Intermediate appeals court rules in archaeological permitting case

The Hawai‘i Intermediate Court of Appeals has issued a finding in favor of appellants in a case involving the Board of Land and Natural Resources and its handling of the state’s archaeological permitting process.

The case stems from attempts by community group Mālama Kakanilua and members Clare Apana, and Kaniloa Kamaunu to challenge annual permits from the State Historic Preservation Division for Archaeological Services Hawai‘i, known by the acronym ASH.

The intermediate appeals judges held that the Land Board, in a contested case, “erroneously placed the burden on Mālama to prove ASH LLC failed to comply with its permit conditions for calendar years 2015-2017.” The judges also held that Mālama was entitled to a contested case on archaeological services company’s 2021 permit because of BLNR’s procedural error in the contested case for a 2020 permit.

The Department of Land and Natural Resources, which oversees the State Historic Preservation Division, had no comment on the matter Wednesday.

According to a news release from appellants’ attorney, Lance D. Collins, Hawai‘i law requires qualified archaeologists to obtain annual permits from the State Historic Preservation Division to conduct archaeological work.

Community group Mālama Kakanilua, along with Apana and Kamaunu sought to intervene in ASH’s permit approvals, “citing the firm’s well-documented failures in multiple developments — failures that resulted in the desecration and endangerment of kanaka maoli burials (iwi kūpuna).”

Collins said that, in 2020, the Land Board held a contested case hearing regarding ASH’s permit, placing the burden on community members to prove that the company had violated the law. Despite the concerns raised, the board granted the permit, he said.

“Not long afterward, a 2018 SHPD letter surfaced, revealing that ASH had failed to complete dozens of archaeological reports, as required by law,” Collins said. “When Mālama Kakanilua sought to intervene again in ASH’s 2021 permit renewal, the Land Board summarily denied their request.”

The Intermediate Court of Appeals found that “in the contested case over ASH LLC’s calendar year 2020 permit, BLNR erroneously shifted the burden to Mālama to prove that ASH LLC didn’t comply with its… permit conditions for calendar years 2015-2017. That was not consistent with BLNR’s affirmative duty to preserve and protect traditional and customary Native Hawaiian rights to protect iwi kupuna under article XII, section 7 of the Hawai‘i Constitution. Because of this, Mālama were entitled to a contested case on ASH LLC’s calendar year 2021 permit application.”

Plaintiff Clare Apana said: “Fighting this case pro se wasn’t easy, but  we’re committed to protecting our land and ancestors from law-breaking archaeologists and the agencies that enable them. DLNR’s failure to uphold our rights has caused real harm — this must be the beginning of true protection and enforcement.”

Plaintiff Kaniloa Kamaunu, a Waiheʻe kuleana farmer, said: “I’m grateful the ICA overruled the BLNR hearing officer and exposed the unfair treatment we received from this government — who denied us a fair chance to present our case. I remain deeply angered by these agencies, whose responsibility is to protect historic sites and iwi kupuna, yet failed to act. Their actions enabled ASH and its owner, Lisa Rotunno-Hazuka, to continue work that led to desecration and destruction. This ruling must be a turning point forcing all to fulfill their kuleana and 
enforce the laws that protect our sacred sites and ancestors.”

Uʻi Hotta, treasurer of Plaintiff Mālama Kakanilua said: “Reburying our iwi kūpuna is not healing — it’s surviving the hewa. Every time we place them back in the earth, we mourn what should’ve never been disturbed. This pain is not cultural practice — it is resistance, it is love, it is protest. The desecration must end.”

On appeal, attorneys Collins and Bianca Isaki represented Mālama Kakanilua and community members who represented themselves before the agency.

The full Court opinion is available at:
https://www.courts.state.hi.us/wp-content/uploads/2025/03/CAAP-22-0000066.pdf