Access sought to old trail that crosses mogul’s land

Facebook’s Mark Zuckerberg says he wants to be a good neighbor, but Naoshi Grady didn’t feel any aloha when he says he was harassed and intimidated while using a coastal trail that passes through the billionaire’s 700-acre property on Kauai.

“They told me I was on private property,” Grady said last week of the security workers who met him several months ago as he was returning from a day of spearfishing off Waipake. “They were threatening to take my picture and have me arrested. They were aggressive, rude and disrespectful.”

Grady, a 35-year-old Kilauea resident whose Native Hawaiian ancestors hiked to fishing spots on the same trail for generations, said he was so shaken by the confrontation that he filed a police report.

Even more infuriating to Grady and others who live in the area is that the trail in question is believed by many to be the Ala Loa, an ancient trail that is protected for public use under the Highways Act of 1892.

“I’ve been going there since I was a baby,” Grady said. “That’s where kupuna taught my dad how to fish over 50 years ago. Hawaiians have been using that trail for generations.”

The Aha Moku council, which advises the state Department of Land and Natural Resources on Native Hawaiian cultural matters in the northeastern Koolau District of Kauai, recently voted to contact Zuckerberg and other large coastal landowners in northeastern Kauai to inform them about the trail. Grady is a member of the council.

Chairwoman Agnes Keaolani Marti-Kini said last week that the council took the action in November in response to Grady’s incident, reports of other confrontations and complaints about barriers and keep-out signs blocking the trail.

The co-founder and chairman of Facebook has yet to respond, she said.

Asked to answer to any number of issues surrounding the trail, Miles Radcliffe-Trenner, a spokesman for Zuckerberg, declined to comment Tuesday.

Zuckerberg isn’t the only large landowner on that coast resisting public use of the trail. Activists and others have tried for decades to gain access to various parts of the coastal pathway from Moloaa to Pilaa, and Marti- Kini said her council more recently has been unable to arrange face-to-face meetings with any of the landowners.

“You can’t own our Native Hawaiian history,” Marti-Kini said. “The Ala Loa is our heritage, and we want to preserve it. We’re talking about a 12-foot path. It’s nothing.”

All the major islands have ancient Ala Loa trails that circle the island, the best example of which is preserved by the National Park Service as the Ala Kahakai National Historic Trail on Hawaii island. But the actual path of the Ala Loa on Kauai remains clouded.

Aaron Lowe, acting manager of the state Na Ala Hele trails program, said last week that the state’s best documentation indicates the trail is not directly on the coast, but 300 to 400 yards or farther inland.

Lowe said recent requests to pursue opening the Ala Loa to the public have been turned down because the inland path doesn’t address the most pressing issue of those who are asking: beach access. However, he said, the state would be willing to look at other documentation and maps should they surface.

“It would be great to try to get in there and look for it so we can put the subject to rest,” Lowe said.

Members of the Aha Moku council insist they have the proof, including one map that dates back from the 1830s, and other documents collected by former Kaua‘i Historical Society President Randy Wichman, who made a presentation to the panel in November.

“Hawaiians have been using that trail for centuries,” declared Randy Naukana Rego, an Aha Moku council member representing the Waipake Ahupuaa, which crosses Zuckerberg’s property. “Sorry, you bought property with the Ala Loa on it. Hello! It’s public land.”

Kauai activist Richard Spacer for years has been gathering documents, filing complaints, lecturing public officials and creating petitions in a campaign to prove that the Ala Loa crosses close to the shore in this region and should be opened for all to use.

“These rich people can’t get away with this. They morally cannot,” he said.

Marti-Kini said members of the council might have to go to court to force the state to pursue the Ala Loa.

The state’s authority to claim ownership of ancient trails dates back to 1892, when Queen Lili‘uokalani and the Legislature of the kingdom of Hawaii enacted the Highways Act of 1892, a law that still remains on the books. It was intended to protect rural residents surrounded by vast tracts of land held by landowners who were challenging rights of access.

Under the law all roads, trails, bridges and other forms of public access that can be verified to have existed before 1892 continue to be owned in fee simple by the state.

The law applies even if the trail is not physically on the landscape, and some trail segments have been wiped out over the years from land use activities or by natural events. But the burden of proof rests with the state, which must consider archaeological reports, historic maps, historic accounts, surveyor’s notes, deeds and other sources of information that might help determine state ownership.

DLNR’s Na Ala Hele trails and access program was established in 1988 to deal with these issues, including planning, developing and acquiring land or rights for public use. The program’s inventory includes at least 124 trail and road access features covering 855 miles statewide.

Amid a growing interest in hiking and trails, however, the program has been chronically underfunded, and some say the state isn’t doing enough.

“They have a dismal record,” David Brown, executive director of Public Access Trails Hawaii, said last week. “The biggest obstruction to outdoor recreation is the Department of Land and Natural Resources of the state of Hawaii.”

The Maui-based group filed a lawsuit five years ago to gain access to a segment of the historic Haleakala Trail, the traditional pathway to Haleakala Crater, which was blocked by the Haleakala Ranch Co.

In 2014 a Maui circuit jury found that the Haleakala Trail is indeed public and protected under the Highways Act of 1892, a successor to the ancient path that existed before the Great Mahele land division of 1848, when all land in Hawaii was made public.

But the state has yet to open the Maui trail, a sore point for Brown. He said state officials often seem reluctant to move against big landowners on access issues.

As for people who purchase beachfront land in Hawaii, Brown said they shouldn’t necessarily expect complete and total seclusion. The fact is, he said, these lands are apt to have historic trails, beach access issues and shoreline visitors who have the lawful right to travel on the beach below the high-water mark.

Zuckerberg acquired his 700 acres of coastal land on Kauai two years ago for about $100 million in a move to create what one magazine described as a secluded family sanctuary.

The billionaire, described as the sixth-richest man in the world, rankled some this summer when he built a 6-foot wall on his property along Kilauea Road.

Then, as the Honolulu Star-Advertiser first reported last week, Zuckerberg took another step to seclude his property by filing eight “quiet title” lawsuits Dec. 30 in Circuit Court. The action forces owners of 14 small properties, located within Zuckerberg’s 700 acres, to sell their stakes in their land at public auction.

Under Hawaii law the owners of the small parcels have rights to access their property through Zuckerberg’s land.

The news unleashed a torrent of negative comments on social media and in other venues, especially among Native Hawaiians who said Zuckerberg was wielding plantation-style tactics to deny Hawaiians their rightful connection to the land.

On Tuesday a Zuckerberg spokesman said the billionaire is reconsidering the litigation, “based on feedback from the local community,” and discussing how to move forward.

Earlier, writing on his personal Facebook page, Zuckerberg argued that he is simply doing what’s fair for the many part-owners of the isolated properties, giving them money for something most of them never even knew they had.

“No one will be forced off the land. It is important to us that we respect Hawaiian history and traditions,” he wrote Thursday, adding, “We want to create a home on the island, and help preserve the wildlife and natural beauty. We love Hawaii and we want to be good members of the community and preserve the environment. We look forward to working closely with the community for years to come.”

But Grady, the man who said he had a bad experience on Zuckerberg’s property, is skeptical. After that incident he waited a few months before returning to the fertile fishing and seaweed grounds at Waipake. To avoid a confrontation, he went along the public shore, a longer, more difficult slog than the traditional trail above the beach.

On the way he passed a couple of women who were on the beach.

“They were looking at me like I didn’t belong there,” Grady recalled. “The next thing I knew, there were these quads (four-wheel all-terrain vehicles) coming up to the shore, spying on me. I decided to move to another spot, but then another quad was spying on me. At one point I turned around and said, ‘What, brah? What?’ I totally felt spied on.”

Grady said the Facebook CEO isn’t off to a great start as a neighbor.

“There’s no respect, no aloha, pretty much,” he said. “We just want to go on the trail from Point A to Point B. We don’t want to peek into your window or be paparazzi. We don’t care.”