Anthropology 645
Historic Preservation
Week 4

A review of the material last week, might include the following questions. Can you answer them?

• Why was the National Historic Preservation Act the most important of the bills passed in the late 1960s to mid 1970s? Was it inherent? What quality (or qualities) of the bill made it such?
  
• In what ways did NHPA and the National Environmental Policy Act differ in the manner in which each bill viewed and pertained to historic properties? How has this affected their respective roles in historic preservation?
  
• What does the failure of the Archaeological and Historic Preservation Act tell us about effective legislation?

State of Hawaii laws pertaining to historic preservation are included in this seminar. They, in some ways, are more pertinent than federal laws, although as in the case of Hawaii, often modeled on federal statutes. One difference, whereas historic preservation is de-centralized at the federal level, it is highly centralized at the state level.

• When an both the state and federal government have a stake in an undertaking, whose laws regarding historic preservation apply? Where there is a federal undertaking which also requires SHPS review or when you have two units-federal and state working on the same project, for example, an interstate highway, federal law takes precedence over state law. This does not mean that state law is irrelevant, just that in these cases, it is necessary to comply with the provisions of federal law. For historic preservation this has been quite important, because federal law has generally been more comprehensive than state law. Even when state law may be broader, more inclusive, it is still often the case that the regulations for federal law are in place and establish the rules for compliance. Thus, historic preservation review processes are generally aimed to comply with federal law, and in so doing they also comply with the provisions of most state laws. For example, when a human burial is inadvertently discovered on federal property and it is also determined not be recent, it is the federal law on burials which applies not the section of Hawaii Chapter 6-E pertaining to human burials.

When an undertaking or review pertains only to the state--no or very minor federal involvement--then the applicable law is that of the state. Federal law does not apply. Thus, if a state had no statutes providing protection or consideration to National Register properties, and an individual or corporation owned land on which a NR property existed and had plans to construct a building on the location of this property, they could do so without fear of and without consulting the Advisory Council, as long as there was no connection to the federal government. What constitutes a federal undertaking has been the object of considerable discussion and court action over the years. The courts have generally taken a very generous view of what constitutes federal involvement and it can be as indirect as licensing of a project, or that federal loan guarantees are part of a project, or that a project of a bank with federally insured deposits.

What is some of the history in Hawaii that affects historic preservation here?

1. Centralized government responsibility both during Territorial days and now as a State, resulting in vertical integration of state, county, local government. 2. In Hawai'i as elsewhere in the U.S. , there are powerful economic forces for the development of lands. In Hawai'i, in the past 50 years, the state has become increasingly urbanized, especially 0'ahu but also now on the neighbor islands. Coastal lands have been targeted for development and virtually all of these areas were occupied by Hawaiians (and then by later groups) and thus are rich in historic resources. Lands used formerly for commercial sugar and pineapple production are slated to be redeveloped for new purposes, and even here where it is often assumed that there are few surviving historic properties, their archaeological potential remains unresolved. In short, we are seeing the transformation of the islands and potentially we are the last generation to see the historic properties of Hawaiians and the early historic period in abundances that match their former distributions. 3. Nature of traditional Hawaiian land use-from ocean to the mountains and highly developed with respect to agriculture, livestock, gathering of forest and other products--also matches in many ways the distribution of development today, resulting in impacts to pre-contact sites in most areas where development occurs

• Why is it that the State of Hawai'i is noted for having one of the most comprehensive set of statutes pertaining to land use and planning in the nation? How is it comprehensive? It is comprehensive in that the legislature has set land use policies for the entire state, within which the counties must conform. Thus, Hawaii has zoned land at both the state and local level. Zoning is an important concept in historic preservation, because it is through zoning that planned use of land is achieved. It is achieved by regulating the kinds of activities and occupation which can take place on different kinds of lands. These, in turn, often pertain directly to the historic properties. Zoning, in effect, is a form of taking since governmental bodies limit the kinds of uses to which land can be put. Thus, the adage, a man's home is his castle is not perfectly true. Governments can and do control land use, and in so doing they limit the economic alternatives for the owners of land--this is the taking. They do not allow absolute maximization of economic opportunity. Courts have consistently upheld the rights of government to enact statutes limiting land use options, and thus have upheld this form of taking as a general option of governments. Zoning rooted in the police power of the state to regulate for the safety, health, and welfare of the people. Courts have, however, stipulated that such takings cannot be arbitrary. Thus, the connection between plans and zones.

Then, too, police power is specifically linked to historic preservation in the Hawaii state constitution, "The state shall have the power to conserve and develop objects and places of historic or cultural interest... For these purposes private property shall be subject to reasonable regulation. I doubt that many other state constitutions include reference to historic properties-not that necessarily means they are well-protected here.

Why is this the case in Hawai'i? Here land is viewed as relatively scarce. Thus decisions about its use take on wider significance, often involving commitments of additional resources and limits to further access. This scarcity is compounded by the fact that much of the land ownership in Hawai'i remains concentrated among relatively few entities, both private and public (state and federal governments). Together the state and federal governments control the largest share, with over 1.75 million acres in Hawai'i. The large private land holding units represent land held by former Hawaiian monarchs (e.g. Kamehameha Schgools) as well as early Euroamerican commercial interests (i.e., sugar and pineapple plantations, cattle ranches) often derived from first missionaries to the islands.

We have an incredible density and variety of historical and archaeological properties in Hawaii. This is a function late date of contact between Hawaiians and Europeans, the large population which had developed in the islands, the distribution of the population throughout both coastal and inland locations, and the social complexity realized here. Hard to find places where there are not archaeological properties, even in urban zones, underlying modern office towers are often archaeological deposits.

The state judiciary, especially the state Supreme Court, has recognized the special rights of Native Hawaiians and has sometimes sought to mix or bridge English common law jurisprudence with the cultural principles and customs derived from Hawaiians. This approach is unique in the U.S., and significant for historic preservation in that it also constrains the notion, increasingly common elsewhere in the U.S., that land ownership implies some monopoly or exclusivity of rights. Native Hawaiians have rights over private property owners and these rights predate the arrival of Europeans and other groups to Hawai'i. Witness the recent state supreme court decision on access to the marine resources, traditionally gathered upland products and the beach via traditional trails for Hawaiians. The Department of Land and Natural Resources basically concurred when it allowed that the property owners on Waialae Iki could not exclude individuals from the trails which lead inland from this development. In this case, extension of access to all of us, not just native Hawaiians. Of course this has some property owners, especially in exclusive areas up in arms. Waialae Iki, for instance, is a gated community and this requires that they allow access to the trail head within the community. Issues for property owners, include liability (what happens if someone hurts himself on the trail within the gated community), who is included, and what kinds of traditional resources are included.

Incredible vertical and geographical integration of historic preservation in Hawaii. This has both its pros and cons. State Division of HP has considerable clout. But how does it use its clout and for whose benefit?

At the same time, Hawaii does not have a native Hawaiian land base comparable to the American Indian reservations, (and this has both benefits and costs) but we do have a relatively well-educated and organized native Hawaiians and environmental groups in the state, and the special rights accorded native Hawaiians by federal and state statute have contributed to the strength of historic preservation here. How will sovereignty affect federal and state historic preservation in Hawaii?

How else is the geographical integration manifest in Hawaii's land use and historic preservation planning? Most of the regulation of land development achieved by state land-use controls (Chapt 205) and the state plan (Chapt 226). The plan establishes both objectives and policies pertaining to historic preservation such that the state promotes the preservation and restoration of historic resources, provides incentives to maintain and enhance historic resources, and protect those resources which are integral and functional part of the state's heritage. Land use control classifies (i.e., zones) land into 4 types: urban, rural, agricultural & conservation. These districts mapped across the entire state. Change in districts or different uses within a district must be decided by Land Use Commission or an appropriate agency, e.g., DLNR. Only conservation land specifically targets historic resources (along with other natural resources). However, classification into the other land use categories can also affect historic resources, since certain kinds of uses are proscribed in different categories. Cannot put up high rise construction in agricultural land, etc. Thus, the categorization provides some form of protection to historic properties, especially if seen in the context of most intensive use to least intensive use. Change of land use by an undertaking at the state level triggers a review of historic properties that might be affected.

Zoning at the County level operates in much the same fashion with the development of different categories of permitted uses and these categories are mapped across the county as part of their general development plans. Zoning regulates refinements in land use within the state land use categories. Thus, may again provide some protection to or review of historic resources prior to undertakings that may affect them. Additionally, there are county zoning schemes focused on historic site/district preservation. In Honolulu City-County there are Special Districts, including the Capitol district, Diamond Head district, etc. Similar provisions in Maui for Lahaina, Wailuku. Note that in these local districts, any replacement of substantially the same sort structure if there is demolition of structure (unless listed on NR or HR). If action has significant environmental effects then full blown EI statement must be prepared. Some counties such as Hawaii have in their general plan that development objectives must be consistent with the preservation of historic sites. County charter also makes much the same statement and this should constrain the actions possible by the County Council (except no regulations are in place to implement this language). Here, where counties are more restrictive in their protection of historic properties than the state, then their laws/ordinances take precedence over the state's. Most county zoning plans largely affect historic buildings, not archaeological sites.

3. Although these zoning and planning statutes obviously have an impact on historic properties in the state, they do so somewhat indirectly. Let's turn to the primary statutes which provide for the review of historic properties during an undertaking. At the outset, serve notice, that one of the problems we still face in the state is there is no comprehensive historic preservation law. Nor are there, as yet, comprehensive regulations that would serve to formalize the review process and establish standards.

What are some of the provisions of Chapter 6-E that directly impact how Historic Preservation is implemented in Hawaii?

• Chapter 6-E establishes the historic preservation division within the DLNR. What are some of its duties?

(1) Development of an on-going program of historical, architectural, and archaeological research and development, including surveys, excavations, scientific recording, interpretation, and publications on the State's historical and cultural resources;

(2) Acquisition of historic or cultural properties, real or personal, in fee or in any lesser interest, by gift, purchase, condemnation, devise, bequest, land exchange, or other means; preservation, restoration, administration, or transference of the property; and the charging of reasonable admissions to that property;

(3) Development of a statewide survey and inventory to identify and document historic properties, aviation artifacts, and burial sites, including all those owned by the State and the counties;

(4) Preparation of information for the Hawaii register of historic places and listing on the national register of historic places;

(5) Preparation, review, and revisions of a state historic preservation plan, including budget requirements and land use recommendations;

(6) Application for and receipt of gifts, grants, technical assistance, and other funding from public and private sources for the purposes of this chapter;

(7) Provision of technical and financial assistance to the counties and public and private agencies involved in historic preservation activities;

(8) Coordination of activities of the counties in accordance with the state plan for historic preservation;

(9) Stimulation of public interest in historic preservation, including the development and implementation of interpretive programs for historic properties listed on or eligible for the Hawaii register of historic places;

(10) Coordination of the evaluation and management of burial sites as provided in section 6E-43;

(11) Acquisition of burial sites in fee or in any lesser interest, by gift, purchase, condemnation, devise, bequest, land exchange, or other means, to be held in trust;

(12) Submittal of an annual report to the governor and legislature detailing the accomplishments of the year, recommendations for changes in the state plan or future programs relating to historic preservation, and an accounting of all income, expenditures, and the fund balance of the Hawaii historic preservation special fund;

(13) Regulation of archaeological activities throughout the State;

(14) Employment of sufficient professional and technical staff for the purposes of this chapter without regard to chapters 76 and 77;

(15) The charging of fees to at least partially defray the costs of administering sections 6E-3(13), 6E-8, and 6E-42 of this chapter;

(16) Adoption of rules in accordance with chapter 91, necessary to carry out the purposes of this chapter; and

(17) Development and adoption, in consultation with the office of Hawaiian affairs native historic preservation council, of rules governing permits for access by native Hawaiians and Hawaiians to cultural, historic, and pre-contact sites and monuments.

• Chpt. 6E-8 provides authority for the division to review all undertakings by State (any state or country sponsored/funded construction) or its political divisions (e.g., counties) to ascertain what effect if any the project will have on historic properties. Thus anytime state or county monies are used in an undertaking, they fall under the purview of Chapter 6E. Cannot begin or continue a project until the Division has given its written concurrence. Again-highlights the need for intra-governmental cooperation and the review responsibility that falls to some units and affects other units.
• Chpt 6E-7 also vests title to historic properties on state land to the state and puts SHPD in charge of managing them. All historic property located on lands or under waters owned or controlled by the State shall be the property of the State. The control and management of the historic property shall be vested in the department.

(b) The department may dispose of the historic property subject to chapter 171 and subject further to those reservations, restrictions, covenants, or conditions which relate to the preservation of the historic property, such as rights of access, public visitation, operation, maintenance, restoration, and repair. The department shall determine the conditions for any research affecting the historic property and may issue permits for the research.

(c) The State shall hold known burial sites located on lands or under waters owned or controlled by the State in trust for preservation or proper disposition by the lineal or cultural descendants.

(d) The State shall not transfer any historic property or aviation artifact under its jurisdiction without the concurrence of the department, and shall not transfer any burial site under its jurisdiction without consulting the appropriate island burial council.

• This is further stipulated in Chapter 6E-42. Identifies the kinds of state or county actions require review of historic preservation issues. What are some of these actions? Includes permits, licensing, certificates, land use change, subdivision, or entitlement for use. This means not only are state and county actions, such as school construction, airports, roads, etc. in need of Historic Sites concurrence, but also any activity in which state or county approval is needed. Construction permits, especially for development projects, would require a review. Any change of zoning, land use, or any project that needs the approval of a county agency or council, e.g., Planning Department or Planning Committee requires a review by the Division. This gives you some idea of the scope of Chapter 6-E, and should illustrate the range of undertakings which will require Division review. This is why, despite the importance of federal law, most actions which affect historic properties usually involve state laws.
  
• Chpt 6E-10 also provides for SHPD oversight of historic properties on private lands. Provides for access to private property to determine the nature of historic properties that may be located there. Never been tested, might not be constitutional. Privately owned historic property. (a) Before any construction, alteration, disposition or improvement of any nature, by, for, or permitted by a private landowner may be commenced which will affect an historic property on the Hawaii register of historic places, the landowner shall notify the department of the construction, alteration, disposition, or improvement of any nature and allow the department opportunity for review of the effect of the proposed construction, alteration, disposition, or improvement of any nature on the historic property. The proposed construction, alteration, disposition, or improvement of any nature shall not be commenced, or in the event it has already begun, continue, until the department shall have given its concurrence or ninety days have elapsed. Within ninety days after notification, the department shall:

(1) Commence condemnation proceedings for the purchase of the historic property if the department and property owner do not agree upon an appropriate course of action;

(2) Permit the owner to proceed with the owner's construction, alteration, or improvement; or

(3) In coordination with the owner, undertake or permit the investigation, recording, preservation, and salvage of any historical information deemed necessary to preserve Hawaiian history, by any qualified agency for this purpose.

(b) Nothing in this section shall be construed to prevent the ordinary maintenance or repair of any feature in or on an historic property that does not involve a change in design, material, or outer appearance or change in those characteristics which qualified the historic property for entry onto the Hawaii register of historic places.

(c) Any person, natural or corporate, who violates the provisions of this section shall be fined not more than $1,000, and each day of continued violation shall constitute a distinct and separate offense under this section for which the offender may be punished.

(d) If funds for the acquisition of needed property are not available, the governor may, upon the recommendation of the department allocate from the contingency fund an amount sufficient to acquire an option on the property or for the immediate acquisition, preservation, restoration, or operation of the property.

(e) The department may enter, solely in performance of its official duties and only at reasonable times, upon private lands for examination or survey thereof. Whenever any member of the department duly authorized to conduct investigations and surveys of an historic or cultural nature determines that entry onto private lands for examination or survey of historic or cultural finding is required, the department shall give written notice of the finding to the owner or occupant of such property at least five days prior to entry. If entry is refused, the member may make a complaint to the district court in the circuit in which such land is located. The district court may thereupon issue a warrant, directed to any police officer of the circuit, commanding the officer to take sufficient aid, and, being accompanied by a member of the department, between the hours of sunrise and sunset, allow the member of the department to examine or survey the historic or cultural property.

Two other statutes are also relevant to historic preservation. What are they?

• First, is the Environmental Impact Statement (Chapter 343). Intent is to integrate the review of environmental concerns with existing planning processes to identify significant environmental effects which may obtain as a result of some undertaking. An assessment required for actions which: 1. propose use of state or county lands and funds; 2. propose any use within conservation district; 3. propose any use within the shoreline area; 4. propose any use within historic site or district; 5. propose any use within Waikiki-Diamond head special district; 6. propose any amendment to county plans. Exempt actions include those which involve no change or expansion of a structure's use,

Any county agency that approves a project involving permit, license, certificate, land use change, or other entitlement of use which may affect historic property or burial sites must advise the state DNLR and provide opportunity for state review and comment.

What determines significant environmental effect and thus the completion of EIS? This would include the following: 1. involves irrevocable commitment to the loss of natural or cultural resources; 2. curtails beneficial use of environment; 3. conflicts with land use plan; 4. affects ecological or social well being; 4. affects public health; has secondary impacts; degrades environmental quality; cumulatively has impacts; 9. affects rare, endangered resources; 10 affects air, water, noise quality; 11. affects environmental sensitivity.

• Coastal Zone Management Act (Chapter 205A) also plays an important role in historic property review process. It establishes the intent to protect, preserve, and restore the natural and historic and prehistoric resources in the coastal zone management areas that are significant. These objectives are binding on both state and county agencies. All must act in accordance with the objectives of CZMA. Individuals or organizations can challenge state or counties compliance with CZMA. As such, it requires the identification and analysis of significant archaeological remains, attempts to preserve or savage the remains, insure that development is compatible, coastal development occurs so that minimal adverse effects.

This act establishes Special Management Areas (SMA). Basically, coastal and shoreline areas are identified for all islands and these require county permits. 3 kinds: emergency, minor (where valuation is less than $65,000 and has no substantial adverse effect), and regular use permit (of greater value and may have an impact). Different counties have differently named agencies which supervise complicance with SMAs. SMAs cover most of the land on most islands.

Since most undertakings of any size require SMA permit from the County, most must be reviewed by Historic Preservation Division and the Division requires inventory survey of land parcel prior to their concurrence. Additional work may be necessary to avoid or mitigate the effects through the recovery of information or documentation.

• These are not the only aspects of historic preservation over which Historic Sites Division has purview. Chapter 6-e also vests title in all historic properties located on lands or under waters controlled/owned by the State. Historic Preservation Division via DNLR may condition or restrict development of sites/properties and veto any transfer of state control over such lands. And as I just mentioned, most county commenced projects (as well as state projects) must be approved by DLNR before they begin. Lack of approval can be appealed to Governor and State Historic Preservation Review Board may be asked to hear the appeals. DNLR is also given the ability to acquire land based on their historic value, although this is rarely done. Governor can classify properties as standing monuments.

Before any undertaking on property that is part of Hawaii Historic Register, landowner must notify Division, and allow review and Division must provide concurrence. If the undertaking does not require any other county or state approval of funding, the landowner can go ahead with the undertaking, including the destruction of the register property, in the event that DLNR withholds its approval. During that time DLNR could condemn the property or undertake its own investigation of the property.

Chapter 6-E stipulates that all burial sites are significant and shall be preserved in place. also makes it illegal for any burial site or its contents (i.e., skeletal materials or burial goods) to be excavated or destroyed without review by Division or County Burial Council. Violation of this can result in a $10,000 fine. Nor can you traffic in burial remains or associated burial goods nor can you remove them from the state without prior permission. Every county now has a burial council and councils play an important role in regulating what may be done at sites containing human buries. Currently, they let very little in the way of analysis be done. Instead they generally recommend reburial as quickly as possible. This is the outcome of how native Hawaiian burials have been differentially treated (we talk about his more later this semester) and their customs regarding how humans should be interred when they die.

Under Chapter 6E, DNLR may regulate archaeological activities throughout the state. They regularly require research designs, even for projects which are not part of development process, for instance field schools or basic research.

Other responsibilities. They are also asked to undertake a variety of educational programs and outreach, although for the most part this has not been done at any significant level other than through the yearly Archaeology Week and the Society for Hawaiian Archaeology conference.

The State can acquire properties, although lack of funds has prevented recent acquisitions and the state has problems managing its own lands now.

The State is also required to conduct inventories, and to nominate properties to state or National Register. It generally does this through the projects it reviews during the year; there is little on-going survey work that is done independently of where projects are being proposed. And also few properties are recommended for nomination to either the state or national register, especially given the potential set of properties that exist in the state and which might be eligible for either register.

DNLR is also required to develop a state historic preservation plan. This is to guide it and other agencies as they review undertakings in relation to historic properties they may impact. For it is the plan which provides the context for evaluating the significance of historic properties and thus whether or not an undertaking will have an impact.

5. A new amendment to Chapter 6-e includes provisions for the role of public and interested parties, and this includes native Hawaiians to participate formally in the review process. Once they identify themselves, these groups and individuals must be part of the consultation process. Note that this does not give them the right to veto a project or undertaking, only to provide comment on the identification and evaluation of historic properties potentially impacted by an undertaking. Additionally, these relevant groups need to be consulted when developing oral or documentary histories in an area.

Economic forces in the state today give new challenges to historic preservation. Economic development seen as necessary for the well being of the state and this has often been tied to development of the land; resorts, golf courses, agricultural change, new buildings, etc. all have high potential to affect historic properties. Additionally, the vertical integration of planning in Hawaii is sometimes seen as a detriment; Land Use Commission has been proposed for abolishment by the Revitalization Task Force (although this will apparently die in the current legislative session). There have been proposals to limit the extent of the review as well that the state historic preservation division undertake.

The issue of historic preservation and development is a complicated one, and it is here that we see again the need to address political economy. Without a growing economy, Hawaii gets left behind by the rest of the states and world. But with a growing economy, important parts of the historical record must be addressed. And if they are not addressed in a timely and supportive fashion then again economic development can be limited (because of the other alternatives that companies and agencies may have in decided where to go). At the same time, development, especially as it transforms the appearance of Hawaii, our environment, and quality of life, all of this reduces appeal of the islands to many who visit or who think about living here. What kind of development is consistent with our place in the US and world: we are small and isolated and thus new developments can be precarious to the unique and beautiful environment that is here and the history that is recorded here.