By Senior Staff Attorney Ashley K. Obrey

On December 14, 2023, the Hawai‘i Supreme Court held oral argument in Kanahele, et. al. v. State, et. al., SCAP-22-0000268, a breach of trust case against the state Department of Transportation (“DOT”) as well as the Department of Hawaiian Home Lands and the Hawaiian Homes Commission (hereinafter, collectively, “DHHL”) to ensure proper management of Hawaiian Home Lands trust lands underlying the Mauna Kea Access Road (“MKAR”).

Prior to 2018, the 65 acres underlying the MKAR were recognized as a part of the Hawaiian Home Lands trust. The trust was created by the United States Congress through the Hawaiian Homes Commission Act of 1920 for native Hawaiian housing, farming, and ranching. The land trust comprised roughly 200,000 acres, representing less than 3% of Hawaiʻi land, for the benefit of native Hawaiian people. Though the trust represented a modest apportionment of Hawaiʻi’s lands for Hawaiians at the outset, government abuse and mismanagement of the trust has been nevertheless consistent and egregious for now more than one hundred years.

In March 2018, the DOT took control of the land underlying the MKAR and purportedly designated it a state highway. It did so via an internal memo from one DOT official to another, cutting out DHHL — which has exclusive authority over these lands — and without a proper land disposition or compensation to the trust in contravention of the HHCA and other statutes. DHHL, as the trustee responsible for managing the lands along with the rest of the trust resources in the best interest of Hawaiian beneficiaries, did not protest, prevent the DOT’s seizure, nor demand compensation. In July 2019, the state then relied on its purported authority to close MKAR to beneficiaries and the rest of the public to facilitate construction of the Thirty Meter Telescope on Mauna Kea.

In 2020, NHLC filed a breach of trust lawsuit on behalf of Pualani Kanaka‘ole Kanahele, Edward Halealoha Ayau, and Keliʻi “Skippy” Ioane, Jr. to hold the State, DOT, and DHHL accountable for these injuries to the land trust and native Hawaiian beneficiaries. In an order denying Plaintiffs’ motion for partial summary judgment, the trial court sided with the state, concluding that Act 14 — a decades’ old state law aimed at redressing, through land exchanges and financial compensation, the uncompensated public use of trust lands between 1959 and 1988 — somehow precluded beneficiaries from suing over breaches of trust in 2018. DHHL has admitted, however, that none of the relevant parties have initiated, let alone completed a land exchange under Act 14 to compensate for the trust lands upon which the MKAR is situated.

On appeal, DHHL and DOT, both represented by the state attorney general’s office, maintained the Act 14 argument as their primary defense against the Plaintiffs’ breach of trust claims. NHLC, on behalf of the Plaintiffs, argued that, because this breach has nothing to do with the public’s use of the road and is 30 years outside of the Act 14 claims period (i.e., 1959-1988), Act 14 does not exempt the State from liability for DOT’s seizure of the MKAR lands from the trust in 2018. NHLC also reiterated to the Court that the aim of the HHCA — to return kānaka to their ‘āina to support their self-sufficiency and cultural preservation—is the metric by which the Court should judge the state’s actions and that taking control of trust lands away from DHHL without compliance with the HHCA or the DOT’s own statute or compensation to the trust does not advance any of the Act’s purposes.

The Supreme Court took the matter under advisement. If the Court rules in favor of NHLC and its native Hawaiian beneficiary clients, the case will be remanded to the circuit court to determine damages and appropriate injunctive relief, if necessary.

Oral arguments were streamed for the public via the Judiciary’s YouTube channel. The briefs for the arguments can be reviewed at the links below.

• Plaintiffs-Appellants’ Opening Brief
• State of Hawaiʻi’s Answering Brief
• Plaintiffs-Appellants’ Reply Brief
• Plaintiffs-Appellants’ Application for Transfer to the Hawaiʻi Supreme Court
• State of Hawaiʻi’s Response to Application for Transfer

NHLC counsel for Plaintiffs in this case currently include Ashley Obrey, Senior Staff Attorney, and in the past also included former NHLC counsel David Kauila Kopper, Alan Murakami, and Hailialoha Hopkins.