The Hawaii Supreme Court on Thursday ruled the state Department of Transportation’s 2018 designation of Maunakea Access Road as a public highway “took almost all property rights” from the Department of Hawaiian Home Lands.
The high court’s decision overturned a Honolulu Circuit Court ruling granting summary judgment to the DOT, the Department of Land and Natural Resources and DHHL over plaintiffs Pualani Kanaka‘ole Kanahele, Edward Halealoha Ayau and Keli‘i “Skippy” Ioane Jr.
Ayau is a former DHHL employee who resigned in 2019 during a meeting of the Hawaiian Homes Commission, in opposition to DHHL’s failure to act in its beneficiaries’ interest regarding the access road during the protests there against construction of the Thirty Meter Telescope on Maunakea.
The Native Hawaiian Legal Corporation sued in 2020 on behalf of the plaintiffs, Hawaiian Home Lands trust beneficiaries who engage in Native Hawaiian traditional and cultural practices on Maunakea. Their suit alleged DOT and DLNR used more than 65 acres of Hawaiian Homes land around Maunakea Access Road illegally and without providing compensation to DHHL since the 1970s.
The unanimous 5-0 decision by the justices found the Circuit Court’s granting of a summary judgment to the defendants in the case erroneous, and sends the case back to the lower court “with a instructions to enter an order granting summary judgment to plaintiffs and for further proceedings consistent with this opinion.”
The 47-page opinion on the court’s decision was written by Associate Justice Sabrina McKenna.
McKenna wrote that “the portion of the (access road) going through DHHL lands is not a state highway because legal requirements for such a designation were not satisfied.” She further stated that “the state blatantly disregarded unambiguous requirements of the Hawaiian Homes Commission Act (of) 1920 … and in doing so, breached its constitutional fiduciary obligation to faithfully carry out the HHCA.”
McKenna said that according to Hawaii Revised Statutes 264-1, DOT “can only designate a road as a state highway if it owns that road.”
“How could DOT designate the (access road) a state highway if it did not own it?” she wrote. “Through the designation, DOT took from DHHL and the beneficiaries the right to control, the right to exclude, the right to encumber, and the right to use the land for non-trust purposes.”
The justice found improprieties in the actions of DHHL, as well.
“To relinquish control of the road leading to Maunakea, a site of major spiritual significance to Native Hawaiians, without the type of ‘meaningful, timely, and effective beneficiary consultation’ that is ‘essential to the successful implementation of Commission/Department policies, programs, and projects,’ is to breach the fiduciary duty imparted by the HHCA,” McKenna wrote, her quoted material from the Hawaiian Homes Commission Act.
“It’s definitely a win for the Native Hawaiian DHHL beneficiary community — obviously, for the (plaintiffs), as well,” Ashley Obrey, senior staff attorney for the Native Hawaiian Legal Corporation, told the Tribune-Herald on Friday. “I think it was kind of a long time coming as the case was filed in 2020 and here we are, in 2024 with a decision in our favor, which we’re happy to get at any time.
“For the Supreme Court to say that the state was wrong in the actions that it took, you know, to recognize these breaches of trust — and the fact that the state took on this responsibility for this trust as a condition of statehood (demonstrates) just how important that responsibility is.”
Obrey, who represented the plaintiffs on their appeal, noted the significance of the 2018 decision by the DOT to the planned construction of the TMT — which was thwarted both in 2015 and 2019 by opponents who turned out in the thousands to blockade the Maunakea Access Road.
“You look back and you ask the question of what’s really going on here, when you look at the timing of this designation as a state highway and, the following year, the starting to move materials up the mountain for construction and all of that,” Obrey said.
“It just raises questions. And this decision maybe sets things straight a little bit.”
Asked if the ruling is a nail in the coffin of TMT, Obrey was circumspect in her reply.
“There’s a lot more that needs to occur at this point if they want to move forward, because there’s an acknowledgement this is not a state highway,” she said. “There’s an acknowledgment that it’s in the trust (lands). So the Hawaiian Homes Commission has to make decisions with respect to this property, and it has to listen to its beneficiaries when it does so. And the beneficiaries, for a large part, their position appears to be, ‘We don’t want this road to allow access to this telescope.’”
Obrey didn’t specify a dollar figure when queried about what fair compensation from DOT to DHHL for use of the access road land might be.
“For the purpose of this case when it goes back down (to Circuit Court), we’re looking at from 2018 forward. That’s what’s in play in this particular case. And an appraisal has to be done,” she said.
Spokespersons for the DOT and DLNR told the Tribune-Herald on Friday that their agencies are “consulting with the Department of the Attorney General about the impacts of the decision.”
“DHHL is reviewing the decision and will be consulting with the Department of the Attorney General as to next steps,” said DHHL spokeswoman Diamond Badajos.
Email John Burnett at jburnett@hawaiitribune-herald.com.
