HAR §13-300-40. Inadvertent discovery of human remains

(a) The department shall have jurisdiction over any inadvertent discovery of human skeletal remains and any burial goods over fifty years old, regardless of ethnicity. (b) The inadvertent discovery shall be immediately reported to the following persons: (1) The state historic preservation division, unless discovery occurs on Saturday, Sunday, or holiday at which time the report shall be made to the division of conservation and resource enforcement; (2) The medical examiner or coroner from the county in which the inadvertent discovery occurred; and (3) The police department of the county in which the inadvertent discovery occurred. (c) Once the report of an inadvertent discovery has been made, the department shall do the following: (1) Assure that all activity in the immediate area of the human skeletal remains ceases and that appropriate action to protect the integrity and character of the burial site from damage is undertaken; (2) Assure that a representative of the medical examiner or coroner's office and a qualified archaeologist determines whether the human skeletal remains are over fifty years old; (3) Conduct a site inspection where necessary; (4) Gather sufficient information, including oral tradition, by seeking individuals who may have knowledge about the families possibly connected lineally or culturally with the inadvertently discovered human skeletal remains, to help document the nature of the burial context and determine appropriate treatment; (5) Complete departmental inadvertent discovery forms; (6) Notify the council member who represents the geographic region where the human skeletal remains were discovered, and the Office of Hawaiian Affairs; (7) Inform the landowner or its agent of the discovery if different from the person making the report; and (8) Determine whether to preserve in place or relocate the human skeletal remains. (d) In the event an inadvertent discovery of multiple human skeletons occurs on O`ahu, the department shall have two working days to complete the above, and three workings days on all other islands. In the event the inadvertent discovery consisting of a single human skeleton occurs on O`ahu, the department shall have one working day to complete the above, and on all other islands the department shall have two working days. The statutory time periods may be extended upon voluntary written consent of the landowner or its authorized representative. (e) Where human skeletal remains are reasonably believed to be Native Hawaiian following an evaluation pursuant to section 13-300-31, the department shall determine whether to preserve in place or relocate, following consideration and application of the criteria stated in section 13-300-36 and in consultation with appropriate council members, the landowner, and any known lineal or cultural descendants. (f) Where the human skeletal remains are reasonably believed to be non Native Hawaiian following an evaluation pursuant to section 13-300-31, the department shall determine whether to preserve in place or relocate following application of the criteria stated in section 13-300-37, and in consultation with appropriate ethnic organizations, the landowner, and any known lineal or cultural descendants. (g) In the event ethnicity of the human skeletal remains is not established by reasonable belief and in the absence of a time extension, the department shall determine whether to preserve in place or relocate following application of any relevant criteria stated in sections 13-300-36 and 13-300-37, and in consultation with the landowner. (h) Within ninety days following a determination to preserve in place or relocate, the department shall approve the burial site component of either a preservation plan or an archaeological data recovery plan. (i) Where the department determines to preserve the human skeletal remains in place, the burial site component of the preservation plan shall be prepared by the department or with the department's concurrence. (1) In preparing the burial site component of the preservation plan, the department shall consult with the following: (A) Council members representing the geographic region in which the inadvertent discovery occurred, where human skeletal remains are reasonably believed to be Native Hawaiian following an evaluation of ethnicity pursuant to section 13-300-31; (B) The affected landowner or the landowner's representative; (C) Any appropriate ethnic organizations where human skeletal remains are reasonably believed to be non Native Hawaiian following an evaluation of ethnicity pursuant to section 13-300-31; and (D) Any known lineal or cultural descendants. (2) At a minimum, the burial site component of the preservation plan shall include statements describing: (A) The location of all inadvertently discovered human skeletal remains and any burial goods determined to be preserved in place; (B) Short term measures to immediately protect all burial sites including, but not limited to, fencing, buffers, and site restoration; and (C) Long term measures to properly manage and protect all burial sites including, but not limited, to buffers, landscaping, and access by known lineal or cultural descendants. (3) In order to provide perpetual protection for human skeletal remains inadvertently discovered, departmental determinations to preserve in place shall be recorded in the bureau of conveyances. In addition, any affected landowner may enter into an in situ burial agreement with the State. (j) Where the department determines to relocate the human skeletal remains, the burial site component of the archaeological data recovery plan shall be prepared by the department or with the department's concurrence. (1) In preparing the burial site component of the archaeological data recovery plan, the department shall consult with the same parties as stated in subsection (i)(1). (2) At a minimum, the burial site component of the archaeological data recovery plan shall include statements describing: (A) All inadvertently discovered human skeletal remains and any burial goods determined to be relocated; (B) The archaeological methods utilized to conduct disinterment; (C) The location and manner by which human skeletal remains and burial goods will be curated where reburial will not occur immediately following disinterment; (D) The reburial site location mutually agreed upon by the landowner and any recognized lineal descendant; (E) The manner in which the reburial site will be prepared; (F) Short term measures to immediately protect the reburial site including, but not limited to, fencing and buffers; and (G) Long term measures to properly manage and protect the reburial site including, but not limited to, buffers, landscaping, and access by known lineal or cultural descendants. (3) In order to provide perpetual protection for the newly established reburial site, all departmental determinations to relocate human skeletal remains and any burial goods shall be recorded in the bureau of conveyances. In addition, any affected landowner may enter into a reburial agreement with the State. (k) Intentional removal of inadvertently discovered human skeletal remains or burial goods is prohibited until a determination to relocate is made by the department pursuant to section 6E-43.6, HRS, and this chapter, except that the department shall be authorized to allow temporary removal of the remains or burial goods to protect from imminent harm, until a determination is made. (l) The implementation of the preservation plan or archaeological data recovery plan shall be the responsibility of the following persons: (1) The landowner, permittee, or developer, in discoveries related to development where land alteration project activities exist; and (2) The department, in non-land alteration project contexts. (m) Reburial shall be based on commonly accepted cultural practices as routinely recorded by the department. Additional requests by lineal or cultural descendants beyond commonly accepted cultural practices, deemed specific or special by the department following consultation with the appropriate council or ethnic organization, may be accommodated provided that any additional expenses incurred are paid by the descendants. (n) In the event the landowner or it's authorized representative knowingly fails to comply with any of the provisions of the preservation plan or archaeological data recovery plan, and directly or indirectly causes the taking, appropriation, excavation, injury, destruction, or alteration of any burial or reburial site, the action may be considered a violation of applicable provisions of chapter 6E, HRS, and this chapter and subject to statutory and administrative penalties. (o) The inadvertent discovery of Native Hawaiian skeletal remains and any burial goods on lands managed by the department of Hawaiian home lands shall be governed by applicable provisions of the Native American Graves Protection and Repatriation Act (25 U.S.C. §3001). [Eff SEP 28 1996 ] (Auth: HRS §§6E-43, 6E-43.5, 91-2) (Imp: HRS §6E-43.6, 25 U.S.C. §3001)