DOT did not have the authority to unilaterally designate the [Mauna Kea Access Road] as a state highway. And although the record is unclear as to DHHL’s actions in 2018, it certainly should not have relinquished “control and jurisdiction” without consulting with the beneficiaries as required by 43 C.F.R. § 47. Such acquiescence deprived Native Hawaiian beneficiaries of income from and use of the land — an abandonment of mālama ‘āina, or care for the land. [Opinion at 41-42 (emphasis added)]

On May 30, 2024, the Hawaiʻi Supreme Court issued a unanimous decision in favor of native Hawaiian beneficiaries of the Hawaiian home lands trust in Kanahele, et. al. v. State, et. al. (“Kanahele”) who asserted that the DOT wrongfully exercised control of the Mauna Kea Access Road which is held in trust for their benefit.

What is the Kanahele case about?

Kanahele is a lawsuit by native Hawaiian beneficiaries of the Hawaiian Homes Commission Act (HHCA) challenging the State Department of Transportation’s assertion of control over the Mauna Kea Access Road (Access Road). The Access Road is built on Hawaiian home lands. In 2018, the Department of Transportation (DOT) unlawfully claimed control over these lands when it designated the road a state highway without following processes required by the Hawaiian Homes Commission Act , including consultation with native Hawaiian beneficiaries compensating the trust. Neither the Department of Hawaiian Home Lands (DHHL) nor the Hawaiian Homes Commission (Commission) objected, thereby breaching their duties to steward the Hawaiian home lands trust resources.

In reliance on its claimed control and authority over the Access Road, the DOT subsequently closed the road in 2019 during peaceful kiaʻi (protector) demonstrations responding to development of the Thirty Meter Telescope on Maunakea. This led to the arrest of dozens of kūpuna, two of whom are among the native Hawaiian beneficiaries that NHLC represented in this case.

NHLC’s clients brought the case to contest the taking of the land underlying the Access Road from the Hawaiian home lands trust, demand return of the lands to the trust, and recover damages for the improper and uncompensated control and use of the trust resources.

What did the Hawai‘i Supreme Court say?

In short, the Hawai‘i Supreme Court concluded that “Defendants [the DOT, DHHL, and Commission] are wrong.” The Court held that:

1. the DOT violated the requirements of the HHCA when it asserted control of the lands underlying the Access Road without HHCA-required process, beneficiary consultation, and compensation to the trust;
2. DHHL and the Commission breached their duties by not objecting to that action by the DOT;
3. NHLC’s clients, as beneficiaries of the HHCA, had a right to sue the State for these breaches of trust; and
4. the Access Road was improperly designated a state highway.

What’s next for this case?

The Supreme Court has made a final determination that the State breached trust duties and the DOT violated the law in 2018 when asserting control to the Access Road and declaring it a state highway without required process and compensation. Now the case will return to the trial court to determine appropriate relief, including damages owed by the State for the unlawful and uncompensated use and control of the Access Road land since 2018.

Who are the plaintiffs in Kanahele?

The plaintiffs are Pualani Kanakaʻole Kanahele, Edward Halealoha Ayau, and Keliʻi “Skippy” Ioane. They are all beneficiaries of the Hawaiian home lands trust who reside on Hawaiʻi island.

What were the legal issues?

Since the HHCA’s passage, egregious uncompensated use of Hawaiian home lands for public benefit (rather than beneficiary benefit) was a problem that the State attempted to address under the leadership of its first and only Native Hawaiian governor, John Waiheʻe. During his administration, a task force convened to investigate past breaches of trust and develop plans for how to resolve trust breaches, including compensation and land exchanges. This resulted in Act 14, which set forth commitments for how the State would address trust breaches that occurred between August 21, 1959 and July 1, 1988, and barred future judicial relief for those breaches, except to enforce the commitments being made.

In this case, neither the DOT nor DHHL disputed that they failed to follow laws protecting trust lands when the DOT asserted control over the Mauna Kea Access Road in 2018. Instead, they raised several technical defenses, arguing that this failure should be forgiven under Act 14 because the State began to use the trust lands underlying the Access Road as a public road before 1988.

The Supreme Court rejected this interpretation of the law. The 2018 designation, which took away the DHHL’s control over the Access Road and transferred it to DOT, triggered new claims unrelated to the public use and mismanagement claims that arose within the Act 14 time period. “Beneficiaries cannot reap the benefits of the trust if they are prevented from enforcing the law that was created to contribute to their prosperity,” the Court explained. “Act 14 was intended to efficiently resolve beneficiaries’ claims; it did not enable the State to take trust land and avoid legal consequences.”

Turning to the 2018 action, the Court held that the State failed to follow the process set forth in the HHCA by failing to consult with beneficiaries and failing to compensate the trust before DOT asserted control. The Court also concluded that DHHL and the Commission breached their trust duties by failing to take action to address the DOT’s taking of the Access Road. Highlighting the importance of beneficiary consultation, the Court reasoned:

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. Critical to the protections of the HHCA is transparency, an element that was sorely lacking here.

The Court also rejected the defendants’ other arguments that NHLC’s clients lacked standing to hold the State accountable for its breaches of trust under the HHCA, that there was no waiver of sovereign immunity by the State to allow the beneficiaries to sue, and that the plaintiffs failed to exhaust administrative remedies before filing the lawsuit.

Who owns the Access Road?

Defendants acknowledge that fee title was never transferred out of the Hawaiian home lands trust. The land’s special status as trust lands requires that it be managed solely in the interest of the trust beneficiaries—here, “any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778” as defined by HHCA § 201(a).

What is the impact of Kanahele on TMT or other future development on Maunakea?

The Court made clear that the DOT’s assertion of control over the Access Road was unlawful. Control must be restored to DHHL and the Commission, and the land should be managed consistent with the high trust duties under the HHCA for the benefit of native Hawaiians. Any future attempts to remove the land from the Hawaiian home lands trust under current law requires compliance with HHCA, which requires that the trustee consult with beneficiaries and obtain compensation to the trust.

Can the public read the HI Supreme Court’s opinion?

The Supreme Court’s opinion can be read here HI Supreme Court Decision in MKAR Case.

Who represented the native Hawaiian beneficiaries in Kanahele?

NHLC counsel for this case since its origination in 2020 include Ashley Obrey, David Kauila Kopper, Alan Murakami, and Hailialoha Hopkins.