2021-07-15 Leeward Exh D (Amend SMA 286)

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VITOUSEK: Well, I'm, I'm saying this isn't the archaeological site. The archaeology of the trail has been destroyed; there is no more trail. But the underlying property beneath the trail is a highway site, which Na Ala Hele has claimed, but that's never been determined to be state property. And the language is fine, but I was just curious if the developer had taken it to the next step, because in order for the state to give you an easement, you have to determine that it is in fact state property. That's not Na Ala Hele's determination; that's the court's determination. FUKE: Yeah, I think that as a result, you know, the staff's proposed condition would indirectly mandate that kind of research. By having it now you are going to have to specifically describe an area, whether it's obliterated or not. VITOUSEK: Okay. Commissioners, any last questions before we seek a motion? FUKE: Mr. Chair, can I make one more comment, if I may? VITOUSEK: I'll take it, but Maija had (inaudible–broken connection) JACKSON: Chair Vitousek, so I, I just want to get a little clarification from you on your comment about it not being, not for certain being state land. So I think maybe the department assumed that it was based on the Na Ala Hele memo from 2015; in that memo Na Ala Hele said, "As such, the trail is considered" I'm sorry, let me back up a little, they said although the trail has been destroyed the underlying fee simple title of the trail remains with the state through its Board of Land and Natural Resources—"As such, the trail is considered unencumbered state land." And so I'm a little bit confused as to why you are saying it may not be state land. VITOUSEK: So in my opinion, Na Ala Hele is making a claim of this trail; they are saying this is state land. But it doesn't automatically become state land because they say it does. That has to be determined by Land Court. So it could become state land through quitclaim by the owner. They can say it already is state land; that needs to be established, then it will be state land. But in my opinion, the mere fact that Na Ala Hele is claiming it, doesn't mean that it has become fully adjudicated to be state land. JACKSON: And I think that the guidance that staff has gotten from Na Ala Hele and Land Division before is that even if something is destroyed, if it's a trail, historic trail covered under the Highway's Act, it is still state land. And the impression that we have been given was that it doesn't have to be adjudicated, that it's just automatic. VITOUSEK: So I'm JACKSON: So I think that's why we are being ultra-conservative with putting that condition in that, hey, it appears to be state land, and if you intend to use that area at all, you'll need to get some kind of approval from the board. VITOUSEK: No, I think that's, I think the condition is fine. The condition is perfectly fine. All I'm saying is that I don't think that it has been fully proven to be state land. 23 EXHIBIT D