Jury to decide on who owns Haleakala Trail

WAILUKU – The question of who owns Haleakala Trail – the state or Haleakala Ranch – was left to a jury to answer at the conclusion of six weeks of evidence presentation Tuesday afternoon in a civil trial in 2nd Circuit Court.

The 12-person jury deliberated then retired for the day; jurors are expected to continue deliberations today.

They are being asked to decide whether Haleakala Ranch or the state owns a 3-mile portion of a historic trail that runs through the ranch’s property from the Olinda Road Gate to the Haleakala National Park boundary.

The attorney for Public Access Trails Hawaii, a nonprofit group that brought the lawsuit against the ranch in January 2011, said Tuesday in final arguments that the trail from Makawao to the summit of Haleakala, though it may have moved slightly over the years, was in existence before the Great Mahele land division of 1848 and is thereby a public highway under the Highways Act of 1892.

The law stipulates that all roads and trails in the Hawaiian Islands open, laid out or built by the government are declared to be public highways. Therefore, any trail that can be proved in existence prior to 1892 may be claimed by the state, according to state Department of Land and Natural Resources documents.

“Public use existed way before Haleakala Ranch ever came along,” PATH attorney Tom Pierce said of the ranch that was founded in 1888.

“And once they did come along . . . we saw they continually asked the government to spend money on it because they suggested it was a public trail, and they continued to let the public use it for decades,” Pierce told the jury. “It’s not until modern times that Haleakala Ranch wants to go back on the things their founders said.”

Pierce said that $5,000 in state funds was appropriated for work on the trail to the Haleakala summit in 1905.

An attorney for the state, which joined the class-action lawsuit with PATH against the ranch, said that maps as early as 1869 outline the trail, proving it was in existence before Haleakala Ranch came into existence.

“The ranch didn’t build that trail, the government did. It was built by the people for the people,” Deputy Attorney General William Wynhoff said in his closing arguments Tuesday. “The ranch may have bought the land around the trail, but it did not buy the trail because it did not build the trail. That’s Hawaii law.”

But Haleakala Ranch attorney Michael Gibson argued that the trail that exists today was not the same ancient trail used by Native Hawaiians to access historic and cultural sites in the 1800s. In fact, Gibson said, the trail in question was built on the ranch’s private property in 1905 for use as a bridle trail for guided horseback tours over Haleakala Ranch to the summit.

“The evidence clearly shows that the purpose of the 1905 trail was to address the urgency for a better tourist route, it was certainly not to benefit Native Hawaiians,” Gibson said, noting that the 1905 trail is in a different location and of a different width than the trail PATH is alleging was used in ancient times.

He said the state has not produced any surveys, plans, specifications or other documents that show who built the portion of the trail that cuts through Haleakala Ranch land or when.

“If the state isn’t the owner, then Haleakala Ranch is the owner,” Gibson said.

He urged the jury to “allow Haleakala Ranch to continue to be the good stewards they have been for the last 125 years” in maintaining at least some level of public access to the trail. Since 2012, the ranch has partnered with the state Department of Land and Natural Resources to provide guided hikes over the old trail route beginning at the Olinda Gate to the Haleakala National Park boundary. The hike does not reach the summit, because that is in the National Park Service’s jurisdiction. Hikes must be scheduled beforehand.

PATH attorneys argued that the only way to preserve access to the trail for future generations is to deem ownership belonging to the state.

“Otherwise, that’s private lands. It’s theirs exclusively. Your grandchildren will have no right to see it if Haleakala Ranch gets its way,” Pierce told members of the jury.

Judge Joseph Cardoza is presiding over the trial.

In a related issue, a bill introduced in the state Senate that PATH claimed would do an end-run around the trial appears to have died this session.

Senate Bill 2728, introduced by Maui Sen. J. Kalani English, sought to clarify that the state Legislature has the authority to determine public trails. The bill drew fire from PATH, which maintained that the bill, because it would have been retroactive to Jan. 1, 2011, would nullify its class-action lawsuit against Haleakala Ranch.

The bill would have called into question the Highways Act of 1892, according to PATH.

The measure passed second reading in the House on March 19 and was referred to the House Finance Committee. There’s no record of the bill making its way out of that committee.

On Tuesday, English said he has not decided whether to reintroduce the bill. Since the measure did not make it out of the House, the issue over whether the Legislature sets public policy with roads and trails remains unsettled, he said.

* Eileen Chao can be reached at