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Wednesday, April 17, 2013
SB 1171 – Phased Archeological Inventory Surveys
By News Release @ 2:13 PM :: 4097 Views :: Development, Land Use, OHA

This article from the blog of Sen. Laura Thielen gives a good overview of the issues surrounding SB1171: 

SB 1171 – Phased Archeological Inventory Surveys

From SenatorLauraThielen.com, April 17, 2013

We Legislators receive a fair amount of testimony on bills.  The testimony from hearings is posted online.  But as we hit Conference Committee, we’re getting a lot of testimony by email.

I want to share some of this “down to the wire” testimony with you, because it illustrates the details Legislators have to wrestle with as we negotiate final bill language vs. letting a bill die.

Today I’m sharing testimony from two opposite views on SB 1171: Relating to the Review of Historic Preservation Projects.

The first testimony is from the State Department of Transportation – a supporter of the bill.

The second testimony is from Native Hawaiian Legal Corporation – an opponent of the bill, responding to the DOT testimony.

I requested permission from the Directors of DOT and NHLC to disseminate their testimony.  This is an important policy question for our state that many people are interested in.  I wanted to share this testimony because both provide high quality, substantive information, which can help inform public debate.  Happily, both agreed.  (I took the name of the staffer who wrote the DOT testimony off the mails, but left the title.)

But first, a brief overview of the bill, and my vote to date:

SB1171 was submitted in response to a recent Hawaii Supreme Court decision.  The City had argued that the Rail Project could conduct the Archeological Inventory Survey (AIS) in phases.

Native Hawaiian Legal Corporation represented a Plaintiff who sued, saying Hawaii State law prohibited phased AIS.  Basically, the concern with phased AIS is the project may begin construction after surveying the area least likely to find historic sites or burials.  Then, after a lot of money is spent, if later surveys discover sites, the argument will be “well, we can’t stop (or re-design) the project now, look how much money we spent.”

Our Supreme Court agreed and said an AIS cannot be conducted in phases under Hawaii law.  FYI, this bill won’t impact Rail, because after the Court order, they completed the entire AIS for that project.

SB 1171 would allow AIS to be conducted in phases for future projects under three circumstances:

  1. The proposed project consists of corridors or large land areas;
  2. Access to properties is restricted; or
  3. Circumstances dictate that construction be done in stages.

I voted against the bill, because I felt the language was WAY too broad.  Any lawyer worth their salt could argue number 3 applies to just about any large project.  Imagine a resort built on a beach area, known to be likely location for burials.  You shouldn’t design the location of the open space vs. the buildings until you survey the entire area.

I’m not on the Conference Committee for the bill, so I can’t directly impact final language.  But after speaking with the Directors of DOT and NHLC yesterday, I started wondering if there is a middle path that may be workable.

Perhaps we could allow a phased AIS for public infrastructure projects that are stand-alone portions of a larger Master Plan.  The problem is, how do you define the line when it’s allowed, and when not?

For example, Honolulu Harbor probably has a 20-year Master Plan, with a lot of improvements desired over that period.  However, in a given 5-year period, it may be funded to build only a single pier and replace several buildings.

These piers and buildings are part of the 20-year Plan, but they can stand alone – meaning they can be used and operated separate from the other improvements envisioned in the 20-year plan.

This is the easy example, and most people would likely say a phased AIS should be allowed in this case.  But what about a Plan that spans 10 years?  Five years?

Should we allow phased AIS for any project that is built over a period of multiple years, for each stand-alone portion of the project?  If so, is it possible to separate the “legitimate” phasing from the resort example, where you could argue the golf course is a stand alone project?

Read the testimonies below.  They’re long, but they provide a lot of information on a topic many of us legislators are wrestling with.  I’d welcome your comments and thoughts on the topic too.  I’d also be happy to share constructive ideas with the Legislators on the Conference Committees.

FYI, anyone can send in unsolicited testimony during this period on any bill.  It’s not uncommon.

DOT E-MAIL

Aloha All Senators,

We understand that all of you are continuing to receive emails to kill this bill. We hope that you keep the following facts in mind and continue tosupport the passage of SB1171:

1. Under SB 1171, projects will still fully comply with HRS Section 6E – State Historic Preservation law and the National Historic Preservation Act. This bill does not circumvent HRS Chapter 6E, the State’s historic preservation law, or any rule implementing HRS Chapter 6E. All required archaeological inventory studies (“AIS”) required by HRS Chapter 6E will be completed, reviewed and necessary mitigation or other action will be completed before any construction is done in the affected project areas. This is a streamlining bill that does not change the state or county’s obligation to consult with the State Historic Preservation Division (SHPD) on “the effect of the proposed project on historic properties, aviation artifacts, or burial sites, consistent with section 6E-43.”

2. SB 1171 will make Hawaii law consistent with the National Historic Preservation Act, Section 106, 36 C.F.R. Section 800.4(b) (2) (2010). This bill would make state historic preservation laws consistent with federal historic preservation laws.

The National Historic Preservation Act, Section 106, 36 C.F.R. Section 800.4(b) (2) (2010).

which provides, in pertinent part:

Phased identification and evaluation. Where alternatives under consideration consist of corridors or large land areas, or where access to properties is restricted, the agency official may use a phased process to conduct identification and evaluation efforts. The agency official may also defer final identification and evaluation of historic properties if it is specifically provided for in a memorandum of agreement executed pursuant to § 800.6, a programmatic agreement executed pursuant to § 800.14(b), or the documents used by an agency official to comply with the National Environmental Policy Act (NEPA) pursuant to § 800.8. The process should establish the likely presence of historic properties within the area of potential effects for each alternative or inaccessible area through background research, consultation and an appropriate level of field investigation, taking into account the number of alternatives under consideration, the magnitude of the undertaking and its likely effects, and the views of the [State Historic Preservation Officer/Tribal Historic Preservation Officer] and any other consulting parties. As specific aspects or locations of an alternative are refined or access is gained, the agency official shall proceed with the identification and evaluation of historic properties in accordance with paragraphs (b) (1) and (c) of this section.”

3. SB 1171 confirms the process that the State, counties private parties and federal agencies have been using for decades (prior to the Kaleikini case) to enter into programmatic agreements and do phased SHPD reviews.. While there is no identical provision in State law, or in the SHPD rules, for years, the SHPD, State and counties have approved programmatic agreements and plans for government projects pursuant to the above NEPA law and a consistent interpretation of State laws and the SHPD rules.

In August 2012, however, the Hawaii Supreme Court (“Court”) ruled in Kaleikini v. Yoshioka that SHPD had violated its own rules in allowing construction to begin on the Honolulu Rapid Transit Corridor (“Rail Project”), before the completion of an AIS for the entire project. SHPD had relied on federal law to justify acceptance of a phased AIS. The Court ruled that the application of federal law was invalid because there was no specific Hawaii law or rule to allow for a phased review. Thus, although the State and the City and County of Honolulu considered the Rail Project as a “phased” project, the Court ruled that Rail was a “single” project and thus must be evaluated for archaeology as a single project, and not in phases. This meant that an AIS would be required for the entire Rail corridor, prior to starting the first phase of the Rail project. In a footnote, however, the Court also suggested that SHPD could amend its rules so that state law would be consistent with the federal law in the National Historic Preservation Act, which allows programmatic agreements and phased reviews.

4. If SB 1171 is not passed, there will be delays in constructing new facilities for State master planned projects, and delays in constructing improvements to existing master-planned facilities. Although the subject project in Kaleikini v. Yoshioka is the City and County of Honolulu’s Rail Project, the ruling is likely to have a far greater effect on major State highway, harbor, airport and renewable energy projects which are part of a state master plan, or other large state projects which are often phased due to federal funding, timelines, and practical considerations such as the timing of land condemnations. If large government projects cannot be phased, it is possible that major, master-planned new state facilities will face great obstacles in being built and existing state facilities will also face obstacles in constructing master-planned improvements.

5. SB 1711 only makes two “procedural” changes – there will still be full compliance with the State Historic Preservation law, HRS Chapter 6E and full compliance with National Historic Preservation Act. The bill makes two procedural changes:

(1) Authorizes phased reviews of projects. First, as explained above, the bill authorizes the phased review of projects that consist of corridors or large land areas, where access to properties is restricted, or where circumstances dictate that construction be done in stages. The Hawaii Supreme Court’s decision in Kaleikini v. Yoshioka, 128 Haw. 53 (2012) invalidated the Honolulu Rail Transit Project’s phased archeological inventory survey approach. The unintended consequence of this decision is that it barred phased scrutiny of all linear projects. However, the Court did note that “regulations implementing the National Historic Preservation Act of 1966 (NHPA) explicitly permit the phased identification and evaluation of historic properties.” This bill would make state historic preservation laws consistent with federal historic preservation laws. Specifically the NHPA, which concerns the identification of historic properties under federal law and specifically allows for phased historic review of certain projects. This bill does not circumvent HRS Chapter 6E, the State’s historic preservation law, or any rule implementing HRS Chapter 6E. All required archaeological inventory studies (“AIS”) required by HRS Chapter 6E will be completed, reviewed and necessary mitigation or other action will be completed before any construction is done in the affected project areas.

(2) Removes redundancy in agency appeals. Second, the bill removes redundancy in agency appeals. Under the current law, if an agency or any person does not agree with SHPD’s determination, they may appeal to the Hawaii Historic Places Review Board (HPRB). If an agency or any person does not agree with the HPRB’s decision, they may petition the governor. At that point, the governor may (1) decide the matter based on the record of the HPRB, or (2) ask the Hawaii Advisory Council on Historic Preservation (ACHP) to prepare a report and then decide. This bill removes the option for the governor to ask ACHP for a report. Consequently, duplication of review by the HPRB is removed from the current process, and the governor is required to act more expeditiously in these matters.

6. FALSE INFORMATION from opponents of SB 1171. Some opponents of SB1171 have even brought up in their testimony opposing SB1171, false argument that Section 4(f) bars the use of phased archeological surveys for projects funded by the Federal Highway Administration (FHWA). This is inaccurate.

Section 4(f) and Section 106 are two different requirements. There is some overlap when historic properties are involved. A key difference is that Section 106 is essentially a consultative procedural requirement, while Section 4(f) precludes project approval if the specific findings cannot be made.

Section 4(f) does not conflict with Section 106 of the National Historic Preservation Act; in fact, Section 4(f) calls for coordination with section 106 of the National Historic Preservation Act to ensure that Section 4(f) requirements are met in cases where a phased approach to identification and evaluation of historic properties is adopted pursuant to Section 106 regulations. DOT and the AGs can provide further explanation for you. Examples of potential impacted DOT projects include:

Island of Hawaii

    1.  Queen Kaahumanu Highway Widening (Palani Street to Kawaihae) $580M total ($130M for Ph I & II + $450M for Keahole to Kawaihae) 2.  Keaau-Pahoa Road Widening, Keaau to Pahoa $140M total (EIS preferred alternative) 3.  Saddle Road, Hilo to Queen Kaahumanu Highway $249M total 4.  Kohala Mountain Road, Drainage Improvements, Phase 1, 2, & 4.  $3M 5.  Puainako Street Widening, Kawili to Komohana.   $TBD 6.  Kuakini Street Extension possible phasing $TBD 7.  Kanoelehua Avenue Widening, Kamehameha Avenue to Panaewa.   $6M + Phases 2 & 3 (TBD).

Island of Maui

  1. 1.    Lahaina By-Pass $210M total 2. Paia By-Pass $110M total (excluding land acquisition) 3. Mokulele Highway Widening, Kolaloa Bridge to Piilani Hwy.   $3.7M 4.  Honoapiilani Hwy Widening/Realignment, Maalea to Launiupoko.  $50M 5.  Haleakala Hwy Widening, Hana Hwy to Pukalani Bypass, Phase I.  $9M 6.  Kihei-Upcountry Highway (PHI, PHII, PHIII) $220M

Island of Kauai

  1. 1.    Lydgate Bikeway $60M total (Nawiliwili to Anahola) 2. Kapaa By-Pass (Lihue to Kapaa) $150M – $310 range (no alternative selected yet – 2006 DEA) 3. Kaumualii Hwy Widening, Lihue to Rice Street.   $30M 4. Waimea Canyon Drive/Kokee Road Improvements, Phase 1 & 2.   $9M

Island of Oahu

  1.  Leeward Bikeway (Pearl Harbor to Nanakuli) $32M total 2.  Kualakai Parkway (H-1 to Roosevelt Road) $141M total (2004 FEA) 3.  Kapolei Parkway, Makakilo to Ewa $20.4M total (STIP figure) 4.  H-1 PM Contraflow, Phase I and 2, Radford to Waiawa, Waiawa to Paiwa.   $120M 5.  Casstle Hills Access Road Drainage Improvements, Phase 1 & 2.  $25M 6.  Kalanianaole Highway Improvements, Olomana Golf Course to Poalimia Street.   $50M

Statewide

1.  All Statewide-type programs are conducted by phases:   Pedestrian & ADA Compliances, Freeway Management System, Guardrail and Shoulder, Drainage, Safety Improvements, etc. 2.  All Pavement Projects are conducted by phases for long corridors.   We cannot fund entire length of corridors.   E.g.  Oahu- Kalanianaole Highway, Kamehameha Highway, Kahekili Highway & Farrington Highway; Hawaii – Hawaii Belt Road, Volcano Road, Kuakini Highway; Maui – Haleakala Highway, Honoapiilani Highway, Hana Highway; Molokai –  Kamehameha V Highway, Maunaloa Highway, Kalae Highway;  Lanai – Kaumalapau Highway; Kauai – Kaumualii Highway, Kuhio Highway, etc.

There are other Departments and their initiatives will also be affected by this bill:  Department of Education and their expansions, or new schools; Department of Hawaiian Homelands and their developments; Department of Business Economic Development and Tourism and their energy and development projects, including public housing projects; Department of Agriculture and their initiatives for farming and agriculture.

We apologize for the lengthy email and hope that this provides the guidance to support the passage of SB1171.

Thank you for your time and consideration,

/s/, Deputy Director – Projects State of Hawaii Department of Transportation

NATIVE HAWAIIAN LEGAL CORPORATION RESPONSE

Dear Senator,

Aloha.  My name is Moses Haia and I am the Executive Director of the Native Hawaiian Legal Corporation (NHLC).  NHLC represented Plaintiff Paulette Ka`anohiokalani Kaleikini in Kaleikini v. Yoshioka.  You recently received an email from [DOT] regarding SB 1171, HD 2, that contains misleading and inaccurate information.

First, this bill has the effect of allowing a project to be approved before the archaeological work for the project has been done. The consequences of this approach would be and have been catastrophic for iwi.   We have concrete evidence of this at Wal-Mart, Ward Villages and Kawaiaha`o in Kaka`ako.  Clearly, iwi deserve the dignity and respect provided by a comprehensive and complete archaeological inventory survey.

Second, the statement that projects will still “fully comply” with HRS Section 6E makes no sense. SB 1171 creates a giant loophole that would allow projects to “fully comply with the law” by putting iwi and other historic resources at risk.

Third, nothing in the language in SB 1171 actually requires that an AIS be completed, reviewed and necessary mitigation or other action be completed before any construction is done in the affected project areas.

Fourth, federal law is far stricter than the language found in SB 1171. For example, SB 1171 allows approval to occur “where circumstances dictate that construction be done in phases.” No such language is found in 36 C.F.R. § 800.4(b)(2). Furthermore, federal law explicitly requires that in the identification of historic sites, a “reasonable and good faith effort” be made. No such language is found in the bill. By introducing new language and excluding other language, SB1171 does not resemble federal law at all.

Fifth, the past practices that agencies and private parties have been illegally “following for decades” has led to the desecration of hundreds of iwi, unnecessary delays and cost overruns.

Sixth, the Hawai`i Supreme Court did not “rule” that Rail was a “single” project.  The City admitted it was a single, undivided project. The City never claimed it was a “phased project.” Rather, the City said that it would construct a single project in phases. This fact alone completely distinguishes the Rail case from the highway “projects” that DOT claims are threatened.  In fact, DOT has long claimed that the highway “projects” that are jeopardized are not single, indivisible projects, but rather multiple mini-projects. Therefore, the decision from the Kaleikini v. Yoshioka case should not jeopardize these projects. To the extent that DOT feels threatened, all that needs to occur is that the definition of a “project” be clarified in a manner similar to that found in Hawaii Administrative Rule §§ 11-200-7(A); 11-200-7(B).  This can easily be done through rulemaking.

Seventh, the Department of Transportation has a basic misunderstanding of section 4(f) of the Department of Transportation Act. (It is DOT’s misunderstanding of the law, by the way, which has caused the incredible delay in completing the Queen Ka`ahumanu Highway.)  Section 4(f) bars the phasing of archaeological work for highway projects.  The federal courts have so ruled on multiple occasions. And, section 4(f) protects burials sites, which are eligible for listing on the National Register of Historic Places – DOT’s misreading of the law notwithstanding.

Eighth, just as DOT can prepare an EA or EIS prior to construction, it can prepare an AIS.

The fears of the Department of Transportation are easily assuaged without a sweeping re-write of our laws that properly protect our heritage.

Mahalo,

Moses K. N. Haia III

Executive Director

Native Hawaiian Legal Corporation

1164 Bishop Street, Suite 1205

Honolulu, Hawaii  96813

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