Historic trails a public asset worth saving

Hawaii’s natural beauty attracts investors who can capitalize on the development potential as well as others of means who simply want to purchase a piece of paradise — and in many cases, it’s a pretty big piece.

The trouble comes where these private acquisitions clash with public ownership of a substantial asset: Hawaii’s historic trails.

It’s time for the state to more affirmatively assert that public ownership, defending the people’s rights of access.

Some of these byways go back to ancient times. They were used by chiefs to get to each ahupua‘a, or self-managed land division, or by the people themselves, bringing resources from the mountains down to villages by the sea.

In modern times, these byways remain not only for hiking enjoyment but as the principal means for Native Hawaiians to practice traditional gathering rights — rights that have been upheld in state courts.

One of the last acts of Queen Liliuokalani was the enactment of the Highways Act of 1892, clearly establishing that roads, trails and other thoroughfares are public lands. Like much of kingdom law, that principle was codified in state law as well, as section 264-1 of the Hawaii Revised Statutes.

However, in large part it’s been left to private organizations to see that the law is enforced through court action. And when those with deep pockets, including the billionaire and celebrity purchasers of large Hawaii parcels, have an interest in maintaining their privacy, the defense of public access can be given short shrift.

In recent years it’s been Kauai that’s becoming the playground of the wealthy. For example, in October Facebook founder and CEO Mark Zuckerberg reportedly spent more than $100 million on two large swaths of vacant land totaling 750 acres on the Garden Island’s north shore.

The current preference for Kauai among the uber-rich is because it’s comparatively undeveloped, afford- ing the buyer a rural, undisturbed enclave. But other islands have their celebrity appeal, too: On Maui, Oprah Winfrey, Clint Eastwood and Steven Tyler have found homes; investors on Hawaii island include comedian Roseanne Barr and billionaire Michael Dell, who founded the computer company that bears his name.

These are not people who in general object to the public traipsing across their land — but in particular, might not understand the importance of trails in Hawaiian culture and the legal protections that are in place. And corporate entities that similarly seek control of their land similarly resist pleas for public access.

It’s up to the state to affirm the public’s rights. But according to groups such as Public Access Trails Hawaii (PATH) there’s not much of an affirmative defense from the state Department of Land and Natural Resources. The public trails program, Na Ala Hele, was established in statute in 1974 and finally funded in 1988.

There’s been little effort to claim the trails when there’s a conflict with a private landowner, said David Brown, an attorney and executive director of PATH, which won a lawsuit against Haleakala Ranch Co. on Maui.

One reason for the state’s ambivalence seems to be concerns about liability for public trails, he said. However, Brown rightly observed, that shouldn’t be used as an excuse to yield the state’s claim on these lands: What’s being lost is a public good, one that is worth defending.

Brown met with the Hono-lulu Star-Advertiser editorial board to discuss the issue. He was joined by Ted Blake, director of Hui Malama o Koloa, which is suing over the Hapa Trail in Koloa, Kauai; and Jimmy Medeiros, president of Protect Keopuka ‘Ohana, which successfully sued the developer of Hokulia on Hawaii island.

"It’s going on, on every island at the same time, not only with trails, with other things in our culture," Blake said. "I just feel there is a total disconnect from the state, who is, by law, supposed to be nurturing this. … We’ve got to go out privately and fight this on our own."

Additionally, advocacy groups have had to fight against initiatives to weaken state law that protects public trails. In the 2014 legislative session, Senate Bill 2728 sought to give the state Board of Land and Natural Resources the prerogative to designate which trails are public.

This was correctly perceived by PATH and other opponents as an attempt to water down the state’s custody of a public asset.

Fortunately, that legislation died once it crossed to the House, but it’s disheartening to see that it got that far.

Hiking trails offer the public the opportunity to get closer to nature than this increasingly urbanized state usually allows. For cultural practitioners, they serve as the only route to exercising traditional rights. But that opportunity, and those rights, will quickly disappear if the state allows Hawaii’s system of trails to be lost.