Communication No. 2019-10- NKCDP RR Trail Plans

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understand the history. Preserving the railroad ROW as a trail provides an opportunity to present the history, not only from the perspective of the sugar plantation, but also how the land became dominated by the sugar plantations and changed North Kohala from the days of Kamehameha I, which is described further in this document. The Public Trust Doctrine Under traditional Hawaiian land tenure principles, all lands and the adjacent ocean areas were held in trust by the ali'i (chiefs), who directed the maka'ainana (people of the land) in the sustainable stewardship of the resources. As described in more detail above, after western contact, laws were eventually introduced with respect to private land ownership. One other area that is important as we understand the public access rights is how coastlines remain under the public trust doctrine, held by the government as a public resource. This is important in areas where the railroad ROW may have been legally abandoned. The project could look at either approaching such land owners to convince them to allow the trail to continue, or, if it is a subdivision or larger area, permission to bring the trail to the coastline, where public access is a right. Information below provides the justification for this approach. "In King v. Oahu Railway & Land Co (1899), the Hawaii Supreme Court reaffirmed an ancient principle, the public trust doctrine, ruling that all lands under navigable waters are public lands held in trust by the government for public uses. In that case, the Hawaiian Kingdom had leased shoreline property around Honolulu harbor to defendant Oahu Railway and Land Company to develop and manage railroad and wharf facilities. Pursuant to the lease and the Railroad Act of 1878, the railway company became an agent of the government and had the authority to exercise eminent domain powers, such as the condemnation of lands. The lease also allowed the government to reclaim the land and any improvements after giving the railway company ninety days' notice. The controversy happened when the government wanted to reclaim the land to make extensive wharf improvements. Oahu Railway sought to condemn the land for railroad and wharf purposes and establish a perpetual right -or -way to sail and anchor its vessels. The issues before the court was whether the government, through its lease, had relinquished its control over land under the navigable waters of Honolulu harbor to the extent that the railway company could condemn the submerged land over the government's objections. The Court held that the government could not have relinquished control over the submerged land to the extent that the railway company could condemn it, due to the special nature of submerged lands. The court ruled: The people of Hawaii hold the absolute rights to all its navigable waters and the soils under them for their own common use. The lands under the navigable waters in and around the territory of the Hawaiian Government are held in trust for the public uses of navigation. While this in itself may not help the land component of the railroad ROW, it does have a connection to shoreline boundaries and the public trust. Hawaii courts have recognized public trust principles in shoreline areas above the low-water mark. Although they have recognized the power to the Hawaiian Kingdom to grant lands down to the low-water mark, courts have held that absent specific language granting such lands, lands Makai (seaward) of the high-water mark typically remain reserved for public use. Hawai'i courts have also held that Hawaiian tradition and custom, along with public trust principles, establish public rights to shoreline areas makai of the high-water mark. Based on a couple of cases, Ashford (1968) and County of Hawaii v. Sotomura (Sotomura I) (1973) the Hawaii Supreme Court recognized that it was the custom and practice of the government survey office