In April of 2011, the Federal Aviation Administration (hereinafter “FAA”), using money from Hawaiian Telcom, the State of Hawaii Department of Accounting and General Services, the County of Maui, the Maui Police Department, the County of Hawaii and several private news stations, constructed a locked gate that effectively blocked public access to Skyline Trail from on a road called “Easement B” without the required Conservation District Use Permit or an Environmental Assessment in violation of law.
Easement B is paved road over State Conservation District land on the Southwest rift zone near the summit of Haleakala. Easement B travels from a road in Haleakala National Park near the Red Hill Visitor Center at the summit of Haleakala and provides access to the University of Hawaii facility called “Science City” and then provides access to the Skyline Trail trail head with its small parking area and finally terminates at a FAA facility. This road also passes some small communication facilities including one that is used by the Maui Police Department. The new gate blocks public vehicular access to Skyline Trail trail head and parking area and makes pedestrian access dangerous and difficult.
The Maui Police Department has long sought to block public access to the Skyline Trail head. A June 17, 2004 Maui News article reported: “MPD Communications Coordinator Walt Pacheco said the access road passes several critical communications facilities, and that police and agencies wanted to block cars, but not foot traffic. ‘The current condition allows people to actually drive right up to our facilities, and that was the concern-that vehicular traffic be controlled in that area.’” On its face, this concern seems reasonable but is unnecessarily over reaching and restrictive. The solution is to safeguard the individual facilities as opposed to excluding the public from the only feasible access to the beautiful and historically significant Southwest Rift Zone of Haleakala by means of an illegal gate.
In order to build a gate or anything else on State Conservation District land or to use State money to build a gate, an environmental assessment is required as well as a Conservation District Use Permit. Apparently, the County, State and private companies that wanted to block public access to the Skyline Trailhead did not want to have the public input that an environmental assessment would require. As such, a legal fiction was used whereby the FAA would claim to be the owner of the gate and secretly obtain the money to build the gate from the other State, County and private parties. The FAA, as a federal government agency, would claim that the gate was exempt from State law under the Supremacy Clause of the Constitution. It is true that an agency of the federal government does not need to comply with State law on federal property so, for example, the Army does not need to get building permits to build buildings at Scholfield Barracks as Scholfield Barracks is owned by the federal government. However, this is not the case in the situation of a partnership between the FAA, and State, County and private agencies building on Conservation District land owned not by the federal government but by the State of Hawaii. These parties all entered into a scheme to violate their own laws to achieve their goal without any public involvement. Both private attorneys and a Deputy Attorney general have stated that a Conservation District Use Permit was required.
If the parties had followed the law and a gate was constructed to address real security concerns, the gate could have been constructed immediately past the small parking area at the Skyline Trailhead where such placement would preserve public access to Skyline Trailhead and provide security to the FAA site. However, the goal was not only to prevent vehicular access but to make any public access so difficult and unsafe as to exclude the public altogether.
As such, to get to the new illegal gate, a person has to cross a large and dangerous cattle guard erected by the National Park Service. This cattle guard has no accommodation for pedestrian access as that would defeat its purpose of excluding feral animals from the National Park. It is patently dangerous to cross that cattle guard on foot. To make public access even more difficult, the State of Hawaii Department of Land and Natural Resources posted a sign at the new illegal gate that directs people to park only in designated parking stalls. However, there are no parking stalls. The closest parking is in Haleakala National Park at the Visitor Center or at the Red Hill parking lot both of which are very far away from the Skyline Trailhead. From either National Park parking area, anyone wanting to get to the Skyline Trailhead would need to walk on the side of the very heavily trafficked National Park road which has neither a shoulder or a sidewalk. Again, a dangerous condition.
An inquiry regarding the illegal actions was communicated to the Maui Police Department and the County of Maui but no response was made because there was no response that could justify the government and the police breaking the law.
The illegal actions by the government has effectively shut down a traditional access used for hundreds of years. It should not be tolerated. Sometimes it is not convenient to comply with the law, but it is always unacceptable for the government to act as if the law does not apply to it.
The illegal gate should be immediately removed and the access, which had never before been restricted, should be returned to the public. If the State, the County and the Maui Police Department feel that they have an absolute need to take away the public’s meaningful right of access to the Skyline Trail, then these entities need to follow the settled law of the State of Hawaii.
See the FAA’s response Congresswoman Mazie K. Hirono’s query as to the trail closure. The FAA claims the trail closure is justified by lack of funds, the need to provide security for nearby communications facilities, public safety and protection for endangered birds. You can read both the letters here and reach your own conclusion.