A challenge to permits allowing a consulting company to conduct archaeological activities in Hawaiʻi was upheld last month by the Intermediate Court of Appeals. The decision by the ICA reversed the decisions of a Maui judge in cases brought by the nonprofit group Mālama Kakanilua and two individuals, Clare Apana and Kaniloa Kamaunu – collectively, Mālama.
The appellants had participated in a contested case hearing on a 2020 permit sought by Archaeological Services Hawaiʻi, Inc. (ASH). In February 2021, the board adopted the hearing officer’s recommendation. Then, two months later, the board approved a 2021 permit to ASH, rejecting a contested case request made for that permit by Mālama.
While the ICA opinion is a rebuke to the Board of Land and Natural Resources, it has little practical effect, since the two permits that were challenged have expired.
However, it sheds light on an episode – or series of episodes – that calls into question the interest or ability of the State Historic Preservation Division (SHPD) of the Department of Land and Natural Resources and the BLNR to carry out their statutory duties to respect and protect the constitutionally protected rights of Native Hawaiians.
The Contested Case
For years, Mālama Kakanilua and its members have been concerned over the disturbance of Hawaiian burials by housing, hotels, and other commercial developments in Central Maui. These include the Grand Wailea resort and on the Central Maui sand dunes, a golf course, a Safeway store, and the Maui Lani subdivision, among other things. Often these developments have employed ASH to carry out the archaeological surveys and subsequent monitoring.
Concerned that the archaeological monitoring carried out by ASH was insufficient, in September 2018, Mālama Kakanilua, Apana, and Kamaunu asked SHPD to grant them a contested case “on any consideration [of] ASH’s request for amendment of its permit or application for a new permit from SHPD.” The firm’s failure “to ensure proper archaeological monitoring, handling of iwi, and professional qualifications of its staff caused injury to their constitutionally protected traditional and customary practices,” they attested in a later lawsuit.
On October 3, SHPD denied their request, alleging they failed to identify “any property interest you may have in ASH’s permit.” The petitioners replied, pointing to language in their original letter describing their property interests as descendants of people who inhabited the islands in 1778 and as practitioners of traditions and customs whose practices would be affected by the proposed uses of the Central Maui lands.
SHPD did not respond to the group’s request for reconsideration. On January 11, it issued a permit to ASH for 2019.
On February 5, 2019, Mālama, Apana, and Kamaunu appealed to 2nd Circuit Court, naming as defendants the SHPD administrator and ASH. Judge Joseph Cardoza issued a final judgment on June 28, requiring SHPD to hold the requested contested case.
The SHPD administrator did not hear the case. Instead, the Land Board undertook the proceeding. It appointed a hearing officer, attorney Lou Chang, who heard the case over seven days in September 2020. ASH was represented by Paul Horikawa. The petitioners had no legal representation.
The hearing, available for viewing on YouTube, covers a number of issues, including whether the ASH archaeologist of record, who worked full-time for the U.S. Navy on Oʻahu, could fulfill duties as the archaeologist in charge of the Maui projects; the care with which contractors were required to follow prescribed practices; and ASH’s compliance with reporting requirements.
Chang made his report in November, recommending denial of the group’s request and award of the 2020 permit. In February 2021, the Land Board adopted his recommendation to deny the petitioners their request.
Once again, Mālama appealed to 2nd Circuit Court.
The 2021 Board Meeting
Meanwhile, ASH had applied for a 2021 permit. Mālama had already notified the DLNR that it would be asking for a contested case hearing on any decision to grant the permit.
On April 9, just two months after the BLNR adopted the hearing officer’s recommendations, the agenda for the board meeting included an unusual item: SHPD’s then-administrator, Alan Downer, was asking the board to approve issuance of a 2021 permit to Archaeological Services Hawaii. In the three-plus decades that Environment Hawaiʻi has followed Land Board actions, SHPD had not brought permits of this sort to the board for approval. The agenda did not include any mention of the group’s request for a contested case. The SHPD submittal to the board referenced a contested case request only as a possibility, asking the board to “Determine any request for contested case. SHPD recommends denial.” The request had been made October 24.
Before the board could begin discussing the merits of issuing the permit, deputy attorney general William Wynhoff acknowledged this omission. “I’ve been remiss and slow on the trigger here. There is a contested case [request], so before we do any discussion, the board should deal with the contested case request. My apologies.”
Apana objected to the fact that the agenda did not mention the contested case request, stating that her testimony would have been different had she known this. She went on to argue the need for a second contested case, describing the earlier hearing as unfair. “You have not fulfilled your duty to protect our rights. … This particular firm does not proceed with following the law, showing reverence to sacred and historic property, and respecting people like myself who have every right to be consulted. They absolutely refuse to consult us,” she said.
Noelani Ahia, a board member of Mālama and a recognized cultural descendent of the Central Maui sand dunes complex where ASH has done much of its work, described how evidence relating to ASH’s performance had been given to the group only after the close of the contested case hearing, but still before the BLNR had voted to accept the hearing officer’s recommendation.
“At the end of the contested case, the hearings officer asked Mālama Kakanilua to compile a list of reports that had not been turned into SHPD by ASH, putting them in violation,” she said. She went on to describe the difficulty she had acquiring such a list.
“I sent an email on September 30 to the SHPD library. In the past, before COVID, I could just go to the SHPD library on Maui… and I could pull whatever documents I needed, but COVID posed a huge barrier to that. On top of that, at the same time Maui’s librarian retired. So I sent an email to the DLNR main librarian and she responded back very quickly.”
Ahia said she was told she could have an appointment on October 7, but five days before that, she was informed that SHPD had decided her request would be treated as a request under the state’s Uniform Information Practices Act. “They wanted to charge us thousands of dollars for these documents,” she said.
Eventually, the group was able to review the documents, she continued, at which time they came across a letter signed by Alan Downer to ASH stating that 35 reports were outstanding and had never been turned in.
“Now, mind you, it may sound like it’s just a report, but when we go look at another project that’s going to be built and the current archaeologist tells us they found nothing during their [archaeological inventory survey] and that was 10 years ago, then they did sand mining, we’re like, yeah, but where’s the report? How do we know what was found during monitoring if there’s no report?
“This is why the reports are important. They inform the work that goes forward. And so not having those reports is significant to us as a community trying to protect burials.”
Ahia said that the letter was brought to the board before the board made its decision to accept the hearing officer’s findings, “but that evidence was not allowed to be argued.”
No one on the Land Board followed up with questions about the missing reports to Downer, ASH owner Lisa Rotunno-Hazuka, or ASH attorney Paul Horiwaka, although all were attending the meeting.
The motion to deny the contested case request was made by board member Chris Yuen. “What we’ve heard mostly on this contested case request is that folks are dissatisfied with the result of the first contested case hearing,” he said in arguing for his motion. “They have a judicial appeal on that, so that gives them due process with respect to how the first contested case hearing was conducted. … The interests of people who are concerned about iwi, which I greatly respect and are very important, are protected by the SHPD, the burial councils, and all those legal means that exist to protect iwi that are not being – are not dealt with by the question of having contested case hearings over the licensing … of archaeological firms.” The board approved the motion unanimously.
Discussion on the request by SHPD to award ASH an archaeological permit for 2021 went over much of the same ground covered in the contested case discussion.
When time came for board action, no member seemed eager to make a motion. Finally, Jimmy Gomes moved – “with reservations” – to approve the staff recommendation that ASH receive an archaeological permit for 2021. When the final vote was in, only member Kaiwi Yoon withheld his approval, abstaining.
An Appellate Rebuke
The appeal of the contested case outcome and the appeal of the award of the 2021 permit to ASH were both heard by 2nd Circuit Judge Kirstin Hamman.
On January 6 and February 8, 2022, she issued her decisions in the cases, upholding the Land Board actions in the contested case and in the issuance of a new ASH permit. Mālama then brought both cases to the Intermediate Court of Appeals, naming as appellees the Land Board and the SHPD administrator, and naming ASH as defendant-appellee.
It took three years, but last month, the ICA issued its opinion. It rejected Mālama’s argument that SHPD, and not the BLNR, should have properly heard the contested case. It also did not agree with the group’s contention that the BLNR exceeded its authority when it approved the 2020 permit. On a third point – that ASH’s principal investigator was derelict – the ICA once more did not concur.
But it did conclude that “(1) in the contested case … BLNR erroneously placed the burden on Mālama to prove ASH LLC failed to comply with its permit conditions for calendar years 2015-2017; and (2) Mālama were entitled to a contested case on ASH LLC’s 2021 permit because of BLNR’s procedural error in the contested case for the 2020 permit.”
“Mālama argue – and BLNR, the administrator, and ASH LLC don’t contest – that Mālama have a property interest in protecting iwi kupuna (native Hawaiian burials) under article XII, section 7 of the Hawaiʻi Constitution. And ASH LLC’s activities under an archaeological permit could impact Mālama’s constitutionally protected interest,” the ICA found.
The group’s opposition to ASH’s permit “alleged that ‘ASH fails to perform its archaeological services work in compliance with the conditions set forth’” in SHPD rules, specifically the rules requiring timely reports. In the contested case hearing, Downer testified that SHPD did not have a way to ensure permittees complied, while Lisa Rotunno-Hazuka, owner of ASH, asserted that even if ASH was delinquent in some reports, it was not the only archaeological consultant remiss in this regard.
The hearing officer concluded: “The record presented in this case reflects that reports have been submitted to SHPD by ASH and ASH acknowledges that some reports have not been submitted or were submitted late. The record in this case does not present information sufficient to identify, distinguish, or establish which kind of report(s) were submitted or which kind of report(s) have not been submitted.”
The appellate court took note of the fact that, as Noelani Ahia had informed the Land Board, SHPD did not provide Mālama with a copy of the letter to ASH detailing overdue reports until weeks after the hearing officer had made his recommendation. The court’s opinion provided details. The March 21, 2018, letter to ASH principal investigator, Jeff Pantaleo, followed up on an earlier letter from SHPD to ASH on February 2, that requested “information regarding the status of each SHPD-approved archaeological monitoring plan (AMP) prepared under your SHPD issued archaeological permit for the period 2015-2017.’”
The March letter included a spreadsheet listing 37 archaeological monitoring plans that had been submitted but “for which SHPD has no record of receiving an archaeological monitoring report (AMR).” For each of these, SHPD was asking about the status of fieldwork, whether the project moved forward without ASH conducting archaeological monitoring, and, if the project was completed, documentation of when the ARM report had been submitted for SHPD’s review. A second spreadsheet inquired about the status of revisions SHPD had requested to two draft monitoring reports.
In the contested case hearing, Downer had testified that reports were the principal means by which SHPD determines if archaeologists are following the law. The court noted, this, quoting from the hearing transcript: “He then said, ‘the problem we have is that for the most part we are never – we don’t know when the work is completed. So we know every year a number of projects which we never get reports on, we don’t know whether that’s because the report was never prepared or the project never moved forward, and we just – we simply don’t have the resources to follow up to make determinations on why we haven’t received a monitoring report after we approved the monitoring plan.”
Downer continued: “At the moment there’s very little consequence. As I said, we have very little capacity to tell whether a report is simply overdue or whether the underlying project that would have led to the monitoring never occurred.”
“On this record,” the ICA wrote, “we conclude the hearing officer – and thereby, BLNR – erred by placing the burden on Mālama to prove that ASH LLC did not comply” with its permit conditions.
“BLNR has an affirmative duty to preserve and protect traditional and customary native Hawaiian rights, … such as protecting iwi kupuna. BLNR acknowledges that ‘if ASH violated the terms of its permit, the Board still retains the discretion to revoke it or not issue a new permit.’”
Yet, “After being made aware of SHPD’s March 21, 2018 letter to ASH LLC questioning the status of 39 archaeological monitoring reports for 2015-2017, BLNR should have required ASH LLC to prove its compliance with [SHPD rules] for at least those three permit years, or to show good cause for noncompliance. Having not made that inquiry, BLNR breached its affirmative duty to preserve and protect traditional and customary native Hawaiian rights go protect iwi kupuna.”
For these reasons, the ICA concluded that the contested case order “was made upon unlawful procedure inconsistent with BLNR’s duty” under the state Constitution and statutes.
‘Unlawful Procedure’
The ICA opinion then goes on to discuss the BLNR’s denial of a contested case hearing for the 2021 permit for ASH.
After recapping the discussion at the BLNR meeting where the contested case hearing request over the 2021 permit was denied, the ICA reviewed the circumstances under which contested cases are mandated.
“BLNR must hold a contested case hearing when required by law,” the ICA noted. “Once a party shows it has a constitutionally protected property interest, the second step involves a balancing test to determine whether a contested case is required to protect it.”
That balancing test involves weighing the private interests that will be affected and the risk of an erroneous deprivation of the interest, versus the government’s interest, “including the burden that additional procedural safeguards would entail.”
“Here,” the ICA opined, “the contested case order was made upon unlawful procedure inconsistent with BLNR’s affirmative duty under [Article XII, Section 7 of the Hawaiʻi Constitution]. Preventing another erroneous deprivation of Mālama’s constitutionally protected property interest outweighs the burden another contested case may place on BLNR. Mālama were entitled to a contested case hearing on the calendar year 2021 permit application under the circumstances presented here. The circuit court was wrong to affirm BLNR’s denial of Mālama’s request for a contested case hearing.”
In conclusion, the ICA found that the Land Board “erroneously shifted the burden to Mālama to prove that ASH LLC didn’t comply with its … permit conditions for calendar years 2015-2017. That was not consistent with BLNR’s affirmative duty to preserve and protect traditional and customary native Hawaiian rights to protect iwi kupuna… Because of this, Mālama were entitled to a contested case on ASH LLC’s calendar year 2021 permit application.”
— Patricia Tummons
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