White Paper on the Scope of Agency Authority and Discretion in Setting Testing Standards for Archaeological Inventory Surveys

in Hawaii
I. INTRODUCTION The Hawaii State Constitution recognizes the value of conserving and developing the historic and cultural property within the State for the public good.1 It is for this reason that the State established a comprehensive program of historic preservation.2 "Historic preservation" is defined as "the research, protection, restoration, rehabilitation, and interpretation of buildings, structures, objects, districts, areas, and sites, including underwater sites and burial sites, significant to the history, architecture, archaeology, or culture of this State, its communities, or the nation."3 The definition of "historic preservation" underscores the inherent tension faced by the State. On the one hand, the State is required to study and research historic and cultural properties. On the other hand, the State is also required to protect those same historic and cultural properties. The means by which the State can accomplish these two tasks can sometimes diverge. This is highlighted by recent activities in Kailua Town, on the island of Oahu. Kailua Town is a highly developed area. It is also an area that has yielded a large number of subsurface historic and cultural properties, including native Hawaiian burials. From what is known to date, it appears that the sand berm forming the near shore of Kailua Bay with a sunny climate and well-watered agricultural lands may have provided a desirable settlement area for native Hawaiians in pre-contact Hawaii. Recent archaeological research in Kailua Town indicates that prior development of the area may have left much of the historic properties within the subsurface sandy layers undisturbed.

Because of the number of subsurface historic and cultural properties that have been found in Kailua Town, the State has in recent years required developers to conduct archaeological inventory surveys or data recovery activities pursuant to archaeological monitoring plans. While conducting such activities, however, the developers continue to unearth more native Hawaiian burials. The cultural descendant group Kailua, Kau a Hooilo ("KKH") has now expressed concerns that native Hawaiian burials are being unnecessarily encountered due to requirements imposed for subsurface testing during an archaeological inventory survey ("AIS") that require an investigator to excavate subsurface areas far below the depths potentially effected by planned construction activities at many locations. This white paper will first outline the objectives and legal requirements of the historic preservation review process as contemplated by Chapter 6E of the Hawaii Revised Statutes and its implementing regulations. It will then explore the extent to which the State has discretion to establish limits for subsurface testing or sampling standards for an AIS, particularly in cases where lineal or cultural descendants have been consulted. II. STATEMENT OF THE QUESTION PRESENTED KKH has submitted a request to the Department of Land and Natural Resources ("DLNR") to limit subsurface testing required as part of an AIS to those areas and depth that would be physically impacted by construction activities. As noted by KKH, such limitations would prevent native Hawaiian burials from being unnecessarily disturbed. The issue that will be analyzed in this white paper, therefore, is whether DLNR has the authority and discretion to regulate the scope of subsurface testing during archaeological inventory surveys for projects subject to the State's historic preservation review process, including setting limits to the degree or depth of sampling for such surveys, in order to accommodate preservation goals. 2

III.

SHORT ANSWER DLNR, through its Historic Preservation Division ("SHPD") is authorized under State

law to regulate archaeological activities and has the discretion to establish sampling strategies used to identify historic properties consistent with State regulations, federal standards and other industry standards. IV. STATE LAW SUPPORTS SHPD'S AUTHORITY AND DISCRETION IN REGULATING ARCHAEOLOGICAL ACTIVITIES TO PROMOTE PRESERVATION GOALS A. SHPD OVERSEES THE STATE'S ARCHAEOLOGICAL ACTIVITIES

SHPD is the agency tasked with regulating archaeological activities throughout the State.4 SHPD is charged with developing an on-going program for archaeological research and development, including surveys, excavations, scientific recording, interpretation, and publications on the States historic and cultural resources.5 B. THE HISTORIC PRESERVATION REVIEW PROCESS REQUIRES SHPD TO REVIEW EFFECTS OF PROPOSED PROJECT

Before any government entity can approve a proposed project that may affect historic properties, it must advise SHPD and allow SHPD an opportunity to review and comment on the potential effects of the proposed project on those historic properties.6 The review process may include up to six procedural steps, described as follows:

(1)

Identification and inventory, to determine if historic properties are present in the projects area and, if so, to identify and document (inventory) them; Evaluation of significance; Effect (impact) determination; Mitigation commitments which commit to acceptable forms of mitigation in order to properly handle or minimize impacts to significant properties; Detailed mitigation plan, scope of work to properly carryout the general mitigation commitments; and Verification of completion of detailed mitigation plan.7

(2) (3) (4)

(5) (6)

In order to complete the first step, the project proponent must first seek a determination from SHPD regarding whether an inventory survey is needed.8 If SHPD concludes that an inventory survey is needed, this survey shall identify all historic properties and gather enough information to evaluate the properties significance.9 Inventory surveys fall into three main categories: (1) archaeological inventory survey; (2) ethnographic survey; and (3) architectural inventory survey.10 SHPD may require an AIS if archaeological properties are present or likely to be present.11 An AIS is defined as the means of identifying and documenting the archaeological historic properties and burial 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.12 It may include a visual inspection of the surface area as well as test excavations of subsurface sites, if deemed necessary by SHPD.13 For purposes of the AIS, the project area is defined as:

the area the proposed project may potentially affect, either directly or indirectly. It includes not only the area where the project will take place, but also the proposed projects area of potential effect.14 Under the regulations, the entire surface of the project area must be visually inspected, and any proposed deviations from this level of inspection must be approved by SHPD.15 Subsurface test excavations are also required when the function of an identified feature is unknown.16 The scope of AIS testing in terms of how much of the project's subsurface area is sampled or how deep the test trenches should be excavated are not specified in the regulations though both are clearly with SHPD's regulatory authority over archaeological activities under HRS Chapter 6E and its promulgated rules. In addition, a review of Hawaii case law indicates that the Hawaii courts have not yet decided any cases regarding the proper scope of subsurface testing conducted as part of an AIS although the Hawaii Supreme Court has recently had the opportunity to review SHPD's rules in finding that the agency did not have the discretion to allow the phasing of an AIS where such an interpretation was inconsistent with the "plain meaning" of a defined term under its regulations.17 Based on the definition of "project area," the focus should be on areas that have the potential of being affected. The Hawaii Supreme Court recently found that the broad definition of "project area" in the archaeological regulations adopted pursuant to HRS Chapter 6E is unambiguous and should be given its plain meaning.18 Limiting archaeological investigations to the area of potential effect is clearly within the plain language of HAR Section 13-284-2 and within SHPD's express authority to regulate. C. SHPD HAS DISCRETION THROUGHOUT THE HISTORIC PRESERVATION REVIEW PROCESS

The regulations repeatedly provide for circumstances where SHPD can exercise its discretion in the historic preservation review process. For example, SHPD determines whether or not an AIS plan should be submitted, and what should be included in the AIS plan.19 5

Subsurface test excavations are required only if deemed necessary by SHPD.20 In addition, SHPD determines if a visual inspection can be less than one hundred percent (100%) of the surface area.21 Flexibility, therefore, is built into the regulations. As noted above, it is up to SHPD to determine if subsurface testing is necessary in the first place.22 In addition, if an AIS plan is required, it is also up to SHPD to approve a sampling strategy that calls for less than one hundred percent (100%) coverage.23 The regulations do not specify how much less coverage is permitted. However, they demonstrate that SHPD has discretion in determining the scope of the testing. Moreover, a determination by SHPD regarding the scope of testing is likely entitled to deference. As noted by the Supreme Court of Hawaii: In order to preserve the function of administrative agencies in discharging their delegated duties and the function of this court in reviewing agency determinations, a presumption of validity is accorded to decisions of administrative bodies acting within their sphere of expertise and one seeking to upset the order bears the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences. In re Application of Hawaiian Elec. Co., 81 Hawaii 459, 465, 918 P.2d 561, 567 (1996); Ka Paakai O Ka Aina v. Land Use Comm'n, 94 Hawaii 31, 40, 7 P.3d 1068, 1077 (2000) ("[D]ecisions of administrative bodies acting within their sphere of expertise are accorded a presumption of validity.")

D.

THE HISTORIC REVIEW PROCESS ALLOWS FOR CONSULTATION WITH LINEAL AND CULTURAL DESCENDANTS

The regulations define the "consultation process" as the process of "notifying interested organizations and individuals that a project could affect historic properties of interest to them; seeking their views on the identification, significance evaluations, and mitigation treatment of these properties; and considering their views in a good faith and appropriate manner during the review process."24 "Interested parties" are those organizations and individuals that are concerned with the effects of a project on historic properties.25 Lineal and cultural descendants are unquestionably interested parties. As such, their views should be considered throughout the historic review process, including at the identification and inventory stage. E. THE HISTORIC REVIEW PROCESS ALLOWS FOR SHPD TO CONSIDER PRESERVATION GOALS

In enacting Chapter 6E of the Hawaii Revised Statutes, the legislature was clear on its intent to preserve and maintain historic and cultural properties: The legislature declares that the historic and cultural heritage of the State is among its important assets and that the rapid social and economic developments of contemporary society threaten to destroy the remaining vestiges of this heritage. The legislature further declares that it is in the public interest to engage in a comprehensive program of historic preservation at all levels of government to promote the use and conservation of such property for the education, inspiration, pleasure, and enrichment of its citizens. The legislature further declares that it shall be the public policy of this State to provide leadership in preserving, restoring, and maintaining historic and cultural property, to ensure the administration of such historic and cultural property, in a spirit of stewardship and trusteeship for future generations, and to conduct activities, plans and programs in a manner consistent with the preservation and enhancement of historic and cultural property.26 The State's interest in preserving and maintaining historic properties is also reflected in the regulations, which state: 7

The goal of the review process is to identify significant historic properties in project areas, assess any effects, and then to develop and execute plans to avoid, minimize, or mitigate adverse effects to the significant historic properties in the public interest. The process supports the policy of chapter 6E, HRS, to preserve, restore and maintain historic properties for future generations.27 In line with these goals, the State has made it a civil and administrative offense for any person to take, appropriate, excavate, injure, destroy or alter historic properties, including burials, without prior permission from SHPD.28 In addition, it is a criminal offense to knowingly take, appropriate, excavate, injure, destroy or alter burials, without prior permission from SHPD.29 Such laws make it clear that burials are an important asset and that the State's primary goal is to protect and preserve them. To limit testing standard to advance these goals would be a proper exercise of discretion. V. CURRENT AND PROPOSED INDUSTRY STANDARDS FURTHER SUPPORT SHPD'S AUTHORITY AND DISCRETION IN REGULATING ARCHAEOLOGICAL ACTIVITIES TO PROMOTE PRESERVATION GOALS A. SECRETARY OF THE INTERIORS STANDARDS AND GUIDELINES FOR ARCHAEOLOGY AND HISTORIC PRESERVATION

The federal archaeological and historic preservation standards are published by the National Park Service, Department of the Interior. They are intended to provide technical advice about archaeological and historic preservation activities and methods. They are prepared pursuant to the authority provided by section 110 of the National Historic Preservation Act of 1966, as amended ("NHPA"). 1. Value of consultation in integrating identification activities into the preservation planning process

The federal archaeological and historic preservation standards recognize the inherent conflict between historic preservation and land use planning goals.30 The preservation planning

process, which is provided for in the federal standards, is aimed at resolving these conflicts. Preservation planning is a process that organizes preservation activities (identification, evaluation, registration and treatment of historic properties) in a logical sequence.31 Public participation is an integral part of the preservation planning process.32 The federal standards provide that interested individuals, organizations and communities in the planning area should be involved in identifying the kinds of historic properties that may exist and suitable protective measures.33 In this way, they are similar to the historic preservation review process in Hawaii. 2. Survey strategies and activities should be designed to achieve preservation goals

The federal archaeological and historic preservation standards are also similar to those found in Hawaii in that they do not specify the required scope of inventory and identification. Rather, the standards provide general guidelines as follows: Identification activities are undertaken to gather information about historic properties in an area. The scope of these activities will depend on: existing knowledge about properties, goals for survey activities developed in the planning process; and current management needs.34 These standards focus on gathering sufficient information to achieve preservation goals: Archival research and survey activities should be designed to gather the information necessary to achieve defined preservation goals. The standards also recognize that a variety of field survey techniques, along with the varying levels of effort that may be assigned, give great flexibility to implementing field surveys.35 They note that [i]t is important that the selection of the field survey techniques and the level of effort be responsive to the management needs and preservation goals that direct the

survey effort.36 Furthermore, the federal standards note that survey methods may be employed according to a sampling procedure to examine less-than-the-total project.37 Flexibility is, therefore, built into these standards. B. ADVISORY COUNCIL ON HISTORIC PRESERVATION'S RECOMMENDED APPROACH FOR CONSULTATION ON RECOVERY OF SIGNIFICANT INFORMATION ARCHAEOLOGICAL SITES

Similar to Chapter 6E of the Hawaii Revised Statutes, Section 106 of the NHPA requires federal agencies to take into account the effects of their undertakings on historic properties, and afford the Advisory Council on Historic Preservation ("ACHP") a reasonable opportunity to comment. In line with this role, the ACHP has published its recommended approach for consultation by federal agencies, state historic preservation officers, tribal historic preservation officers, and others on the effects of federal, federally assisted, and federally licensed or permitted undertakings on archaeological properties. 1. Importance of consultation with cultural descendants

The ACHP guidelines recommend that the nature and scope of treatment for archaeological properties should be determined in consultation with interested parties.38 In addition, the guidelines state: An archaeological site may have important values for living communities and cultural descendants in addition to its significance as a resource for learning about the past; its appropriate treatment depends on its research significance, weighed against these other public values.39 The guidelines recognize the importance of consultation with cultural descendants and consideration of their views in the historic preservation process. 10

2.

Destruction of archaeological sites should be avoided

The guidelines also recognize the importance of preserving archaeological sites for future generations. The guidelines provide that: Methods for recovering information from archeological sites, particularly large-scale excavation, are by their nature destructive. The site is destroyed as it is excavated. Therefore management of archeological sites should be conducted in a spirit of stewardship for future generations, with full recognition of their non-renewable nature and their potential multiple uses and public values.40 Minimizing the potential to destroy archaeological properties, therefore, is a valid consideration in determining the scope of archaeological activities in culturally sensitive areas. C. STANDARD OPERATING PROCEDURES REVIEW & COMPLIANCE AND SURVEY & INVENTORY (DRAFT FOR REVIEW AND COMMENT JULY 16, 2012)

The draft Standard Operating Procedures, which have prepared by a group of archaeologists in partnership with SHPD and the National Park Service, provide guidelines on the survey and inventory process in Hawaii. These draft guidelines are not final yet, and are still in the review and comment period. 1. SHPD should monitor consultation

The draft guidelines recognize that the State regulations require consultation at a variety of points throughout the review process. For this reason, the guidelines recommend that SHPD monitor and require appropriate consultation, including with lineal and cultural descendants.41 2. The scope of an archaeological survey can vary

The draft guidelines also provide for flexibility in the scope of a survey. They note that the scope of a survey will be determined by its specified purpose and objective.42

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Burials, however, do present some unique issues in Hawaii. The draft guidelines provide: Although HAR 13-276-4(b) implies that project areas that do not contain visible (i.e. at the ground surface) historic properties or do not provide evidence that subsurface sites are anticipated, it is general practice today that some level of subsurface testing is always required. This is primarily the result of recent cases in which unmarked burials have been discovered. Based on these cases, test excavations should always be conducted in project areas where Jaucus and/or Puuone sand deposits are known to occur or where such deposits are documented nearby and may occur in the nearby areas.43 The guidelines do not specify the depth required for the test excavations, but note that SHPD should be consulted in making this determination.44 In so doing, the guidelines recognize that SHPD has authority and discretion in setting the scope of the survey. The Hawaii Supreme Court, in its recent decision in Kaleikini v. Yoshioka, et al., No. SCAP-11-0000611 (August 24, 2012), while ruling that SHPD's approval of City's phasing of the AIS required for its proposed rail project was not permitted under its regulations, confirmed its support for the exercise of discretion by the agency in the historic preservation review process where expressly provided for its rules: Moreover, where a rule is unambiguous and consistent with the policies of the statute, and its application will not produce an absurd or unjust result, we enforce the rule's plain meaning.45 Unlike the absence of state law supporting the phased AIS process in the recent Kaleikini decision, the express provisions in SHPD's rules supporting the agency's discretion in regulating archaeological activities including the determination of whether an AIS is required for any project in the State of Hawaii is clear and unambiguous. Similarly, the agency's consideration of the request from KKH to limit the scope of archaeological testing to avoid further impacts to potential burials is consistent with the objectives and goals of HRS Chapter 6E. 12

VI.

CONCLUSION The foregoing supports a finding that SHPD-DLNR does have the authority and

discretion to determine the scope of AIS testing and sampling, particularly in circumstances promoting preservation goals.

1 2

Haw. Rev. Stat. 6E-1. Haw. Rev. Stat. 6E-1. 3 Haw. Rev. Stat. 6E-2. 4 Haw. Admin. 6E-3(13). 5 Haw. Admin. 6E-3(1). 6 See Haw. Rev. Stat. 6E-8, 6E-42. 7 Haw. Admin. R. 13-284-3(b). 8 Haw. Admin. R. 13-284-5(b). 9 Haw. Amin. R. 13-284-5(b)(5). 10 Id. 11 Haw. Admin. R. 13-284-5(b)(5)(A). 12 Haw. Admin. R. 13-284-2. 13 See Haw. Admin R. 13-276-4(a), (b). 14 Haw. Admin. R. 13-276-2. 15 Haw. Admin. R. 13-276-4(a). 16 Haw. Admin. R. 13-276-4(c). 17 Kaleikini v. Yoshioka, et al., No. SCAP-11-0000611 (August 24, 2012) at page 59. 18 Kaleikini v. Yoshioka, et al., No. SCAP-11-0000611 (August 24, 2012) at page 57 - 60. 19 Haw. Admin. R. 13-284-5(c); See also Kaleikini v. Yoshioka, et al., No. SCAP-11-0000611 (August 24, 2012) in which the Hawaii Supreme Court at page 52 of the decision, while ruling that SHPD's approval of City's phasing of the AIS required for the proposed rail project was not permitted under its regulations, confirmed the agency's authority to regulate archaeological activities where expressly provided in its rules including the discretion to determine whether an AIS would be required for any given project. 20 Haw. Admin. R. 13-276-4(b). 21 Haw. Admin. R. 13-276-4(d). 22 Haw. Admin. R. 13-276-4(b). 23 Haw. Admin. R. 13-284-5(c)(2)(D). 24 Haw. Admin. R. 13-284-2. 25 Id. 26 Haw. Rev. Stat. 6E-1. 27 Haw. Admin. R 13-284-1(a). 28 See Haw. Rev. Stat. 6E-11. 29 Haw. Rev. Stat. 6E-72. 30 National Park Service, Department of the Interior, Archaeology and Historic Preservation: Secretary of the Interior's Standards and Guidelines [As Amended and Annotated], http://www.cr.nps.gov/locallaw/arch_stnds_2.htm (last visited August 24, 2012). 31 Id. 32 Id. 33 Id. 34 Id. 35 Id. 36 Id.

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37 38

Id. Advisory Council on Historic Preservation, Recommended Approach for Consultation on Recovery of Significant Information from Archaeological Sites, http://www.achp.gov/archguide.html (last visited August 24, 2012). 39 Id. 40 Id. 41 Solutions Pacific, Inc., Fung & Associates, and Cultural Surveys Hawaii, Inc.. in partnership with Hawaii State Historic Preservation Division and National Park Service, Standard Operating Procedures, Review & Compliance and Survey & Inventory (draft for review and comment), July 16, 2012. 42 Id., at 68. 43 Id., at 71. 44 Id., at 68. 45 . Kaleikini v. Yoshioka, et al., No. SCAP-11-0000611 (August 24, 2012) at page 60, citing In re Wai'ola O Molokai, Inc., 103 Hawaii 401, 425, 83 P.3d 664, 688 (2004)

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