Factual Basis Required Before Triggering the Statutory Duty to Confer

Hui Malama I Na Kupuna O Nei v. Wal-Mart (ICA December 16, 2009)

Background. Wal-Mart bought vacant land off of Ke'eaumoku Street in Honolulu. Before the purchase, numerous studies had been done on the land. All suggested no significant archaeological or historical sites were present. Old maps also showed that there was nothing of archaeological or historical interest. Wal-Mart also conducted a private assessment, which concluded nothing present. Wal-Mart applied for building permits from the City and County of Honolulu. The City checked a computer database check, which included information on properties listed on state and federal national historic registers and locations of known burials and sites provided by the Dept. of Land and Natural Resources. The database check showed that the property had been used for commercial purposes for over fifty years. The City issued the building permits without conferring with the State Historic Preservation Division (SHPD) at all.

Construction of the Wal-Mart revealed 42 sets of human remains. All of them were over fifty years old and it was likely that they were pre-contact Native Hawaiian remains. The remains were classified as inadvertent discoveries of human remains and were relocated and reburied on the property upon recommendation by the Oahu Island Burial Council.

Plaintiffs filed a complaint against the City, among others, seeking injunctive relief to stop the construction of Wal-Mart. Plaintiffs filed a motion for preliminary injunction. The motion was denied and Wal-Mart completed the building. The City filed a motion for summary judgment, which was granted. In its findings of fact, the circuit court found that there was no evidence that the City knew or should have known that the property was a burial site of archaeological interest. Plaintiffs appealed.

A Plain and Unambiguous Statute. The entire case came down to the interpretation of HRS § 6E-42:

Before any agency or officer of the State or its political subdivisions approves of any project involving a permit . . . or other entitlement for use, which may affect historic property, aviation artifacts, or a burial site, the agency or office shall advise [DLNR] and prior to any approval allow the department an opportunity for review and comment on the effect of the proposed project[.]

According to the ICA, this statute is plain and unambiguous. It does not require review and comment from SHPD on all proposed projects, but only those "which may affect historic property, aviation artifacts, or a burial site[.]" In doing so, the ICA rejected Plaintiffs' interpretation that called for review for any and all proposed projects. Such an interpretation would render the statutory language starting with "which" and modifying the words "project" and "other entitlement for use"superfluous and nugatory. This would not do because courts "are bound to give effect to all parts of a statute and . . . no clause, sentence, or word shall be construed as superfluous, void, or insignificant if a construction can be legitimately found which will give force to and preserve all words of the statute." Keliipuleole v. Wilson, 85 Hawai'i 217, 221, 941 P.2d 300, 304 (1997).

Policies and Spirit are Irrelevant in the face of Plain and Unambiguous Language. In concluding that HRS § 6E-42 was plain and unambiguous, the ICA did not examine the policy underlying HRS chapter 6E. "The general rule of statutory construction is that policy declarations in statutes, while useful in gleaning the purpose of the statute, are not, of themselves, a substantive part of the law which can limit or expand upon the express terms of the operative statutory provisions." Poe v. Hawaii Labor Relations Bd., 97 Hawai'i 528, 540, 40 P.3d 930, 942 (2002).

Failure to Challenge Finding Lead to No Evidence on Appeal. The ICA also rejected Plaintiffs' claim that the City had to do more than simply check a computer database before approving the permits. The ICA agreed that before approving a permit, the agency must advise and allow the SHPD to review and comment when "there is a factual basis to know or reasonably believe that the proposed project 'may affect historic property, aviation artifacts, or a burial site[.]'" Here, however, Plaintiffs failed to challenge the circuit court's finding that there was no evidence that the City knew or should have known that a burial site was on the property. "If a finding is not properly attacked, it is binding; and any conclusion which follows from it and is a correct statement of law is valid." Wisdom v. Pflueger, 4 Haw. App. 445, 459, 667 P.2d 844, 848 (1983). Moreover, the ICA pointed out that the decision to not submit the project to SHPD was also based on prior studies that showed no archaeological significance.

How much of a "Factual Basis" do you need? HRS § 6E-42 does not require government agencies to confer with SHPD for every single project. The agency only has a duty to confer with SHPD when the project may affect on historic or archaeologically significant sites. How is an agency supposed to know the difference? The ICA made it plain that in order to know the difference between those projects that require submission to the SHPD from those that do not, there must be a factual basis that the agency knew or reasonably believed to have known that the project had some affect. But just how much digging--no pun intended-- an agency has to do is unclear. It is unclear whether a mere search on a computer database is enough because Plaintiffs never challenged a finding of no evidence. That question is left for another day.