Protest highlights loophole in state burial sites law

A bulldozer grades a vacant dirt lot next to Home Maid Bakery in Wailuku on Tuesday morning. -- The Maui News / COLLEEN UECHI photo

A group of protesters is concerned that a loophole in state law could put possible burial sites around Maui at risk.

Earlier this week, demonstrators gathered along Lower Main Street in Wailuku as a bulldozer leveled a vacant dirt lot that Home Maid Bakery wants to turn into a gravel parking lot. The area near the bakery is a known former site of ancient burials. But because the parking lot project didn’t require a permit, the State Historic Preservation Division couldn’t send an archaeologist to monitor the work.

“They have to find remains in order to participate, or there has to be a permit for (the state) to participate,” said Johanna Kamaunu, who represents Wailuku on the Maui/Lanai Burial Council. “Clearly, this is a big loophole in that protection process.”

If a project doesn’t exceed 100 cubic yards and/or 4 feet in height, and its grubbing (moving vegetation) is less than an acre, no permit is required from the county Department of Public Works, according to the department.

“When some of those triggers are a hit, that’s typically when we send a permit to SHPD,” said Leslie Otani, a civil engineer for the Public Works Department.

That keeps the state from getting bogged down with smaller backyard projects, but it also means that a permitless project can go unnoticed.

However, the county and state do have a way to counter that — by flagging properties in the permitting database. If one of those properties comes up for a project, the state wants to know about it, regardless of whether a permit is issued or not. But even if the state knows about it, officials can’t do anything unless the project has a permit, said Andrew Phillips, burials specialist for SHPD on Maui.

Home Maid Bakery’s case is just one example of how that issue might play out.

When the bakery was first built in 1981, burials were discovered around the property, Phillips said. They were reinterred at Maui Memorial Park.

In 1995, the bakery wanted to do more work on the property. SHPD agreed with an archaeologist hired by the bakery that a large pile of sand near the center of the property should be screened under the supervision of a qualified archaeologist. The issue came up again in 2008 when the owner made a request to move the stockpile.

“At that time, SHPD recommended that stockpile is not (to be) moved unless monitored by a professional archaeologist, and a safety fence be placed until an archaeological survey is conducted,” Phillips said.

Now, the bakery is adding a gravel parking lot to provide extra space for its 80 employees, Vice President Marc Kozuki said. Last week, workers started to clear the lot before preservation and Public Works officials stopped by. Work was halted temporarily until both state and county officials determined that no permit was needed.

“From what I could tell, we didn’t do anything wrong,” Kozuki said.

Officials “told us to keep our eye out if we saw anything that looked like bones or remains,” he added. “We didn’t really dig. All we did was clear the bushes. Throughout the course of it — three to four days clearing — we didn’t see anything. We barely touched the sand.”

Otani updated the state, and the state made two site visits. But because the project has no permit, “SHPD cannot enforce the provisions required for our previous approval of the county permit on that parcel,” Phillips said.

“The SHPD is not an enforcement branch of DLNR (Department of Land and Natural Resources),” explained Matthew Barker Fariss, the division’s lead archaeologist for Maui County. “The staff cannot enter private property under any circumstances without first being given permission to do so. That would be like the counter clerk at the DMV getting in your car with you as you pull out of the parking lot to ensure you follow traffic laws.”

Phillips said the stockpile in 2008 indicated “a high probability to include unassociated human remains.” However, the division “cannot be certain there are human remains present in the precise location the work in question was conducted, because that portion of the property did not undergo archaeological survey when the original county permits were approved.”

“I believe SHPD errs in the decision that they are unable to cite the violation due to no invitation by reason of permit,” Kamaunu said. “It is my opinion that an obligation remains irregardless of (the fact) that a current permit is not in play.”

Kamaunu’s husband, Kaniloa, was one of the protesters and also was part of a lawsuit against Maui Lani Partners over earthmoving work in Kahului.

“This is starting to be a recurring pattern here with the county and the state sharing responsibility in protection of the iwi and the permitting process,” Johanna Kamaunu said. “It’s almost the same thing that came up with the Maui Lani sand mining issues. . . . There’s not enough accountability in their process.”

Work on Home Maid Bakery’s parking lot ended up exceeding 100 cubic yards and now needs an after-the-fact permit, said Otani, adding that the county has barred the bakery from doing anymore work until it can get a permit. Fariss said SHPD would likely consult with the county on whether to do an archaeological inventory survey. Kozuki was not available for comment Thursday.

State Sen. Gil Keith-Agaran, whose district includes Wailuku, Waihee and Kahului, pointed out that the law does require anyone who uncovers remains to stop work whether they have a permit or not.

“If people are concerned that the contractor is not going to stop . . . then either the law has to be changed to just basically have the State Historic Preservation Division review all permits,” Keith-Agaran said.

But that seems impractical, the senator added.

“I think that the burials law is there to make sure that the burial sites are respected, but the law depends on people complying,” he said. “And if there is some questions about that, then that’s really something that the Legislature needs to review whether there’s some changes that need to be made.”

* Colleen Uechi can be reached at