by Charley Foster, http://planetkauai.blogspot.com

A section of David Callies’ Hawaiian land use law classic, Regulating Paradise, is devoted, of course, to historic preservation and burials. In the recent second edition of his book, Professor Callies notes a Kauai burial case to which I’ve devoted a number of posts on this blog:

[A] huge controversy erupted on Kaua`i over remains on a single residential lot. On December 11, 2007 the Kaua`i Planning Commission approved the construction of a single-family home on a lot in Ha`ena, conditioned on an archaeological survey of the land and a subsequent approval by the SHPD. The archaeological survey uncovered thirty sets of Native Hawaiian remains on the half-acre lot. SHPD then required the landowner to draw up a burial treatment plan for protecting the remains. The plan proposed preservation in place of twenty-four sets of remains that would not be impacted by the construction and on-site relocation of the six others that would be under the footprint of the proposed house.

Upon receiving the burial treatment plan, however, the Kaua`i/Ni`ihau IBC recommended that all thirty sets of remains, together with those that may be found on the property in the future, should be preserved in place. The landowner then revised the burial treatment plan to preserve all thirty remains in place, by capping the graves with cement blocks and adding vertical buffers to protect the human remains. After consulting with Native Hawaiian organizations and the Kaua`i/Ni`ihau IBC, SHPD approved the plan, although it apparently approved the vertical buffers and concrete cappings as a means of preservation of the remains without the approval of the Kaua`i/Ni`ihau IBC. As the burial statute presently provides, although the IBCs have the authority to determine the preservation or relocation of previously identified Native Hawaiian burials, the councils may only make recommendations regarding the appropriate management treatment and protection of the Native Hawaiian burial sites after making their initial determination.

(footnotes omitted – most of which refer to Brescia v. Edens-Huff, No. 08-1-0107 (D.Haw. 5th Cir. Oct. 2, 2008)(Order Granting in Part and Denying in Part Defendant’s Motion for Preliminary Injunction).

There were more proceedings in the case last week. I was not present, but I’m told that in a hearing on the State’s motion for summary judgment, the Native Hawaiian Legal Corp. argued that the court should interpret “preserve in place” as used in the State burial law and administrative rules as prohibiting building over burials. There is no such prohibition explicit in the statutory language and the Court declined to impose such a meaning. The Court further encouraged the litigants to pursue legislative remedies. Given rules of construction and separation of powers issues, this strikes me as essentially reasonable since, had it been the legislature’s intent to prohibit any construction over burials preserved in place, it would have been easy enough to say so and, more to the point, it is the legislature’s, not the judiciary’s, place to make the determination. While it doesn’t always follow its own rule, the Hawaii Supreme Court has held:

A cardinal canon of statutory construction is that this court cannot change the language of the statute, supply a want, or enlarge upon it in order to make it suit a certain state of facts. This is because we do not legislate or make laws. It is a cardinal rule of statutory interpretation that, where the terms of a statute are plain, unambiguous and explicit, we are not at liberty to look beyond that language for a different meaning. Instead, our sole duty is to give effect to the statute's plain and obvious meaning.

State v. Mueller, 102 Hawai'i 391, 394, 76 P.3d 943, 946 (2003).

I never saw any coverage of last week's proceedings in the Garden Island. However, blogger Joan Conrow provides a first-hand account at KauaiEclectic.

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