Trisha Kehaulani Watson: The Struggle Over Kauai’s Kuleana Lands
The fight over ownership and preservation of land now surrounded by Mark Zuckerberg’s estate goes back nearly two decades.
There are certain words that just do not translate well.
Hawaiian has many of these words, but this has never stopped the anglosphere from wedging its language into the minds and culture of Hawaiians, even if the results were highly problematic.
鈥淜uleana鈥 is one such word. The word kuleana is a beautiful and complicated word. To many Hawaiians, raised by and around our kupuna, kuleana is synonymous with responsibility. It is a duty or obligation bestowed upon us by a family member or close acquaintance.
The concept of kuleana as a right absolutely has legal grounding. Grounded in the 19th聽century when the monarchy felt genuine and legitimate concern about the potential mass alienation of native tenants from their ancestral lands against a growing wave of foreign interests, the Kingdom passed the聽Kuleana Act聽in 1850 promulgating authority to the Land Commission to award fee simple titles to maka鈥樐乮nana (citizen land stewards) who met certain criteria.
Even from the start, the聽Kuleana Act聽ran into issues.
Only approximately 7,500 awards were made for what would become known as kuleana lands. This represented about one quarter of the eligible male population in Hawaii at the time. Many found the requirements of the Act too stringent or the law too complex.
Yet, over time, the concept of kuleana would also evolve from a cultural perspective, extending beyond only the reference to the definition in land rights.
The rights that sprung out of one鈥檚 kuleana from a cultural perspective were symbiotic to the manner in which one carried out their responsibility associated with that kuleana. These rights and responsibilities do not exist vacuously; conversely, they cannot survive without one.
Standing Up For The Land
The kuleana lands in Pilaa, a remote area on Kauai northwest of Kilauea, have been in the public eye for years — most recently since Facebook founder and CEO Mark Zuckerberg bought 700 acres in 2014 surrounding those properties.
The long-running battle in Pilaa is about kuleana in both the legal sense and cultural sense. This makes it particularly complicated.
In 2004, when no one on Kauai, let alone many others around the world, had heard of Zuckerberg 鈥 and two years before would fail, killing seven people 鈥 Jimmy Pflueger still owned most of the Pilaa lands.
And back then, Pflueger was still on top of the world.聽For those who may not remember, Pflueger was the self-made businessman who founded the Honda dealerships in Hawaii and owned substantial amounts of land on Kauai.
Pflueger had big plans for Pilaa and to this end began to develop his land. According to legal pleadings, we know:
Sometime prior to November 26, 2001, Pila’a 400 or its predecessors conducted extensive grading, filling, and other work on the property. None of the work was authorized by permit.
罢丑别听聽included: (1) large-scale grading on the plateau above the bay; (2) a vertical cut creating a cliff 40 to 60 feet in height within the Conservation District; (3) construction of a road along the base of the vertical cut; and (4) installation of a 30-inch pipe or culvert under the road that drained water and mud directly from the property onto Pilaa Beach.
This un-permitted work would cause severe damage to the conservation lands and adjacent reef.
(For those unfamiliar with Pflueger鈥檚 notorious history in the area, I strongly encourage you to read Teresa Dawson鈥檚聽聽in Environment Hawaii on the history.)
In 2004, one of the people who stood up against Pflueger鈥檚 ongoing assault of the land and resources in Pilaa was Carlos Andrade.
Andrade, a Kauai native, was a member of the 1986 Hokulea crew, Hawaiian musician and composer of the well known song 鈥淢oonlight Lady.鈥 He would eventually earn a PhD in geography and was a Hawaiian Studies professor at UH Manoa until retiring.
Andrade, alone with his family, their traditional and customary rights against Jimmy Pflueger and his company, Pila鈥榓 400. Andrade, with his wife, children, and grandchildren, lived on and cared for four parcels of kuleana lands owned by his great-grandfather for decades.
Due to the ongoing stewardship of Andrade and his family, the four parcels included a lo鈥榠, banana patch, water source, and house lot with a small green home built by Andrade.
Pila鈥榓 400 acted to extinguish Andrade鈥檚 traditional and customary rights by causing severe damage to the water system that fed his lo鈥榠 and actively attempting to cut off his access to his parcels.
When Andrade sought to repair the damage to his property, Pila鈥榓 400 sued Andrade for trespass, nuisance, water, conversion, encroachment, and slander of title.
Andrade countersued to protect his right 鈥渢o engage in the exercise of constitutionally protected native Hawaiian rights.鈥
I saw a lot of this particular struggle unfold. I served as one of Andrade鈥檚 teaching assistants at the聽聽and took his graduate class. Andrade would later serve on my dissertation committee. I, along with another classmate, even had the opportunity to visit the Pilaa property with Andrade and his family.
State’s Largest Conservation Damage Case
For years, Andrade and his family聽. Andrade would finally prevail in 2010 when the Intermediate Court of Appeals upheld a lower court鈥檚 rulings in favor of Andrade.
In 2005, Hawaii slapped Pflueger with the in DLNR鈥檚 history, ordering him to pay millions in fines for illegal runoff and crippling damage to the area鈥檚 fragile coral reef system.
Pflueger appealed and the case would go all the way to the state Supreme Court, where in February 2014, the high court would uphold the state鈥檚 position and require Pflueger鈥檚 company, Pila’a 400, to pay over $4 million in fees and damages.
Then came the sale of the land to Zuckerberg and his family in October 2014.
Other small landowners who battled with Pflueger were able to quietly sell their lands to Zuckerberg.
But this was not the case with the four parcels Andrade had cared and fought for over four decades. Suddenly, after Zuckerberg鈥檚 arrival on Kauai, new family members appeared expressing interest in the land.
These family members have publicly stated that they have made previous efforts to access to land. But there is no record of these efforts during the many years of court or administrative battles when any of these parties could have stepped forward as intervenors.
Andrade has been criticized by some protestors for working with Zuckerberg in the past to file a quiet title lawsuit to acquire the four parcels.
On March 22, Andrade submitted a聽聽bid at auction for three of the parcels. A group of relatives outbid him for the fourth parcel.
Respect Those Who Cared For The Land
I don鈥檛 know what the ultimate disposition of the Pilaa kuleana parcels will be.
But if past is precedent, these lands are best left in the hands of the individuals who carried the kuleana associated with them when there was far more burden than there was gain.
There is no doubt that the quiet title process, whereby properties owned by numerous, fractional descendant owners can be resolved through litigation, is highly problematic.
Yet, the larger problem, the problem we should be focused on, is the overall scarcity of land and how Hawaiians have been alienated from such for centuries.
So rather than attacking the kupuna for buying a few acres he鈥檚 cared for over the last 50 years, maybe we should be questioning the billionaire buying hundreds of acres next door?
