Judge reverses permit approval for archaeological firm
State agency must give hui contested case before the permit is reissued
A hui that advocates for the protection of ancient burials is set to get a contested case hearing before the state Historic Preservation Division after a judge reversed SHPD’s granting of a permit to a local archaeological firm.
Maui Environmental Court Judge Joseph Cardoza issued his decision Friday, said Lance Collins, the attorney representing the hui — Malama Kakanilua — and member Clare Apana.
Collins said the group is looking to raise questions about the qualifications of Archaeological Services Hawaii, which was involved in monitoring archaeological work on a number of controversial project sites that included Maui Lani. Collins explained that the issue is not about a particular project area but “about ASH’s license to engage in archaeological work.”
“At this point (ASH) doesn’t have a valid permit anymore,” Collins told The Maui News on Monday. “All of those projects are going to have to find an actual licensed archaeologist, otherwise they’ll have to stop doing work.”
Archaeological Services Hawaii declined comment Monday.
Last year, Malama Kakanilua and Apana wrote to the SHPD administrator seeking a contested case on Archaeological Services Hawaii’s 2018 permit and any permit applications for subsequent years.
The request stemmed from recent court cases involving project sites where Archaeological Services Hawaii monitored work. That included the Maui Lani Partners Phase 9 project site, which was the subject of a lawsuit filed in July 2017. Malama Kakanilua, Apana and Kaniloa Kamaunu had sought to halt earthmoving activities by Maui Lani Partners until the company complied with its archaeological monitoring plan. The two sides reached a tentative agreement in February that included allowing the plaintiffs to have their own monitor at the work site.
Collins said Archaeological Services Hawaii also was involved in monitoring work at Maui Lani Phase 6, the subject of a complaint filed by Wailuku resident Jennifer Noelani Ahia in February. Ahia’s complaint claimed that SHPD, Maui County and landowner HBT of Maui Lani knew the project site contained burials and yet failed to protect them. In April, Cardoza ordered a radar analysis of the site before work can proceed again.
“There’s a pattern of violations of the archaeological monitoring plan — Phase 9, Phase 6 — and so Malama Kakanilua thinks that there’s a connection,” Collins said, explaining that those are issues the hui wants to bring up during the contested case hearing.
SHPD denied Malama Kakanilua’s initial request for a contested case, and the hui and Apana asked the division to reconsider. Collins said that “SHPD took no further action on the request but issued a license to ASH for calendar year 2019.”
So, earlier this year, Malama Kakanilua and Apana appealed SHPD’s granting of the permit in Maui Environmental Court. The court held arguments Friday and issued a decision from the bench.
According to a news release from Collins on Monday, “the court ruled that SHPD erred when it found that the group and Apana’s traditional and customary practices relate to the protection of ‘iwi kupuna was not a protected interest. The court went through an analysis and determined that their protected interest was substantial and required SHPD to provide a contested case and the failure to do so exposed them to an erroneous deprivation of their rights and interests.”
The granting of the permit has been reversed and sent back to SHPD, which must now conduct a contested case before it can reissue the permit, the news release said.
“We advocated for years to legally have our rights to protect our iwi kupuna recognized,” Apana said in a statement Monday. “Eo Ea!”
Lisa Rotunno-Hazuka, owner of Archaeological Services Hawaii, said Monday that the firm had “no comment because the order has not been issued, so we don’t know what’s going to be in the order.”
Collins explained that the written order will come soon, but that “the judge’s decision isn’t going to change.” As legal counsel for the prevailing side, Collins said he had circulated a written order to attorneys involved in the case, and that he hadn’t yet gotten a response. When and if he gets a response, the order will then be submitted to the judge for his signature.
Collins said he didn’t yet have a timeline for the case because there are no rules in place when it comes to contested cases before the SHPD administrator. The state Board of Land and Natural Resources has rules on contested case hearings, as does the Burial Council (which is under SHPD and the DLNR), but not the SHPD administrator.
“The first step is to figure out what the ground rules for the contested case are going to be and actually have the contested case,” Collins said. “So it might be a couple of months. If ASH appeals and doesn’t want a contested case, then it might be a long time.”
Malama Kakanilua is a hui formed many years ago to protect iwi, burials and other historic and archaeologically significant sites on Maui. The group is named for Kakanilua, a famous battle that occurred in the sand hills of Central Maui.
* Colleen Uechi can be reached at firstname.lastname@example.org.