INTRODUCTION TO STATE AND FEDERAL HISTORIC PRESERVATION LAWS Hawaii Revised Statutes, Chapter 6E National Historic Preservation Act, Section 106.

INTRODUCTION TO STATE AND FEDERAL HISTORIC PRESERVATION LAWS

Hawaii Revised Statutes, Chapter 6ENational Historic Preservation Act, Section 106

H O N O L U L U · H I L O · K O N A · M A U I · G U A M · L O S A N G E L E S

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


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


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.


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


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).


What is Required for Non-Governmental 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…


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

– 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



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.


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


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


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


Step 4: Mitigation Commitments

• Five forms of mitigation:– 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


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


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


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.


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).



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


Hall v. DLNR128 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


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.


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.


Lessons Learned• Participants in the Historic Preservation Process:

– 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"


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


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;


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.


For More Information– Timothy J. Lui-Kwan

• 808-523-2511

• [email protected]

– Lindsay N. McAneeley• 808-523-2500


– Ian L. Sandison• 808-523-2526


INTRODUCTION TO STATE AND FEDERAL HISTORIC PRESERVATION LAWS Hawaii Revised Statutes, Chapter 6E National Historic Preservation Act, Section 106.

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