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Closing arguments heard in Maui Lani ancestral site case

Complaint by Maui resident argues that project has disturbed about 180 burials

WAILUKU — Attorneys delivered their final arguments Monday in one Maui resident’s case against the state, the County of Maui and HBT of Maui Lani over Native Hawaiian burial sites.

Jennifer Noelani Ahia filed the complaint last month in 2nd Circuit Court, putting a temporary stop to construction of Maui Lani Phase 6. Ahia is a recognized cultural descendant to the burials found at the site.

The complaint contends that the state Historic Preservation Division, Maui County and landowner HBT of Maui Lani knew the project site contained Native Hawaiian burials and yet failed to protect them. The complaint states that the defendants “have adopted an ad hoc, build it till you hit it approach to historic preservation” and in the process have disturbed about 180 burial sites and remains.

The complaint also argues that SHPD did not follow its own historic preservation rules in classifying the burials and thus hid the number, location and treatment of the burials from groups that usually have a say in burial matters, like the Office of Hawaiian Affairs, the Maui Lanai Islands Burial Council and the Native Hawaiian community.

Maui Lani is a master-planned community of about 200 homes, and most of the area around Phase 6 is already developed, said Michael Carroll, attorney for HBT of Maui Lani. Phase 6 is a single-family residential development of 45.2 acres between The Dunes at Maui Lani Golf Course and Maui Lani Parkway. It’s being developed in four increments. The first three are just about completed; homes have been built, and people have moved in, Carroll said. Ahia’s complaint centers on the fourth increment, which includes rock grading that is 97.5 percent complete and utility installation that is “substantially underway.”

Attorneys began questioning witnesses in the case Friday and continued Monday.

David Kauila Kopper, attorney with the Native Hawaiian Legal Corp., said in his closing argument Monday that the archaeological inventory survey for Phase 6 was inadequate because it didn’t fully describe the historical properties in the area. After the AIS was accepted in 2007, HBT found more than 170 burials, possible burial sites and burial features during work at the site from 2008 to 2016, according to the complaint. The 2007 AIS only identified five, Kopper said.

“If the purpose of the AIS is to adequately and in fact completely identify subsurface and on-the-surface historic properties, how is it working when only 3 percent of those properties are found?” Kopper said. “How can an archaeological inventory survey inform a project design, redesign or location when only 3 percent of the historic properties are found?”

He also questioned the testing methods, saying that surveyors only dug 59 test trenches of 6 to 13 feet deep on the 45-acre property. However, iwi kupuna (ancestral bones) have been found as deep as 22 feet, he said.

Kopper also believed that the AIS was inadequate because the preservation area for the burials has continued to expand throughout the process.

“They are waiting to discover more iwi kupuna before they come up with the boundaries of the preservation site,” he said. “And we heard admissions that they’re still finding burials.”

Kopper also argued that each new activity covered by a permit is considered a project and thus requires its own AIS.

Daniel Morris, attorney for the state, countered that just because burials were found after the survey was completed doesn’t mean the survey was inadequate.

“That cannot be the test of adequacy for an AIS survey,” Morris said. “AISs are not designed to find every shred of every historical property on the development site. If they did, the disturbance to the iwi would be monumentally greater.”

He also added that it didn’t make sense to suggest that every permit counts as a new project, because all developments have dozens of permits.

“You cannot do that for every single permit,” Morris said. “That would bring development to a halt. That cannot be how the law is interpreted.”

And, in response to arguments that the ever-growing preservation area was proof of SHPD’s failure to interpret the law and warranted a new AIS, Morris said that SHPD “is doing their best to accommodate the need to protect and respect these iwi by increasing the area, taking away homes from the developer.”

“You can take that as a criticism of SHPD for saying, ‘Well, why does it keep getting bigger?’ ” Morris said. “Or you can say it’s what SHPD is supposed to be doing by saying, ‘Let’s gather the evidence that we have and determine how big an area should be off limits to the developer.’ ”

Carroll argued that the project is more than 75 percent complete, “and at this stage, the developer has vested rights with respect to entitlements.” If the project came to a halt, it would cost HBT millions of dollars and delay much-needed housing.

Carroll said that HBT has followed the proper steps in stopping work, reporting burials to SHPD and awaiting a determination. All burials have been left in place since 2011, he added.

But Kopper said the financial impacts “do not outweigh the interests of the public when it comes to protecting cultural traditions,” or Ahia’s kuleana to the iwi kupuna.

“It’s not a foreign concept that the public is interested in protecting the remains of someone’s loved one,” he said. “Now, this interest should be no less when it comes to Native Hawaiian burial sites.”

Both sides plan to submit their proposed findings of fact, conclusions of law and decision and order by March 29. Judge Joseph Cardoza will issue a ruling on April 5 at 10:30 a.m.

* Colleen Uechi can be reached at cuechi@mauinews.com.