High court upholds burial site challenges

Justices rule that native Hawaiians can appeal plans for remains

By Ken Kobayashi

POSTED: 01:30 a.m. HST, Aug 19, 2010

Native Hawaiians have the right to challenge construction plans that disturb Hawaiian burial sites, the Hawaii Supreme Court ruled yesterday.

The court held that native Hawaiians can turn to the state Board of Land and Natural Resources to appeal decisions by the Oahu Island Burial Council that approve a developer's treatment plan for burial remains.

"We're quite pleased," Native Hawaiian Legal Corp. lawyer David Kimo Frankel said of the 59-page opinion written by Chief Justice Ronald Moon. "It reinforces that native Hawaiians have a right to a contested case hearing when their cultural practices are impacted."

The case involves General Growth's development of the Ward Villages Shops in Kakaako, although yesterday's ruling isn't expected to disrupt construction, which resumed last month.

Paulette Kaleikini, a native Hawaiian cultural practitioner, earlier settled her lawsuit challenging the construction, which had been delayed after the discovery of burial sites on the property.

But the high court ruled that the case was not "moot" because decisions relating to native Hawaiian burial sites are of "great public importance." It also said the issue will likely recur because native Hawaiian remains will probably be found in future construction projects.

Before she settled the lawsuit, Kaleikini wanted to challenge the 2006 burial council's approval of General Growth's plans for the remains.

During its hearings, Kaleikini told the Burial Council that a key aspect of native Hawaiian practice is ensuring that remains are left undisturbed and receive proper care and treatment. She said General Growth should have made a better attempt to redesign the project.

General Growth, however, said the project didn't leave much room for redesign and proposed to relocate the remains to an area where they would be safe.

Kaleikini asked the land board to hear her challenge of the Burial Council's decision, but Peter Young, chairman of the land board at the time, denied the request.

In its ruling, Moon wrote that the contested case hearing was required by state law.

"The ruling explains the law and tells the Department of Land and Natural Resources exactly what we have been telling them to do: to give native Hawaiians a contested case hearing when they are going to take burials out of the ground," he said.

He said the decision explains developers can also contest the Burial Council's decisions.

But he said it underscores the value of developers conducting a "good archaeological survey" before they decide where to construct their projects.

"Unfortunately, the decision comes too late to keep the ones in the ground that should have stayed in the ground," he said. Some of the remains were moved to another location on the property.

"Hopefully, this won't ever happen again," he said.

Associate Justices Paul Nakayama and James Duffy joined Moon in the opinion. Associate Justices Mark Recktenwald and Simeon Acoba wrote separate concurring opinions.

The state Attorney General's Office did not have any immediate comment yesterday.