An odd word, oversight. Its two meanings are the very opposites of each other.
In the case of the Board of Land and Natural Resources’ oversight of the agency under its roof that is constitutionally charged with protecting Hawaiʻi’s cultural and historic patrimony, only the second of these two definitions applies.
Perhaps no agency has been castigated by developers and planners more than the State Historic Preservation Division, whose foot-dragging in approving development proposals is legendary. SHPD is where plans go to die.
Less well known but equally significant, maybe more so, is the inability of SHPD to supervise the performance of archaeological firms entrusted with identifying areas and resources that are sacred to native Hawaiians and monitoring work that occurs in those areas.
SHPD’s failure in this area was laid bare in seven days of testimony in a 2020 contested case hearing over the agency’s award of annual permits to one of around two dozen archaeological firms that work in Hawaiʻi. Under SHPD rules, any archaeological firm that works in the state has to obtain a permit to do so, valid for one year. The only requirement is that the firm have on staff someone with at least a master’s degree in archaeology.
As our cover story details, the SHPD administrator acknowledged he has no way of knowing whether the permitted firms are current with the reports that need to be submitted for each project they are involved with, since reports are generally required only after a project is completed.
Nor do members of the public – especially native Hawaiians – have any formal way of lodging objections to the award of permits to firms whose activities in the field have raised their concerns. In the three decades that Environment Hawaiʻi has been reporting on the Land Board, the issue of SHPD’s approval of an archaeological firm’s permit has been on the agenda for a board meeting just once: April 9, 2021. And that was only because the board needed to dispose of a contested case request involving a firm working on Maui and could hardly do so without at the same time voting on the issuance of an archaeological permit.
As the recent opinion of the Intermediate Court of Appeals makes crystal clear, the Land Board does have authority over SHPD. It should begin exercising that authority responsibly, and there is an easy way to begin to do this. Each year, the Department of Land and Natural Resources’ Land Division presents to the board requests for renewals of the revocable permits it proposes to issue to tenants of state land. This gives both board members and members of the public the chance to ask questions or raise concerns about particular permits. SHPD could be required to do the same – present the Land Board with the list of archaeological firms wanting to be permitted to do work in the state the following year.
Of course, in the case of the revocable permits for tenancy on state land, there’s the additional requirement that permittees be current on rent payments. At present, the only requirement for an archaeological permit is the name of a qualified archaeologist.
This, too, could be easily addressed. SHPD rules could be amended to add a requirement to the permit conditions that any firm seeking a permit submit status reports on every project it has been contracted to do work on. At the very least, such a requirement could inform SHPD if the firm has submitted the required reports within the specified time frames. A more stringent requirement would be to make permits contingent on archaeological firms being up-to-date with all required reports.
Until the Land Board exercises more oversight (sense 1) of SHPD, giving members of the public an opportunity to weigh in on the performance of the agency itself as well as the companies it allows to conduct archaeological work, the exercise of its constitutional obligations to protect native Hawaiian rights and resources will continue to be an oversight (sense 2).
The seven long days of hearings in the contested case involving SHPD, Archaeological Services Hawaiʻi, and Mālama Kakanilua may still be viewed on the Land Board’s YouTube channel. The ICA opinion of March 21 is available on the website of the Hawaiʻi State Judiciary: https://www.courts.state.hi.us.
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