The state Supreme Court ruled this week that the state violated the law when it took control of the Mauna Kea Access Road and turned it into a state highway before the 2019 Thirty Meter Telescope protests.
The state Department of Transportation closed the highway during mass demonstrations that summer, and 38 elderly people were arrested while occupying the highway.
Two of the elders, or kupuna, who were arrested (Pualani Kanaka’ole Kanahele and Keali’i “Skippy” Ioane) are among the Hawaiian Homes Trust beneficiaries who later sued, alleging that the DOT unfairly took control of the highway without compensating the Hawaii Department of Native Lands, which owns the land on which the road sits.
The high court unanimously agreed and said both the DOT and DHHL were at fault.
The DOT did not have the authority to unilaterally designate the highway as a state highway, the court said, while DHHL should not have relinquished control and jurisdiction without consulting its beneficiaries as required by the Hawaii Housing Commission Act.
“This is exciting,” said Ashley Obrey, senior attorney at Native Hawaiian Legal Corp. “Thinking about the trust, the responsibility to these lands and the beneficiaries of the trust, is very vindicating. The actions (of the State) were wrong,” she said.
The case was returned to Oahu Civil Court, where damages or compensation for use of the road since 2018 will be determined.
If the state wants to maintain control of what it now calls Route 210, it will have to work with DHHL to obtain permission from the trust beneficiaries and, if granted, offer appropriate compensation. The process, as outlined in DHHL’s own policy, requires some form of “beneficiary consultation” or a series of public hearings.
When asked for comment, the state Attorney General’s Office responded with a statement saying it “is reviewing the Supreme Court’s decision to determine the next course of action.”
During the case, Obrey said, neither DOT nor DHHL questioned their failure to comply with laws protecting trust lands. Instead, they raised technical defenses, including the fact that the state began using the trust lands underlying the access road as a public road before 1988.
But the court said violations of the law are not limited to the time period (1959 to 1988) designated by the enactment of Law 14 in 1995.
“Law 14 was intended to efficiently resolve the claims of beneficiaries; “did not allow the state to take land into trust and avoid legal consequences.” said the ruling.
He added, citing DHHL policy, “Relinquish control of the highway leading to Maunakea, a site of great spiritual importance to Native Hawaiians, without the kind of ‘meaningful, timely and effective consultation with beneficiaries’ that is ‘essential for the successful implementation of policies, programs and projects of the Commission/Department, is violating the fiduciary duty imparted by the HHCA.”
In late August 2019, during the ongoing protest on Mauna Kea, the Department of Attorney General, DHHL and DOT issued a joint statement regarding the Mauna Kea access road, saying that the DOT had legally taken control of the road. However, the statement added that issues of compensation to DHHL are still being resolved.
“The State is reviewing compensation issues related to the use of Hawaiian lands for public roads and highways, and will ensure they have been addressed,” then-Attorney General Clare E. Connors said in the statement. “The public is reminded that Mauna Kea Access Road is a public road controlled by the DOT and the current blockage is illegal.”
Honolulu attorney Richard Naiwi Wurdeman welcomed the Supreme Court ruling. He described the DOT action as an “illegal take,” meaning the Department of Land and Natural Resources officers who arrested the elders on July 17, 2019, did not have jurisdiction to do so because it was on Hawaiian lands.
“The civil rights of the kupuna were violated,” he said. “And, when the Hawaii Department of Native Lands and the Hawaii Housing Commission have a fiduciary duty to their beneficiaries, how would it benefit the beneficiaries of the Hawaii Housing Commission Act to clear the way for a private developer? ? Should not. So yes, the arrests should never have taken place.”
Most, if not all, of the kupuna eventually had their cases dropped, most over a technicality requiring a signed affidavit that also affected many other misdemeanor cases in Hawaii.
The arrests came in the initial week of the protest held to try to stop construction of the controversial TMT project. The kupuna were sitting in rows of folding chairs along the access road to Mauna Kea and, one by one, for four hours, they turned themselves in to the police, were taken away in vans and charged with minor crimes.
No construction vehicles would pass the roadblock that day, and images of the distraught kupuna would galvanize widespread support for the anti-TMT movement.
Construction of the TMT still remains in limbo, awaiting a possible injection of hundreds of millions of dollars from the National Science Foundation.
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