who we are. significant hawaiian route “the cultural significance of haleakala——dates from...

Who we are

Significant Hawaiian Route

• “The cultural significance of Haleakala——dates from antiquity.”• Ceremonial observances• Burials• Piko ceremonies• Transformation into the ‘aumakua realm• Trails through “Kalialinui . . . and Kula-Makawao” provided access

Martha Foss Fleming, Old Trails of Maui (1933), p. 86.

There was another permanent pathway on Maui, which led from Kaupo across the bed of the crater of Haleakala and up its eastern exit, known as the Halemau [Halemau‘u] trail. This continued on toward Olinda, and provided a short cut across East Maui. A man by this route might reach Olinda from Kaupo in one day.

1869 Map

1885 Map

Important Western Route• Adventurers and missionaries were guided to the Crater

through Makawao and Kalialinui during early 1800s

• Haleakala Trail shown on first maps, dating from 1860s

• Haleakala was the primary draw for tourism in the late 1800s and early 1900s

• Both Kingdom of Hawai‘i and Territory of Hawai‘i spent funds to improve it for tourists

• Worth Aiken ran a tour guide service from Olinda to the Crater summit. His guide Aikichi Arisumi guided “thousands” to the top.

• Trail was the primary and official route until creation of Crater Road in 1935.

Two weeks later:

Haleakala Ranch is incorporated

1888 Hawaiian Gazette

“Even a stranger may now ride to the Catholic Church at Makawao and from that as a landmark follow the finger posts to the top and not be under the necessity of taking a guide”

1903-05 TERRITORIAL PUBLIC WORKS PROJECT

1922 USGS Map

“Lately the trail has been put in good order and must become increasingly popular with tourists . . .”

“Olinda is the site of the halfway house bearing that name on the route to the ‘House of the Sun,” or the sublime crater of Haleakala.”

January 1906

1925 Hawai‘i Tourist Bureau

1942 USGS Map showing Haleakala Trail AND Haleakala Highway

PATH’s Efforts =

• Guided hikes

• Documentation of government ownership

• Ground surveys

• Haleakala Ranch’s Waiopai offer

“The duties imposed upon the state are the duties of a trustee and not simply the duties of a good business manager.”

“The beneficiaries of the public trust are not just present generations but those to come.”

In re Waiola O Molokai, Inc., 103 Haw. 401, 421-22, 83 P.3d 664, 684-85, 2004 (2004)

You are a Trustee

Making a decision as a trustee

• Act within your powers• Be sufficiently informed• Act in good faith• Act only for the beneficiary• Take account of all relevant factors• Ignore irrelevant factors

Act within your powers

• HRS Ch. 170. Authority over “public lands”

• HRS § 198D-6. Regulation of use of trails and accesses– (1) To preserve the integrity, condition,

naturalness, or beauty of the trails or accesses;– (2) public safety; or– (3) protected or endangered wildlife habitats.

Sufficiently informed

• Sources of reliable information–Environmental Assessment–Archaeological Inventory Survey

Environmental Review

• “Earliest Practicable Time”

An environmental statement must be “prepared early enough so that it can serve practically as an important contribution to the decision making process and will not be used to rationalize or justify decisions already made.”

Sierra Club v. Office of Planning, State of Hawai‘i, 109 Hawai‘i 411, 418-19, 126 P.3d 1098, 1105-06 (2006)

Archaeological Review (“AIS”)

State Historic Preservation Division Letter (December 10, 2013):

• “The trail is a historic property with multiple associated features and construction elements, including curbstones, markers (ahu), overhang shelters, petroglyphs, mounds, an additional trail, and other features.”

• “The Trail is significant under multiple Hawaiʻi Register of Historic Places . . . .”

• “SHPD recommends that an archaeological inventory survey be conducted of the Haleakalā Trail and adjacent lands.”

AIS – When?SHPD’s written concurrence is first step:

“Before any agency … commences any project which may affect historic property… the agency … shall allow the [DLNR] an opportunity for review of the effect of the proposed project on historic properties…”

“The proposed project shall not be commenced, or in the event it has already begun, continued, until the [DLNR] shall have given its written concurrence.”

HRS § 6E-8

“AIS is the first step.” Kaleikini v. Yoshioka, 128 Hawai‘i 53, 75-76, 283 P.3d 60, 82-83 (2012) (“Honolulu rail case”)

HRS Chapter 6E Declaration of intent:

“The Constitution of the State of Hawaii recognizes the value of conserving and developing the historic and cultural property within the State for the public good. . . .”

“The legislature further declares that it shall be the public policy of this State to:– provide leadership in preserving, restoring, and maintaining

historic and cultural property, – ensure the administration of such historic and cultural

property in a spirit of stewardship and trusteeship for future generations, and

– conduct activities, plans, and programs in a manner consistent with the preservation and enhancement of historic and cultural property.”

Be sufficiently informed

• “A trustee may not blindly follow an advisor’s recommendations.”– “The department believes that such a land

exchange may represent the alternative with the highest level of public benefit.”

– DLNR’s 1/10/14 recommendation is not trustworthy• Premature• Prepared under duress• Incomplete and flawed

Prepared under duress

Flawed and incomplete

People

Waiopai

H. Trail


NationalPark

HRC

HRC

State

State

State

Alternative accesses?

Land exchange only way to obtain access?


• Funding– “No funding available for Haleakala Trail”• What are the actual costs?

– But Funding available for:• EA• AIS• Processing through legislative action• Developing over three miles of road• Enforcing a remote area near sensitive wildlife• “network of trails and cabins”


“Alleged trail”It is my opinion that the portion of “Haleakala Trail” that is within [HRC property] is a public trail under § 264-1(b), which is under the jurisdiction of the State of Hawai‘i Board of Land and Natural Resources.

Declaration and opinion of State Title Abstractor, Doris Moana Rowland (July 17, 2013)


• “Guided hikes are meeting demand”– Difficult sign up process – No ability for hikers to calendar– Vehicle coordination complex– Hike does not follow actual route– Ranch only permits hikers to descend– Hikers are captive to ranch’s propaganda

• “Plaintiffs seek unfettered access to Haleakala Trail . . .”


• “Guided hikes . . . address the concerns of HRC regarding potential negative impacts to their private lands and operations . . . .

• “DLNR and HRC have, for years, collaborated on . . . public-private partnerships. . . . with HRC”


“Protect and restore native forests, provide habitat for numerous endangered species and provide public recreational opportunities in the form of hunting, hiking, camping, and nature experience.”

Land Exchange

HRS Chapter 171-50

• Must be for public purpose• Must be equal or better value–Based on fair market value.


PATH’S counter proposal – lease Haleakala Trail to nonprofit on Maui• “Ownership of the trail in itself does not confer

public benefit.”• “Intention of department to revise the MOA to

provide greater public access…..”• “Eminent domain proceedings lengthy,

expensive, technically and legally complicated….”

A rushed decision cannot be justified

• Costs of litigation?

• To commit Haleakala Ranch to the exchange?

Costs of litigation?

• If you defer action:– Trial on the merits regarding ownership of

Haleakala Trail

• If you accept DLNR’s recommendation # 4:– Lawsuit under Chapter 343 and 6E, and appeals– Contested case and/or appeals– Revival of breach of trust lawsuit, and lawsuit for

breach of contract

Joint prosecution agreement

• State agreed to support Plaintiffs’ effort to confirm the State’s ownership in court.

• After ownership determined: State agreed to engage in good faith talks to return meaningful public access to Haleakala Trail.

Commit Haleakala Ranch?

• Can be no commitment without violating Chapter 343 and Chapter 6E

A rushed decision cannot be justified

• Who wins if you vote yes on #4 today?• Who loses?• What happens if you wait?

• Lessons from rushed decisions?– Superferry– Haleakala telescope– Oahu rail– Haleakala Trail next?

MAUI:

19 miles of trail outside of Polipoli and Kahakapao

Maui News (2012):Haleakala visitors during 2010 spent $75 million on Maui, with much of that money being funneled to local, job creating, business owners.

Maui News (2013):“Birding, hiking and picnicking” account for nearly 75 percent of $2 billion per year spent at or around wildlife refuges across the country.

Haleakala Trail’s Importance• Cultural value

• Historical value

• Recreational value

– Well designed (excellent grade and switchbacks)

– Amazing views

– Potential for renewal of Hawaiian overland route– Close to residents– Safe

• New Federal revenue source for Maui

. . . After a hard climb for an hour over a steep slope of sand and lava blocks, we approached the summit. We then heard the wind roaring in the crater . . . . I never shall forget the view which then presented itself . . . .

SKETCHER’S TOUR ROUND THE WORLD

(1854)

who we are. significant hawaiian route “the cultural significance of haleakala——dates from...

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