UPDATE: Hawaii Supreme Court Rejects Wal-Mart Burial Case
The Hawaii Supreme Court on Monday said it to a case stemming from the inadvertent discovery of 42 sets of Native Hawaiian burials during construction of the Honolulu Wal-Mart in 2003 and 2004.
The decision, which was handed down without further explanation, is effectively the end of the line for plaintiffs who had argued that the Honolulu Department of Planning and Permitting should have consulted with the Hawaii Historic Preservation Division before issuing Wal-Mart’s permits.
An application filed by the Native Hawaiian Legal Corporation on behalf of , a nonprofit organization whose name translates to “group caring for the ancestors of Hawaii,” was rejected, leaving the Intermediate Court of Appeals ruling as the final answer in the case.
In the , the appeals court said the that the preservation division be able to review and comment on any proposed project that “may affect historic property … or a burial site” does not apply to all projects. It said “there was no factual basis to know or reasonably believe that the Wal-Mart Project ‘may affect’ a burial site,” affirming a lower court’s ruling.
The court described the property in question as “brackish-water marshlands” that “had been filled and extensively developed and used by commercial and industrial tenants for at least fifty years.” The area had already undergone “multiple environmental, archaeological, and other assessments” that “included numerous subsurface excavations, borings, and testing.”
“None of these assessments indicated that significant burial or historic sites may exist on the Property,” the ruling states, adding that the preservation division “had previously advised that proposed developments for portions of the Property would either have no effect or were unlikely to have an adverse effect on significant historic sites.”
To former President Bill Clinton, the ruling comes down to what the definition of “may” is. The case is interesting because Hawaiian burials are often discovered in places where there is no “factual basis” to believe they “may” exist.
Does state law, as interpreted by the state’s courts, do an adequate job of protecting Native Hawaiian remains? I’ll be delving into this more tomorrow with a story about the rail project‘s potential impact on burials.
Join the conversation about burials and other land use issues.
(Hat-tip to Jesse at .)
