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Does the Department of Transportation have jurisdiction over Mauna Kea Access Road?
Governor Ige acknowledged in his December 19, 2019 press conference that the Department of Hawaiian Home Lands owns Mauna Kea Access Road. He further noted that the roadway “is in the process of being transferred over to the Department of Transportation.”
Yet even without DOT ownership, the governor claimed that “the Department of Transportation has jurisdiction over the road.”
A close look at HRS §264 relating to state highways calls into question the governor’s assertion.
HRS §264-42 indeed gives the DOT authority to “designate for inclusion in the state highway system, such other public highways, including county highways.” And HRS §26-16 gives the DOT authority over the State Highway System. However, HRS §264-2 requires that “the ownership of all public highways and the land, real estate and property of the same shall be in the government in fee simple.”
In other words, while the DOT can incorporate public roads into the State Highway System over which it has authority, it can only do so if the government owns the land involved.
And although the DHHL is part of the government, its trust lands are set apart from other state owned land. The Hawaiian Homes Commission Act (HHCA) Section 206 states that “the powers and duties of the governor and the board of land and natural resources, in respect to lands of the State, shall not extend to lands having the status of Hawaiian home lands, except as specifically provided in this title.”
As with the governor and the Board of Land and Natural Resources, the DOT is not provided authority in the HHCA to take lands from the DHHL trust. DHHL lands are not part of the general pool of government lands but are reserved exclusively for DHHL’s trust purpose.
Without the State’s fee simple ownership of Mauna Kea Access Road, how can the DOT claim it has jurisdiction over it? And if the DOT does not have jurisdiction over the Mauna Kea Access Road, how can it call for law enforcement to clear the road?
To learn more, see http://kanaeokana.net/jurisdiction
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Related links:
Video of Governor Ige’s 12.19.19 press conference:
https://youtu.be/8Hi5cfryQEc?t=1042
https://youtu.be/8Hi5cfryQEc?t=1042
Hawaiian Homes Commission Act Section 206
https://www.capitol.hawaii.gov/…/Vol0…/06-HHCA/HHCA_0206.htm
https://www.capitol.hawaii.gov/…/Vol0…/06-HHCA/HHCA_0206.htm
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