Public roads a legacy that must be protected
West Maui families and their allies, known as Kia’i Kaua’ula, have been demonstrating against West Maui Land Company’s unpermitted utility construction on lands from Waine’e to Launiupoko in Lahaina. Five grandmothers
and mothers were arrested before trenching was stopped in the Halaka’a area. The community is calling for this construction to stop until all appropriate government review occurs, and all land title disputes to both private and public lands are resolved. Construction in the Waine’e area has already disturbed at least one set of human remains.
West Maui Land Company claims that its activities are exempt from county permitting. The county agreed with West Maui Land on the permitting issue. Subsequent to the arrests, however, the county declined to make further arrests of demonstrators when it became clear that ownership of private lands was in dispute.
Community advocates counter that West Maui Land’s claimed exemptions are based on the assumption that it owns all lands through which its utility lines pass. However, the planned path of construction trenching crosses multiple kingdom-era roads: Mill Street, Aholo Road, and Kahaulelio Road. The county argues that it has not accepted ownership of these roads, and West Maui Land appears to be acting like the owner.
This dispute raises a thorny century-long issue. In 1892, Queen Lili’uokalani enacted the Highways Act, declaring all roads — both public and private — to be public roads owned by the kingdom. In the 1940s, the legislature enacted a law that put select roads into the Territorial Highway system owned by the territory, and deemed all other roads to be owned by the counties. Unfortunately, the County of Maui has historically resisted acknowledging ownership of many old government roads, which tend to be located in less populated rural areas.
For over a century, the people of Lahaina regularly used Mill Street, Aholo Road and Kahaulelio Road. This public use changed over the years, especially when the Lahaina-Wailuku Government Road became the realigned Honoapi’ilani Highway. Yet no matter how long it has been unmaintained or infrequently used, a county-owned Highways Act public road can only be closed or abandoned by a majority vote of the County Council. The council has never officially closed or abandoned these roads; they are listed as government roads on tax maps, and continue to be the legal boundary for neighboring parcels. However, there is no question that trenching and laying of utility lines are occurring on these public roads.
The West Maui Community Plan calls for preservation of “ancient trails/old government roads,” as they are an important part of Lahaina’s living history. In any case, no private individual or company has the power to use public lands or roads without approval from the government after appropriate deliberation and review.
The county has the power and the duty to order activities within these public roads stopped until the appropriate archaeological and other reviews have occurred. The county must also deliberate and decide whether to allow a private development company to permanently use these public lands for their developments. That decision cannot be made by department heads or county attorneys, and it certainly can’t be made by West Maui Land’s private executives.
Kia’i Kaua’ula are drawing attention to what can happen when land development does not occur within the framework of comprehensive planning and appropriate review. We join them in asking how the county can ignore and disregard public trust resources such as these public roads, which are also part of the corpus of ceded lands, and a legacy of its Native Hawaiian beneficiaries. The county must step up to its obligations and call a halt to West Maui Land’s imprudent construction until appropriate reviews, approvals and consents are obtained.
* Albert Perez is executive director of the Maui Tomorrow Foundation and was one of its three original founders. Born and raised in Hawaii, he earned a master’s degree in urban and regional planning from the University of Hawaii at Manoa. Perez has worked at the State of Hawaii Office of Coastal Zone Management, the Washington State Department of Transportation, and the County of Maui. He has previously been involved with Sierra Club Hawaii and Life of the Land.