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.

SCOTUS Hears Oral Arguments in Florida Shoreline Case

In October, Hawaii Land Use Law previewed Stop the Beach Renourishment Inc. v. Florida Department of Environmental Protection, wherein the US Supreme Court will consider placing constitutional limits on Florida’s authority to restore storm-eroded beaches along the ocean or lakeshores, when such action modifies private property boundary lines.  The case was heard today and audio of the oral arguments will be posted on the Oyez website.

This case is similar to Maunalua Beach Ohana v. Hawaii, which was recenlty heard by Hawaii's Intermediate Court of Appeals as discussed in Oral Argument in Shoreline Ownership Case Posted.  In Maunalua, similar to Stop the Beach Renourishment, littoral landowners challenge state laws which take away their common law right to gain land by accretion.  Among other things, both cases are based on regulatory takings for the state's failure to compensate property owners for taking private property through regulation.

For more on shoreline issue, see Shoreline.

Oral Argument in Shoreline Ownership Case Posted

In On Appeal, Hawaii Land Use Law previewed Maunalua Beach Ohana v. Hawaii where a shoreline property owner challenged Act 73 (2003).

Act 73 changed ownership rights of littoral property owners to adjacent, accreted land by providing that (1) owners of oceanfront lands could no longer register or quiet title to accreted lands unless the accretion restored previously eroded land, (2) only the State could register or quiet title to land accreted along the ocean, and (3) accreted lands not otherwise awarded would be "public lands."  The Plaintiff, landowners, filed an inverse condemnation lawsuit challenging the state's regulatory taking of private property without compensation under the 5th Amendment of the U.S. Constitution.

In Hawaii, any property that is below the certified shoreline is public lands.  The certified shoreline is determined by the state, which considers the "upper reaches of the wash of the waves, other than storm and seismic waves, at high tide during the season of the year in which the highest wash of the waves occurs, usually evidenced by the edge of vegetation growth, or the upper limit of debris left by the wash of the waves."  See HRS § 205A-1, Diamond v. State, Board of Land and Natural Resources, 112 Haw. 161 (2006).  Consequently, as shore area is added to a property through accretion, the shoreline moves toward the ocean creating additional land above the shoreline.  Prior to Act 73, a littoral property owner could claim this land if it could show, among other things, that the adjoining land formed by accretion was permanent.

The circuit court granted Plaintiffs' motion for partial summary judgment on Plaintiffs' claim for injunctive relief to bar enforcement of Act 73 "unless and until the State of Hawai`i acknowledges that it must provide just compensation to the class members and undertakes to do so in conjunction with these proceedings."  The State appealed.  The Intermediate Court of Appeals heard argument on November 10, 2009, which is posted here.  An opinion from the ICA should be published soon.

For more on shoreline issues, see Shoreline.

RFP Posted for Environmental Review Contract to Support Interisland Wind and Undersea Cable Project

The state recently posted a request for proposals ("RFP") for environmental studies to support the Interisland Wind and Interisland Cable projects.

The Interisland Cable is intended to connect wind facilities on the islands of Molokai and Lanai to Oahu, with a phased expansion to Maui. The Interisland Cable project is part of the Energy Agreement signed by the State Division of Consumer Advocacy of the Department of Commerce & Consumer Affairs, and Hawaiian Electric Companies ("HEC"), on October 20, 2008. The primary purpose of the Agreement is to move the state "decisively and irreversibly away from imported fossil fuel for electricity and transportation and towards locally produced renewable energy and an ethic of energy efficiency."

The Agreement commits the parties to:

• pursuing and integrating as much as an additional 1,000 megawatts ("MW") of renewable energy resources on Oahu including approximately 400 MW of wind power from Lanai or Molokai; 60 MW on the Big Island; and 50 MW on Maui;
• establishing a Renewable Portfolio Standard ("RPS") for HEC's obligation to add renewable energy to its power grid (i.e., 25% by 2020 and 40% by 2030);
• integrating up to 400 MW of wind power into the Oahu electrical system from one or more wind farms on Lanai or Molokai and transmitted to Oahu via undersea cable systems;
• decoupling revenues from sales so that rates will be based upon a system using independent measures to track the cost of providing electric service;
• establishing feed-in-tariffs;
• eliminating system-wide caps on net energy metering;
• supporting the development of an Energy Efficiency Portfolio Standard ("EEPS") for the state;
• reaching the goal of 70% clean, renewable energy for electricity and transportation by 2030;
• encouraging "gas-optional" electric vehicles;
• establishing “lifeline rates”;
• establishing a "pay as you save" solar water heating program;
• providing for a "Photovoltaic (PV) Host Program"; and
• installing advanced meters for all customers who request them.

Two companies have already started planning and/or constructing wind energy facilities in the state. Castle & Cooke is proposing to install a 200 MW wind energy generation facility consisting of approximately 100 to 200 wind turbines on the island of Lanai. First Wind is proposing to install a 200 MW wind energy generation facility consisting of approximately 100 to 200 wind turbines on the island of Molokai. Additional wind turbine locations may be determined based upon site-specific wind measurements, topographical features in the project area, location of sensitive biological and cultural resources, and the type/size of wind turbine selected.

For more on energy initiatives in Hawaii see Energy.

NAR Reports Pending Home Sales Rise for Eight Consecutive Monthly Gains

The National Association of Realtors (NAR) reported that Pending home sales rose again, marking eight consecutive monthly gains–the longest streak since measurement began in 2001.

NAR's index is released during the first week of each month and is designed to be a leading indicator of housing activity. The index measures housing contract activity, based on signed real estate contracts for existing single-family homes, condos and co-ops.

Does Your Project Trigger the Endangered Species Act?

The Office of Environmental Quality Control (OEQC) recently posted a collection of native and invasive species flash cards on its web site.

According to the Bishop Museum, there are more endangered species per square mile in the Hawaiian islands than any other place on the planet. For example, of the more than 140 Hawaiian bird species and subspecies present in the Hawaiian islands prior to human contact, more than half have been lost to extinction. Among the remaining 71 endemic bird species, 30 are federally listed as endangered. See The Hawaiian Endangered Bird Conservation Program Five-Year Workplan (2001 – 2005). A list of Hawaii's endangered and threatened species can be found at Bishop Museum's Hawaii's Endangered and Threatened Species Web Site.

For a discussion of the Hawaii and federal endangered species acts, see Endangered Species Act.

DoD Military Realignment from Okinawa to Guam Creates Opportunities and Challenges

The Department of Defense (DoD) is finalizing the draft environmental impact statement (DEIS) for the relocation of U.S. military resources from Okinawa to Guam. DoD plans to increase its military presence in Guam from about 15,000 in 2009 to more than 39,000 by 2020 at a cost of more than $13 billion. GAO-10-72 October 14, 2009.

The Navy estimates that annual construction spending of $1 billion would require about 5,000 to 10,000 workers and that at its maximum the workforce could consist of 20,000 construction workers. The DoD has estimated more than 1,600 permanent civilian jobs will be needed. See Id.

According to the NEPA Scoping Meeting Summary Report for the project, the realignment will include:

• relocation of Command, Air, Ground, and Logistics units (which includes approximately 8,000 service members and 9,000 family members);
• relocation of Marines units, including operations, training, and infrastructure changes;
• enhancement of the infrastructure, logistic capabilities and improve pier/waterfront facilities to support transient nuclear aircraft carrier berthing at Naval Base Guam; and
• placement of a ballistic missile defense task force (approximately 630 service members and 950 family members).

Based on the Scoping Report, one can expect that the DEIS will address, among other things, the following issues:

• infrastructure (water, wastewater, solid waste, electrical) capacity;
• socioeconomic issues (economic benefits, effects on Chamorro culture, effects on statehood initiatives, private property issues, construction capacity, housing, public safety, and recreation/access issue);
• extent of military partnership with Government of Guam to coordinate infrastructure improvements that benefit both civilian and military communities;
• transportation impacts;
• impacts on natural resources (terrestrial and marine ecosystems, wildlife, and marine mammals); and
• ability to implement the construction needed for the buildup.

The DEIS will be posted on November 20, 2009 on DoD's Guam Build-up Environmental Impact Statement Web.