A. Legal Authority

• National Historic Preservation Act of 1966, as amended, Public Law 89-665; 16 U.S.C., 470 et seq.
• Chapter 6E, HRS, Historic Preservation
• Title 13, Subtitle 13, Chapters 275 -284 HAR , Rules Governing Procedures for Historic Preservation Review for Governmental Projects Covered Under Sections 6E-7 and 6E-8, HRS

Information: http://hawaii.gov/dlnr/hpd/hphrs.htm

B. Purpose

Chapter 6E, HRS, also governs practice and procedure relating to proper care and protection of native Hawaiian burial sites found in the state and provides additional protection for sites deemed of high preservation value. A burial site means any specific unmarked location where prehistoric or historic human skeletal remains and their associated burial goods, if any, are interred, and its immediate surrounding archeological context (Chapter 13-300-1, HAR).

C. Administering Agency

Administration of Native Hawaiian burial issues is by the State Historic Preservation Division (SHPD) in the DLNR.

State Historic Preservation Division
Department of Land and Natural Resources
State of Hawaiʻi
601 Kamokila Blvd., No. 555
Honolulu, Hawaiʻi 96707
Phone: 808-692-8015
Fax: 808-692-8020
Web site: http://hawaii.gov/dlnr/hpd/

D. Applicability to Aquaculture

Before any agency or officer of the state, or counties, approves any project involving a permit, license, certificate, land use change, subdivision or other entitlement for use, which may affect a historic property the agency shall advise the State Historic Preservation Division (SHPD) in the DLNR and allow the SHPD an opportunity to review the 56 potential effects of the proposed project, if any, on historic properties or burial sites. For large land area projects, SHPD recommends a comprehensive archeological inventory survey that properly and adequately discloses potential native Hawaiian burials and historic artifacts to facilitate timely regulatory approvals and timely completion of construction schedules.

In general, there are two possible decision making processes once a historic burial site is evident. If the site has been “previously identified,” meaning burial sites identified during an archeological survey or known through oral or written testimony prior to any disturbance, then one of the five Island Burial Councils has sole authority to decide permanent disposition, in consultation with known lineal or cultural descendents (see §6E43 (b), HRS). If the burial site is “inadvertently discovered,” meaning unanticipated finding of human skeletal remains and any burial goods resulting from unintentional disturbance, then SHPD has authority to decide permanent disposition (see §6E- 43.6, HRS). Though there is a legal presumption that all burial sites are significant and shall be preserved in place, SHPD and the burial councils have the option of recommending preserving in place or relocating remains.

E. Information Requirements

The historic preservation review process for sites and burials is governed by a number of legal requirements and detailed rules promulgated to assure high quality work. As such, the information requirements to negotiate the process to manage potential impacts on burial sites on a proposed aquaculture site can be extensive. To illustrate the requirements, consider there are rules found in §13-275-284 and 300, HAR governing:

• Procedures for historic preservation review for government projects;
• Standards for Archeological Inventory Surveys and Reports;
• Requirements for Archeological Site Preservation and Development ;
• Standards for Archeological Data Recovery Studies and Reports;
• Standards for Archeological Monitoring Studies and Reports;
• Professional Qualifications;
• Permits for Archeological Work; and
• Procedures for Proper Treatment of Burial Sites and Human Skeletal Remains.

As interpreting and understanding these governing rules can be challenging, applicants should consult with SHPD to determine the information and action required for a 57 particular project.

F. Public Participation

There is no requirement for a public hearing in connection with a Burial Site Review. However, if a burial site issue is referred to a burial council, the meetings and deliberations are posted and the public may attend. Further, there is a requirement in burial site matters before the council that consultation should occur with known lineal or cultural descendents, Office of Hawaiian Affairs, Hui Malama I Na Kupuna, or other interested organizations.

G. Process Time

Depending on the nature of the discovery of a burial site, that is as a previously identified site which is under the jurisdiction of the burial councils or an inadvertently discovered site, which us is under the jurisdiction of SHPD, the process of reconciliation will differ. Likewise the amount of time will vary with the scope, size, and complexity of the site.

In general, the island burial councils shall determine whether preservation in place or relocation of previously identified native Hawaiian human burial sites is warranted, following criteria which shall include recognition that burial sites of high preservation value, such as areas with a concentration of skeletal remains, or prehistoric or historic burials associated with important individuals and events, or areas that are within a context of historic properties, or have known lineal descendents, shall receive greater consideration for preservation in place. Further, the burial council has 45 days to render a decision, unless otherwise extended by the agreement between the landowner and the department.

In general, SHPD will consider the same criteria that are considered by the burial council to render a decision regarding an inadvertently discovered site; that is, preserving a burial in place or relocating the remains to another appropriate area. SHPD will render a decision on relocation or preservation in place of inadvertently discovered human burial sites within two (2) working days (if on Oahu) and three (3) working days on the neighbor islands. SHPD may consult with the island burial councils, recognized lineal or cultural descendents and Office of Hawaiian Affairs, or Hui Malama I Na Kupuna.

H. Sequence of Filing

By law, a permit, license, certificate, land use change, subdivision or other entitlement for use, which may affect a historic property may not be approved without allowing SHPD the opportunity to comment. It is therefore highly advisable that SHPD be consulted early on in the planning process regarding any known or suspected historic burial sites to ensure the prompt processing of applicable permits.

I. Cost

The cost associated with obtaining the necessary information for a SHPD review will vary depending upon the scope and nature of the historic sites affected. An archeological reconnaissance survey, if required, can be costly, depending on the size and scope of the proposed project. SHPD charges fees established by rule for all its document review actions. Below is a listing of the specific actions and the cost for staff review of a particular type of document, be it an assessment or survey of a site or a plan to avoid, minimize or mitigate impacts of a project moving forward.

• Archeological Assessment – $50 fee;
• Archeological Inventory Survey Plan – $150 fee;
• Archeological, Architectural or Ethnographic Survey Report – $450 fee;
• Preservation Plan – $150 fee;
• Monitoring Plan – $25 fee;
• Archeological Data Recovery Plan – $150 fee;
• Burial Treatment Plan – $250 fee;
• Archeological Monitoring Report – $100 fee;
• Archeological Data Recovery Report – $450 fee;
• Ethnographic Documentation Report – $450 fee;
• Burial Disinterment Report – $25 fee;
• Osteological Analysis Report – $50 fee.