HAWSCT To Review Kawaiahao Church Cemetery Case

by Robert Thomas, InverseCondemnation

What's the difference, if any, between a "cemetery" and a burial, and are burials in cemeteries exempt from archaeological review? That's one of the issues the Hawaii Supreme Court agreed to review in this Order, by which it accepted the DLNR's application for a writ of certiorari.

In Hall v. Dep't of Land and Natural Resources, No. 12-0000061 (Dec. 14, 2012), the Intermediate Court of Appeals held that a development proposed by the historic Kawaiahao Church in Honolulu is not exempt from historic preservation review, and the state should have required the preparation of an archaeological inventory survey prior to the State Historical Preservation Department's check off on the project, even though the development is located in the Church's cemetery.

The DLNR's application posed the following Questions Presented:

Defendant-Appellee Kawaiaha‘o Church (the "Church") is attempting to construct a multi-purpose building ("MPC Project") on its grounds for use in furtherance of its religious mission. The site of the MPC Project is located on cemetery grounds of the Church property. The Intermediate Court of Appeals (“ICA”) ruled that regardless of whether the site was considered a cemetery, an archaeological inventory survey ("AIS") was required; therefore, the Court ruled that the Department of Land and Natural Resources’ ("DLNR") State Historic Preservation Division ("SHPD") "violated its own rules in failing to require an AIS before permitting the project to go forward." In reaching its decision, the ICA relied in large part on this Court’s recent decision in Kaleikini v. Yoshioka, 128 Haw. 53, 283 P.3d 60 (2012).

The State requests this Court review the following issues:

1. That the ICA gravely erred when it ruled that an AIS was required before SHPD could concur in the MPC Project.

2. That the ICA gravely erred in ruling that it was irrelevant whether the MPC Project site was a cemetery.

3. That the ICA gravely erred when it ruled that Kaleikini v. Yoshioka, 128 Haw. 53, 283 P.3d 60 (2012) was applicable to the instant case.

4. That the ICA gravely erred by failing to recognize the State’s sovereign immunity (and failing to follow this Court’s controlling ruling on the issue) when it granted attorney’s fees and costs in favor of Respondent-Plaintiff-Appellant Dana Naone Hall ("Plaintiff") and against the Church and the State jointly and severally pursuant to the private attorney general doctrine.

Application at 2-3 (footnote omitted).

Whether the court will be issuing a ruling on all of these issues or just some of them, we don't know. All we can do now is wait for a decision (the court ordered that no oral argument would be held, meaning that the case won't get a hearing unless one of the parties successfully moves for retention). 

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LINK: Petitioners-Defendants-Appellees Department of Land and Natural Resources, et al.'s Application for Writ of...