Bill aims to settle disputes over trail on Kauai

State lawmakers are weighing a bill that requires the state to identify the path of the ancient Ala Loa trail on Kauai and recognize it as a public trail.

The trail, which generally follows the coast around the island, apparently includes a section that crosses the property of Facebook CEO Mark Zuckerberg as well as other oceanfront property owners reluctant to open their land.

More than 100 people marched near Zuckerberg’s property Feb. 4 in what was billed as a peaceful demonstration to “Save the Ala Loa” and urge that it be opened to the public. Some were Native Hawaiians looking for coastal access for fishing and gathering purposes.

The bill, introduced by state Rep. Kaniela Ing, is expected to be approved on second reading today by the House Committee on Ocean, Marine Resources and Hawaiian Affairs and then move on to the House Committee on Water and Land.

The measure was approved Tuesday despite a request by state Department of Land and Natural Resources Chairwoman Suzanne Case that it be deferred.

In written testimony, Case said that while the department, through its Na Ala Hele trail and access program, has determined from registered maps that the trail is owned by the state, the problem is that the exact location still remains undetermined.

“To date the department has not been able to confirm the location of this historic trail — indeed evidence indicates it may have been located further mauka away from the coast near the main highway,” she said.

Nevertheless, officials remain committed to an ongoing dialogue with community members regarding specific trail locations, and the department is continuing to review “all available information” in an effort to determine the trail’s whereabouts, Case said.

But Jocelyn Doane, public policy director for the Office of Hawaiian Affairs, said more than enough information is available to pinpoint what she called a “critical cultural pathway.”

Doane said officials with OHA and the Native Hawaiian Legal Corp., along with community members in the Koolau district of North Kauai, have been working on the issue since 2011.

“Through this work and the great work of the community, OHA believes that the specific scope and location of the Ala Loa extending through the Koolau district has in fact been thoroughly documented,” Doane said.

The historic trail appears on maps from as early as 1833 through 1900 and is recognized in land commission award documents that date back to the Great Mahele, the land distribution of 1848.

What’s more, ancient coastal settlements in the Koolau district such as Moloaa, Papaa and Aliomanu were traditionally linked by the Ala Loa, she said, and accounts of the use of this historic trail have been documented in publications from 1829 to 1895.

Doane said she walked portions of the trail with community members only two weeks ago.

“There’s no question they know exactly where the Ala Loa is,” she said.

The state’s authority to claim ownership of ancient trails dates back to 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.

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, having, for example, been wiped out from ongoing 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.

In written testimony, Kauai County Councilman Mason Chock said identifying and recognizing the trail would be an important step in securing public-access, hunting and gathering rights for many Native Hawaiians.

It would also help end the escalating tension between Native Hawaiians, private landowners and residents in regard to its location, Chock said.

Some residents have complained about fences blocking access, security guards patrolling beaches and fishermen being threatened with arrest.