Is Mauna Kea Access Road a State highway over which the DOT has jurisdiction?2019-09-04T04:30:00-10:00

Project Description

Is Mauna Kea Access Road a State highway over which the DOT has jurisdiction?

Without ownership of the land under Mauna Kea Access Road (MKAR), it’s difficult to imagine how the DOT could assert that the MKAR is part of the State Highway System over which it has jurisdiction.

State assertions

In an August 30, 2019 joint statement, the Department of Transportation (DOT), the Department of Hawaiian Home Lands (DHHL), and the Department of the Attorney General (AG), proclaimed that the DOT has jurisdiction over the Mauna Kea Access Road (MKAR). They arrived at their contention noting that (1) the DOT has control and jurisdiction over all state highways, following Hawaiʻi Revised Statutes (HRS) Section 26-19 and Chapter 264, and (2) the MKAR, or Route 210, had been designated a state highway.

There’s no doubt that HRS Section 26-19 gives the DOT the authority to engage in planning, building, and managing a State Highway System “as may be authorized by law.” And there’s no question that HRS Chapter 264-42 gives DOT the authority to “designate for inclusion in the state highway system, such other public highways, including county highways.”

However, in any transfer where DOT accepts a highway into its system, there must be a paired process where another entity has completed all of its appropriate processes to release a roadway from its assets and transfer that asset properly to the DOT.

State’s failure to meet conditions

Such a process had been outlined to address a total of 346.233 acres of DHHL lands taken by the DOT for various highways and roads, 65.142 acres of which comprise MKAR. A proposed set of conditions was presented to and accepted by the Hawaiian Homes Commission (HHC) in 1994, as seen in the HHC’s November 4, 1994 meeting minutes, which outlined the specific highways and roads involved along with their respective acreage. A specific condition for the transfer of those lands was that the DOT was “to apply the sale proceeds of the Marks Estate property in a planned auction, estimated in excess of $5 million, to purchase lands on Oahu of HHL’s own choice, for a land exchange with HHL to acquire the roads and highways.”

Significantly, the actions that the HHC had approved were contingent upon the State providing the agreed to compensation. And “in the event of non-compliance…then the HHC through its DHHL reserve[d] the right to hold off any release of its claims as to that particular proposal, based on any such non-compliance by the State of Hawaii.”

In a March 15, 2018 internal memo, one part of the DOT sought approval from higher DOT officials to add MKAR to its State Highway System, absent consent from the actual owners of the land.

No land transfer

Although the State has had a quarter century to provide DHHL the compensation to seal the transfer, it has failed to do so, triggering the non-compliance and instead solidifying DHHL’s continued ownership of the 346.233 acres that the State has been using freely for decades for public highways and roads.

The DOT cannot unilaterally claim those highways and roadways that are DHHL trust lands, as the Hawaiian Homes Commission Act (HHCA Section 206) explicitly restricts: “The powers and duties of the governor and the board of land and natural resources, in respect to lands of the State, shall not extend to lands having the status of Hawaiian home lands, except as specifically provided in this title.”

The HHCA makes no mention of the DOT. But certainly, as with the Board of Land and Natural Resources noted above, the DOT is not provided the authority in the HHCA to take lands from the DHHL trust. However, that is what the DOT seems to have attempted to do with its recent March 15, 2018 internal DOT memo. This memo originated in one part of the DOT, which sought approval from higher DOT officials to add MKAR to its State Highway System, absent consent from the actual owners of the land, the DHHL.

No ownership, no jurisdiction

Both the March 13, 2018 internal DOT memo and the State’s August 30 joint inter-department statement gloss over the significant point that the HRS Chapter 264-2 requires that “the ownership of all public highways and the land, real estate and property of the same shall be in the government in fee simple” (emphasis added). Without land ownership, the DOT cannot claim a highway to be within its State Highway System.

It has been argued convincingly, and admitted to in a Senate briefing held by Senators Maile Shimabukuro and Kaiali‘i Kahele that the DHHL did not properly transfer MKAR to the DOT, regardless of who owns the asphalt road.

And though the DHHL is part of the State government, its lands are a special segment of the State’s land holdings that are held in trust for native Hawaiian beneficiaries. The Hawaiian Homes Commission Act §204(a)(3) distinguishes trust land from “publicly owned” land, which is “land owned by a county or the State or the United States.” Land held by the DHHL cannot be administratively assigned for public DOT roadways without going through a rigorous process. Any transfer of land ownership from the DHHL to the DOT for the purposes of a public roadway would have to go through the federal process described in Title 43 of the Code of Federal Regulations, Part 47, which would require the consultation of Hawaiian Homeland beneficiaries, steps the State has thus far not initiated.

Without ownership of the land under Mauna Kea Access Road (MKAR), it’s difficult to imagine how the DOT could assert that the MKAR is part of the State Highway System over which it has jurisdiction.

In a recent Senate briefing, the DHHL admits that there was no proper transfer of the MKAR to the DOT.
With the State restricting the road, Hawaiians are currently being denied access to Mauna Kea.
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