For years, M\u0101lama 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.<\/p>\n\n\n\n Concerned that the archaeological monitoring carried out by ASH was insufficient, in September 2018, M\u0101lama Kakanilua, Apana, and Kamaunu asked SHPD to grant them a contested case \u201con any consideration [of] ASH\u2019s request for amendment of its permit or application for a new permit from SHPD.\u201d The firm\u2019s failure \u201cto ensure proper archaeological monitoring, handling of iwi, and professional qualifications of its staff caused injury to their constitutionally protected traditional and customary practices,\u201d they attested in a later lawsuit.<\/p>\n\n\n\n On October 3, SHPD denied their request, alleging they failed to identify \u201cany property interest you may have in ASH\u2019s permit.\u201d 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.<\/p>\n\n\n\n SHPD did not respond to the group\u2019s request for reconsideration. On January 11, it issued a permit to ASH for 2019.<\/p>\n\n\n\n On February 5, 2019, M\u0101lama, Apana, and Kamaunu appealed to 2nd<\/sup> 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.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n 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 O\u02bbahu, 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\u2019s compliance with reporting requirements.<\/p>\n\n\n\n Chang made his report in November, recommending denial of the group\u2019s request and award of the 2020 permit. In February 2021, the Land Board adopted his recommendation to deny the petitioners their request. <\/p>\n\n\n\n Once again, M\u0101lama appealed to 2nd<\/sup> Circuit Court.<\/p>\n\n\n\n The 2021 Board Meeting<\/strong><\/p>\n\n\n\n Meanwhile, ASH had applied for a 2021 permit. M\u0101lama had already notified the DLNR that it would be asking for a contested case hearing on any decision to grant the permit.<\/p>\n\n\n\n On April 9, just two months after the BLNR adopted the hearing officer\u2019s recommendations, the agenda for the board meeting included an unusual item: SHPD\u2019s 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 Hawai\u02bbi <\/em>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\u2019s request for a contested case. The SHPD submittal to the board referenced a contested case request only as a possibility, asking the board to \u201cDetermine any request for contested case. SHPD recommends denial.\u201d The request had been made October 24.<\/p>\n\n\n\n Before the board could begin discussing the merits of issuing the permit, deputy attorney general William Wynhoff acknowledged this omission. \u201cI\u2019ve 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.\u201d<\/p>\n\n\n\n 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. \u201cYou have not fulfilled your duty to protect our rights. \u2026 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,\u201d she said.<\/p>\n\n\n\n Noelani Ahia, a board member of M\u0101lama 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\u2019s 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\u2019s recommendation.<\/p>\n\n\n\n \u201cAt the end of the contested case, the hearings officer asked M\u0101lama Kakanilua to compile a list of reports that had not been turned into SHPD by ASH, putting them in violation,\u201d she said. She went on to describe the difficulty she had acquiring such a list.<\/p>\n\n\n\n \u201cI 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\u2026 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\u2019s librarian retired. So I sent an email to the DLNR main librarian and she responded back very quickly.\u201d<\/p>\n\n\n\n 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\u2019s Uniform Information Practices Act. \u201cThey wanted to charge us thousands of dollars for these documents,\u201d she said.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n \u201cNow, mind you, it may sound like it\u2019s just a report, but when we go look at another project that\u2019s 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\u2019re like, yeah, but where\u2019s the report? How do we know what was found during monitoring if there\u2019s no report?<\/p>\n\n\n\n \u201cThis 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.\u201d<\/p>\n\n\n\n Ahia said that the letter was brought to the board before the board made its decision to accept the hearing officer\u2019s findings, \u201cbut that evidence was not allowed to be argued.\u201d<\/p>\n\n\n\n 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.<\/p>\n\n\n\n The motion to deny the contested case request was made by board member Chris Yuen. \u201cWhat we\u2019ve heard mostly on this contested case request is that folks are dissatisfied with the result of the first contested case hearing,\u201d he said in arguing for his motion. \u201cThey have a judicial appeal on that, so that gives them due process with respect to how the first contested case hearing was conducted. \u2026 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 \u2013 are not dealt with by the question of having contested case hearings over the licensing \u2026 of archaeological firms.\u201d The board approved the motion unanimously.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n When time came for board action, no member seemed eager to make a motion. Finally, Jimmy Gomes moved \u2013 \u201cwith reservations\u201d \u2013 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.<\/p>\n\n\n\n An Appellate Rebuke<\/strong><\/p>\n\n\n\n The appeal of the contested case outcome and the appeal of the award of the 2021 permit to ASH were both heard by 2nd<\/sup> Circuit Judge Kirstin Hamman. <\/p>\n\n\n\n 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. M\u0101lama 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.<\/p>\n\n\n\n It took three years, but last month, the ICA issued its opinion. It rejected M\u0101lama\u2019s argument that SHPD, and not the BLNR, should have properly heard the contested case. It also did not agree with the group\u2019s contention that the BLNR exceeded its authority when it approved the 2020 permit. On a third point \u2013 that ASH\u2019s principal investigator was derelict \u2013 the ICA once more did not concur.<\/p>\n\n\n\n But it did conclude that \u201c(1) in the contested case \u2026 BLNR erroneously placed the burden on M\u0101lama to prove ASH LLC failed to comply with its permit conditions for calendar years 2015-2017; and (2) M\u0101lama were entitled to a contested case on ASH LLC\u2019s 2021 permit because of BLNR\u2019s procedural error in the contested case for the 2020 permit.\u201d<\/p>\n\n\n\n \u201cM\u0101lama argue \u2013 and BLNR, the administrator, and ASH LLC don\u2019t contest \u2013 that M\u0101lama have a property interest in protecting iwi kupuna (native Hawaiian burials) under article XII, section 7 of the Hawai\u02bbi Constitution. And ASH LLC\u2019s activities under an archaeological permit could impact M\u0101lama\u2019s constitutionally protected interest,\u201d the ICA found.<\/p>\n\n\n\n The group\u2019s opposition to ASH\u2019s permit \u201calleged that \u2018ASH fails to perform its archaeological services work in compliance with the conditions set forth\u2019\u201d 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.<\/p>\n\n\n\n The hearing officer concluded: \u201cThe 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.\u201d<\/p>\n\n\n\n The appellate court took note of the fact that, as Noelani Ahia had informed the Land Board, SHPD did not provide M\u0101lama with a copy of the letter to ASH detailing overdue reports until weeks after the hearing officer had made his recommendation. The court\u2019s 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 \u201cinformation regarding the status of each SHPD-approved archaeological monitoring plan (AMP) prepared under your SHPD issued archaeological permit for the period 2015-2017.\u2019\u201d<\/p>\n\n\n\n The March letter included a spreadsheet listing 37 archaeological monitoring plans that had been submitted but \u201cfor which SHPD has no record of receiving an archaeological monitoring report (AMR).\u201d 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\u2019s review. A second spreadsheet inquired about the status of revisions SHPD had requested to two draft monitoring reports.<\/p>\n\n\n\n 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: \u201cHe then said, \u2018the problem we have is that for the most part we are never \u2013 we don\u2019t know when the work is completed. So we know every year a number of projects which we never get reports on, we don\u2019t know whether that\u2019s because the report was never prepared or the project never moved forward, and we just \u2013 we simply don\u2019t have the resources to follow up to make determinations on why we haven\u2019t received a monitoring report after we approved the monitoring plan.\u201d<\/p>\n\n\n\n Downer continued: \u201cAt the moment there\u2019s 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.\u201d<\/p>\n\n\n\n \u201cOn this record,\u201d the ICA wrote, \u201cwe conclude the hearing officer \u2013 and thereby, BLNR \u2013 erred by placing the burden on M\u0101lama to prove that ASH LLC did not comply\u201d with its permit conditions.<\/p>\n\n\n\n \u201cBLNR has an affirmative duty to preserve and protect traditional and customary native Hawaiian rights, \u2026 such as protecting iwi kupuna. BLNR acknowledges that \u2018if ASH violated the terms of its permit, the Board still retains the discretion to revoke it or not issue a new permit.\u2019\u201d<\/p>\n\n\n\n Yet, \u201cAfter being made aware of SHPD\u2019s 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.\u201d<\/p>\n\n\n\n For these reasons, the ICA concluded that the contested case order \u201cwas made upon unlawful procedure inconsistent with BLNR\u2019s duty\u201d under the state Constitution and statutes.<\/p>\n\n\n\n \u2018Unlawful Procedure\u2019<\/strong><\/p>\n\n\n\n The ICA opinion then goes on to discuss the BLNR\u2019s denial of a contested case hearing for the 2021 permit for ASH.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n \u201cBLNR must hold a contested case hearing when required by law,\u201d the ICA noted. \u201cOnce 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.\u201d<\/p>\n\n\n\n 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\u2019s interest, \u201cincluding the burden that additional procedural safeguards would entail.\u201d<\/p>\n\n\n\n \u201cHere,\u201d the ICA opined, \u201cthe contested case order was made upon unlawful procedure inconsistent with BLNR\u2019s affirmative duty under [Article XII, Section 7 of the Hawai\u02bbi Constitution]. Preventing another erroneous deprivation of M\u0101lama\u2019s constitutionally protected property interest outweighs the burden another contested case may place on BLNR. M\u0101lama 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\u2019s denial of M\u0101lama\u2019s request for a contested case hearing.\u201d<\/p>\n\n\n\n In conclusion, the ICA found that the Land Board \u201cerroneously shifted the burden to M\u0101lama to prove that ASH LLC didn\u2019t comply with its \u2026 permit conditions for calendar years 2015-2017. That was not consistent with BLNR\u2019s affirmative duty to preserve and protect traditional and customary native Hawaiian rights to protect iwi kupuna\u2026 Because of this, M\u0101lama were entitled to a contested case on ASH LLC\u2019s calendar year 2021 permit application.\u201d<\/p>\n\n\n\n \u2014 Patricia Tummons<\/strong><\/p>\n","protected":false},"excerpt":{"rendered":" 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 … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":16463,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[536,338],"tags":[],"class_list":["post-16462","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-april-2025","category-land-use"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16462","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=16462"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/16462\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/media\/16463"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=16462"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=16462"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=16462"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}![\"\"](\"https:\/\/environment-hawaii.org\/wp-content\/uploads\/2025\/04\/dozer-pic.jpeg\")
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