The state appellate court delivered a stinging blow to Kawaiaha‘o Church’s plans to build a multipurpose building in ruling Friday that an archeological survey should have been conducted before construction of the $17.5 million project began.
The appellate court had ordered a halt to excavation work in September by ruling that Native Hawaiian cultural advocate Dana Naone Hall would likely prevail on her claims that the construction threatened human remains in unmarked burials.
In a 37-page unanimous opinion by Chief Appeals Judge Craig Nakamura, a three-judge appellate panel ruled Friday in favor of Hall and held that the State Historic Preservation Division should have required the survey before the construction.
The court cited the Hawaii Supreme Court ruling in August that mandated the halt to construction of the city’s rail project until an archeological survey was done for the entire 20-mile route.
"I’m elated because of the past 10 years there’s been an erosion of the protections afforded to prehistoric and historic sites," Hall said.
She said the failure to prepare the survey led to the "tragic and unnecessary desecration" of more than 600 burials.
"The (court’s) opinion opens up the path for a proper reburial of the iwi kupuna in their original resting place," she said.
The church issued a brief statement.
"The church is reviewing the decision by the court and conferring with our attorneys to determine what our options are," said William Haole, chairman of the Kawaiaha‘o Church board of trustees.
The Native Hawaiian Legal Corp., which represented Hall, said the appellate court ruled that the efforts by the church and state to "circumvent" the State Historic Preservation law were illegal.
In its ruling the appellate court said the high court’s rail ruling in August was controlling.
The appellate judges concluded "that the SHPD should have required Kawaiaha‘o Church to complete an AIS (archeological inventory survey) before concurring in the (multipurpose center) project and that the SHPD violated its own rules in failing to require an AIS before permitting the project to go forward."
The state and the church argued that Native Hawaiian burials uncovered during the project were "Christian burials" that aren’t protected by the law, the appellate court noted.
But the appellate court said it disagreed and said the law’s protections of "burial sites do not turn on religious distinctions."
The removal of more than 600 burials from unmarked graves had upset many Native Hawaiians and some members of Hawaii’s oldest church.
As of Sept. 9 church contractor Cultural Surveys Hawaii had removed 605 burials and thousands of individual bones, according to a report it submitted to SHPD.
Hall filed her lawsuit in 2009 maintaining that SHPD wasn’t following state law protecting historic burials.
The church asked the Hawaii Supreme Court to review the appellate court’s September decision issuing an injunction halting excavation work. The high court denied the request Tuesday.
Appellate Judges Katherine Leonard and Lawrence Reifurth joined in Nakamura’s opinion.
The state said it could not comment until it reviewed the ruling, Deputy Attorney General James Walther said.
The two-story multipurpose center on church grounds is planned to have 30,000 square feet of space for classrooms, conference rooms, a kitchen, a library, a bookstore and a small museum.
