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<\/a>He found that PATH had not proven that the DLNR and Land Board had breached their agreement to try to reach a \u201cmutually agreeable Trail Access and Management Agreement.\u201d However, he did determine that the DLNR and Land Board had breached their public trust duties.<\/p>\n\n\n\n
The trail is considered ceded, public land. And Cahill, citing language from the decades-old Waiahole water case on O\u02bbahu, noted that the public trust \u201crequires that any balancing between public and private purposes begin with a presumption in favor of public use, access and enjoyment of the resource.<\/strong>\u201d<\/p>\n\n\n\n \u201cState defendants have \u2014 through omission \u2014 breached their fiduciary duty to plaintiffs by failing to exercise reasonable care in executing the state\u2019s trust duties.<\/p>\n\n\n\n \u201cIn spite of knowing the exact metes and bounds description of the Haleakal\u0101 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 Haleakal\u0101 Trail, state defendants have failed to inventory the very resource that the state holds in trust,\u201d he wrote.<\/p>\n\n\n\n \u201cBased on the state\u2019s obligations as trustee of the resource, \u2026 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\u2019s location using reasonable methods to ensure state defendants can protect, preserve, monitor, and maintain the trust resources,\u201d he wrote.<\/p>\n\n\n\n He continued that in addition to PATH and Brown, \u201call people of Hawai\u02bbi\u201d have a right to walk the trail \u201cfor any legal purpose to include hiking.\u201d <\/p>\n\n\n\n \u201c[T]he fact that the entrance to the trail at or near Olinda Road is blocked by a fence or gate marked with \u2018private property\u2019 and \u2018no trespassing\u2019 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<\/em> closing of access to the trail for the vast majority of the people of Hawai\u02bbi,\u201d he wrote.<\/p>\n\n\n\n Cahill found that the one or more ranch fences that cross the trail constitute a public nuisance.<\/p>\n\n\n\n He granted PATH and Brown permanent injunctive relief as provided in the December 2024 order. He also granted declaratory relief.<\/p>\n\n\n\n Injunction<\/strong><\/p>\n\n\n\n The injunction initially allowed only the following uses of the trail: <\/p>\n\n\n\n 1) \u201cMembers 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,\u201d and <\/p>\n\n\n\n 2) \u201cMembers of the public and Native Hawaiian cultural practitioners who access the trail for traditional and cultural rights or practices.\u201d<\/p>\n\n\n\n The injunction applied to people, wheeled vehicles, and domesticated four-legged animals. It also enjoined the state from allowing anyone to install or keep \u201cany obstruction or impediment\u201d 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.<\/p>\n\n\n\n The injunction also required the state to provide clearly visible public information at the mauka and makai trail heads.<\/p>\n\n\n\n Cahill later clarified that Maui Electric Company could continue to use the Olinda Gate and portions of the trail to maintain utility lines.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Deputy attorney general Steed stated that because the ranch\u2019s Olinda gate crosses the trail, \u201cThe state will have to prevent vehicular access through Olinda Gate, which is used by numerous third parties to complete critical projects.\u201d<\/p>\n\n\n\n \u201cThe 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\u2019s 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.<\/p>\n\n\n\n \u201cThe 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.<\/p>\n\n\n\n \u201cAs 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,\u201d Steed continued.<\/p>\n\n\n\n With regard to removing obstructions on the trail, Steed reported that the state\u2019s only options under the order were \u201cto 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.<\/p>\n\n\n\n \u201cWhich 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.\u201d<\/p>\n\n\n\n With regard to the signage requirements, Steed wrote, \u201cThe 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 Haleakal\u0101 Ranch Company (the surrounding landowner) or engaging in a land swap with the Haleakal\u0101 Ranch Company for a safer means around the cliff.<\/p>\n\n\n\n The cliff that the current metes and bounds for the Haleakala Trail leads to. CREDIT: DLNR.<\/p>\n\n\n\n \u201cThe 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 \u00a713-221-4. The state\u2019s 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.\u201d<\/p>\n\n\n\n She added that the state does not require the general public to sign waivers to access the trail.<\/p>\n\n\n\n \u2018Unhappy Judge\u2019<\/strong><\/p>\n\n\n\n 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.<\/p>\n\n\n\n At the hearing that day, Brown complained to Cahill that the state had still refused to mark the trail.<\/p>\n\n\n\n Cahill made it clear he was not happy, either.<\/p>\n\n\n\n \u201cYeah, 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 \u2014 they\u2019ve got \u2014 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,\u201d he said.<\/p>\n\n\n\n He also took issue with the state\u2019s characterization that a hearing would need to be held before obstructions could be removed.<\/p>\n\n\n\n \u201cNo, you don’t have to do that. There’s a court order that requires it. That’s obfuscation. That\u2019s what that is. \u2026 So maybe you want to go back to the powers that be and just let them know that you have an unhappy judge,\u201d he said.<\/p>\n\n\n\n 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: <\/p>\n\n\n\n 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 \u201cvehicular access is necessary.\u201d 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. <\/p>\n\n\n\n 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.<\/p>\n\n\n\n \u201cThe 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,\u201d he wrote.<\/p>\n\n\n\n The declaration by The Nature Conservancy of Hawai\u02bbi\u2019s Maui program manager, Kerri Fay, noted that its Waikamoi preserve was created by a conservation easement granted by Haleakal\u0101 Ranch Company in 1983 and that TNC accesses the preserve via ranch roadways and the trail at the end of Olinda Road.<\/p>\n\n\n\n \u201cThe 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,\u201d she wrote. She also reiterated the state\u2019s earlier statement that the gate is a necessary access point for ongoing mosquito control efforts to save critically endangered forest birds.<\/p>\n\n\n\n A declaration by Haleakal\u0101 Ranch president and CEO J.Scott Meidell argued in favor keeping the quarterly guided hike scheme in place. \u201c[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,\u201d he stated.<\/p>\n\n\n\n He continued that in May 2023, he and ranch land manager Jordan Jokiel inspected the trail and surrounding area. \u201cThe results of this inspection and photographs conclusively demonstrate in my opinion that the trail is physically impassable at various points \u2026 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 <\/strong>pose a significant hazard to anyone who would attempt to cross it,<\/em><\/strong>\u201d <\/em>he wrote (emphasis in original).<\/p>\n\n\n\n One of the many spots along the Haleakala trail with impassable vegetation. CREDIT: J. SCOTT MEIDELL.<\/p>\n\n\n\n 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\u2019s ability to control mosquitoes and other invasive species. \u201cFollowing the exact route described in the metes and bounds would have required my staff to traverse an approximately thirty-foot near-vertical cliff,\u201d he wrote. He did add that his staff had installed gates at two fences that crossed the trail\u2019s path.<\/p>\n\n\n\n \u2018Recklessly Delayed\u2019<\/strong><\/p>\n\n\n\n All of these arguments against the injunction came on the eve of the state\u2019s 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\u2019s motion to modify the order.<\/p>\n\n\n\n \u201cState defendants continued their attempts to relitigate the court\u2019s trial findings and conclusions under the guise of a mislabeled and self-styled non-hearing \u2018Motion for Modification.\u2019 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\u2019 own current and former employees \u2013 while potentially perjuring numerous witness and\/or committing contempt of court,\u201d he wrote.<\/p>\n\n\n\n On April 3, during an emergency status conference \u2014 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) \u2014 Cahill granted a limited stay of the order. <\/p>\n\n\n\n The stay applied to the Department of Land and Natural Resources, state of Hawai\u02bbi and its agents \u201cfor purposes consistent with its statutory mission,\u201d according to the order signed on April 16.<\/p>\n\n\n\n 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\u2019s motion for modification, or sooner, as determined by the court.<\/p>\n\n\n\n A hearing on the state\u2019s 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\u2019s apparent violation of parts of the December injunction that had not been stayed, including allowing Haleakal\u0101 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.<\/p>\n\n\n\n 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 \u201cother persons and entities regularly drive over at least some portion of the Haleakal\u0101 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\u2019s delay in reporting this information to the court appears to be designed to overwhelm the court with \u2018emergencies\u2019 that would preclude the court from enforcing its order. The state\u2019s January 31, 2025, \u2018Memorandum of Compliance\u2019 noted [its] counsel \u2018has been in contact with The Nature Conservancy, the Haleakal\u0101 Ranch Company, Mahi Pono, LLC, Christopher Baldwin (private residence), and Edward C. Baldwin (private residence).\u2019 All of the aforementioned persons and entities had signed their declarations by mid-January, then recklessly delayed sharing these concerns with the court. \u2026 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,\u201d he wrote.<\/p>\n\n\n\n An Extended Stay<\/strong><\/p>\n\n\n\n At the May 22 hearing, Cahill made it clear that whatever arguments might exist for modifying the injunction order, \u201cthe 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 \u2014 not easily \u2014 should be resolvable. It really should be.\u201d<\/p>\n\n\n\n He continued, \u201cI 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 \u2014 by getting out of the case, and now they have little say.\u201d<\/p>\n\n\n\n He added that he\u2019d seen no evidence that identifying and opening the trail would affect ranch operations.<\/p>\n\n\n\n \u201cNo one’s walked on this damn thing for years. How could you say, \u2018oh, it’s going to affect our operations,\u2019 when we don’t know any of that yet? We don\u2019t even know where the trail is,\u201d he said.<\/p>\n\n\n\n He said some of the many players with an interest in what happens with the trail may also be interested in \u201cgetting a surveyor out there and putting some markings down. I’m not saying they should \u2014 [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 \u2013 is this such a great task that in 2025, we can’t achieve it?\u201d<\/p>\n\n\n\n Steed started to argue that the current metes and bounds of the trail don\u2019t align with the historic trail.<\/p>\n\n\n\n \u201cWho cares?\u201d Cahill interjected.<\/p>\n\n\n\n She then explained how the metes and bounds trail crosses a number of obstacles, including invasive gorse.<\/p>\n\n\n\n \u201c[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\u2019t care about the difficulties. Those \u2014 those difficulties are all surmountable,\u201d Cahill said.<\/p>\n\n\n\n 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. <\/p>\n\n\n\n \u201cLet’s get that taken care of, and then you can talk about realignment later. \u2026 [L]et me ask a question. Did you know about these problems\u201d \u2014 the cliff, the gorse, etc. \u2014 \u201cbefore we had the trial last year?\u201d Cahill asked.<\/p>\n\n\n\n Steed said that the problems were mentioned in depositions, as well as by Fretz on the witness stand.<\/p>\n\n\n\n \u201cWhy didn’t we deal with it then and why are we dealing with it now?\u201d Cahill asked.<\/p>\n\n\n\n \u201cRespectfully, your honor, the problem that I’m talking about now was not present in the plaintiffs’ complaint,\u201d Steed replied.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n \u201cPlease describe to me what the state has done \u2026 to ensure to the public that they would be able to hike the trail safely as it now exists,\u201d he told Steed.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n Cahill then asked what the state\u2019s timetable was for realigning the trail.<\/p>\n\n\n\n Steed said at first that it depended on whether the plaintiffs were willing to consider realignment. <\/p>\n\n\n\n \u201c[M]ake believe they don’t exist,\u201d Cahill told her. \u201cYou’re making a commitment to me. Okay?\u201d<\/p>\n\n\n\n Steed said that the state had engaged relevant parties, including adjacent landowners, and that they had been \u201copen to the idea.\u201d <\/p>\n\n\n\n \u201cThe actual timetable is going to depend on cooperation of other parties, and \u2026 I’m not just referring to plaintiffs,\u201d she said.<\/p>\n\n\n\n As Cahill continued to probe the state\u2019s path toward realignment, Attorney General Lopez requested permission to speak.<\/p>\n\n\n\n \u201cMay I have just a moment to speak with my folks and then we\u2019ll go back on the record?\u201d she asked.<\/p>\n\n\n\n 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\u2019s motion for modification and PATH\u2019s and Brown\u2019s civil contempt motion would be withdrawn without prejudice.<\/p>\n\n\n\n She added that the state would do an emergency procurement for a surveyor \u201cto go out and do a marked survey of the trail, which will include the placement of durable markers at the surveyor\u2019s discretion.\u201d<\/p>\n\n\n\n She said the whole process, including with the emergency procurement time, would take about six months. \u201cThus, 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. \u2026 At the end of the survey, when it\u2019s 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,\u201d she said.<\/p>\n\n\n\n Cahill thanked Steed and then confirmed with Biechler and the other parties\u2019 attorneys that they agreed with her representations. Steed was to prepare a stipulation for the court, but had not done so by press time.<\/p>\n\n\n\n \u2014 Teresa Dawson<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" “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 … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16614,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[539],"tags":[3],"class_list":["post-16595","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-july-2025","tag-teresa-dawson"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16595","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16595"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16595\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16614"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16595"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16595"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16595"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}<\/a><\/figure>\n\n\n\n
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