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STAR-ADVERTISER / 2019

Protesters gather at Mauna Kea Access Road in opposition to the construction of the Thirty Meter Telescope atop Mauna Kea.

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The state Supreme Court ruled this week that the state violated the law when it took control of Mauna Kea Access Road and turned it into a state highway prior to the 2019 Thirty Meter Telescope protests.

The state Department of Transportation closed the highway during the massive demonstrations that summer, and 38 elders were arrested while occupying the road.

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 sued afterward, claiming that the DOT wrongfully seized control of the road without compensating the Department of Hawaiian Home Lands, which owns the land on which the road sits.

The high court agreed unanimously, saying both the DOT and DHHL were at fault.

The DOT did not have the authority to unilaterally designate the road as a state highway, the court said, while DHHL should not have relinquished control and jurisdiction without consulting with its beneficiaries as required by the Hawaiian Homes Commission Act.

“This is exciting,” said Ashley Obrey, senior staff attorney with the Native Hawaiian Legal Corp. “To think about the trust, the responsibility to these lands and the beneficiaries to the trust, this is very vindicating. (The state’s) actions were wrong,” she said.

The case was sent back 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 now have to work with DHHL to gain permission from the trust’s beneficiaries and, if granted, make adequate and proper compensation. The process, as outlined by DHHL’s own policy, requires some form of “beneficiary consultation” or a series of public hearings.

Asked for comment, the state Attorney General’s Office responded with a statement saying it “is reviewing the Supreme Court decision to determine the next course of action.”

During the case, Obrey said, neither the DOT nor DHHL disputed that they failed to follow laws protecting trust lands. Instead, they raised technical defenses, including the fact that the state began to use the trust lands underlying the access road as a public road before 1988.

But the court said violations of the act are not limited to the time period (1959 to 1988) designated by the enactment of Act 14 in 1995.

“Act 14 was intended to efficiently resolve beneficiaries’ claims; it did not enable the state to take trust land and avoid legal consequences.” the ruling said.

It added, while quoting DHHL policy, “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.”

In late August 2019, during the ongoing Mauna Kea protest, the Department of the Attorney General, DHHL and DOT issued a joint statement regarding Mauna Kea Access Road, saying DOT had lawfully taken control of the highway. The statement added, however, that issues of compensation to DHHL were still being worked out.

“The State is reviewing the compensation issues related to the use of Hawaiian home 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 DOT and that the current blockade is unlawful.”

Honolulu attorney Richard Naiwi Wurdeman welcomed the Supreme Court’s ruling. He described the DOT’s action as an “illegal taking,” which means 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 home lands.

“The civil rights of the kupuna were violated,” he said. “And, when the Department of Hawaiian Home Lands and the Hawaiian Homes Commission have a fiduciary duty to its beneficiaries, how would clearing the road for a private developer benefit the beneficiaries of the Hawaiian Homes Commission Act? It would not. So, yes, the arrests should have never taken place.”

Most, if not all, of the kupuna eventually had their cases dropped, most on a technicality that required a signed affidavit which also affected many other misdemeanor cases in Hawaii.

The arrests occurred 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 across Mauna Kea Access Road, and one by one, over four hours, they surrendered to police, were taken away in vans and charged with petty misdemeanors.

No construction vehicles would pass the roadblock that day, and images of the anguished kupuna would galvanize widespread support for the anti-TMT movement.

Construction of the TMT still remains in limbo, awaiting the possible infusion of hundreds of millions of dollars from the National Science Foundation.