Second Circuit Judge Kirstin Hamman recently ruled that development companies broke the law when they tore through an old roadway in West Maui while trenching a water line, a project that fueled fierce protests from community members and had previously struck a burial site.

In 2020, Launiupoko Irrigation Co., Wainee Land & Homes and Hope Builders — all companies tied to developer Peter Martin — began digging a trench to construct a mile-long water line connecting a well to the water system owned by Launiupoko Irrigation, a private utility that serves hundreds of so-called gentlemen’s estates in West Maui. The development companies initially argued they didn’t need special permits for the project, and the county agreed.

But as soon as construction started in late 2020, community members began raising concerns that the project would disturb iwi kupuna, or ancestral skeletal remains, and threaten other historical sites. The Maui Lanai Island Burial Council also weighed in, calling for a halt to the project until a more thorough review was done.

The battle reached a boiling point when five women who stood in the trench to block the construction were arrested, and soon after, the construction crews dug up bones, stopping the construction for months. Within weeks, the charges were dropped and their bail was refunded.

But when the crews restarted the next year, just as they were close to being finished, they unexpectedly trenched through Kauaula Road — an action that spurred Kia’i Kauaula, a hui of residents of Kauaula Valley and supporters, along with Kaipo Kekona, who runs a traditional Hawaiian farm in the area, to file the lawsuit alleging the developer never had permission to dig up a public roadway in the first place.

“They didn’t tell anybody they were going to do that,” said Maui attorney Christina Lizzi, who represented them. “If they had known in advance that they were going to do that, they should have done environmental review for that entire project.”

In the ruling issued earlier this month, Hamman ordered the developers to seek after-the-fact permits for the work but declined to force them to remove the water line, saying that the “balance of hardships favors the water line staying in place.”

The subdivision’s 400 customers previously only had irrigation water service two days a week, court records show, including those who relied on the service to feed farms and other agricultural businesses.

Kia’i Kauaula’s victory in court against the development companies is one of several that families in the Kauaula Valley have won recently.

Last year, the court ordered that Launiupoko Irrigation needed to restore running water to generational families in Kauaula Valley after the private water company cut off service without notice after being threatened by the state with fines up to $5,000 per day for taking too much water from a stream. And late last year, the Hawaii Supreme Court handed down another victory for a family in the valley, in which it said a lower court was wrong when it sided with the development company in a land dispute case.

In a statement, a representative for Launiupoko Irrigation Co., Wainee Land & Homes and Hope Builders said they were pleased with the court’s recent decision to allow the water line to remain in place.

“Now that (Kauaula Road) has been declared to be a county road, we will ask the State Department of Transportation to remove the gate that currently blocks the road so that the valley can be opened for all to enjoy,” the companies said in a statement.

That was what the group of Kauaula families’ case hinged on — the fact that Kauaula Road belonged to the county, not private landowners. The long dirt road stretches from the edge of Lahaina up into the Kauaula Valley, where several Native Hawaiian families have for generations lived and farmed on ancestral lands.

The county, which was named as a party in the lawsuit because of the conflict over the roadway, had argued it didn’t own Kauaula Road — an argument that was later disproved in court. A county spokeswoman did not respond to a request for comment.

The court’s recent decision ties back to 1892, when Queen Liliuokalani approved the Highways Act. The law that said the government owned all highways that had been used by the public for at least five years prior to that year until “abandoned by due process of law.”

Although the law has evolved in the last century, it still means that Hawaii governments own roadways and trails that were documented on maps prior to 1892, even if parts of the thoroughfares run through private property or have been destroyed over time.

“This is part of that ongoing battle just trying to get the county to recognize what is owned by the county,” said Lizzi. “This has been going on for years and years.”

For decades, community groups, historical perseveration experts and public access advocates have been fighting for Hawaii’s local and state governments to take responsibility for historical roads and trails. But it’s long been common for governments to try to avoid taking charge of the roadways, which they argue are expensive to maintain and open governments to liability.

Earlier this year, for example, the nonprofit Public Access Trails Hawaii sent a letter to Maui County asking the local government to look into whether several old plantation roads running through Sprecklesville, Paia and Kihei were actually owned by the county. The letter comes after the nonprofit sued the Hawaii Department of Land and Natural Resources and Haleakala Ranch last year, alleging that the government failed to maintain and allow public access to Haleakala Trail, a historical thoroughfare leading to the summit. That case is still pending in court.

Civil Beat’s coverage of Maui County is supported in part by a grant from the Nuestro Futuro Foundation.