public auction, extend a public land lease that is issued to a school or government entity pursuant to section 171‑95 beyond the sixty-five year maximum lease term. The authority established pursuant to this section to extend a lease shall not apply to [~~any~~]:

(1) Any lease to the University of Hawaii of lands within a conservation district of which the University of Hawaii has subleased a portion for the purpose of constructing an astronomical observatory[.]; or

(2) Any lease that allows for or facilitates bombing of public land or live-fire training activity, except as provided in subsection (b).

(b) The board may authorize a one-time extension of an existing lease that allows for or facilitates bombing of public lands or live-fire training activity for a period not to exceed five years for the sole purpose of enabling the lessee to conduct further due diligence and community consultation including as required by chapter 343; provided that:

(1) Prior to the extension, the lessee provides a detailed description of the type of training activities the lessee plans to conduct to the board, the office of Hawaiian affairs, and the public; and

(2) The lessee provides to the board, the office of Hawaiian affairs, and the public an annual report on December 1 of each year of the lease extension that describes and documents for the prior year:

(A) The training activities conducted on the leased lands, including the type, frequency, and duration of such activities and the reason any bombing or live-fire training activities could not have been conducted in another location;

(B) Compliance with all conditions of the lease including environmental, cultural, and access requirements;

(D) Any violations, incidents, or adverse impacts occurring on the leased lands, and any corrective measures undertaken;

(E) Additional studies, due diligence, and community consultation conducted to comply with chapter 343, if any; and

(F) The estimated timeframe for the lessee to submit the final environmental impact statement to the accepting authority pursuant to section 343-5.

(c) The authority of the board to authorize a one-time extension for existing leases pursuant to subsection (b) shall expire on January 1, 2029, and shall not apply to:

(1) Lands already identified by the lessee for return to the State at the end of the current lease term; or

(2) Lands that are defined as "available lands" by section 203 of the Hawaiian Homes Commission Act, 1920, as amended;

provided that the lands described in paragraphs (1) and (2) shall be immediately returned to the State at the expiration of the current lease term, subject to other governing law."

SECTION 4. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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THE SENATE	S.B. NO.	2758
THIRTY-THIRD LEGISLATURE, 2026
STATE OF HAWAII