High court kicks back Hapa Trail case

LIHUE — The Hawaii Supreme Court has sent a case regarding the Hapa Trail preservation back to 5th Circuit Court.

The case alleges that the county and state failed to protect historic sites and Native Hawaiian rights, the historic review process, as well as the Coastal Zone Management Act when those agencies approved a 208-acre subdivision for the Eric A. Knudsen Trust’s Village at Poipu project.

The Supreme Court ordered recently that proceedings continue to determine whether the state and county agencies were negligent in following those public trust obligations.

Native Hawaiian Legal Corporation (NHLC) staff attorney David Kimo Frankel represented Theodore Blake, director of Hui Malama o Koloa in the case. The nonprofit organization works to preserve Hawaiian culture.

“Now that it is remanded to 5th Circuit, the court will decide the case on its merits,” Frankel said.

The high court did not address the facts of the case. They must move forward in the lower court.

“This case opens the door again to the court,” Blake said. “We haven’t won yet but it gets us back up to bat.”

The 5th Circuit ruled on Dec. 7, 2010, that Hapa Trail is state-owned land, and would not offer judgment on Blake’s motion on whether or not to allow Hapa Trail to be breached for a entrance road to the Knudsen project.

The Intermediary Court of Appeals upheld the decision. When the county cleared development, Frankel filed the suit to stop construction.

The state Supreme Court ruling ensures that the courthouse doors remain open in cases to protect historic sites, Blake said, strengthening the case against the destruction of historic sites.

The precedents will show that the court has decided against the state when it waived environmental impact statements in the past, he added.

“The court’s decision is helpful both in the short term and the long term,” Frankel said.

A message left for Knudsen Trust by The Garden Island was not returned Tuesday. The project is not required to wait out the new trial but would assume a risk.

“The decision was purely procedural and did not decide any of the substantive issues,” said county spokesperson Sarah Blane. “Because it’s a pending legal matter, we will decline to comment.”

Hapa road is a single lane unpaved road connecting Koloa Town to the beach road in Poipu. It is marked by a stacked boulder wall on both sides.

The county rezoned Knudsen land for the project in 1979, on the condition that significant historic sites would be protected.

The suit alleges that 18 historic sites were bulldozed. Portions of the Hapa Trail rock walls were damaged.

The Knudsen EIS stated that the Hapa Trail was owned by the county, and then the county did not catch that mistake and waived the EIS, Frankel said. The NHLC conducted a title search and discovered that the trail was owned by the state and all parties stipulated to the fact prior to the lower court decision.

Blake’s position was not challenged, however, Knudsen argued that no evidence of injury existed.

“This is an archeological gem,” Blake said. “That is why this is important.”

This trail intersects an intact kaneiolouma makahiki site and nearby irrigation system with evidence of aqueducts dating back 500 years, he added.

This is one step in preserving a system that was destroyed when land was leased for sugarcane operations after 1835, he said.

Blake said he wants to see the irrigation sites operational for historic demonstration and to once again produce agriculture.