Hawaii Appellate Court Holds that Native Hawaiian Burials Uncovered by Developer was "Inadvertent"

Today, the Hawaii Intermediate Court of Appeals ("ICA") issued an opinion in Hui Malama v. Wal-Mart, ICA No. 28477, Dec. 16, 2009. The decision clarifies when State Historic Preservation Division ("SHPD") review is required under Hawaii's Historic Preservation Act, HRS Chapter 6E.

The issue before the court was the correct interpretation of HRS § 6E-42, which provides in pertinent part that "[b]efore any agency or officer of the State or its political subdivisions approves any project involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, which may affect historic historic property . . . or a burial site, the agency or office shall advise the department [SHPD] and prior to any approval allow the department [SHPD] an opportunity for review and comment on the effect of the proposed project on historic property . . . or burial sites, consistent with section 6E-43, including those listed in the Hawaii register of historic places." Emphasis added.

In this case, the "agency" was the City and County of Honolulu's Department of Planning and Permitting ("DPP"), who issued permits to Wal-Mart for its new store in Honolulu. According to the ICA, the site for the Wal-Mart store was the subject of multiple environmental, archaeological, and other assessments of the property for either the Wal-Mart Project or other proposed developments on or near the property. On at least two occasions, the SHPD informed owners of the property that construction at the site would have "no effect" on historic properties. It must have been a surprise to Wal-Mart when it discovered forty-two sets of human remains while grading and clearing the property after DPP issued grubbing and grading permits.

Since the burials were not previouly discovered, they were treated as an "inadvertent discovery" under HRS § 6E-43.6, which requires, that all activity that could affect the burials cease until SHPD determines that the burials should be removed or preserved in place after consultation with the Oahu Island Burial Council, office of Hawaiian affairs, representatives of development and large property owner interests, and appropriate Hawaiian organizations. In this case, SHPD, following the unanimous recommendation of the O’ahu Island Burial Council, directed that the remains be relocated and reburied on the property.

Plaintiff Hui Malama sued, alleging that DPP should have obtained the comments of SHPD before issuing grubbing, grading, and other permits. The ICA disagreed and affirmed the lower court's decision as follows:

The Circuit Court of the First Circuit’ (circuit court) held that the statute requires a permitting agency to seek SHPD’s review and comment only when it “knows, or has reason to suspect, that the project may impact a burial or other historic site[.]” As there was “no evidence that the City Defendants knew of or should have known” that a burial site existed on the property, the circuit court ruled that the City Defendants did not violate the statute.

Emphasis added. With this holding, the court clarifies what is meant by "may affect historic historic property . . . or a burial site." In this case, "there was no factual basis to know or reasonably believe that the Wal-Mart Project 'may affect' a burial site." The court also disagreed with Plaintiffs' suggestion that a more rigorous independent analysis by DPP would have uncovered the burial site's existence.

The court also declined "Plaintiffs’ invitation to enlarge the applicability and obligations of HRS § 6E-42 beyond the express terms of the statute." The court based its opinion on the fact that the "legislature has enacted other statutes to protect native Hawaiian burial sites," in particular, HRS § 6E-43.6 that sets forth procedures that must be followed in the event of inadvertent discovery of burial sites, as discussed supra.

For previous blog entires on this topic, see Historic Preservation.