§6E-43  Prehistoric and historic burialsites.  (a)  At any site, other than a known, maintained, actively usedcemetery where human skeletal remains are discovered or are known to be buriedand appear to be over fifty years old, the remains and their associated burialgoods shall not be moved without the department's approval.

(b)  All burial sites are significant and shallbe preserved in place until compliance with this section is met, except asprovided in section 6E-43.6.  The appropriate island burial council shalldetermine whether preservation in place or relocation of previously identifiednative Hawaiian burial sites is warranted, following criteria which shallinclude recognition that burial sites of high preservation value, such as areaswith a concentration of skeletal remains, or prehistoric or historic burialsassociated with important individuals and events, or areas that are within acontext of historic properties, or have known lineal descendants, shall receivegreater consideration for preservation in place.  The criteria shall bedeveloped by the department in consultation with the councils, office ofHawaiian 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.  Acouncil's determination shall be rendered within forty-five days of referral bythe department unless otherwise extended by agreement between the landowner andthe department.

(c)  Council determinations may beadministratively appealed to a panel composed of three council chairpersons andthree members from the board of land and natural resources as a contested casepursuant to chapter 91.  In addition to the six members, the chairperson of theboard of land and natural resources shall preside over the contested case andvote only in the event of a tie.

(d)  Within ninety days following the finaldetermination, a preservation or mitigation plan shall be approved by thedepartment in consultation with any lineal descendants, the respective council,other appropriate Hawaiian organizations, and any affected property owner.

(e)  Should the burial site prove to be otherthan Hawaiian, the department, within thirty days shall determine whetherpreservation in place or relocation is warranted, and within an additionalninety days a preservation or mitigation plan shall be approved by thedepartment in consultation with any lineal descendants, appropriate ethnicorganizations, and any affected property owner. [L 1988, c 265, pt of §1; am L1990, c 306, §13; am L 1992, c 113, §4]