Kahele questions whether DOT or DHHL has jurisdiction over Maunakea Access Road

  • Sen. Kai Kahele, left, and DHHL Director William Aila.

A state senator has argued that state Department of Transportation might not have jurisdiction over the Maunakea Access Road, potentially complicating efforts to build the Thirty Meter Telescope.

Sen. Kai Kahele, D-Hilo, questioned representatives of the Department of Hawaiian Home Lands at a meeting of the Committee on Hawaiian Affairs on Oahu Wednesday, asking whether DHHL had transferred jurisdiction over the access road to the DOT, which currently controls the road.

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The DOT built the road over DHHL property without permission about 50 years ago. The state never executed a land transfer as part of a $600 million agreement in 1995 to compensate for the misuse of Hawaiian home lands, said DHHL Director William Aila.

The DOT maintains operational control over the road despite the lack of compensation 24 years later, the state attorney general’s office said. The road has been blocked since July 15 by protesters opposed to the telescope.

Aila admitted Wednesday that no official land transfer had occurred.

“There is no evidence of any land exchange right now,” Aila said.

He said Gov. David Ige’s administration is working to ensure the land swap is completed.

Kahele told the Tribune-Herald on Friday that DHHL had executed a memorandum of understanding to transfer authority over the road to the DOT, but explained that he does not believe such a memorandum is sufficient to negotiate such a transaction.

“I think (Aila is) absolutely wrong,” Kahele said. “See, what I know for a fact, and Aila knows for a fact, is that the secretary of the interior never signed off on any land exchange, and that’s something you’re required to do.”

Because the federal government retains significant oversight regarding DHHL’s activities, Kahele said approval from the U.S. Department of the Interior — which he said is required before the transfer authority can even begin — cannot be circumvented by a mere memorandum of understanding.

If DHHL actually has retained authority over the access road, it would complicate the ongoing standoff between the state and demonstrators who are occupying the access road to block construction of TMT, even though DHHL, like DOT, is a state agency.

“DHHL is a state agency, but … it’s a unique state agency, let’s put it that way,” Kahele said.

The department is the only agency that the state has a constitutional mandate to fund, and its obligation is not to the state, but to its beneficiaries, Kahele said, who are defined by the Hawaiian Homes Commission Act to be those with at least a 50% Hawaiian blood quantum. The act was passed by the U.S. Congress on July 9, 1921.

As many of the protesters, including nearly 40 elders who were arrested on July 17 for obstructing the roadway, are of Hawaiian descent, they are beneficiaries of the Hawaiian Homes Commission Act, so the road consequently belongs to them, Kahele explained.

While Kahele, who has visited with demonstrators at the access road on multiple occasions, concluded the Wednesday meeting with a promise to work with DHHL and the state attorney general to determine the road’s ownership, he said Friday that how this issue is resolved might help reach a settlement between the state and demonstrators to move forward.

“One of the many, many issues (the demonstrators) have is that (the state) failed to follow their own law,” Kahele said, adding that this issue is an opportunity for DHHL to have “a seat at the table” for discussions about the continuation of the TMT project.

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The Associated Press contributed to this report.

Email Michael Brestovansky at mbrestovansky@hawaiitribune-herald.com.

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