Protesters not allowed to block Mauna Kea road

On Wednesday, Aug. 14, the state Senate Committee on Hawaiian Affairs held an “informational briefing” so senators could question the state Department of Hawaiian Home Lands over various topics, including on “Mauna Kea Access Road (ACT 14).”

The Star-Advertiser summarized the issue: “About 50 years ago, the Department of Transportation built Mauna Kea Access Road over Department of Hawaiian Home Lands property without permission.

“That road and others throughout the state that were built on DHHL land became part of a much-bigger, $600 million settlement that the state entered into in 1995 to compensate DHHL for the misuse of Hawaiian home lands.

As part of that agreement, known as Act 14, [Session Laws of Hawaii 1995, 1st Special Session,] the state was required to compensate DHHL for Mauna Kea Access Road via a land swap.”

The land swap never happened.

This gave Sen. Kai Kahele (Dist. 1 – Hilo) a chance to pounce: “If what you say is true, that the land exchange has never occurred, then without that compliance with Act 14, the state of Hawaii cannot claim title to Mauna Kea Access Road,” he told DHHL Chair William Aila. “That road belongs to the beneficiaries of the Hawaiian Homes Commission Act.

“When you have a beneficiary, as defined by the Hawaiian Homes Commission Act of 1920, sitting on Mauna Kea Access Road, what does not give them the right to be there if they are the beneficiaries of the trust and you just said it is still in your land inventory?”

Let’s try to answer that question.

Hawaiian home lands “are impressed with a trust whose co-trustees are the State of Hawai‘i and the United States,” our supreme court said in State v. Jim, 80 Haw. 168 (1995). That means our state and federal governments are supposed to make sure the land is used in a way that benefits our indigenous population. It doesn’t mean that anyone, even a Native Hawaiian, can do whatever they please on the land.

The Jim case involved two Native Hawaiians who were arrested and charged with criminal trespass after refusing to leave the Prince Kuhio Plaza, a shopping center on Hawaiian home lands on the Big Island. Both defendants were demonstrating against perceived violations of the Hawaii Admission Act when they were arrested.

They were fined after pleading no contest, but appealed, contending that the Big Island police had no jurisdiction to arrest them. Our Supreme Court concluded that the state and county criminal laws applied, and upheld the defendants’ convictions.

Let’s apply that to Mauna Kea Access Road. Even if the lands under it are Hawaiian home lands, it’s still a road, and blocking it is a crime. Police can order that a road be cleared, and they did so.

The protesters refused to budge. Criminal laws are still in force, even as to Hawaiian protesters demonstrating on Hawaiian home lands.

So, there are and should be consequences for blocking the road no matter who owns the road. It’s a matter of public order, not property rights.

There may be other consequences that were not yet thought through. If the underlying land is DHHL’s, shouldn’t they have been taking care of it? Our state (if it’s separate from DHHL, which the senator seems to assume) has been maintaining the road, so isn’t the state entitled to some kind of compensation even if the state doesn’t actually own it? Those issues need to be considered as well.

So no, the protesters don’t yet have the state over a barrel with this new-found argument. But instead of obsessing over it, the state should fix the land-swap problem and stop the road blockages, not necessarily in that order.


Tom Yamachika is president of the Tax Foundation of Hawaii.

  1. Tutululu August 25, 2019 6:50 am Reply

    So the protectors have to follow the laws but the State can break them at will with no consequence. Interesting argument you have there.

  2. Rev Dr. Malama August 25, 2019 12:37 pm Reply

    OK Tom, now you bring up some very good issues and questions.
    When we all agree that laws and agencies are put in place to maintain civility and order…..
    Then the competent court of jurisdiction has the final word on who is committing the crimes or violations of agreements.
    I certainly agree that there is gross negligence on the part of more than a few Hawaii state agencies (don’t even get me started on the County) in management and fulfilling the obligations of trust.
    Thanks for using your intelligent reasoning to share the point of view we all need to have a look at.

  3. Thomas L Milcarek August 26, 2019 12:31 pm Reply

    The FATAL Flaw in this article is Hawai’i is being Illegally Occupied by the U.S.

  4. Rev Dr. Malama August 30, 2019 10:14 am Reply

    Update: It seems that by not fulfilling the monetary agreement the State defaulted on the land swap agreement and rendered it NULL AND VOID. This is public record btw and also the fact is that the Department of Transportation does not list the Hawai’ian Homeland road in the inventory because IT DOES NOT BELONG TO THE State of Hawaii.
    We, the many clergy, Teachers and indigenous rights advocates are in support for the RIGHTS OF THE PROTECTORS and the return of the Hawai’ian Kingdom law.

  5. Giga Faze September 7, 2019 5:49 pm Reply

    There is no Mauna Kea Access Road in the Hawaii County records. That beginning portion is Humu’ula Trail, a very culturally important pre-contact path. It was bulldozed without a permit in 1967. The bulldozing was done directly over Humu’ula Trail until the slope became too steep to keep going up the trail with any heavy equipment vehicles. It still parallels Humu’ula Trail all the way up. Notice this is where the paving also stopped. It is not defined as an open easement, and the Hawaii county records only show it as a graphic, no legal description. What Senator Kahele has found out, and now DHHL has admitted, that illegal easement was never turned over to the state. Act 14 can’t be applied to it since it technically
    and legally, doesn’t exist.

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