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

(b)  The discovery shall be reported as soon aspossible to the department, the appropriate medical examiner or coroner, andthe appropriate police department.  As soon as practicable, the departmentshall notify the appropriate council and the office of Hawaiian affairs.

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

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

(2)  The department shall gather sufficientinformation, including oral tradition, to document the nature of the burialcontext and determine appropriate treatment of the remains.  Members of theappropriate council shall be allowed to oversee the on-site examination and, ifwarranted, removal; and

(3)  If removal of the remains is warranted, based oncriteria developed by the department, in consultation with the councils, officeof Hawaiian affairs, representatives of development and large property ownerinterests, and appropriate Hawaiian organizations, such as Hui Malama I NaKupuna O Hawai‘i Nei, through rules adopted pursuant to chapter 91, the removalof the remains shall be overseen by a qualified archaeologist and a mitigationplan shall be prepared by the department or with the concurrence of thedepartment.

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

(e)  The mitigation plan developed by or withthe concurrence of the department pursuant to subsection (c)(3) shall becarried out in accordance with the following:

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

(2)  Project activities shall resume once necessaryarchaeological excavations provided in the mitigation plan have been completed;

(3)  In nonproject contexts, the department shall beresponsible for the execution of the mitigation plan and the relocation ofremains; and

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

(f)  In cases where remains are archaeologicallyremoved, the department shall determine the place of relocation, afterconsultation with the appropriate council, affected property owners,representatives of the relevant ethnic group, and any identified linealdescendants, as appropriate.  Relocation shall conform with requirementsimposed by the department of health, and may be accompanied by traditionalceremonies, as determined by the lineal descendants, or, if no linealdescendants are identified, the appropriate council or representatives of therelevant ethnic group that the department deems appropriate.  Specific orspecial reinterment requests from lineal or cultural descendants may beaccommodated provided that the additional expenses incurred are paid by theaffected descendants.

(g)  If human skeletal remains are discoveredin the course of land development or land alteration activities to whichsection 6E-42 applies, and for which the required approval was not obtained,all activity in the immediate area that could damage the remains or thepotential historic site shall cease, and treatment of the remains shall beallowed only in compliance with section 6E-43. [L 1990, c 306, pt of §3; am L2003, c 104, §5]