SB1301

SECTION 1. Chapter 6E, Hawaii Revised Statutes, is amended by adding two new sections to be appropriately designated and to read as follows:

"§6E- Archaeological inventory surveys. (a) Archaeological inventory surveys shall be required for all projects:

(1) In sandy soil types where ground disturbance will occur; and

(2) On parcels where significant historic sites, including burials, have been previously identified on the same parcel or an adjacent parcel.

(b) All proponents of projects other than those described in subsection (a) shall complete:

(1) A literature review, including the full project area and a minimum of a one-mile radius from the project area; and

(2) A field inspection that covers one hundred per cent of the project area.

If historic properties are identified, the project proponent shall request a state inventory of historic places and complete an archaeological inventory survey.

The archaeological inventory survey shall be submitted to the department for review for ninety days, during which time the department may request a full archaeological inventory survey. If the department fails to request a full archaeological inventory survey within ninety days, the report shall be considered accepted, and no further work shall be required to identify historic properties within a project area. A project proponent or property owner shall complete any additional work required pursuant to this chapter.

§6E- Archaeological permits. (a) Archaeological permits shall be issued at the discretion of the department.

(b) If a principal investigator fails to adhere to the department's rules, the department may suspend or revoke archaeological permits.

(c) Any principal investigator found to have violated any provision of this part may be subject to fines and the loss of the right to engage in the practice of archaeology for up to five years."

SECTION 2. Section 6E-2, Hawaii Revised Statutes, is amended by amending the definition of "historic property" to read as follows:

""Historic property" means any building, structure, object, district, area, or site, including a heiau [~~and~~] or an underwater site, [~~which~~] that is over fifty years old[.] and meets the criteria to be placed onto the Hawaii register of historic places or has important value to Native Hawaiians or other ethnic groups of the State due to associations with cultural practices once carried out, or still being carried out, at the property or due to associations with traditional beliefs, events, or oral accounts that are important to the group's history, traditional practices, and cultural identity."

SECTION 3. Section 6E-43.5, Hawaii Revised Statutes, is amended to read as follows:

"§6E-43.5 Island burial councils; creation; appointment; composition; duties. (a) There shall be established within the department [~~five~~] island burial councils[~~, one each~~] for Hawai`i, Maui/Lāna`i, Moloka`i, O`ahu, and Kaua`i/Ni`ihau, to implement section 6E-43. [Each council shall consist of nine members, except the Moloka`i council, which shall consist of five members. Each council shall consist of no more than three representatives of development and large landowner interests; provided that the Moloka`i council shall consist of no more than one representative of development and large landowner interests. The remaining council members shall represent the geographic regions identified in paragraphs (1) through (5). At all times, at least two of the regional representatives of each council shall have been appointed from a list of nominees submitted to the governor by the office of Hawaiian affairs, as provided under subsection (b). Each council shall include at least one representative for each geographic region identified as follows:

~~(1)~~ ~~The Hawai`i council shall include the following geographic regions: Kohala, Kona, Ka`ū, Puna, Hilo, and Hāmākua;~~

~~(2)~~ ~~The Maui/Lāna`i council shall include the following geographic regions: Honua`ula, Lahaina, Wailuku, Makawao, Hāna, and Lāna`i;~~

~~(3)~~ ~~The Moloka`i council shall include the following geographic regions: West Moloka`i, Central Moloka`i, East Moloka`i, and Kalawao;~~

~~(4)~~ ~~The O`ahu council shall include the following geographic regions: Wai`ānae, `Ewa, Kona, Ko`olaupoko, Ko`olauloa, and Waialua; and~~

~~(5)~~ ~~The Kaua`i/Ni`ihau council shall include the following geographic regions: Waimea/Na Pali, Kōloa, Līhu`e, Kawaihau, Hanalei, and Ni`ihau.~~

Regional representatives shall be selected from the Hawaiian community on the basis of the representatives' understanding of the culture, history, burial beliefs, customs, and practices of native Hawaiians in the region they each represent.]

(b) Appointment of members to the councils shall be made by the governor, in accordance with section 26-34 and subsection (a), from lists for each council submitted by the [~~department and the~~] office of Hawaiian affairs. [~~Lists to fill vacancies on the councils shall be submitted as follows:~~

~~(1)~~ ~~For vacancies attributable to the expiration of terms, the list shall be submitted on the first business day of December prior to the expiration of the terms, except as provided in subsection (c); and~~

~~(2)~~ ~~For a vacancy that occurs during a council representative's term, the list shall be submitted within thirty business days after the vacancy occurs, except as provided in subsection (c).~~]

The office of Hawaiian affairs shall solicit nominees in consultation with appropriate Hawaiian organizations. The membership of each council shall include regional representatives from the Hawaiian community on the basis of their understanding of the culture, history, burial beliefs, customs, and practices of native Hawaiians.

The councils shall have:

(1) No fewer than three and no more than seven members; and

(2) A ratio of no more than 3:1 and no less than 2:1 in favor of representatives from the Hawaiian community.

(c) [The department may submit any list to fill a vacancy up to fifteen days after the office of Hawaiian affairs submits its list for the same vacancy; provided that the failure of the department to submit any list by any relevant deadline or fifteen days after the office of Hawaiian affairs submits its list, whichever occurs later, shall be construed as a waiver of the department's right to submit a list.

~~(d)~~] Notwithstanding section 26-34(b) or any other law to the contrary, any council member whose term has expired may continue in office as a holdover member until the member’s reappointment to a second term is confirmed or a successor is nominated and appointed; provided that a holdover member shall not hold office beyond the end of the fourth regular session of the legislature following the expiration of the member’s term of office.

[~~(e)~~] (d) The department, in consultation with the councils, office of Hawaiian affairs, representatives of development and large [~~landowner~~] property owner interests, and appropriate Hawaiian organizations[~~, such as Hui Malama I Na Kupuna O Hawai`i Nei~~], shall adopt rules pursuant to chapter 91 necessary to carry out the purposes of this section. The council members shall serve without compensation[,] but shall be reimbursed for necessary expenses incurred during the performance of their duties. The councils shall be a part of the department for administrative purposes.

[~~(f)~~] (e) The councils shall hold meetings and acquire information as they deem necessary and shall communicate their findings and recommendations to the department. Notwithstanding section 92-3, whenever the location and description of burial sites are under consideration, the councils may hold closed meetings. A majority of all members appointed to which each council is entitled shall constitute a quorum to do business. Concurrence of a majority of the members present at a meeting shall be necessary to make any action of a council valid.

[~~(g)~~] (f) Department records relating to the location and description of historic sites, including burial sites, if deemed sensitive by a council or the Hawai`i historic places review board, shall be confidential. Records shall be made available across the department and to the office of Hawaiian affairs.

[~~(h)~~] (g) The councils shall:

(1) Determine the preservation or relocation of previously identified native Hawaiian burial sites;

(2) Assist the department in the inventory and identification of native Hawaiian burial sites;

(3) Make recommendations regarding appropriate management, treatment, and protection of native Hawaiian burial sites, and on any other matters relating to native Hawaiian burial sites[;], taking into consideration the input of lineal and cultural descendants, with greater deference being afforded to lineal descendants and claimants who are most closely associated with the relevant burial site;

(4) Elect a chairperson for a four-year term who shall serve for not more than two consecutive terms; and

(5) Maintain a list of appropriate Hawaiian organizations, agencies, and offices to notify regarding the discovery of remains.

(h) A council shall have ninety days to make a determination as to the preservation or relocation of previously identified native Hawaiian burial sites from the date on which a completed burial treatment plan is submitted to the council for determination. If the council fails to make a determination within ninety days, the office of Hawaiian affairs shall have thirty days to make a determination. If the office of Hawaiian affairs fails to make a determination within thirty days, the recommended determination in the burial treatment plan shall be considered accepted, and the burial treatment plan may proceed to department review and acceptance.

(i) A council shall have forty-five days to take action on a request for lineal or cultural descendants from the date of submittal of a complete application to the department. If the council fails to take action within forty-five days, the office of Hawaiian affairs shall have thirty days to make a determination. If the office of Hawaiian affairs fails to make a determination within thirty days, the request to be recognized shall be considered approved."

SECTION 4. Section 6E-43.6, Hawaii Revised Statutes, is amended to read as follows:

"§6E-43.6 Inadvertent discovery of burial sites. (a) In the event human skeletal remains are inadvertently discovered, any activity in the immediate area that could damage the remains or the potential historic site shall cease until the requirements of subsections (b) to (d) have been met.

(b) The discovery shall be reported as soon as possible to the department, the appropriate medical examiner or coroner, and the appropriate police department. As soon as practicable, the department shall notify the appropriate council and the office of Hawaiian affairs. The office of Hawaiian affairs shall be responsible for notifying recognized descendants of the discovery from a current list that shall be provided by the department.

The office of Hawaiian affairs shall notify known descendants in the moku or district of the finding within forty-eight hours of the department's determination. The notification shall also be posted on the office of Hawaiian affairs' public website.

Any recognized lineal or cultural descendant may contest the department's determination in writing to the island burial council of jurisdiction within fourteen days, after which the council may take jurisdiction over the discovery, at its discretion, within fourteen days of the written request by the descendant. Absent a contest from a recognized lineal or cultural descendant, the office of Hawaiian affairs may contest the department's determination in writing to the island burial council of jurisdiction within fourteen days.

(c) After notification of the discovery of multiple skeletons, the following shall be done within two working days, if on Oahu, and three working days, if in other council jurisdictions:

(1) A representative of the medical examiner or coroner's office and a qualified archaeologist shall examine the remains to determine jurisdiction. If the remains are the responsibility of the medical examiner or coroner, the department's involvement shall end. If the remains are historic or prehistoric burials, then the remainder of this section shall apply;

(2) The department shall gather sufficient information, including oral tradition, to document the nature of the burial context and determine appropriate treatment of the remains. Members of the appropriate council shall be allowed to oversee the on-site examination and, if warranted, removal; and

(3) If removal of the remains is warranted, based on criteria developed by the department, in consultation with the councils, office of Hawaiian affairs, representatives of development and large property owner interests, and appropriate Hawaiian organizations[~~, such as Hui Malama I Na Kupuna O Hawai~~ʻ~~i Nei,~~] through rules adopted pursuant to chapter 91, the removal of the remains shall be overseen by a qualified archaeologist and a mitigation plan shall be prepared by the department or with the concurrence of the department.

(d) In cases involving the discovery of a single skeleton, the requirements of subsection (c) shall be fulfilled in one working day if on Oahu, and two working days if in other council jurisdictions.

(e) [~~The~~] A mitigation plan, including an appropriate burial site component of a preservation plan or burial site component of an archaeological data recovery plan, shall be developed by [~~or with the concurrence of~~] the project proponent and shall be submitted to the department pursuant to subsection (c)(3) for review and approval within thirty days and shall be carried out in accordance with the following:

(1) In discoveries related to development where land alteration project activities exist, the landowner, permittee, or developer shall be responsible for the execution of the mitigation plan including relocation of remains. Justifiable delays resulting from the discovery of burials shall not count against any contractor's completion date agreement;

(2) Project activities shall not resume [~~once necessary archaeological excavations provided in the mitigation plan have been completed~~] until the department has provided written approval for the project activities to resume. Failure to comply with this section shall constitute a violation of section 6E-11;

(3) In nonproject contexts, the department shall be responsible for the execution of the mitigation plan and the relocation of remains; and

(4) The department shall verify the successful execution of the mitigation plan.

(f) In cases where remains are archaeologically removed, the department shall determine the place of relocation, after consultation with the appropriate council, affected property owners, representatives of the relevant ethnic group, and any identified lineal descendants, as appropriate. Relocation shall conform with requirements imposed by the department of health, and may be accompanied by traditional ceremonies, as determined by the lineal descendants, or, if no lineal descendants are identified, the appropriate council or representatives of the relevant ethnic group that the department deems appropriate. Specific or special reinterment requests from lineal or cultural descendants may be accommodated; provided that the additional expenses incurred are paid by the affected descendants.

(g) [If human skeletal remains are discovered in the course of land development or land alteration activities to which section 6E-42 applies, and for which the required approval was not obtained, all activity in the immediate area that could damage the remains or the potential historic site shall cease, and treatment of the remains shall be allowed only in compliance with section 6E-43.]

If the council fails to take jurisdiction within fourteen days, the determination of the department shall stand. If the council takes jurisdiction over the discovery, the council shall have an additional fourteen days to render a decision to uphold or overturn the department determination. If the councils fail to take action within this fourteen-day period, the decision of the department shall stand."

SECTION 5. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 6. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 7. This Act shall take effect upon its approval.

INTRODUCED BY:

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THE SENATE	S.B. NO.	1301
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII