Thursday, May 20, 2010

Court ends Walmart site burial case

Judges refuse to hear an appeal over the city's OK of permits with no historic review

By Star-Bulletin staff

More than five years after opening for business, the Ke‘eaumoku Street Walmart and Sam's Club have seen the end to a legal challenge to their construction.

The Hawai‘i Supreme Court has refused to consider an appeal by a designated cultural descendant of the people whose skeletal remains were discovered during the construction. A co-plaintiff was Hui Mālama i na Kūpuna o Hawai‘i Nei, a nonprofit organization that specializes in the reburial and repatriation of native Hawaiian remains and artifacts.

Work crews uncovered 42 sets of human remains during construction between January 2003 and January 2004.

The state Historic Preservation Division, with the recommendation of the O‘ahu Island Burial Council, ordered the remains relocated and reburied on the property.

Before the project was completed, Paulette Kaleikini and Hui Mālama sued the city, the state and Walmart to halt construction. They argued that the city should not have granted Walmart permits for the project without first consulting the Historic Preservation Division about possible historic or burial sites on the property.

A state judge refused to stop the project.

The judge said the city was required to consult the agency only if it knew or had reason to suspect that the project might affect known burial or historic sites.

The city said its research turned up no historic or burial sites on what was previously marshland that had been filled in and used by commercial and industrial businesses for at least 50 years.

The Historic Preservation Division had also previously advised the city that there were no historic or burial sites on portions of the property and other properties nearby.

But Kaleikini and Hui Mālama lawyer Moses Haia said the court's interpretation of the law allows the city or other permitting agency without any knowledge or expertise in historic preservation to cut out state review.

Gov. Linda Lingle later approved state administrative rules that require permitting agencies to consult the division. Kaleikini and Hui Mālama took their case to the Hawaii Intermediate Court of Appeals, which upheld the lower court's ruling. The appellate court said that even if the city had conducted a more rigorous review of the project site, Kaleikini and Hui Mālama did not provide any evidence that such a review would have revealed the burial site's existence.

Walmart and Sam's Club opened their doors to customers in October 2004.