State and county are faulted over historic Kauai trail

Nearly a decade of litigation surrounding a historic pedestrian path on Kauai has resulted in a state judge ruling that county planning regulators and the state Department of Land and Natural Resources failed to follow Hawaii’s historic-preservation law.

The ruling by Circuit Judge Kathleen Watanabe filed May 16 involves Hapa Road, an unpaved state-owned lane that is also known as Hapa Trail and connects Koloa town with the beach area of Poipu.

Nearly a mile of the lane, which dates to the 1800s and is lined on both sides by dry-stacked rock walls, runs largely along one edge of a 208-acre parcel envisioned for a residential subdivision called Village at Poipu where landowner Eric A. Knudsen Trust once planned developing lots for as many as 700 homes.

The trust received permission from the Kauai Planning Commission, the Kauai Planning Department and DLNR to put in an entry road for an approved 50-lot first phase bisecting the historic trail even though an environmental impact statement prepared by the trust in 2006 for the whole project said the trail and its rock walls were part of a protection plan for historic sites.

Koloa resident Ted Blake sued the county, the state and the trust in 2009 when the county approved a final first-phase subdivision plan that allowed the planned road to cross the trail, which the county at that time claimed to own. To mitigate removing a section of the trail for the access road, DLNR’s State Historic Preservation Division required the Knudsen Trust to restore a degraded separate portion of the trail’s rock wall.

After the state’s ownership of the trail came to light, DLNR approved an easement — over objections from Blake — in 2012 for the Knudsen Trust to bisect the trail for the proposed access road and to provide utility connections to the subdivision from Kiahuna Plantation Drive, which serves a golf course and adjacent subdivisions. The easement would adhere to a proposal by the trust to move the location for its access road to an area where it had already partially bulldozed the trail to install waterlines for its subdivision.

Meanwhile, Blake, a Native Hawaiian with ancestral ties to Koloa, pursued his lawsuit, which has lasted eight years.

“My life’s work, my cultural obligation is to protect wahi pana (sacred places),” Blake said in a statement from the Native Hawaiian Legal Corp., which represented him in the case. “Our state Constitution values preserving historic and cultural property. Its leaders have a profound duty to uphold and defend those principles.”

Initially, Blake’s lawsuit was dismissed in Circuit Court because a judge did not regard the county’s subdivision approval as a final action on the road issue after the county learned that the state owned Hapa Trail. The Hawaii Intermediate Court of Appeals upheld this decision. But in 2013 the Hawaii Supreme Court disagreed and reinstated Blake’s lawsuit.

Native Hawaiian Legal Corp. said the defendants in the case demonstrated “blithe disregard” for sacred places.

“The case had to be litigated all the way up to the Hawaii Supreme Court and back down to the trial court to get justice,” the law firm said in a statement.

Judge Watanabe’s ruling faulted the county for not following DLNR rules for historic-preservation reviews by the agency’s State Historic Preservation Division.

“There is nothing in the record to support a finding that the county defendants fulfilled their statutory and constitutional duty to preserve and protect customary and traditional Native Hawaiian rights,” the ruling said, adding that SHPD approvals and county subdivision plan approvals for Village at Poipu were improper and therefore are vacated.

Mike Tom, an attorney representing the Knudsen Trust, noted that the judge made no findings against the trust and that some claims in Blake’s lawsuit pertaining to other historic sites and whether the trust destroyed any historic sites were left for determination at trial. The ruling on whether Hawaii’s historic-preservation law was followed was made before trial in what is called a summary judgment.

Native Hawaiian Legal said in its statement that it remains concerned about other historic sites within the subdivision parcel, which include remnants of a unified network of irrigated taro fields known as the Koloa Field System that predated Western contact and once covered more than 700 acres.

According to a Knudsen Trust representative, phases of Village at Poipu are no longer being pursued beyond the initial phase.

Initially, the trust envisioned spending an estimated $60 million to develop the infrastructure for 450 to 700 lots it intended to sell to residential developers who would build and sell homes. Before the litigation began, the trust projected finishing the whole project by 2015.

The first 50 lots were created with interior roads and conduits for utilities, but the access road issue prevented completion of this phase covering 20 acres.

A new alignment for the access road is proposed to run parallel to Hapa Trail and next to an existing athletic club before connecting with Poipu Road without disturbing the trail.