Hawaii Supreme Court Declines Further Appeal of Wal-Mart Case Involving Native Hawaiian Burials

Today the Hawaii Supreme Court ("HSCT") rejected Plaintiffs' Writ of Certiorari in Hui Malama v. Wal-Mart.

As discussed in, Hawaii Appellate Court Holds that Native Hawaiian Burials Uncovered by Developer was "Inadvertent", the Plaintiffs brought action against the Department of Planning and Permitting ("DPP") of the City and County of Honolulu alleging DPP failed to comply with HRS § 6E-42.  Plaintiffs argued that DPP did not seek review and comment from the State Historic Preservation Division (SHPD) before issuing grading and building permit applications.  Forty-two human skeletal remains were subsequently uncovered at the project site.

On appeal, the Intermediate Court of Appeals ("ICA") agreed with the Circuit Court that

. . . HRS § 6E-42 was inapplicable to the Wal-Mart Project because at the time DPP issued the grading and building permits, there was no factual basis to know or reasonably believe that the Wal-Mart Project “may affect” a burial site. Furthermore, even if this court agreed with Plaintiffs' argument that City Defendants should have conducted “a much more rigorous, searching and independent analysis of the project's effect[,]” Plaintiffs have provided no evidence that such a review would have uncovered the burial site's existence.

DPP’s determination that the development would have “no effect” on historic properties, was based on the information presented in DPP records and the knowledge that the project site was extensively developed over the years.

For more on historic preservation and burial law issues, see Historic Preservation.