I N T R O D U C T I O N TO S TAT E A N D F E D E R A L
H I S TO R I C P R E S E RVAT I O N L AW S
Hawaii Revised Statutes, Chapter 6E
National Historic Preservation Act, Section 106
What Are Historic Preservation Laws
and Why Are They Necessary?
• Promote the preservation, restoration and maintenance of
historic and cultural properties
• Ensure the proper care and protection of burial sites, which are
recognized as significant and warranting of respect
• Require that historic and cultural properties (including burials) be
identified, and that efforts be undertaken to mitigate possible
adverse impacts of developments
• Historic and cultural heritage recognized as a valuable asset,
the conservation of which serves the public good
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What Historic Preservation Laws
Apply in Hawaii?
• Hawaii Historic Preservation Law,
HRS Chapter 6E
– Administered by the State Historic Preservation Division
– Requires that before government projects commence, or
before any permit, license, or other entitlement for use for
any other project is approved, SHPD must be consulted
regarding the potential effects of a project on historic
properties, aviation artifacts or burial sites, and any impacts
on such resources mitigated
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What Historic Preservation Laws
Apply in Hawaii?
• Section 106 of the National Historic
Preservation Act, 16 USC § 470
– Administered by Advisory Council on Historic Preservation
– Requires that prior to the approval of any expenditure of any
federal funds or prior to the issuance of any federal license
for a federal project, effect of the undertaking on any
district, site, building, structure, or object that is
included in or eligible for inclusion in the National
Register must be considered.
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Why Are Historic Preservation Laws
Important to You?
• Hawaii's Historic Preservation Law applies to
nearly every development of real property in the
State of Hawaii
– Projects with a federal link (i.e. funds, land, permit)
also trigger federal historic preservation laws
• Litigation and strict enforcement of rules by the
Courts is on the rise
• Cannot rely on agencies to get it right
– Rail, Kawaiha`o Church, 801 South Street
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What Does Chapter 6E Apply To?
• any project commenced by "any agency or officer of
the State or its political subdivisions" - i.e. state and
county projects (HRS § 6E-8); and
• any project that requires the approval of "any agency
or officer of the State or its political subdivisions" for a
"permit, license, certificate, land use change,
subdivision, or other entitlement for use" (HRS §
6E-42).
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What is Required for NonGovernmental Projects?
• HRS § 6E-42: …before any agency or officer of the State
or its political subdivisions approves any project involving
a permit, license, certificate, land use change, subdivision,
or other entitlement for use, which may affect historic
property, aviation artifacts, or a burial site, the agency or
office shall advise the department and prior to any
approval allow the department an opportunity for
review and comment on the effect of the proposed
project on historic properties, aviation artifacts, or
burial sites…
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SHPD Review and Comment:
The Historic Preservation Process
• Goal: Identify significant historic properties in project areas,
assess effects and execute plans to avoid or mitigate adverse
effects
• HAR 13-284 sets forth the process, which may include up to six
steps
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Identification and inventory
Evaluation of significance
Effect determination
Mitigation Commitments
Detailed mitigation plans
Verification
• SHPD review/comment at each steps determines whether
process ends or proceeds
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Step 1: Identification and Inventory
• Agency must consult with SHPD to determine
whether any historic/cultural properties in project area
• SHPD may respond in one of three ways:
– No historic/cultural properties (likely) present
• Process ends, but is subject to public comment/reconsideration
– Adequate survey exists & historic/cultural properties present
• Move to next step
– Survey is needed:
• **Archaeological, architectural and/or ethnographic
• If properties identified, move to next step; otherwise process
ends.
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Step 2: Evaluate Significance
• To be "significant," must possess integrity of
location, design, setting, materials workmanship,
feeling and association and meet one or more of
the following criteria:
– “a”: associated with events that have made an
important contribution to the broad patterns of history
– “b”: associated with the lives of important persons
– “c”: embody distinctive characteristics of a type, period,
or method of construction in our past
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Step 2: Evaluate Significance
– “d”: have yielded or is likely to yield information
important for research on prehistory or history
– “e”: have an important value to native Hawaiian people
or to another ethnic group of the state due to
associations with traditional beliefs, events or oral
accounts - these associations being important to the
group’s history and cultural identity
• If not significant, process ends
• If significant, move to next step
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Step 3: Effect Determination
• Determine whether project has any direct or indirect
effects on any significant historic properties
• If no effects, process ends
• If effects are anticipated, move to next step
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Step 4: Mitigation Commitments
• Five forms of mitigation:
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Preservation
Architectural recordation
Archaeological data recovery
Historical data recovery
Ethnographic documentation
• Consultation required for properties significant under
criterion "e"
• For unmarked burials, burial council must approve
• If commitments approved, move to next step
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Step 5: Detailed Mitigation Plans
• Submit plan detailing how mitigation commitments
will be carried out
• Any interested person may comment within 30 days'
of public notice
• If SHPD approves, work to implement
• For burials discovered during AIS, burial treatment
plans must be approved by burial council
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Step 6: Verification
• Once detailed mitigation plans are carried out,
agency/applicant must submit a request for
verification to SHPD
– Accelerated 2-step verification process is available in some
instances
• Not until verification, or approval under the two-step
verification is received can project proceed
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What Does Section 106 Require?
• All federal agencies must take into account the effects of its
undertakings on historic properties and affords the Advisory
Council on Historic Preservation a reasonable opportunity to
comment
• The historic preservation review process mandated by Section
106 is outlined in regulations set out in 36 CFR Part 800
• The regulations define a sequential process consisting of four
(4) steps for which the lead federal agency is responsible for
ensuring compliance.
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The Four Steps in the Section 106
Historic Preservation Review Process
• Step one - determine whether a proposed action is an
undertaking and initiate the Section 106 process;
• Step two - identify historic properties within the area of potential
effect (APE) and evaluate significance;
• Step three - Assess adverse effects through public involvement
and consultation; and
• Step four - obtain resolution through consultation and an
executed memorandum of agreement (MOA).
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Kaleikini v. Yoshioka,
128 Hawaii 53 (2012)
• Native Hawaiian challenged SHPD's approval of rail project and
City's grant of SMA, prior to completion of AIS for whole project,
and sought injunctive relief under HRS 6E-13(b).
• Circuit Court granted summary judgment in favor of Defendants
• Judgment re Chapter 6E claims vacated by HI Supreme Ct.
– Plaintiff, as recognized cultural descendant, had standing
– Rules did not expressly authorize phasing of AIS process
– Rules require identification of historic properties in the "project area" - which
included Phase 4
– Rules set forth a sequential process - steps must be complied with in order
– SHPD failed to follow rules by allowing process to proceed before AIS
completed for entire project
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Hall v. DLNR
128 Hawai‘i 455 (ICA 2012)
• Native Hawaiian brought action against the State and Kawaiha‘o
Church in Honolulu to enjoin the rebuilding of the church's social
hall located next to the church's historic cemetery for failing to
conduct an AIS in violation of HRS Chapter 6E.
• The Circuit Court granted summary judgment to defendants on
the grounds that the rebuilding was in compliance with the
State's regulation of active cemeteries under HRS Chapter 441.
• The Plaintiff appealed to the ICA which vacated the lower court's
ruling on the basis that HRS Chapters 441 and 6E are not
mutually exclusive
• Applying reasoning in Kaleikini, because parties recognized that
burials were likely present, an AIS - not mitigation - was required
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Royal Capitol Plaza, AOAO v. HCDA,
Civil No. 14-1-0804-03 (First Cir., 2014)
• SHPD initially required an AIS prior to HCDA's approval of
Downtown Capital LLC's development permit application in
connection with construction of a 410 unit residential tower
located at 801 South Street.
• Subsequently, the DLNR Chair accepted Downtown Capital
LLC's mitigation plan without regard to the lack of an AIS
• A nearby condominium owners association successfully
obtained an injunction under HRS 6E-13(b) from the First Circuit
Court temporarily stopping construction of the second tower at
801 South Street pending completion of an AIS
• The injunction was lifted upon completion of the Archeological
Inventory Survey.
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Royal Capitol Plaza, AOAO v. HCDA,
Civil No. 14-1-0804-03 (First Cir., 2014)
• Important Lessons:
– Corporate citizens may have standing under HRS
6E - there is a current split in the First Circuit Court
on this issue.
– As a practical matter this case has encouraged
similar "business on business" litigation or
threatened litigation involving HRS 6E claims.
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Lessons Learned
• Participants in the Historic Preservation Process:
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Project Applicant
State or county agency issuing the approval
State Historic Preservation Division
Island Burial Councils
Consultants
Attorneys
State wide or local cultural organizations or individuals
OHA
Any "interested persons"
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Lessons Learned
• 6E requirements being enforced more strictly and used as
a litigation tool
• SHPD approval is no longer a "safe harbor"
• Participants are still adjusting to strict application of rules
– Understand the applicable administrative rules and carefully
evaluate any deviation (by the consultant, agency, SHPD, etc.) from
those rules.
– Failure to follow sequential process may be subject to challenge
• Strict application of rules has increased demand on
SHPD - projects are taking more time to complete
process
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Lessons Learned
• Select an archeological consultant with a track record of
successful projects.
– Frequently reports and plans go through multiple reviews by SHPD.
• Understand and listen to community concerns about
cultural issues and historic properties that may be
impacted by the project early in the process.
• Trend in Native Hawaiian opposition to land use projects
– Importance of the concepts of “aina” and “kuleana” (land and
responsibility) in future case dealing with 6E;
– The matter of the “iwi” or Native Hawaiian burial sites in land use;
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Lessons Learned
– Traditional Cultural Properties (TCP) and cultural landscapes
should have greater recognition and importance in Hawaii;
– Relationship between historic sites and cultural practices is
largely ignored by historic preservation professionals;
– Increasing demands by Native Hawaiians to incorporate
protocols and culturally appropriate methods in the field of
archaeology and cultural resource management (CRM):
• Mitigation (“data recovery”) pursuant to significance criterion “d”
(content only) is not an acceptable preservation result;
• HP and CRM professional must consult and defer to cultural experts
and kamaaina witnesses in the identification and assessment of historic
properties.
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For More Information
– Timothy J. Lui-Kwan
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808-523-2511
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tluikwan@carlsmith.com
– Lindsay N. McAneeley
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808-523-2500
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lmcaneeley@carlsmith.com
– Ian L. Sandison
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808-523-2526
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isandison@carlsmith.com
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