Ka Leo O H.A.L.A., 20:1, Spring 1997

STATE HISTORIC PRESERVATION REVIEW PROCESS
Victorialei "Nohea" Nakaahiki

    Hawaii. Land. Development. Historic Sites. Destruction. What do they have in common? Chapter 6E of the Hawaii Revised Statutes, the State’s historic preservation law, and the draft rules proposed by the State Department of Land and Natural Resources ("DLNR") pertaining to the historic preservation review process for redevelopment of land in the State of Hawaii.

Stories

    Late last year, while working on a construction defect case which was in mediation, I was told by one of our experts about an incident that occurred 15 or 20 years ago during the development of a condominium project on the leeward side of O’ahu. Our expert (who shall remain anonymous) was the supervisor for a company which had been hired to develop the land.

    An old Hawaiian man would sit on the side of the construction site every day, watching as the crew leveled the land and prepared it for development. The old man would reminisce with members of the construction crew and talk of the "old days." He was certain that there had once been a church, and behind the church, a cemetery, on the site being developed. One day our expert was frantically called over by his crew, who had discovered a whole section of land covered with dirt and human bones. All work on the site suddenly came to a stop. The construction workers refused to continue further until the remains were taken care of.

    After much debate with the men on the site, our expert piled all the bones in the back of his truck and took them home for  the night. When the expert’s wife got wind of the bones out in the truck, she ordered him to sleep outside with the bones, to appease the gods. Instead, he took the box with the bones in it to his office to appease his wife. He felt quite uncomfortable about the remains because of the importance that Hawaiians placed on them, and from what I understand, really didn’t sleep that night because of his concern. He wanted to do the right thing. He had a crew of two (a Filipino and a Portuguese) helping him remove the remains; the Hawaiian workers would have nothing to do with retrieving the bones. The Portuguese worker took some coins that he found near the bones, and when the contractor found out what this worker had done, he was fired. To ensure that the gods would not be angry with him, the Portuguese worker then went back to the site and re-buried the coins. The job site was shut down until arrangements were made for a proper blessing by a Kahu, and the remains were sent to Mililani Cemetery for proper burial. An ad was placed in the newspaper to try to locate next of kin, but there was no response. (The old Hawaiian man later told our expert that he thought that the cemetery was located on the property where the Leeward College now stands. Our expert suspects that crews working on that site years before accidently dug up the remains, and rather than be delayed, they moved them off the college site onto the site where they were later found by our expert and his crew. Why the suspicion? Because the remains were not buried in an orderly fashion: some coffins were on top of each other, which is not what you would expect to find.)

    There are other stories, perhaps apocryphal, of similar incidents. In the 1920s, John Wilson (not yet the Mayor of Honolulu) was a road contractor working on construction of the Pali highway near the Pali lookout (as we all know, the Pali lookout is the site of a historic battle between the Chief of O’ahu and Kamehameha the Great). During construction, Johnny Wilson’s crew found some bones, and instead of halting construction because of the discovery, he and his fellow construction workers handled the problem by pushing the bones further down the gulch. A lot has changed since the 1920s.

The Review Process

    The review process was designed to identify significant historic sites in project areas, and to provide for plans to handle the impact of development on such sites, in some cases by preservation of certain sites, and in others by recovery of archaeological, traditional, cultural and architectural information from historic sites before they are destroyed.

    There are literally thousands of historic sites (defined by the DLNR as places which are 50 or more years old) across the State of Hawaii, some of which provide valuable resources to the people of Hawaii, or are of traditional cultural value to Native Hawaiians. For example, significant historic sites may include places of archaeological interest (i.e. petroglyphs, heiau or other religious structures, trails, fishponds, irrigated taro fields, burial sites or areas associated with deities), sites associated with historic events (for instance battlefields, such as the Pali lookout), and areas associated with oral accounts (stories about Mt. Olomana, for example). There is no site too small to be considered a historical site or too insignificant to get the appropriate attention.

Chapter 6E of the Hawaii Revised Statutes

    Hawaii’s landscape has experienced dramatic changes over the years due to economics, population growth and development. Consequently, many historic sites have been destroyed. In an effort to preserve significant historical sites of value to the people of Hawaii, Chapter 6E of the Hawaii Revised Statutes was created in 1976. HRS § 6E-1 provides that:

The constitution of the State of Hawaii recognizes the value of conserving and developing the historic and cultural property within the State for the public good. The legislature declares that the historic and cultural heritage of the State is among its most important assets and that the rapid social and economic developments of contemporary society threaten to destroy the remaining vestiges of this heritage. The legislature further declares that it is in the public interest to engage in a comprehensive program of historic preservation at all levels of government to promote the use and conservation of such property for the education, inspiration, pleasure, and enrichment of its citizens. The legislature further declares that it shall be the public policy of this State to provide leadership in preserving, restoring and maintaining historic and cultural property, to ensure the administration of such historic and cultural property in a spirit of stewardship and trusteeship for future generations, and to conduct activities, plans, and programs in a manner consistent with the preservation and enhancement of historic and cultural property.

    Chapter 6E sets preconditions to any state or county permit, certificate or license for land use change, subdivision or other entitlement that may affect historic property. Developers cannot proceed without first considering the impact development would have on significant historic sites. In 1988, Act 265 amended Chapter 6E, to establish provisions pertaining to the discovery of historic burial sites.

State Burials Law

    In 1989, during the development of a resort on Maui, the removal of the remains of over 1,000 Native Hawaiians from the ancient graveyard at Honokahua caused such a public outcry for protection of Hawaiian burial sites and proper treatment of Hawaiian remains that in the next session, the Hawaii State Legislature passed a bill, signed into law by Governor Waihe’e in 1990. (The remains were ultimately returned to their original resting place.) Act 306 (Session Laws 1990) provides a process to protect the resting places of Hawaii’s dead into law. This law, the "State Burials Law," amended Chapter 6E of the Hawaii Revised Statutes to change the way Hawaiian remains would be handled. Island Burial Councils were established for each island, through the State Historic Preservation Division ("SHPD"), to implement the burials law and determine the preservation or relocation of Native Hawaiian burial sites: the Island Burial Council of the relevant island must approve proposed burial treatments. The Office of Hawaiian Affairs ("OHA") is also involved in this process, as well as Hui Malama I Na Kupuna O Hawai’i Nei (a Native Hawaiian organization whose purpose is to provide cultural and spiritual care for ancestral Native Hawaiian skeletal remains and burial goods, through repatriation and reburial, and by protecting known burial sites). The State Burials Law provides for procedures to determine proper treatment of Hawaiian burials, statewide inventory of unmarked Hawaiian burial sites and implementation of penalties for violation of the Burials Law.

    For example, in October 1996, the O’ahu Burial Council met to hear community members’ opinions on how best to preserve and protect remains of two ancient Hawaiians found last year near Laie’s Nioi Heiau, according to the Honolulu Advertiser (October 13, 1996). Council members visited the site in an effort to decide whether to move and reinter the remains. The burial site in Laie needed to be checked for erosion and possible further exposure of the remains. Based on what the O’ahu Burial Council sees upon its inspection of the site, it may consider building a rock wall around the site to protect it.

Administrative Rules re Burial Sites

    Chapter 13-300 of the Hawaii Administrative Rules, entitled "Rules of Practice and Procedure Relating to Burial Sites and Human Remains" was adopted and promulgated, effective September 28, 1996. The chapter governs practice and procedure pertaining to the proper care and protection of burial sites statewide, and sets out provisions pertaining to the Island Burial Councils. According to Chapter 13-300, sections 6E-11, 6E-12, 6E-43, 6E-43.5, 6E-43.6 of the Hawaii Revised Statutes were amended in part to provide additional protection for Native Hawaiian burial sites of ". . . high preservation value such as areas with a concentration of skeletal remains, or prehistoric or historic burials associated with important individuals or events, that are within a context of historic properties, or have known lineal descendants . . . ."

DLNR’s New Draft Rules re Historic Preservation Review Process

    The historic preservation review process in general is designed to provide the proper steps to take for properties suspected of being a possible "historic site." The DLNR has promulgated a draft series of new rules to outline the necessary procedures. Under the new draft rules by the DLNR, the historic preservation review process involves six procedural steps:

    (1) Identification and Inventory. The SHPD should be contacted to determine the status of any prior archaeological work on a site, and whether an archeological inventory or survey is needed. The developer should look at archaeological studies of the area around the site, and in particular at the affected ahupua’a (tract of land that usually extends from the sea to the mountain). Although the SHPD has an inventory of over 25,000 known sites, there is no complete list of all historic sites. Surprisingly, only five to ten percent of the State has been adequately inventoried.

The developer is urged to look beyond public records (e.g., grants, deeds, maps) and to analyze the site with an archaeologist to assess any possible historic sites in the project area. Each county has at least one archaeologist who works with developers and governmental agencies to determine whether historically significant sites exist. If the SHPD believes no significant historic sites are likely to be present, due to past land disturbances (e.g., bulldozing, cultivation of crops), then a determination in the form of a preliminary "no effect" letter is issued.

    (2) Evaluation of significant site. If the site is determined to be historic, an evaluation of the significant site must be made.

    (3) Impact Assessment. An assessment of the impact of the proposed development on the significant historic site. The project will be determined to have: no effect on significant historic properties; beneficial effect (for example, protection or restoration of the site); adverse effect (partial or total destruction, detrimental visual effect); or no adverse effect (if the site is significant solely for its informational content, it will undergo data recovery, but not be preserved).

    (4) General Mitigation Plan. A plan which includes a list or proposal of what should be done for each site (e.g., preservation or archaeological data recovery). This plan includes a brief description of general research problems to be addressed when archaeological data recovery is selected as the form of mitigation, or a brief description of the proposed preservation efforts when preservation is selected as the form of mitigation. It may be important to determine the difference between agricultural or religious heiau when determining a preservation plan.

    When preservation is selected, sites are preserved either by protection or avoidance. The preservation plan includes three elements: (1) buffer zones set up to ensure that the site is protected (placing reflective tape around a historic site such as a heiau so bulldozers do not run over the area during the course of construction and development, or placing a sign at the site to explain what it is); (2) interim protection measures to buffer the site, briefing construction crews during construction, having archaeologist on site during land alterations; and (3) long-term preservation measures (placing an explanatory sign at the site, for example, in the case of historic petroglyphs). Unfortunately, it may make sense not to call attention to significant sites such as religious heiau or petroglyphs, so people won’t disturb, vandalize or destroy them.

    When data recovery is selected, a reasonable amount of significant information is gathered through archaeological, architectural or traditional cultural documentation (such as through oral histories, archival work with people and agencies such as OHA), by photographic documenting, mapping, collecting, excavating, laboratory analysis such as radiocarbon dating, and artifact measurements.

    (5) Detailed Mitigation Plan. Identifies the scope of work necessary to properly carry out the general mitigation plan discussed above.

    (6) Verification of Completion of Detailed Mitigation Plan. Once the mitigation plan is carried out, a request for verification is to be submitted to the SHPD, documenting completion of the specific mitigation plan’s tasks. For preservation, the verification of successful completion of the preservation plan includes buffer zone approval. Long-term preservation should be checked with periodic inspections, maintenance for the site, and other commitments.

    The historic preservation review process ends when there is agreement with the SHPD that adequate steps have been taken.

PASH

    What impact does the Hawaii Supreme Court’s recently-issued opinion in Public Access Shoreline Hawaii, et al., v. Hawaii County Planning Commission, 1995 WL 515898 ("PASH") have in the historic preservation review process? The Supreme Court’s opinion "significantly broadens the court’s previous recognition of Native Hawaiians’ rights over private property, and may impact any owner of lands containing sites which are or have been used by Native Hawaiians for religious, gathering, or other customary purposes." In other words, a landowner who decides to develop a piece of land that contains a historical site, or land where Native Hawaiians have customarily gathered, does not necessarily have the right to prohibit Native Hawaiians from continuing to do so. The court in PASH "held that Hawaii Revised Statutes Section 1-1 protects native Hawaiians’ rights to exercise customary practices on private property so long as those practices are ‘legitimate and reasonable.’" "[T]he decision could impact the development of any site [historical or not] which Native Hawaiians use, or once used, for subsistence, religious or cultural purposes. The case should, therefore, be of particular interest to owners of lands that contain heiau or other religious sites, or which are or once were used by native Hawaiians for gathering any natural resource."

Conclusion

    In conclusion, Chapter 6E of the Hawaii Revised Statutes, the promulgation and adoption of Chapter 13-300 of the Hawaii Administrative Rules pertaining to burial sites, and the new draft rules of the DLNR regarding the preservation review process acknowledge the significance of lands considered by Native Hawaiians to be of spiritual, traditional or cultural importance. The rules set guidelines to ensure that preservation measures are taken and completed whenever potential historical sites have been discovered. Developers no longer are allowed to take Hawaiian lands for granted, but are forced to respect the lands for what they were, and what they are. Above all, the rules help us preserve the history of ancient Hawaii.

For more information, please contact the Department of Land and Natural Resources Historic Preservation Division, 33 South King Street, 6th Floor, Honolulu, Hawai’i 96813; 587-0047, or 1-800-468-4644 for neighbor-island callers.

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