“You have … a judgment from the court that says this is the metes and bounds. That’s the guideline here. Everything else is BS and you know it, counsel.”
That’s what 2nd Circuit Judge Peter T. Cahill told state deputy attorney general Miranda Steed at a hearing on May 22, where he was clearly frustrated with the state’s failure to comply with terms of an injunction he issued in December regarding the historic Haleakalā Trail. Initially, the state was to have complied by April 1.
More than a decade ago, in a lawsuit bought by the non-profit Public Access Trails Hawaiʻi (PATH) and its founder David Brown, then-Circuit Judge Joseph Cardoza ruled that the state owned a six-foot-wide, three-and-a-half-mile long trail that cuts through Haleakalā Ranch.
But in the years that followed, although some guided hikes were allowed, the Department of Land and Natural Resources never marked the trail on the ground — beyond some existing guideposts and cairns — and continued to let the ranch control access gates that crossed the trail.
On October 2019, the Board of Land and Natural Resources approved a recommendation by the DLNR’s Division of Forestry and Wildlife to allow the department to enter into a Memorandum of Agreement with the ranch, PATH, and the Maui group of the Sierra Club to provide public access to the trail and to authorize the board’s chair to finalize the MOA terms and establish a reasonable schedule for public access, or to even close the trail to protect the area, people, or property.
Unsatisfied with the limited guided hikes under the MOA, PATH and Brown sued the ranch, the DLNR (and its Maui forestry and wildlife branch manager, Scott Fretz, and then-director Suzanne Case), and the Board of Land and Natural Resources in 2022 to force a greater level of public access and the marking of the trail.
Cahill granted motions to dismiss the claims against the ranch, Fretz, and Case. He also dismissed PATH’s and Brown’s claims regarding alleged violations of historic preservation and environmental review laws. However, their claims alleging a public nuisance, a breach of contract, a breach of public trust, and seeking declaratory and injunctive relief remained.
Cahill presided over a non-jury trial last October. In December he issued the injunction. On March 27, he issued his final order, writing: “The guided hike scheme authorized by the BLNR: 1) benefits a private entity [Haleakalā Ranch] without legal authority and compensation to the state or public; and 2) denies access to the public to hike the trail as they choose.”
“Despite having the ability to identify the Haleakalā Trail on the ground, as defined in the metes and bounds ordered in Civil No. 11-1-0031-(3), the state defendants have engaged in a course of conduct that fails to locate the trail with sufficient accuracy thereby depriving the public of access and use of the publicly held trust land,” Cahill continued.
He found that PATH had not proven that the DLNR and Land Board had breached their agreement to try to reach a “mutually agreeable Trail Access and Management Agreement.” However, he did determine that the DLNR and Land Board had breached their public trust duties.
The trail is considered ceded, public land. And Cahill, citing language from the decades-old Waiahole water case on Oʻahu, noted that the public trust “requires that any balancing between public and private purposes begin with a presumption in favor of public use, access and enjoyment of the resource.”
“State defendants have — through omission — breached their fiduciary duty to plaintiffs by failing to exercise reasonable care in executing the state’s trust duties.
“In spite of knowing the exact metes and bounds description of the Haleakalā Trail provided in the 2011 action, state defendants provided no evidence that they have, at any point in time, physically located the trail. In failing to locate the Haleakalā Trail, state defendants have failed to inventory the very resource that the state holds in trust,” he wrote.
“Based on the state’s obligations as trustee of the resource, … and in keeping with its duties commensurate with those of a private trustee under common law, the state must locate and accurately identify and physically delineate the trail’s location using reasonable methods to ensure state defendants can protect, preserve, monitor, and maintain the trust resources,” he wrote.
He continued that in addition to PATH and Brown, “all people of Hawaiʻi” have a right to walk the trail “for any legal purpose to include hiking.”
“[T]he fact that the entrance to the trail at or near Olinda Road is blocked by a fence or gate marked with ‘private property’ and ‘no trespassing’ signs in a manner that would deter law-abiding members of the public from accessing the trail, and the trail cannot be located without elite hiking skills and an advanced GPS system, amounts to a de facto closing of access to the trail for the vast majority of the people of Hawaiʻi,” he wrote.
Cahill found that the one or more ranch fences that cross the trail constitute a public nuisance.
He granted PATH and Brown permanent injunctive relief as provided in the December 2024 order. He also granted declaratory relief.
Injunction
The injunction initially allowed only the following uses of the trail:
1) “Members of the public using, accessing, or traversing the trail as pedestrians to hike, walk, or run solely within the six-foot boundary of the trail,” and
2) “Members of the public and Native Hawaiian cultural practitioners who access the trail for traditional and cultural rights or practices.”
The injunction applied to people, wheeled vehicles, and domesticated four-legged animals. It also enjoined the state from allowing anyone to install or keep “any obstruction or impediment” within or on the trail, from disseminating any false information that the public may use the trail only if part of an organized hike, and from requiring any member of the public or native Hawaiian cultural practitioners to sign a waiver of liability or acknowledgement of any assumption of risk before using the trail.
The injunction also required the state to provide clearly visible public information at the mauka and makai trail heads.
Cahill later clarified that Maui Electric Company could continue to use the Olinda Gate and portions of the trail to maintain utility lines.
On January 31, the state provided the court with an update on its efforts to comply with the injunction by April 1 that largely read like an argument against some of its terms.
Deputy attorney general Steed stated that because the ranch’s Olinda gate crosses the trail, “The state will have to prevent vehicular access through Olinda Gate, which is used by numerous third parties to complete critical projects.”
“The state also relies on the Olinda Road access for fire and emergency services responding to incidents (i.e., wildfires), access to a koa reforestation project, and the hunter access and reservation system in the upper Makawao Forest Reserve. Additionally, the state’s partners, the Maui Forest Bird Recovery Group and The Nature Conservancy, rely on the Olinda Gate access to stage operations for its mosquito control project.
“The DLNR Division of Forestry and Wildlife is a sponsoring agency and partner of Birds Not Mosquitoes, which uses the Incompatible Insect Technique to reduce invasive mosquito populations carrying avian malaria, which left unchecked, will likely cause multiple species of Hawaiian honeycreepers to go extinct.
“As written, the state will be unable to conduct any type of maintenance or invasive species control along the trail because the scope of activity allowed in the order is limited to hiking, walking, and running,” Steed continued.
With regard to removing obstructions on the trail, Steed reported that the state’s only options under the order were “to remove the fence itself, which will likely cause property damage to the remainder of the fence that is not on state property. Or, it will have to initiate an administrative proceeding against the owner of the fence to potentially get an order to remove.
“Which course of action to take is a decision for the Board of Land and Natural Resources as the executive head of the agency. If the board decides to proceed with an administrative enforcement, the fence owner would likely be entitled to a contested case hearing, which would delay removal well past April.”
With regard to the signage requirements, Steed wrote, “The state is concerned with this provision because the metes and bounds route leads hikers directly over a near-vertical thirty-foot cliff. Because the metes and bounds were set by a quiet title action, the state cannot move to a safer route without purchasing land from Haleakalā Ranch Company (the surrounding landowner) or engaging in a land swap with the Haleakalā Ranch Company for a safer means around the cliff.
The cliff that the current metes and bounds for the Haleakala Trail leads to. CREDIT: DLNR.
“The state has developed two options. The first is to place a sign at each trailhead detailing the metes and bounds with a disclaimer that the route includes hazardous and/or life-threatening conditions and that the state does not recommend hiking the trail. The second is to close the trail for safety reasons pursuant to HAR §13-221-4. The state’s concern is that placing signage at either end of the trail may create an attractive nuisance, and the state does not want to encourage the public to use an unmaintained, potentially dangerous trail, or trespass on private property.”
She added that the state does not require the general public to sign waivers to access the trail.
‘Unhappy Judge’
On February 12, Cahill modified his order to allow the Maui Department of Water Supply to access the Olinda gate and portions of the trial to maintain the Olinda Water Treatment Facility.
At the hearing that day, Brown complained to Cahill that the state had still refused to mark the trail.
Cahill made it clear he was not happy, either.
“Yeah, I know what’s going on. I know what’s going on. We’ll deal with it. People have to be held in contempt and they spend — they’ve got — they’ve got room at the jail, I’ve got to tell you. I get the reports every week. We’re under capacity, under designed capacity, so if people need to be held in contempt and they need to spend some time in the cooler, that can be accomplished as well,” he said.
He also took issue with the state’s characterization that a hearing would need to be held before obstructions could be removed.
“No, you don’t have to do that. There’s a court order that requires it. That’s obfuscation. That’s what that is. … So maybe you want to go back to the powers that be and just let them know that you have an unhappy judge,” he said.
Whatever Steed told her higher ups, on March 28, just a few days before the injunction was to take effect, the state filed a motion to modify the order. The motion included declarations of several parties who rely on the Olinda gate and claimed potential adverse impacts if the order was not modified:
Christopher Baldwin of the CRJ Castle Trust and Edward Baldwin of the Edward C. Baldwin Trust both stated in their declarations that the Olinda gate and surrounding areas on or near the trail provide the only access to their properties and “vehicular access is necessary.” They added that the order would prohibit them and other trustees and trust beneficiaries from accessing the property and would effectively strip the trusts of their real property rights.
Mark Vaught, vice president of water resources and infrastructure for Mahi Pono, LLC, stated in his declaration that the Olinda gate was the only vehicular access to maintain the diversion system that supplies water for domestic use in Upcountry Maui.
“The order would prohibit Mahi Pono from accessing the Mahi Pono property and water infrastructure, which would cause irreparable harm and injury to Mahi Pono’s interests and jeopardize the domestic water supply of approximately thirty-thousand upcountry Maui residents,” he wrote.
The declaration by The Nature Conservancy of Hawaiʻi’s Maui program manager, Kerri Fay, noted that its Waikamoi preserve was created by a conservation easement granted by Haleakalā Ranch Company in 1983 and that TNC accesses the preserve via ranch roadways and the trail at the end of Olinda Road.
“The Olinda gate is essential to our accessing, operating, monitoring, and maintaining the Waikamoi preserve. No other access points allow physical access to this important conservation area,” she wrote. She also reiterated the state’s earlier statement that the gate is a necessary access point for ongoing mosquito control efforts to save critically endangered forest birds.
A declaration by Haleakalā Ranch president and CEO J.Scott Meidell argued in favor keeping the quarterly guided hike scheme in place. “[T]he hike program balanced the rights of the public to access the trail with the obvious and real threats to life and limb associated with hiking the trail without a guide. Additionally, it is my understanding and belief that the hike program respects and acknowledges the private property rights of HRC based upon the near certainty of trespass onto HRC lands due to certain portions of the trail being physically impassable,” he stated.
He continued that in May 2023, he and ranch land manager Jordan Jokiel inspected the trail and surrounding area. “The results of this inspection and photographs conclusively demonstrate in my opinion that the trail is physically impassable at various points … and is dangerous to navigate. An infestation of impassable gorse plants and steep cliffs and rocky terrain near the centerline of the trail make it impossible to stay within the six-foot-wide delineation and pose a significant hazard to anyone who would attempt to cross it,” he wrote (emphasis in original).
One of the many spots along the Haleakala trail with impassable vegetation. CREDIT: J. SCOTT MEIDELL.
DOFAW administrator David Smith suggested in his declaration that limiting public access to the trail as described in the metes and bounds survey would severely hamper his agency’s ability to control mosquitoes and other invasive species. “Following the exact route described in the metes and bounds would have required my staff to traverse an approximately thirty-foot near-vertical cliff,” he wrote. He did add that his staff had installed gates at two fences that crossed the trail’s path.
‘Recklessly Delayed’
All of these arguments against the injunction came on the eve of the state’s requirement to comply with it, attorney Mike Biechler, representing Brown and PATH, pointed out in an April 1 motion for a hearing on the state’s motion to modify the order.
“State defendants continued their attempts to relitigate the court’s trial findings and conclusions under the guise of a mislabeled and self-styled non-hearing ‘Motion for Modification.’ The motion is, in fact, a motion for reconsideration or motion for a new trial because it is not simply a request for a minor modification or alteration of an order, it is a brazen attempt to reverse the trial verdict of this court by contradicting the findings and conclusions of the court and the trial testimony of state defendants’ own current and former employees – while potentially perjuring numerous witness and/or committing contempt of court,” he wrote.
On April 3, during an emergency status conference — where the state was represented by no less than Attorney General Anne Lopez, first deputy attorney general Matthew Dvonch, and three deputy attorneys general (including Steed) — Cahill granted a limited stay of the order.
The stay applied to the Department of Land and Natural Resources, state of Hawaiʻi and its agents “for purposes consistent with its statutory mission,” according to the order signed on April 16.
Under the order, the first two paragraphs of the injunction, pertaining to the allowed uses of the trail and to whom and what the injunction applies to, would be stayed until a hearing was held on the state’s motion for modification, or sooner, as determined by the court.
A hearing on the state’s motion for modification had been set for May 22. Also to be heard that day was an April 23 motion for an order to show cause for civil contempt filed by Biechler over the state’s apparent violation of parts of the December injunction that had not been stayed, including allowing Haleakalā Ranch to continue to use the trail and maintain impediments crossing it, and failing to provide public information at the mauka and makai trail heads.
In his motion, Biechler again criticized the state for the timing of its motion and supporting declarations. He noted that the state had been aware for months that “other persons and entities regularly drive over at least some portion of the Haleakalā Trail and may even have compelling reasons to do so, but instead of raising these concerns in a timely manner, state defendants chose to ambush the court with this information leaving only one business day before state defendants were required to comply with the order for injunctive relief. The state’s delay in reporting this information to the court appears to be designed to overwhelm the court with ‘emergencies’ that would preclude the court from enforcing its order. The state’s January 31, 2025, ‘Memorandum of Compliance’ noted [its] counsel ‘has been in contact with The Nature Conservancy, the Haleakalā Ranch Company, Mahi Pono, LLC, Christopher Baldwin (private residence), and Edward C. Baldwin (private residence).’ All of the aforementioned persons and entities had signed their declarations by mid-January, then recklessly delayed sharing these concerns with the court. … In doing so, the state created an emergency that, by its own admission, risked the extinction of two endangered bird species. It also created a situation where at least some of these uses would continue to occur after the order took effect on April 1, 2025, thereby maintaining the status quo of unfettered access and use for the ranch, state defendants, and their many partners and organizations, while coming no closer to identifying the location of the trail,” he wrote.
An Extended Stay
At the May 22 hearing, Cahill made it clear that whatever arguments might exist for modifying the injunction order, “the number one thing is that the trail [is] located and marked. That’s the number one thing. Once that’s done, I have to tell you, everything else should be easily — not easily — should be resolvable. It really should be.”
He continued, “I understand the ranch has concerns, but, you know, it’s really interesting that the ranch wanted to get out of the case and now they realize they, in plain English, screwed up royally by — by getting out of the case, and now they have little say.”
He added that he’d seen no evidence that identifying and opening the trail would affect ranch operations.
“No one’s walked on this damn thing for years. How could you say, ‘oh, it’s going to affect our operations,’ when we don’t know any of that yet? We don’t even know where the trail is,” he said.
He said some of the many players with an interest in what happens with the trail may also be interested in “getting a surveyor out there and putting some markings down. I’m not saying they should — [that] they have to do it. I’m just saying they have an interest in doing that, including the ranch. I mean, is this such a – is this such a great task that in 2025, we can’t achieve it?”
Steed started to argue that the current metes and bounds of the trail don’t align with the historic trail.
“Who cares?” Cahill interjected.
She then explained how the metes and bounds trail crosses a number of obstacles, including invasive gorse.
“[I]t sounds to me like you’re really not interested in resolving this. That’s what it sounds like, Ms. Steed. Because you have a judgment. I don’t care about the difficulties. Those — those difficulties are all surmountable,” Cahill said.
While Steed said the state was interested in realigning the trail, Cahill said he wanted the trail marked according to the metes and bounds first.
“Let’s get that taken care of, and then you can talk about realignment later. … [L]et me ask a question. Did you know about these problems” — the cliff, the gorse, etc. — “before we had the trial last year?” Cahill asked.
Steed said that the problems were mentioned in depositions, as well as by Fretz on the witness stand.
“Why didn’t we deal with it then and why are we dealing with it now?” Cahill asked.
“Respectfully, your honor, the problem that I’m talking about now was not present in the plaintiffs’ complaint,” Steed replied.
Cahill pointed out that the state owns and is responsible for the metes and bounds trail, which was open at the time of the trial.
“Please describe to me what the state has done … to ensure to the public that they would be able to hike the trail safely as it now exists,” he told Steed.
Steed said the guided hikes are still in effect and the state has included warnings on the two signs that have been installed pursuant to the court’s order, one at Olinda gate and one at the Crater Highway. But the state had not, however, installed warning signs at or near hazards.
Cahill then asked what the state’s timetable was for realigning the trail.
Steed said at first that it depended on whether the plaintiffs were willing to consider realignment.
“[M]ake believe they don’t exist,” Cahill told her. “You’re making a commitment to me. Okay?”
Steed said that the state had engaged relevant parties, including adjacent landowners, and that they had been “open to the idea.”
“The actual timetable is going to depend on cooperation of other parties, and … I’m not just referring to plaintiffs,” she said.
As Cahill continued to probe the state’s path toward realignment, Attorney General Lopez requested permission to speak.
“May I have just a moment to speak with my folks and then we’ll go back on the record?” she asked.
After a 43-minute recess, during which the attorneys representing all of the parties present discussed matters in the hall, Steed reported that they had agreed that the state’s motion for modification and PATH’s and Brown’s civil contempt motion would be withdrawn without prejudice.
She added that the state would do an emergency procurement for a surveyor “to go out and do a marked survey of the trail, which will include the placement of durable markers at the surveyor’s discretion.”
She said the whole process, including with the emergency procurement time, would take about six months. “Thus, the parties have agreed to stay the order for injunctive relief for the next six months to ensure that affected parties have access while the state is conducting the survey. … At the end of the survey, when it’s complete, the state will provide copies of all documents it receives from the surveyor to plaintiffs and the state will coordinate with the plaintiffs and all known interested parties [to set] a date to go out and walk the surveyed trail,” she said.
Cahill thanked Steed and then confirmed with Biechler and the other parties’ attorneys that they agreed with her representations. Steed was to prepare a stipulation for the court, but had not done so by press time.
— Teresa Dawson
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