Lawsuit questions state’s authority over Maunakea Access Road

  • Signs line the access road near Hale O Kuhio on Maunakea. (Hawaii Tribune-Herald/File photo)

  • AYAU

  • Maunakea access road. (Laura Ruminski/West Hawaii Today file photo)

  • A cyclist climbs the Maunakea access road. (Laura Ruminski/West Hawaii Today file photo)

A Native Hawaiian advocacy group has sued the state for its management of the land around the Maunakea Access Road.

A lawsuit filed Thursday by the Native Hawaiian Legal Corporation argues that the state departments of Transportation and Land and Natural Resources have used the more than 65 acres of land around the Maunakea Access Road illegally for the better part of 60 years.

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According to the complaint, the state failed to obtain authorization from the Department of Hawaiian Home Lands or the Hawaiian Homes Commission to build the Maunakea Access Road on DHHL land in 1964. Therefore, subsequent use of the land has been unlawful, and the DHHL has failed in its duties to act exclusively in the interests of its beneficiaries, the lawsuit argues.

The lawsuit was filed on behalf of three Hawaiian community leaders on the Big Island: Pualani Kanaka‘ole Kanahele, Edward Halealoha Ayau and Keli‘i “Skippy” Ioane.

Ioane was also one of more than 30 Hawaiian elders, or kupuna, who was arrested on July 17, 2019, during the months-long occupation of the access road by people protesting the planned construction of the Thirty-Meter Telescope.

Those arrests were conducted under false pretenses, Ayau said, because DOT did not have legal authority to use the road.

“Other state entities have been exercising authority over these lands, illegally,” Ayau said. “Including DOT, including the governor. We’re just trying to clarify the law.”

Because DHHL’s obligation is not to the state, but to its beneficiaries — defined by the Hawaiian Homes Commission Act to be those with at least a 50% Native Hawaiian blood quantum — the road could be argued to belong to Native Hawaiians.

Ayau was formerly a DHHL employee, but resigned his position last year during a meeting of the Hawaiian Homes Commission, in protest of DHHL’s failure to act in its beneficiaries’ interest regarding the access road.

As restitution, the suit requests that the First Circuit Court declare that DDHL remains the sole authority over the access road lands, declare that the access road is not a state highway, order the state to reimburse DHHL for decades of unlawful use of its land, and prohibit the state from making any more use of the lands until all the parties involved are compliant with the Hawaiian Homes Commission Act.

“Step one is compensation: DHHL never authorized (the University of Hawaii) to build that road,” Ayau said. “And step two is: How should that land be properly used? Just follow the law.”

In August of last year, Hilo Sen. Kai Kahele questioned DHHL Director William Aila about the jurisdiction of the access road during a meeting of the Committee of Hawaiian Affairs. Aila admitted at the meeting that no official land transfer was ever made between DHHL and DOT, even though DOT has maintained operational control of the road for more than two decades.

Later that month, a joint statement from the DOT, DHHL and the Department of the Attorney General declared that “all claims regarding use of roads and crossing DHHL lands have been resolved.”

“That was incorrect,” Ayau said. “That cannot possibly be true, because you have to own the title to the land.”

Ayau said he and the other plaintiffs have attempted to communicate with DHHL about the issue for months, but the department has not been cooperative.

“I don’t take joy in suing anyone, but we warned them this would happen,” Ayau said.

“Hopefully, this will make the DHHL put a little spine in their backs,” added Ioane.

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Representatives of the state Department of the Attorney General did not reply to requests for comment.

Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.

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