By Kamakana Ferreira, OHA Lead Compliance Specialist
The Office of Hawaiian Affairs (OHA) continues to assess and make recommendations to the State of Hawaiʻi Department of Health (DOH) and State Historic Preservation Division (SHPD) regarding the septic tank and leach field installation project at the Hale Makai Cottages at 4400 Oneone Road in Wainiha, Kauaʻi, where iwi kūpuna were encountered during respective ground disturbing work on at least three occasions in June and September 2024.
This private installation was permitted by DOH as part of a greater statutory mandate to have all cesspools statewide converted to septic or sewer by 2050. While the landowner voluntarily elected to have an archaeological monitor onsite for ground disturbing work, the project was not submitted to SHPD by DOH as part of their permit review process.
In late June, OHA was notified about the discovery of iwi kūpuna by SHPD via email, but not alerted about any concerns from the community. The notification from SHPD indicated that the iwi should be preserved in place. As iwi continued to be unearthed, OHA became more aware of the situation in late September through phone-calls and observance of social media posts.
On October 18, three Native Hawaiians were arrested for trespassing while protecting iwi kūpuna in response to continued work on the site without re-evaluation by the DOH and SHPD.
Given allegations of mishandling of iwi and failure to follow proper protocols, OHA reached out to SHPD which has jurisdiction over the disposition of inadvertently discovered iwi kūpuna. OHA requested to know if: 1) Any formal disposition determinations were made for the iwi; 2) Any recognized descendants or the Kauaʻi Island Burial Council (KIBC) moku representative were consulted; 3) The police department was contacted; and, 4) If any exploratory testing was done to better understand burial context.
In reply, SHPD indicated that the police department, cultural descendants, and the KIBC moku representative were all contacted. A formal determination letter, dated Oct. 1, 2024, was also provided by SHPD which indicated that all iwi kūpuna were to be preserved in place except for one, and that a Burial Site Component of a Preservation Plan (BSCPP) must be prepared.
No answer was provided regarding exploratory testing. OHA additionally requested to be consulted on the BSCPP and requested further information on buffer zones.
As DOH is the responsible permitting party, OHA reached out to their director, Dr. Kenneth Fink, to discuss the permitting process for this project. The goal was to determine if a stop work order could be issued until treatment and disposition of the iwi kūpuna could be properly determined in consultation with OHA, the community, and recognized descendants.
The call for a stop work order was also simultaneously echoed by the Native Hawaiian Legal Corporation and ʻĀina Momona.
OHA Chief Executive Officer Stacy Ferreira and staff were able to meet with Fink on October 23. During the meeting, OHA learned that, as part of the DOH permit review process for these kinds of Individual Wastewater Systems (IWS), there is no means to assess attestations from the landowner as to whether iwi kūpuna or cultural resources are present on property.
Further, there was no mechanism or process to determine which projects should be sent to SHPD for HRS 6E historic preservation review. Given these concerns and the potential liability for DOH, a stop work order was requested within hours after the meeting.
Ferreira also called for a meeting with the Department of Land and Natural Resources (DLNR) Chair Dawn Chang on October 24. Chang expressed the importance of being proactive. If DOH had sent the project to SHPD for HRS 6E review, then they could have required an archaeological inventory survey (AIS) first.
It has been OHA’s stance that an AIS is the most advantageous means of identifying iwi kūpuna during the permitting process. Locating iwi during an AIS allots a “previously identified” designation that affords more time for consultation and puts disposition of the iwi in the hands of recognized descendants and the burial council – as opposed to SHPD for inadvertent discoveries.
At this time, OHA directly requested further consultation for the BSCPP, sifting of the backfill piles, and inclusion of culture monitors as part of future ground disturbance work.
After the meeting with Chang, SHPD issued a formal written request on October 28 to the landowner for further archaeological investigation and review of the treatment of iwi. The letter specifically requested a complete screening of the backfill piles and additional archaeological work to understand the extent of the burial context.
To ensure accountability and transparency, OHA called for a community informational meeting on November 4 in Waipā with a panel made up of representatives from the DOH, DLNR, SHPD, OHA, and the County of Kauaʻi.
At the discussion, Fink acknowledged inadequacies in DOH’s permit review process and committed to addressing this in collaboration with OHA and DLNR. Chang reiterated the need for more proactive processes to help identify iwi kūpuna ahead of project related digging and assured attendees that there will be more consultation for this project.
Director Kaʻāina Hull of the Kauaʻi County Planning Department stressed the need to re-evaluate county permitting exemptions currently in place for these types of septic upgrade projects as the current project was not routed to his department for review. OHA is tentatively planning another community meeting with the same panel to check-in on these follow-up actions and to further discuss next steps.
This article was edited by Maxx Ramos.
