Ka Wai Ola - Office of Hawaiian Affairs, Volume 13, Number 11, 1 November 1996 — Kaʻūpūlehu suit fights for Hawaiian say [ARTICLE+ILLUSTRATION]

Kaʻūpūlehu suit fights for Hawaiian say

»»»»»»»»:& Dpbornh Wnrd Historic preservation law in Hawai'i used to give token lip service, but little teeth, to protection of native Hawaiian cultural and religious prac-

tices, and historic sites in rural or conservation lands being considered for development. No longer. Federal historic preservation laws now require developers and landowners to consult with Native Hawaiians during the permit application process under certain conditions. Hawaiians now have more opportunity to be involved and work with developers and agencies to make sure projects also address community values and traditional Hawaiian uses for the land. Yet when project developers fail to adequately document historic resources found on their properties, ' and fail to discuss impacts of development or how traditional Hawaiian access and gathering rights and

natural resources ean be recognized and protected, eommunity opposition through lawsuits and contested case hearings ean be costly and time-consuming.

The lawsuit filed in federal court in July by the Offi ee of Hawaiian Affairs and Kona Hawaiian Civic Club to stop the dredging of swimming basins at Ka'ūpūlehu, North Kona for the Four Seasons Resort development project is a recent example. The basins were required as part of a county permitting process to ensure safe swimming for resort visitors. Because the shoreline would be altered, an Armv Corps

of Engineers permit was required. Federal permits affecting historic Hawaiian resources trigger requirements in the Nahonal Historic Preservation Act.

This may be the first lawsuit in Hawai'i over the failure of a federal government agency to consult with Native Hawaiian organizations named in the act, whieh specifically includes Office of Hawaiian Affairs and others. The suit charges that defendants Hualālai Dpvpinnmpnt C n anH

the U.S. Army Corps of Engineers failed to notify and seek Native Hawaiian comment concerning impact of the dredging project on Native Hawaiian cultural sites. When one of the ponds was relocated, no notice was given to the community that the archeological findings included a mākāhā gate (remnant of an old fishpond gate). Anehialine ponds are saltwater or brackish shorehne ponds with underground connection to the sea and whieh show tidal rhythms. The Kona Hawaiian Civic Club opposed the dredging because they wanted to protect coastal areas that Hawaiians have used for fishing and gathering, including anehialine ponds that serve as habitats for native animals, as well as kūpe'e shells gathered by Hawaiians for traditional uses. A preliminary injunction was granted in August to

stop dredging the basins, although work had been completed on three of the four basins. A hearing on the case is on hold while OHA and Kona Hawaiian Civic Club try to resolve these issues with Hualālai Development and Army Corps of Engineers.

Along the sweeping North Kona seacoast, scattered resorts cling to httle bays or sandy pockets. Ka'ūpūlehu is a scenic but arid, and largely undeveloped lava coastal pareel owned by the Bishop Estate, and: developed by Hualālai Development Co. A 243-room Four Seasons Resort Hualālai hotel opened in September. Plans eall for a 20year, l,120-acre resort development with the first phase to include a 36-hole golf course and clubhouse, single-family and multi-family units and commercial center. A 70-acre area to the north, adjacent to state lands at Pu'uwa'awa'a, was set aside for puhlie access shoreline activities, recreaūonal uses and to "coordinate development with native Hawaiian rights to coastal access for traditional cultural practices." A 37-acre archeological preserve will be retained in conservation zoning. Court documents show that the lanā was originally ruled and controlled by early Hawaiian chiefs who passed on theproperty to their heirs in the line of ali'i that succeeded Kamehameha I, including Kame'eiamoku and his twin brother, Kamanawa. Following the Māhele in 1848, the property eame under the ownership of Kamehameha V, his half-sister, Ruth Ke'elikolani, Bernice Pauahi Bishop, then the Bernice Pauahi Bishop Estate. The shoreline area has long been used by fishermen, salt gatherers, campers and others who visit the property.

k This may be the first f lawsuit in HawaPi k over the failure of a , federal agency to ■p consult with Native Hawaiian organizaf tions named in the 1 act, whieh specifical7 ly includes OHA and ^ others.

Dredging was halted by injunction.

Pule at the anehialine ponds, Ka'upulehu.