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HomeMy WebLinkAboutCOM 0715.003 2002-2004 Phone: (808) 961-8263 BOB JACOBSON ,i:~ Fax: (808)961-8912 Counci/nrenrber E-Mail: jacobs~a,hgea.org HAWAII COUNTY COUNCIL County o/'Hawai `i Ilmmni `i Corrnp~ l3nildia~+ ~5 dupuni Street. Hilo. Hawni'i 96720 RECEivti Au ust 16, 2004 ?qty g r.~+n+r Eounc~l (P- r' TO: ALL COUNTY COUNCIL MEMBERS FROM: JAY SCHARF, COUNCIL AIDE RE: AL'II HIGHWAY MR. JACK KELLY OF PROTECT KEOPUKA GHANA ASKED ME TO DISTRIBUTE THE ENCLOSED THREE COMMUNICATIONS TO ALL OF YOU. 115.3- Comm. No. Ref. To: Press Hawai `i County is An Equal Opportunity Provider and Employ~f• dote Protect Keopuka Ohana P.O. Box 917 Captain Cook, Hawaii 96704 - _ May 26, 2004 Mr. Peter Young ~ Department of Land and Natural Resources 1151 Punchbowl Street, Room 130 Honolulu, Hawaii 96813 RE: Request for Contested Case Hearing on Alii Highway Project Dear Mr. Young, Protect Keopuka Ohana (PKO) requests either (1) the convening of a contested case hearing on whether the SHPD should reconsider the adequacy of the archaeological inventory survey for the Ali'i Highway in Kona Pursuant to Administrative Rule 13-275-11, because certain burial and possible burial sites in the pathway of the highway are incorrectly classified as inadvertently discovered pursuant to HRS § 6E-43.5; or (2) your specification of what other administrative procedures are available to contest the determination of the State Historic Preservation Division (SHPD) that these burials are "inadvertently discovered." Interests Potentially Affected. The members of PKO are Hawaiian cultural descendants to the burials in areas potentially impacted by the Ali'i Highway project, also known as the Keauhou -Kahului Parkway project; Federal Aid Project Number RS-0187 (004). One of the principal purposes of the organization is to protect the invaluable cultural resources, including ancient Hawaiian burials, from damage caused by destructive construction. The planned construction of the highway will have a devastating effect on PKO and the cultural descendants seeking to protect the repose of the ancient Hawaiian burials in its pathway. Contested Disagreement. PKO is very concerned about the possible destruction of native Hawaiian burial sites during construction of the Ali'i Highway project in Kona. Accordingly, we have contacted the Federal Highway Administration and the Federal Advisory Council on Historic Preservation several times about our concerns that the Archeological Survey and resultant Mitigation Plans and Data Recovery plans for this project are incomplete and inadequate. We have copied yourself and Deputy Attorney General J. Paige on all these communications as well. Basic Facts. The recent uncovering of native Hawaiian burials on the project during Data Recovery performed by archeologist Alan Haun, in areas that had been deemed to contain no burials, is of great concern to us and to all the descendant families related to these lands of Keauhou and Kahalu`u. Our research has uncovered evidence that burials found at State Site 6413 and identified as "inadvertent' had been identified in earlier archeological work in the area as possible burials. Rather than the SHPD staff, the Burial Council should have had jurisdiction over these burials as "previously identified." In addition, we have continually objected to the methods and evaluation criteria employed by Rosendahl in his survey, that is the defining document upon which all archeological assumptions on this project rest. These questionable assumptions and the inaccurate mapping of burial lava tubes on the project, specifically site 2079, bring to light the concerns we have been voicing throughout this process. I have attached the May 25, 2004 letter from Dr. Michael Graves, Chair of the Department of Anthropology, University of Hawaii that outlines the specific problems encountered relative to the above stated sites. Accordingly, PKO has standing to seek an administrative hearing under HRS chapter 91 to determine the rights, liabilities and obligations of the its members and the SHPD under HRS § 6E-43. Requested Relief. Protect Keopuka Ohana is formally requesting a Contested Case hearing to reconsider the adequacy of SHPD's previous determination of adequacy under Administrative Rule 13-275-11, and ask that: (1) the six burials identified at site 6413 and the cave itself, site 2079 be deemed previously known and (2) the Hawaii Island Burial Council be be given the jurisdiction and authority to determine treatment for these previously identified burials pursuant to applicable law. If you determine that a contested case hearing will not be allowed, then PKO request that you make available to it any other administrative procedure that would allow it to resolve this issues raised by this letter. We look forward to your prompt response to this request. Sincerely, Jack Ketly Vice-President Protect Keopuka Ohana Cc: J. Paige, Deputy Attorney General Geraldine Bell, Chair, Hawaii Island Burial Council Mr. Kai Markelt, Director, Burial Sites Program Harry Kim, Mayor, Hawaii County Protect Keopuka Ohana P.O. Box 917 Captain Cook, Hawaii 96704 July 1, 2004 Mr. Abraham Wong Division Administrator ~n n Federal Highway Administration - r'' Hawaii Division 300 Ala Moana Blvd., Room 3-306 Honolulu, HI 96850 Mr. John L. Nau, III, Chairman. Mr. Raynard C. Soon Advisory Council on Historic Preservation Native Hawaiian Member 1100 Pennsylvania Avenue NW, Suite 809 Advisory Council on Historic Preservation Old Post Office Building 1100 Pennsylvania Avenue NW, Suite 809 Washington, DC 20004 Old Post Office Building Washington, DC 20004 Haunani Apoliona Mr. Bruce McClure Board of Trustees Chair County of Hawaii Office of Hawaiian Affairs 711 Kapi`olani Blvd., Suite 500 Hilo, Hawaii 96720 Honolulu, HI 96813 Dear Memorandum of Agreement Signatories: Several critical issues involving the Ali`i Highway project in Kona, Hawaii Island have been the focus of recent written correspondences between the Protect Keopuka `Ghana and the State of Hawaii Department of Land and Natural Resources (DLNR), the Federal Highway Administration (FHA) and the Advisory Council on Historic Preservation (ACHP). The same concerns were also voiced repeatedly at Hawaii Island Burial Council (HIBC) meetings. Thus far these issues remain unresolved. We believe the State Historic Preservation Officer (SHPO), Peter Young (DLNR Chair), and the State Historic Preservation Division (SHPD, a division of the DLNR), both of which are charged with ensuring the proper implementation of federal and state historic preservation laws, have not reviewed these issues appropriately. Such faulty assessments have allowed plans for the Ali`i Highway project (project) to continue in non-compliance with federal and state law. The Protect Keopuka `Ghana (PKO) is contacting you as signatories to the "Historic Preservation Memorandum of Agreement Ali`i Highway Phased Mitigation Program" (MOA), to appraise you of the pressing issues and to seek your assistance to remedy our concerns. As signatories to the MOA, we understand that each of your organizations may intervene to ensure that the project follows the MOA stipulations and all applicable historic preservation laws. We register our concerns as a Native Hawaiian organization (NHO), meeting the definition of an NHO as stipulated in 36 CRF 800.16(s)(1). The primary focus of PKO is to represent and serve the needs of Hawaiians in the Kona community with regard to their interests to perpetuate Kona's natural and Hawaiian cultural resources to ensure the perpetuity of Hawaiian cultural beliefs, practices, and lifestyles. PKO's membership includes Native Hawaiian cultural practitioners and those well versed in Hawaiian culture and history, especially as they relate to Hawaiian historic properties in Kona. PKO has been actively engaged in such endeavors for four years, most recently as a successful plaintiff in landmark litigation against developer 1250 Oceanside Partners which the Hawaii Circuit Court has cited for violating zoning, environmental, and historic preservation laws. PKO recognizes the high level of religious and cultural significance of historic properties within the Kahalu`u Historic District through which the project is slated to traverse. As an NHO holding such views, we understand that our comments must be given full consideration following Section 101(d) (6)(B) of the National Historic Preservation Act (NHPA), which establishes that any federal agency carrying out its responsibilities under Section 106 must consult with any NHO that attaches religious and cultural significance to properties eligible for inclusion on the National Register, as with sites in the Kahalu`u Historic District that are the subject of our concern and that have already been included on the National Register of Historic Places. There are two related issues that we raise here and describe in more detail below which we feel must be addressed before the project can proceed. We believe there is an urgent need among the MOA signatories to develop appropriate action plans to ensure that 1) consultation with NHOs is fully compliant with 36 CFR 800, and 2) burials that may be affected by the project are afforded the full protection granted them in state law. At the core of numerous problems with the project is that the FHA has failed to conduct meaningful, systematic, and comprehensive consultation with Native Hawaiians regarding Native Hawaiians' views on 1) determinations of site functions, boundaries, and significance for historic properties that may be affected by the project; 2) the impact of the proposed project on historic properties; and 3) the adequacy of mitigation plans for the project, including a burial treatment plan. NHOs and other Hawaiian interested individuals should have been consulted at each phase of this project regarding each site, as detailed in 36 CFR 800 and summarized by the Advisory Council on Historic Preservation (ACHP) in its publication, "Native Hawaiian Organizations and the Section 106 Review Process" (Attachment A, also available at http:!/www.achp.gov/regs-nhos.html#3). Nothing close to the process outlined in this ACHP publication has occurred in this project. Rather only a segment of Hawaiians has been actively consulted and in these cases they have been only consulted on a limited number of issues that archaeologists or others involved in the project have deemed of interest to Hawaiians. Specific examples of failures to consult Native Hawaiians were made part of public record in the June 17, 2004 meeting of the HIBC. The minutes for this meeting will reflect that archaeologist Paul Rosendahl (who oversaw the work of Henry et al. [1998] that was completed for Rosendahl's archaeology firm) admits that during the 1998 archaeological inventory survey conducted for this project, no Hawaiian cultural practitioners were consulted regarding any of the site assessments. Also revealed in the same HIBC meeting was an equally egregious oversight that the draft burial treatment plan for the project was never sent to known descendants of those buried in the project area. (These descendants are referred to as lineal and cultural descendants under state law and were officially recognized as such following an evaluation process stipulated in state burial law.) The lack of consultation with Native Hawaiians to the degree required by 36 CFR 800 casts doubt on the legality of every aspect of this project as it relates to historic properties. Such negligence must be rectified immediately in a thorough and systematic manner. At a much more specific level, there are as well serious inadequacies with the treatment of certain historic properties, especially burial sites. The project is of course subject to state historic preservation law in instances where federal historic preservation law is silent, as with burials found in the project area. There are no federal laws defining how burials should be treated in a federal undertaking not occurring on federal land, as with the project. However, a detailed process for determining the treatment of burials is described in Hawaii State law (Chapter 6E of the Hawaii Revised Statutes [HRS] and Chapter 13-13-300 of the Hawaii Administrative Rules [HAR]). These burial laws should be in full force as they relate to the project and are not made ineffectual by the fact that the MOA was signed before the laws were enacted. At stake is the treatment of a minimum of three Native Hawaiian burials - at least one found in each of features D and G-1 in Site 6413 and at least one found in a component of Site 2079 (a component refetted to in reports alternatively as "2079 terrace" or as feature G-2 of Site 6413) (see Attachment B, a map of Site 6413 from a 1998 report by Henry et al.). The three burial structures are part of the Kahalu`u Historic District. These historic properties were identified as burials or possible burials through archaeological inventory surveys conducted for the project and in 2003 were confirmed to be burials through excavation in data recovery efforts. The total number of individuals interred in the three burial structures is unknown, since data recovery efforts ceased at each structure once human remains were detected, in accordance with HRS Chapter 6E-11(b). State law grants authority to determine the treatment of a burial either to the HIBC or the DLNR, depending on how the burial came to be known. The DLNR determines how a burial will be treated if the situation involves an "inadvertent discovery" (HRS 6E-43.6(c)(2)), An "inadvertent discovery" is defined as "the unanticipated finding of human skeletal remains and any burial goods resulting from unintentional disturbance erosion, or other ground disturbing activity" (13-300-2 HAR). However, the HIBC has the authority to "determine the preservation or relocation of previously identified native Hawaiian burial sites" (HRS Chapter 6E-43.(f)(1)). "Previously identified" burials are defined as "burial sites containing human skeletal remains and any burial goods identified during archaeological inventory survey and data recovery of possible burial sites, or known through oral or written testimony" (HAR 13-300-2). Chapter 13-300-31(b)(2) clarifies that "possible burial sites identified during archaeological inventory survey shall be classified as previously identified where human skeletal remains are confirmed during the archaeological data recovery phase." An inventory survey is defined as "the process of identifying and documenting historic properties and burials sites in a delineated area, gathering sufficient information to evaluate significance of the historic properties and burial sites, and compiling the information into a written report for review and acceptance by the department" (HAR 13-300-2). The three burials in question are previously identified burials. Feature 6413 D was identified as a burial in an archaeological inventory survey conducted in 1973 by Ching (see Ching [1973], Surface Survey Realignment of Ali `i Drive). Feature 6413 G-1 was identified as a possible burial in an archaeological inventory survey conducted in 1983 by Hommon and Rosendahl (see Hommon and Rosendahl [ 1983], Archeologicallm~estigation of the Ali `i Drive Realignment Corridors). The site component referred to as "2079 terrace" was identified by both Ching (1973) and Hommon and Rosendahl (1983) as being part and parcel of a burial cave, Site 2079. Note that the above definition of a previously identified burial is described at the level of a site rather than a feature or component, which further establishes the "2079 terrace" as a previously identified burial. Authority to determine the treatment for the aforementioned three previously identified burials rests with the HIBC, which passed in its April 15, 2004 meeting a motion acknowledging its jurisdiction over these previously identified burials. Any entity that usurps the HIBC's role in this matter will be in violation of HRS Chapter 6E-43.(f)(1). Nonetheless, Young contends in a June 10, 20041etter to the PKO that the three burials are "inadvertent discoveries," and based on this faulty assessment he seems poised to determine the treatment of these burials. He believes that a 1998 archaeological inventory survey report prepared by Henry et al. "is the document that determines which burial sites are considered `previously identified,' which aze `possible burials,' and which are classified as having a function other than burial" (see Young's June 10, 20041etter to PKO, Appendix C, page 2, paragraph 5). Young apparently believes that there is only one inventory report that can be used to define a previously identified burial under the burial laws, but no such limitation exists in HRS, HAR, or the MOA. Henry et al.'s 1998 assessment that the three structures in question served a habitation function does not erase the burial function determinations offered in earlier survey reports -determinations that define these structures as previously identified burials. Young offers a further argument in his June 10 correspondence to bolster his contention that the structures in question served primarily habitation functions. (Young's statements in this regard are irrelevant to applicable burial laws. However, we analyze his contention here to illustrate his willingness to misrepresent facts in order to deny the HIBC itsjurisdiction over the burials in question.) Young states that Sites 6413 "Features G-1 and G-2 were primarily used for habitation purposes" and that "it is not clear that these surface features were primarily constructed or used for the purpose of marking or concealing burials," based on information derived through data recovery. Yet the habitation roles of the structures do not lessen their simultaneous burial function, as traditional Hawaiian house sites aze well known to have served such dual purposes. In fact, 19~' century Hawaiian historian Samuet Kamakau (1964, p. 43) records that "to hide the bones" loved ones "were buried (kanu me ke pao) under new houses...where they would be concealed" Indeed, the possible habitation use of the structures in question is consistent with their burial function. Young tries to lead astray those not well versed in Hawaiian culture to believe that Henry et al.'s assessment that the structures in question where habitation sites undermines their burial function. Such an assertion is patently false and clearly misleading. Young's arguments involving other functions of the burial structures are in any case irrelevant to the burial laws as they relate to determining jurisdiction. Rather jurisdiction is based on the answers to two questions. If the answer to either of the questions is "yes," then jurisdiction for a burial rests with the HIBC. No other issues are relevant. The only questions at issue in following the definitions in HRS and HAR are the following: 1. Is the site identified in an inventory survey as a burial site? The answer to this question for Site 2079 and Site 6413 Feature D is "yes." 2. Is the site identified in an inventory survey as a possible burial site and discovered via data recovery to contain human skeletal remains? The answer to this question for Site 6413 Feature G-1 is "yes." We urge you to communicate immediately with Young to prohibit the DLNR from asserting wrongful jurisdiction over the aforementioned three burial structures and to inform him that the HIBC has appropriate jurisdiction to determine the treatment of these burials, as they have asserted in their April 15, 2004 meeting. We further implore each of you as signatories to the MOA to intervene to rectify the gross inadequacies of this project as pertains to consultation with Native Hawaiians. Finally, we ask that you consider our requests within the context of the potential impact that this project will have on some of the most well preserved, highly significant, and densely concentrated sites in all of Hawaii. These sites deserve the full protection afforded them in both State and Federal historic preservation laws. Sincerely, Jimmy Medeiros Jack Kelly President Vice President cc: Peter Young, SHPO Attachments A. "Native Hawaiian Organizations and the Section 106 Review Process" (also available at http://www. achp.gov/regs-nhos.html#3) B. Map of Site 6413 from a 1998 report by Henry, et al. C. June 10 2004 letter from Peter Young to the Protect Keopuka `Ghana Ching, Francis K. W. et al. 1973. Surface Survey Realignment ofAli'i Drive. Prepared for Belt Collins and Associates Ltd. Hommon, Robert and Rosendahl, Paul et al. 1983. Archeological Investigation of the Ali'i Drive Realignment Corridors. North Kona, Island ofHawai'i. Prepared for Belt Collins and Associates. Kamakau, Samuel M. 1964. Ka Po'e Kahiko The People of Old. Honolulu, Bishop Museum Press. a . Native Hawaiian Organizations and the Section 706 Review Process Contents: Introduction c7 Participation of Native Hawaiian organizations in consultation - Role of Native Hawaiian organizations in initiation of the Section 106 review process (Step I) r Role of Native Hawaiian organizations in identification of historic ,-s properties (Step II) Role of Native Hawaiian organizations in assessing adverse effects (Step III) Role of Native Hawaiian organizations in resolving adverse effects (Step IV) Requests from Native Hawaiian organizations for ACHP participation Involvement of Native Hawaiian organizations in the development of program alternatives Introduction The 1992 amendments to the National Historic Preservation Act (NHPA) place major emphasis on the role of Native Hawaiian organizations. Subsequent revisions published May 18, 1999, to the regulations of the Advisory Council on Historic Preservation (ACHP"`), 36 CFR Part 800, incorporate specific provisions for Federal agencies to consult with Native Hawaiian organizations throughout the process. Consultation with Native Hawaiian organizations in the regulations "The Federal agency (agency") must consult with any Native Hawaiian organization that attaches religious and cultural significance to historic properties that may be affected by an undertaking (henceforth, Native Hawaiian organizations). Such organization is a consulting party. The agency must make a reasonable and good faith effort to identify Native Hawaiian organizations to be consulted. "The Native Hawaiian organization may enter into an agreement with the agency regarding any aspect of its participation in the review process. The agreement may provide the Native Hawaiian organization with additional participation or concurrence in agency decisions under Section 106 provided that no modification may be made in the roles of other parties without their consent. Participation of Native Hawaiian organizations in consultation "Section 101(d)(6)(b) of NHPA requires Federal agencies to consult with any Native Hawaiian organization that may attach religious and cultural significance to a historic property that may be affected by an undertaking regardless of its location. "There may be multiple Native Hawaiian organizations that attach significance to a historic property. The agency is required to consult with any Native Hawaiian organization that may attach religious and cultural significance to a historic property, again, regardless of its location. Role of Native Hawaiian organizations in initiation of the Section 106 review process (Step I) * The agency must make a reasonable and good faith effort to identify Native Hawaiian organizations that might attach religious and cultural significance to historic properties in the area of potential effects and invite them to be consulting parties. "Native Hawaiian organization can request in writing to be a consulting party. "The agency can collapse multiple steps in the process, but consulting parties, including Native Hawaiian organizations and the public, must still be given an adequate opportunity to express their views. Role of Native Hawaiian organizations in identification of historic properties (Step 11) "The agency gathers information from Native Hawaiian organizations to assist in identifying historic properties that may be of religious and cultural significance. The agency consults with Native Hawaiian organizations to carry out identification. The agency consults with Native Hawaiian organizations to evaluate National Register eligibility of identified properties. The agency must acknowledge "special expertise" of Native Hawaiian organizations in assessing eligibility of historic properties of religious and cultural significance to them. " If a Native Hawaiian organization disagrees with an eligibility determination, it may ask ACHP to request the agency to obtain a determination from the Keeper of the National Register. Concurrence of the Native Hawaiian organization in eligibility determination is not required. * The agency must notify Native Hawaiian organizations of its finding of either No Historic Properties Affected or Historic Properties Affected. Failure to object within 30 days allows the agency to assume concurrence and proceed. Role of Native Hawaiian organizations in assessing adverse effects (Step IIIj * The agency consults with Native Hawaiian organizations to apply the Criteria of Adverse Effect. "The agency notifies consulting parties, including Native Hawaiian organizations, of the finding of No Adverse Effect (NAE), and provides documentation. Failure to disagree within 30 days allows the agency to assume concurrence and proceed. " If the consulting party, including Native Hawaiian organizations, disagrees, it must specify reasons within 30 days. When a timely filing of disagreement is received, the agency must either resolve the disagreement or request ACHP to review the NAE finding. Native Hawaiian organizations can also request ACHP to review Agency finding. * The agency should seek concurrence of Native Hawaiian organization that attaches religious and cultural significance to the historic property subject to the finding. Role of Native Hawaiian organizations in resolving adverse effects (Step IV) "The agency consults with Native Hawaiian organizations to develop and evaluate alternatives to avoid, minimize, or mitigate adverse effects. "Native Hawaiian organizations may request ACHP to participate in consultation. * The agency may invite a Native Hawaiian organization to sign or concur with the Memorandum of Agreement (MOA). Refusal to sign or concur does not invalidate the MOA. Requests from Native Hawaiian organizations for ACHP participation 'Any party, including Native Hawaiian organizations, may request that ACHP review the substance of any agency's finding, determination, or decision or the adequacy of an agency's compliance with the regulation. * A Native Hawaiian organization may request that ACHP enter the Section 106 review process because of concerns about the identification of, evaluation of, or assessment of effects on, historic properties. A Native Hawaiian organization may request ACHP involvement in the resolution of adverse effects or where there are questions about policy, interpretation, or precedent under Section 106 or its relation to other authorities such as NAGPRA (see Appendix A of the regulations). Involvement of Native Hawaiian organizations in the development of program alternatives 'The agency must consult with affected Native Hawaiian organizations in the development of program alternatives. " If a program alternative may affect historic properties of religious and cultural significance to a Native Hawaiian organization, the agency shall identify those organizations and consult with them. "The agency and ACHP must take into account the views of Native Hawaiian organizations in reaching a final decision. 'ACHP: The Advisory Council on Historic Preservation issues regulations to implement Section 106, provides guidance and advice on the application of the procedures in this part, and generally oversees the operation of the Section 106 process. ACHP also consults with and comments to Agency Officials on individual undertakings and programs that affect historic properties. 'Agency: It is the statutory obligation of the Federal agency to fulfill the requirements of Section 106 and to ensure that an Agency Official with jurisdiction over an undertaking takes legal and financial responsibility for Section 106 compliance in accordance with subpart B of the regulations. The Agency Official has approval authority for the undertaking and can commit the Federal agency to take appropriate action for a specific undertaking as a result of Section 106 compliance. For the purposes of subpart C of the regulations, the Agency Official has the authority to commit the Federal agency to any obligation it may assume in the implementation of a program alternative. The Agency Official may be a State, local, or tribal government official who has been delegated legal responsibility for compliance with Section 106 in accordance with Federal law. E OP M PETER i.YOUNG PA , ~ S CHAIRPERSON LINDA LINGLE 0 BOARD OP LAND AND NgTURAL RF.SDDRCFS CAVERNOR OF HAWAII COMMISSION ON WATER RCSOURLE MANAGEhffM DAN DAVm50N DEPUTY DIRECPOR-LAMS YVONNE Y. IZO pppa~ dDtl~ p DEPUTI'DINECfOR. WATER p ~ AQUATIC RESOURCES 6SfR}$ BOATMG AMI OCEAN RECREATON BUREAU OF CONVEYANCES STATE OF HAWAII COAAIISSION ON WATER RESpiRCE MANAGEMENT CONSERVATION AND COASTAL LANDS DEPARTMENT OF LAND AND NATURAL RESOURCES CDNSERVATONANDRESOURCESENFORC'P.M1ffIJI eNQn+eedwc PoRPSTxv auD wnnuPT± ~rcDr POST OFFICE BOX 621 KAHOOLAWE~SLAND gESERVVE COMMISSION HONOLULU, HAWAII 96809 LAND STATE PARKS June 10, 2004 Mr. Jack Kelly, Vice President Protect Keopuka Ohana P.O. Box 917 Captain Cook, HI 96704 Dear Mr. Kelly: Subject: Request for Contested Case Hearing -State Historic Preservation Division Review of Archaeological Inventory Survey for Keauhou-Kahului Parkway Project Various Ahupuaa, North Kona, Hawaii Island TMK: 7 In your letter of May 26, 2004, you request that the State Historic Preservation Division (SHPD) reconsider its findings concerning the adequacy of archaeological inventory survey work conducted for the proposed Keauhou-Kahului Parkway, North Kona. You ask that this reconsideration be conducted in accordance with Hawaii Administrative Rule (HAR) section 13- 275-11. , 'This section of the recently signed administrative rules provides a process for interested individuals to seek reconsideration of findings made during the historic preservat~i is'. - project review process if new information is submitted to substantiate reconsideration. f`Tf we believe this provision does not apply in this case, you ask us to identify other administrative procedures available to your organization to address or remedy your concerns. The new information you present is summarized in an attached letter from Dr. Michael Graves to Geri Bell, Chair of the Hawaii Island Burial Council. It is similar to one received by the department from Dr. Graves (Graves to Young, May 19, 2004). The issues discussed by Dr. Graves resemble those outlined, mostly in tabular form, by Ms. Danielle Delise, and distributed at the May 20, 2004 meeting of the Hawaii Island Burial Council. Dr. Graves argues that the human burials recently discovered during data recovery work at Site 6413 should be considered "previously identified" and not "inadvertent" discoveries for the purposes of determining jurisdiction under chapter 6E, HRS. As you know, burials identified during inventory surveys are considered "previously identified" (§13-300-2, HAR) and the island burial council determines whether they are preserved in place or relocated [§6E-43 (b)]. Human remains found during mitigation work, including data recovery, are considered "inadvertent" discoveries and their treatment is determined by the Department of Land and Natural Resources (DLNR).~,An exception is the uncovering of human remains during data recovery in a site that was identified as a "possible burial" during the inventory survey' In these cases, any human remains uncovered are considered "previously identified" and jurisdiction belongs to the island burial council [§13-300-31(b)(2)]. It is this exception that Dr. Graves presumably believes applies to the burials recently found within Site 6413. He argues this at a general and specific level. At the general level he notes that archaeologists in a 1973 survey considered Site 6413 to be a burial complex. This would mean, he believes, that the recently found burials within this site complex should be considered "previously identified." At the specific level, he argues that the burial found at Feature G-1 of Site 6413 should be considered "previously identified" because archaeologists in a 1983 survey of the proposed highway corridor suggested that this feature could be a burial. Presumably he also considers the burial found adjacent to Feature D to be "previously identified" because it was also labeled a possible burial in previous reports. For Dr. Graves, these findings show that the functional interpretations and significance assessments eventually accepted for Site 6413 and its component features were inaccurate and that inadvertent discoveries were avoidable. You appear to concur with Dr. Grave's findings. This is a fedgrally funded highway and federal historic preservation law preempts state law in this instance In this case the archaeological work for this project was conducted in accordance with a 1987 Memorandum of Agreement (MOA) executed to comply with Section 106 of the National Historic Preservation Act. The process set out in this MOA includes determining site function and significance which are the issues you wish to reconsider. Accordingly, your request for reconsideration is subject to the MOA, which includes a dispute resolution clause [Stipulation F(1 Because the issues you raise about site identifications, functional interpretations, or significance determinations are subject to the MOA, a contested case pursuant to HAR § 13-275 would be improper. A copy of the MOA is enclosed for your convenience. We are in the process of forwarding your concerns and those of Dr. Graves to the Federal -lighway Administration and asking that the issues raised be addressed through this process. We suggest that you also submit any specific comments you have directly to them. The burial treatment plan prepared pursuant to this MOA specifies that burial sites and human remains found within the proposed highway corridor will be treated in accordance with chapter 6E, HRS.. This is, in part, because no federal historic preservation law or regulations apply to the treatment of burial sites on private or state lands. As such, the state administrative procedures you seek could apply to decisions made pursuant to chapter 6E, HRS, or 13-300, HAR, for this project. We say this with the understanding that the 1998 intensive archaeological survey report (Ali'i Highway Phased Mitigation Program, Phase 1 -Archaeological Intensive Survey, Henry, Jimenez, Kirkendall, and Haun, 1998), was prepared to comply with the federal MOA, is the document that determines which burial sites are considered "previously identified," which are "possible burials," and which are classified as having a function other than burial. This is the document that most closely fulfills the purpose of an archaeological inventory survey which, under §13-300, HAR, creates the context for determining which burials sites will be considered "previously identified" or "inadvertent" within the development review process. Under chapter 13-300, HAR, the remedies available through administrative procedures are established in sections 13-300-38(c), 13-300-39(c), and 13-300-51 through 66. Sections 13-300 38(c) and 39(c) apply only to applicants wanting reconsideration of determinations to preserve in place or relocate previously identified burials sites. Sections 13-300-51 through 66 set out a process by which any aggrieved person can appeal a council determination to preserve in place or relocate native Hawaiian skeletal remains. Section 13-300-66 sets forth the process for judicial review in accordance with chapter 91 of the HRS. In this case, your organization could exercise those options if it disagrees with the determination made by the Hawaii Island Burial Council. This determination has not been made yet. We are preparing a response to Dr. Graves that will answer his concerns in more detail. Our staff archaeologists have reviewed the issues raised by Dr. Graves and find that we are unlikely to agree with his conclusions that Site 6413 was or should be considered primarily a "burial complex" and that Features G-1 and G-2 should be "previously identified" burial sites. Both features were classified, in good faith, as habitation features in the accepted intensive archaeological survey report, the significance assessment report, and the site treatments report prepared in compliance with the federal MOA. Data recovery results also suggest that Features G-1 and G-2 were primarily used for habitation purposes and it is not clear that these surface features were primarily constructed or used for the purpose of marking or concealing burials. Consequently, we do not foresee treating the human remains discovered at Features G-1 or G- 2 as "previously identified" pursuant to section 6E-43(b). Our response to Dr. Graves will be submitted to the Federal Highway Administration as part of the dispute resolution process. If you have any questions please call Holly McEldowney, Administrator of the Historic Preservation Division (692-8028) or Deputy Attorney General James Paige. Si erely, ~l ter T. u , C air Departure a and Natural Resources cc. Abraham Wong, Division Administrator, Federal Highway Administration Bruce McClure, County of Hawaii, Department of Public Works Members, Hawaii Island Burial Council Kai Markell, Burial Sites Program Keola Lindsey, Burial Sites Program, Hawaii Island HISTORIC PAESERVATION MEMORANDUM OF AGREEMENT ALIT HIGHWAY PHASED MITIGATION PROGRAM North Kona District, County of Hawaii, State oP Hawai'i July 1987 Memorandum of Agreement WHEREAS, the Federal Highxay Administration, Hawaii Division (FHWA) has determined that construction of the proposed Ali'i Highxay (FAS Route 18?), from a point on the Haxai'i Helt Road approximately txo miles south of Palani Road to an intersection with existing Ali'i Drive dust north of Kamehameha III Road, will have an adverse effect upon the Kahalu'u Historic District, which is listed on the National Register of Historic Places, and upon the Kona Field System Historic District and the Kuakini Wall, both of which have been determined to be eligible Por inclusion in the National Register of Historic Places, and upon the archaeological sites within these districts and has consulted with the Haxai'1 State Historic Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (Council) pursuant to the regulations (36 CFR Part 600) implementing Section 706 of the National Historic Preservation Act (16 U.S.C. 470t), WHEREAS, officials of the County of Haxai'i (County), the State of Aawai'i Department of Transportation (Hawai'i DOT) and oP the Office of Hawaiian Affairs (OHA) participated in the consultation and have been invited to concur is this Memorandum of Agreement (Agreement), tiOW, THEREFORE, FHWA, the SHPO and the Council agree that the undertaking shall be implemented in accordance xith the following stipulations in order to take into account the effect of the undertaking on the historic properties. STIPULATIONS FHWA shall ensure that the following measures are carried out in consultation with the SHPO, ACHP, County of Hawaii, Hawaii DOT, and OHA. A. Identification and Treatment oP Affected Properties in the project corridor, according to the phased Identification ~ Treatment Plan (IT Plan), created in consultation among the signatories (Attachment 1). The archaeological survey to identify all historic properties shall be. completed within twelve (12) months after FHWA approval of a route alignment. B. All archaeological work done under this Agreement shall be directed by a professional archaeologist who meets at minimum the qualifications set forth in the Department of the Interior's "Professional Qualifications." (See Appendix C of Draft 36 CFR 66, at 42 FR 5382, 1/28/77). -2- C. All final archaeological reports resulting from actions pursuant to this Agreement shall De provided to the signatories to this Agreement and to the National Park Service for possible submission to the National Technical Information Service. All such reports shall be responsive to contemporary professional standards identified in the Council's current Manual of Miti ation Measures and the Department of the Inter or's "Format Standards for Final Reports of Data Recovery Programs Precise locational data may De provided is a separate appendix if it appears that release of such information could jeopardize archaeological sites. Draft final reports shall be circulated for review and comments by all signatories. D. Through pre-construction meetings and scheduled project personnel meetings, the FHWA, Hawaii DOT, and County of Hawaii DPW shall ensure, in consultation with the SHPO and OHA, that County project personnel and the contractors' workforce are sensitive to the significance of archaeological properties associated xith the Ali'i Drive project and are aware of the existence of Federal and State antiquity statutes. E. To prepare for the possibility that Native Hawaiiaa human burials and/or associated funerary objects are uncovered during archaeological or construction work which will require removal and reinternment, OHA shall prepare a Burial Treatment Plan acceptable to FHWA, Hawaii DOT, the County of Hawaii, the SHPO, and the Council. 1. This plan will be completed within 6 months after Council acceptance of this Agreement. 2. Should such a plan not be submitted by OHA within the agreed upon time frame, the FHWA shall develop and implement a plan in consultation with the SHPO. 3. The plan shall be the result of a good faith effort to obtain the views of interested persons evincing cultural and traditional ties to the features or to the land in which the features are located. The plan shall provide methods for appropriate treatment of the human remains and associated funerary objects. 4. All costs for the development of the Burial Treatment Plan will be borne by OHA, and as appropriate, the County of Hawaii subject to County Council appropriation of funds. All costs for the implementation of the plan will be borne by the FHWA and the County of Hawaii. -3- F. Dispute Resolution 1. At any time during the implementation of the measures stipulated in thin Agreement, should an objection be raised by a local government or a member of the public, FHWA shall consult with the objecting party, the SHPO, and, as needed, with the Council to resolve the objection. A record of the objection and FHWA's actions to resolve the objection shall be retalned by the FHWA as part of the project Piles. 2. Should an objection be raised by a signatory to this Agreement (ACHP, the SHPO, Hawaii DOT, the County of Hawaii or OHA) regarding the implementation of the measures stipulated in this Agreement, FHWA shall consult with the objecting party to resolve the objection. A record of the objection and FHWA's actions to resolve the objection shall De retained by the FHWA as part of the project files. IP FHWA determines that the objection cannot be resolved, it shall nevertheless seek the recommendations of the objecting party, document its consideration of the objecting party's recommendations in the project tiles and inform the objecting party and the ACHP oP that consideration. G. Agreement Amendment Should FHWA, the SHPO or the Council determine that the terms of this Agreement cannot be met, that party will immediately notify the other consulting parties and request consultation to amend this Agreement in accordance with 36 CFR 800.5(e)(5) -4- Execution of this Agreement evidences that FHNA has afforded the Council an opportunity to comment on the undertaking and its effects on historic properties and that FNMA has taken into account the effects of its undertaking on historic properties. Federal Highway A tration, Hawaii Division By. ~6• dat Hawaii State H1 t is Preservation Officer By: 8/r3/47 (date Adv or cil on His oric P eservation ~ (date) Concurring Parties: County of awai'i By: (date) Hawaii State Department of Trans ortation (date) Office oP Hawaii n Af,/f~airsA BY : 6~~-~ L~ ~ 9- S~ 9,~ (date) ~lPPROVEfl as to COi;t;':y./. rid; Date ~I~:../~~l / -5- ATTACHMENT 1 IDENTIFICATION 8 TREATMENT PLAN FOR ALIT HIGHMAY HISTORIC PRESERVATION MEMORANDUM OF AGREEMENT Ali'i Highway, North Rona, Hawaii Island County of Hawaii State of Hawaii July 1987