Close to 20 months of work removing more than 600 burials from unmarked graves at Kawaiaha‘o Church came to a halt Friday after an appellate court ordered a stop to excavation work for a multipurpose building that has upset many Native Hawaiians and even some members of Hawaii’s oldest church.
A three-member panel of Hawaii’s Intermediate Court of Appeals granted an injunction sought by Hawaiian cultural specialist Dana Naone Hall, barring any work at the Honolulu church that could result in disinterment of more human remains.
It is the second time that construction has been frozen on the $17.5 million project, which began in January 2009.
The panel issued its injunction in view of last month’s Hawaii Supreme Court ruling that held the State Historic Preservation Division should have required an archaeological survey for remains all along the city’s planned 20-mile rail route before construction began.
Hall argued in her lawsuit that Kawaiaha‘o Church should have conducted an archaeological survey.
The three judges indicated that they likely agree. "We conclude that Hall has shown a substantial likelihood of success on the merits," the injunction order said.
The judges also wrote that there is a substantial likelihood they will conclude that SHPD violated its rules by approving the multipurpose center project without requiring an archaeological survey.
It is unknown how many burials remain on the project site.
Church contractor Cultural Surveys Hawai‘i has removed 605 burials and thousands of individual bones as of Sept. 9, based on the latest available report it submitted to SHPD.
Hall, in a written statement, expressed sorrow over how many burials have been disturbed and that it took three "grueling" years for the legal system to side with her view that SHPD sidestepped the normal process for handling construction projects that encounter historic burials.
"It has taken three long years," she said. "This case spans the end of the Lingle Administration and the first years of the Abercrombie Administration, during which time the SHPD has routinely failed to follow its own rules to the detriment of historic properties and burial sites."
A spokeswoman for the Department of Land and Natural Resources, which oversees SHPD, declined to comment on the ruling until the department has a chance to read it.
Hall filed a lawsuit in 2009 contending that SHPD wasn’t following state law protecting historic burials. But Circuit Judge Karl Sakamoto ruled last year that the burial law didn’t apply because the remains are within a Christian cemetery. The church obtained an exemption for "known, maintained, actively used" cemeteries to get a state Department of Health permit to remove burials.
That ruling is now in question. A decision by the appellate court on the issue is expected to determine what the future holds for the multipurpose center project.
Kahu Curt Kekuna, Kawaiaha‘o’s senior pastor, said in a written statement that the church is reviewing the injunction order and considering its options.
"Kawaiaha‘o Church will continue to follow the direction of the courts and the agencies exercising oversight on the project," he said.
David Kimo Frankel, a Native Hawaiian Legal Corp. attorney representing Hall and a separate plaintiff in the rail case, said he intends to ask the court that human remains, or iwi, be returned to their prior resting place and that nothing be built on top of them.
Frankel also criticized SHPD, saying it appears the agency has "bent over backwards" to accommodate development at the expense of iwi it is charged with protecting.
Hall filed her appeal with the intermediate court in February asking for an injunction that stops construction. But the court at that time denied her request. Hall renewed her injunction request Sept. 5, noting the relevance of the rail ruling and the "continuing desecration of hundreds of burials."
Hall had acknowledged that it might be prudent for the appeals court to wait for the resolution of a city request asking the Hawaii Supreme Court to reconsider its rail decision. The high court denied the reconsideration request Thursday.
Until the appellate court rules on the merits of Hall’s appeal, it said Kawaiaha‘o Church is enjoined from the disinterment of human skeletal remains related to the multipurpose center project. The court also barred all construction activity related to the project that could result in the disinterment of iwi.
Construction was previously halted in March 2009 after 69 burials were unearthed by trenching work for utilities. That stoppage lasted two years while the church arranged to get the Health Department disinterment permit with SHPD’s blessing.
The two-story multipurpose building is designed to have 30,000 square feet of space for classrooms, conference rooms, a kitchen, library, bookstore, church archives and a small museum of church antiquities.
The site of the project was formerly occupied by Likeke Hall, a church office building and a small parking lot. Likeke Hall, which was torn down two years ago, was built in 1940 on a site previously used for burials.
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Star-Advertiser reporter Ken Kobayashi contributed to this story.
Order granting plaintiff’s motion for preliminary injuction
