More than a decade ago, the state Department of Land and Natural Resources asked Haleakala Ranch Company for permission to access the ranch’s Makawao lands so it could determine the route of a historic, public trail to Haleakala, known as the Bridle Trail.
The ranch refused, claiming that it owned the trail.
Prompted by a lawsuit filed in January 2011 by the non-profit organization Public Access Trails Hawai`i, David Brown, Joe Bertram III, and Ken Schmitt, a trial date has finally been set in 2nd Circuit Court for March 17 to determine the trail’s ownership. The state is a defendant in the case, along with Haleakala Ranch.
One final settlement conference was held on January 21, but no settlement was reached.
“I can say that public access is the most important thing to us,” PATH attorney Peter Martin told Environment Hawai`i before the settlement conference. The nine guided hikes organized over the past year and a half by the DLNR and the ranch to provide some public access have been “a complete failure,” he added. “We want meaningful public access.”
PATH’s position was likely helped by the state Board of Land and Natural Resources’ decision on January 10. That day, the board denied a request from the DLNR’s Division of Forestry and Wildlife to authorize board chair and DLNR director William Aila to negotiate and execute a settlement agreement with the ranch that would allow the ownership of the portion of the trail that crosses the ranch’s property to rest with the ranch. In exchange, the ranch would grant the DLNR an easement to the Kahikinui forest reserve and the Nakula Natural Area Reserve.
The Land Board did approve DOFAW’s request to hire contractors to conduct an archaeological inventory survey (AIS) for the proposed land exchange and the alleged historic trail, as well as an environmental assessment (EA) of the exchange and the proposed forest reserve road in Waiopai.
The board denied a request by PATH for a lease for the trail portion crossing the ranch’s land.
To DOFAW, the guided hikes, established under a memorandum of agreement approved by the Land Board in May 2012, have provided reasonable public access that also address the ranch’s concerns about impacts to its operations. And for years, the DLNR has been trying to establish an access to its remote Kahikinui forest reserve and Nakula NAR. So when the ranch’s counsel approached the DLNR late last year with a proposal to settle the trail ownership issue via a land exchange, the department was open to the idea.
The proposal was an effort to keep the matter from being decided at trial.
PATH objected to the idea, especially since in December 2012, the state had entered into a joint prosecution agreement. Under the agreement, the state would join PATH’s effort to prove that the state owns the trail. In recent correspondence, PATH attorney Tom Pierce warned Aila that DOFAW’s proposal breached that prosecution agreement. Even so, the division brought the matter to the Land Board.
DOFAW administrator Lisa Hadway emphasized her division was not asking the board to approve the land exchange. Even so, under the ranch’s proposed settlement agreement, the state would relinquish ownership of the trail to the ranch.
“Public access would continue in perpetuity in levels reasonable and desirable … [and] we would get access to Nakula and the forest reserve,” she said. “This creates a new public access opportunity we otherwise would not have.”
Don Young, Haleakala Ranch president, testified that the proposal was a reasonable resolution to the trail dispute.
Hawai`i island Land Board member Robert Pacheco asked if the board decided not to agree to relinquish title to the trail, how that would that impact negotiations for the easement to the forest reserve and Nakula NAR.
“Is it quid pro quo?” he asked.
Young simply said that the exchange would settle the litigation. While the ranch had a strong enough case that the judge recently denied a motion by PATH for a partial summary judgment, “it would be better to settle this out of court than to litigate,” he said. “This appeared to be the best way to resolve ownership, provide public benefit … and a new public benefit.”
Young added that PATH is seeking unfettered public access, something that the ranch is very much against.
“The trail goes across an area that is important to us,” he said. “In times of drought … those pastures are very important.”
Several members of the public testified that exchanging a historic trail for an easement over private land might set a precedent for other swaps. They also asked that the easement to the state reserves be considered independently of the trail issue.
Wailuku resident Claire Apana said that while she supports the ranching activities, the guided hike system does not accommodate her traditional and cultural practices. In fact, she said, she’s been barred by the ranch from gathering maile.
She said she shouldn’t have to wait for enough people to sign up to go on a hike, to exercise her sometimes time-sensitive cultural practices.
Pierce tried to explain how the guided hikes were inadequate. First, he said, they only go in one direction, down. He also decried the process required for people to join a hike. One must first call the DLNR to get on a waiting list. After a couple of months, when enough people have signed up, the DLNR gives provides a hiking date. Because the hikes only go one way, one must arrange for transportation at the end. And while hiking, says Peter Martin, the ranch guide uses it as a platform to explain why the trail should be closed.
What’s more, he argued that the proposal was counter to what state law requires for historic properties. The law requires the state to develop them.
“If you’re trading it away, you’re not developing it, your diminishing it,” he said. He pointed out that the only reason the DLNR was being presented an option to settle the ownership issue and to gain access to its reserves is because PATH “put the heat on the ranch. The state wasn’t really doing anything. “
“That guided hike came about because we started putting this issue in front of people,” Pierce said. “We said there will come a day when the MOA will be used against us and it is. They’re saying, ‘It’s good enough.’”
Pierce tempered his criticism of the department by saying be believed it was under duress from Lieutenant Governor Shan Tsutsui and state Sen. Kalani English, who Young had contacted to help resolve the matter. English and Tsutsui then met with Aila “to try to work the deal,” Pierce said.
“The reason there is a [Land Board] is you are not subject to that,” Pierce said.
Finally, he warned that should the Land Board accept DOFAW’s recommendation to negotiate and enter into a settlement agreement, PATH would sue the agency for violating the state’s environmental review and historic preservation laws. He argued that the DLNR needed to do an environmental review and archaeological inventory survey first.
Attorney David Kimo Frankel of the Native Hawaii Legal Corporation agreed with Pierce that the Land Board could not authorize its chair to sign a settlement agreement until an EA and AIS were completed.
He said the state Supreme Court has overturned a number of government agency decisions that were made before disclosure documents were completed.
“Why would you, given these decisions, challenge that?” he asked.
After an executive session to discuss legal matters with its attorney, O`ahu Land Board member Reed Kishinami asked Michael Gibson, an attorney representing Haleakala Ranch, whether he would be satisfied if the board chose not to approve the land exchange proposal, but just the two studies.
Gibson said he just wanted to be able to tell the Judge Joseph Cardoza at an upcoming hearing that the ranch was in “serious negotiations to settle this thing,” and ask for the trial to be postponed.
“We want to present a document [of] what a settlement might look like,” Gibson said.
With regard to PATH’s request for a lease across the trail, Pacheco said there’s no way for the board to even consider “a lease to another entity on a property we may or may not own.”
Pierce said PATH would gladly table that issue, but would like it to be considered an alternative in the EA.
Pacheco seemed torn. He was uncomfortable with the idea of giving away land, but he worried that the state may not own the trail.
“It’s obviously not the original route,” he said. (Pierce had given a presentation on the trail’s evolution from a traditional Hawaiian footpath to an improved hiking trail.)
He asked Frankel and Pierce whether it would be sufficient if the Land Board authorized Aila to negotiate, but not execute, a settlement.
Frankel responded, “You don’t need to pass anything to have discussion. If you do anything that indicates you’ve made a decision, everything after that is a post hoc rationalization.”
Pierce also seemed baffled that the two defendants in the case were working on the settlement.
“The ranch had never reached out to us, the plaintiff in this case,” he said. “The ranch is going to go back to the judge to deny us our day in court.”
“The ranch recognizes they have a significant problem in proving their case. … Otherwise they wouldn’t be offering you other lands,” he continued.
He told Pacheco that PATH would be asking the judge to proceed with a trial irrespective of the Land Board’s decision, but would rather not have to fight the state at the same time on EA/AIS issues.
At-large member David Goode moved to approve DOFAW’s recommendations except for the one regarding the settlement agreement.
Pacheco seemed hesitant to approve the studies. “I would rather let the court play out and find out if we own the land or not,” he said, adding that he would hate for the DLNR to spend the money on the studies if the state doesn’t own the trail.
Still, he voted with the rest of the board to approve Goode’s motion.
Maui Land Board member Jimmy Gomes, who manages Ulupalakua Ranch, recused himself early on from the matter because his ranch has a joint interest with Haleakala Ranch in the Maui Cattle Company. At-large Land Board member Sam Gon, lead scientist for The Nature Conservancy, also recused himself at the beginning of the executive session.
(For more on this, see our June 2012 Board Talk, available at www.environment-hawaii.org.)