State House lawmakers are growing uncomfortable with a bill that would allow the state to conduct phased reviews of the impact of construction projects on burials or other historic property.
The Abercrombie administration asked for the bill in response to a state Supreme Court ruling last August that temporarily blocked construction of the Honolulu rail project. The administration has cautioned that state construction could be delayed if archaeological inventory surveys have to first be completed for entire projects, rather than in phases, which had been the practice before the court’s decision on rail.
But many Native Hawaiians contend the bill would weaken protection for human remains, or iwi, and opposition also appears to be building among conservationists and environmentalists.
With wounds still healing from the barbs against the Public Land Development Corp., which had received broad exemptions from land use regulations, lawmakers are closely vetting any legislation that could potentially relax state regulatory oversight.
The House Finance Committee — flooded with written testimony in opposition and confronted by Native Hawaiian students carrying signs that read "All Iwi Sacred" and "Another Excuse 4 Desecration" — voted 13-4 last week to send the bill to the full House. Six lawmakers voted for the bill with reservations, however, a potential warning sign for when the bill comes up for a House vote this week.
"Members will probably have concerns based on environmental and Native Hawaiian-related issues," said House Majority Leader Scott Saiki (D, Downtown-Kakaako-McCully). "I’m not sure what the level of support will be on Tuesday, but I’m expecting that the House members will expect us to try to mitigate this bill if it goes into conference."
House lawmakers had previously narrowed Senate Bill 1171 to allow the State Historic Preservation Division to conduct phased reviews only on construction projects that extend along corridors or large land areas, where access to property is restricted, or where circumstances dictate that construction be done in stages. The House would require agreements between the state and project developers that would identify timelines for each phase of the projects.
The Abercrombie administration said the bill would align state law to federal law, which allows phased reviews as part of its rules on historic preservation. Without the change, according to the administration, improvements to Queen Kaahumanu Highway and Saddle Road on Hawaii island, the Lahaina bypass on Maui, the Kapaa bypass on Kauai and Kapolei Parkway on Oahu could be hurt.
Private construction interests and building trade unions have supported the administration’s request.
"If we didn’t believe that we needed it, we wouldn’t be asking for them to approve it," said William Aila, director of the state Department of Land and Natural Resources, which oversees the State Historic Preservation Division.
The state Office of Hawaiian Affairs and the Native Hawaiian Legal Corp. counter that permitting construction to start before full archaeological inventories threatens iwi and irreplaceable historical sites. The options available to protect human remains discovered after construction has begun, Hawaiians argue, are limited and often influenced by financial and political pressure to complete projects.
Many Hawaiians already lack faith in the State Historic Preservation Division, which has been under federal monitoring for failure to adequately protect the state’s cultural resources.
The Supreme Court ruled that the division should not have signed off on the $5.26 billion Honolulu rail project until an archaeological inventory survey was completed along the entire 20-mile route from Kapolei to Ala Moana Center. The city’s rail authority announced in February that fieldwork for the survey had been completed and that construction could resume later this year.
The Senate voted 19-6 in March to advance the bill that would allow phased reviews of construction projects, but eight senators voted for the bill with reservations. Senate Majority Leader Brickwood Galuteria (D, Kakaako-McCully-Waikiki) said some of the discomfort at the time was likely due to the toxicity left by the PLDC, which is up for a repeal vote in the Senate this week.
"I think most people are OK with the phasing," Galuteria said.
In the House, some lawmakers have cited their uneasiness about undoing the Supreme Court’s ruling on rail in addition to their concerns about historic preservation.
"It’s the law. The court said if you’re going to do it, you do it according to the whole project," said Rep. Gene Ward (R, Kalama Valley-Queen’s Gate-Hawaii Kai). "And it’s really for projects like the rail."
Rep. Nicole Lowen (D, Holualoa-Kailua-Kona-Honokoha), a freshman who is active with the Sierra Club, said some of the concerns over how phased reviews would be conducted could be addressed through the DLNR’s administrative rule-making process.
Lowen said she does not want to unnecessarily delay state construction projects, but is also reluctant to approve a bill that might be overly broad and could trigger lawsuits.
"That would just cost the state time and money and delay projects, probably more so," she said.
