A bill that aims to clarify that the state Legislature has the authority to determine public trails is drawing fire from Public Access Trails Hawai'i.
The trails advocacy group has been in a long-running dispute with the state and Haleakala Ranch over public access to the 3.3-mile Haleakala Trail, also known as the Haleakala Bridle Trail.
Senate Bill 2728, introduced by Maui Sen. J. Kalani English, would add language to state law that currently declares that "all trails and other nonvehicular rights-of-way in the state declared to be public rights-of-way by the Highways Act of 1892 . . . are declared to be public trails." The additional language, tacked on to the end of the statement, would say "as determined by the Legislature."
A hearing on the measure is scheduled for 1:15 p.m. today before the Senate Transportation and International Affairs Committee, chaired by English.
On Wednesday, English said that the bill is aimed at reaffirming that the Legislature sets public policy for roads and trails. That policy would include funding and maintenance issues as well as whether the public should have access, he said.
Makawao attorney Tom Pierce submitted testimony Wednesday on behalf of his client PATH opposed to the measure.
"The proposed amendment is unconstitutional, ambiguous and essentially throws into question 122 years of law and settled jurisprudence that protects Hawaii's unique and culturally important historic trails and roads," Pierce said.
In his testimony, Pierce questioned the wisdom of changing a law that "has been virtually unchallenged for over 122 years."
The Highways Act of 1892 was one of the last acts of Queen Lili'uokalani before the overthrow of the Hawaiian Kingdom in 1893, he said.
"Since that time, the Highways Act has created a legal framework for public roadways and has become a bedrock principle of Hawaii law," Pierce said.
He said the law provides that ownership of roads and trails remain with the state until it legally disposes of them in accordance with public law.
Also, the Highways Act and Hawaii law "unambiguously declare that roads, trails and other thoroughfares are public lands," he said. "Thus, having a later determination by the Legislature, on a case-by-case basis of what already are public lands is legally incomprehensible. Among other things, it would violate the established legal framework of (Hawaii law), which mandates how the state shall exchange, transfer and cede existing public lands. It would also violate the state's public trust obligations set forth in . . . the Hawaii Constitution. In essence then, this proposed amendment is tantamount to a repeal of the Highways Act of 1892 and 122 years of established Hawaii legal precedent."
Pierce said that the measure also would be unconstitutional because it violates separation of powers principles by vesting the legislative branch with the power of a court to determine what is a road or a trail. Even if it were not a violation of the separation of powers, the bill is ambiguous because it doesn't explain how the legislative branch would act as a judicial body, he said.
According to Pierce, the bill is retroactive to Jan. 1, 2011, which would nullify a class-action lawsuit brought by PATH against Haleakala Ranch and which is pending before the 2nd Circuit Court. (The state joined PATH as a plaintiff in the lawsuit in April.) Pierce contends the bill unconstitutionally tries to help Haleakala Ranch with the lawsuit.
"Senate Bill 2728 is unconstitutional, poorly drafted, poorly conceived and should be rejected," Pierce said.
English said that the Legislature sets the jurisdiction of courts, except in constitutional matters. And he said the bill's aim is broader than just the Haleakala Trail dispute.
For example, there may be a trail to a sacred heiau or an area that is considered unsafe, and the bill makes it clear that the Legislature sets policy on whether the public would have access to such areas, he said.
Groups such as PATH are trying to create public policy in the courts, but such policy should be set by the Legislature, English said.
There's no dispute that the state owns roads and trails, he said. That matter has been upheld consistently in the courts, and the bill does not seek to determine which roads and trails are owned by the state and which are not, he added.
Along with English, 16 other state senators supported passage of the bill. Those included Maui Sens. Roz Baker and Gil Keith-Agaran.
The Haleakala Trail was established in 1905 and accommodated guided horseback tours to the Haleakala Crater, according to Haleakala Ranch. The ranch maintains it has a legitimate claim of title to the trail. Public access to the trail is blocked, except during guided hiking tours that began after an agreement was reached in May 2012.
Last month, the state Board of Land and Natural Resources authorized an environmental review and an archaeological survey of lands before considering a proposed land exchange between the state and Haleakala Ranch, which would give the ranch the trail in exchange for public access to the Kahikinui Forest Reserve and the Na Kula Natural Area Reserve.
* Brian Perry can be reached at firstname.lastname@example.org.