NOTICE OF
*** FEDERAL LAW ***

TITLE 18 PART I CHAPTER 53 § 1170

§ 1170. Illegal trafficking in Native American human remains and cultural items

(a) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit, the human remains of a Native American without the right of possession to those remains as provided in the Native American Graves Protection and Repatriation Act shall be fined in accordance with this title, or imprisoned not more than 12 months, or both, and in the case of a second or subsequent violation, be fined in accordance with this title, or imprisoned not more than 5 years, or both.
(b) Whoever knowingly sells, purchases, uses for profit, or transports for sale or profit any Native American cultural items obtained in violation of the Native American Grave Protection and Repatriation Act shall be fined in accordance with this title, imprisoned not more than one year, or both, and in the case of a second or subsequent violation, be fined in accordance with this title, imprisoned not more than 5 years, or both.

NOTICE OF
*** STATE LAW ***

§6E-12 Reproductions, forgeries, and illegal sales. (a) It shall be unlawful to reproduce, retouch, rework, or forge any historic object and to represent it or offer it for trade or sale as an original and genuine object. It shall be unlawful for any person to offer for sale or exchange any historic object with the knowledge that it has been collected or excavated in violation of any of the terms of this chapter.
(b) It shall be unlawful for any person to:
(1) Offer for sale or exchange any exhumed prehistoric or historic human skeletal remains or associated burial goods; or
(2) Remove those goods or remains, except those remains fabricated into artifacts prehistorically, from the jurisdiction of the State without obtaining a permit from the department.
(c) It shall be unlawful for any person to remove aviation artifacts derived from state lands or agencies from the jurisdiction of the State without obtaining a permit from the department.
(d) Any person violating this section shall be fined no more than $10,000. Each object or part of a prehistoric or historic human skeleton or associated burial good offered for sale or trade or removed from the jurisdiction in violation of this section shall constitute a distinct and separate offense for which the offender may be punished. [L 1976, c 104, pt of §2; am L 1990, c 306, §9; am L 1996, c 97, §9]

When you use the internet to offer for sale and if you conduct a sale, then it becomes interstate commerce, NAGPRA will apply Action can be taken against people under both laws if appropriate.

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A. Property Interests in Lava Tubes

Under the common law, a landowner owns not only the surface of the land but everything below it to the center of the earth and above it to the sky, as stated in the Latin phrase: Cujus est solum, ejus est usque ad coelum.

In re Honolulu Rapid Transit Company, Ltd., 54 Haw. 402, 408, 507 P.2d 755, 759 (1973).

[U]nless there has been a division of the estate, [the owner of realty] is entitled to the free and unfettered control of his own land above, upon, and beneath the surface. So whatever is in a direct line between the surface of the land and the center of the earth belongs to the owner of the surface. Ordinarily that ownership cannot be interfered with or infringed by third persons.

Edwards v. Sims, 232 Ky. 791, 24 S.W.2d 619, 620 (1929).

The subsurface estate may be severed from the surface and conveyed separately. See, e.g., United States v. 428.02 Acres of Land, 687 F.2d 266 (8th Cir. 1982) (government condemnation of cave); Marengo Cave Co. v. Ross, 212 Ind. 624, 10 N.E.2d 917 (1937) (a cave is subject to adverse possession separate from the surface realty).

Property rights are always subject to any restrictions or reservations that are inherent in the owner's title at the time it is acquired. In Hawaii, when the King originally conveyed lands for private ownership, he expressly reserved mineral rights. Our supreme court has held that ownership rights to water, although not expressly reserved, also were not conveyed. McBryde Sugar Company, Limited v. Robinson, 54 Haw. 174, 504 P.2d 1330 (1973). Moreover, in Public Access Shoreline Hawaii v. Hawai`i County Planning Commission, 79 Haw. 425, 903 P.2d 1246 (1995), the Hawaii supreme court held that all grants of fee simple ownership at the time of the Land Commission Awards were made subject to certain tenant rights.

We are not aware, however, of any reservations of lava tubes in the conveyances from the King to private owners. Thus, we believe that lava tubes could, and generally were, conveyed in fee simple with the Land Commission Awards. Unless there was a subsequent severance of the subterranean property from the surface, the owner of the surface realty owns so much of the lava tube as lies beneath the surface of his or her land.

1. Trespass

Subterranean property is accorded the same rights and is subject to the same laws as property on the surface of the earth. Thus,

[t]respass beneath the surface may be committed . . . by any [] unprivileged entry on land beneath the surface. Thus, if there is a cave extending beneath the land of two persons, with an entrance on the land of each, an entry by one person into so much of the cave as is beneath the other's land is a trespass.

1 Restatement of Torts (Second) '159(1), comment e at 282.

Your memo indicated that while the entrances to Kazumura Caverns are on private land, the lengthy lava tube system traverses both private and public lands. Assuming that those public lands are lands belong to the State of Hawaii, the State, as landowner, has the right to exclude tourists from those portions of Kazumura Caverns that underlie its property. HRS '171-7; State v. Jordan, 53 Haw. 634, 500 P.2d 560 (1972). We understand that determining subsurface boundaries of state land can be difficult and expensive. However, it is one option for preserving and protecting at least portions of lava tubes.

2. Premises Liability

Because subsurface realty is treated in the same way as surface realty, the principles of premises liability that have been articulated by the Hawaii supreme court would apply to injuries incurred in a lava tube.

Hawaii no longer follows the common law scheme that categorized a premises owner's duty to those coming onto his or her land based on the status of the visitor (e.g., trespasser, licensee, invitee). Instead, the general rule with respect to all landowners is that a possessor of land, who knows or should have know of an unreasonable risk of harm posed to persons using the land, by a condition on the land, owes a duty to persons using the land to take reasonable steps to eliminate the unreasonable risk, or warn the users against it.

Richardson v. Sport Shinko (Waikiki Corporation), 76 Hawai`i 494, 503, 880 P.2d 169, 178 (1994) (citations, quotations, and ellipses omitted).

Although the issue of premises liability is not directly related to the issue of burials in lava tubes, it is an issue that should be of concern to the department, as the manager of state lands, with respect to portions of lava tubes that belong to the State, especially since we are aware that tourists may be accessing these state lands.

In Hawaii, it is not a shield from liability to say that these tourists were not invited into the State's portion of the lava tubes, or even to say that they trespassed onto state property. If the department is aware of a risk of harm to these tourists, reasonable steps must be taken to eliminate the risk or to warn of the risk.

3. Regulation of Use of Land

There are limits to a landowner's ability to do what he pleases with his own land, whether on, above, or below the surface. Government regulation based on a valid exercise of police power, even when it limits the property owner's use or economic value of the property, does not amount to a taking of private property. Goldblatt v. Town of Hempstead, 369 U.S. 590, 592, 82 S. Ct. 987, 989, 8 L. Ed. 2d 120, 133 (1962).

Encroachment upon private interests for the purpose of protecting public interests, i.e., the valid exercise of police power, is justified when (1) the interests of the public require such interference, and (2) the means are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. Goldblatt, 369 U.S. at 594-595, 82 S. Ct. at 990, 8 L. Ed. 2d at 134 (citing Lawton v. Steele, 152 U.S. 133, 14 S. Ct. 499, 38 L. Ed. 385 (1984)).

To a large extent, what is "reasonable" is left to the legislature. Goldblatt, 369 U.S. at 595, 82 S. Ct. at 990, 8 L. Ed. 2d at 134. However, a court will evaluate the reasonableness of a regulation, by analyzing the nature of the menace against which it will protect, the availability and effectiveness of other less drastic protective steps, and the loss that property owners will suffer from the imposition of the regulation. Id.; State v. Mallan, 86 Haw. 440, 452, 950 P.2d 178, 190 (footnote 10) (1998).

When regulation goes too far, it will be recognized as a taking, which the government is not allowed to do unless the landowner is justly compensated. A regulation goes too far when it is not reasonably necessary to effect a substantial government purpose. Pennsylvania Coal Company v. Mahon, 260 U.S. 393, 43 S. Ct. 158, 67 L. Ed. 322 (1922). However, there is no set formula to determine where regulation ends and a taking begins. The inquiry is fact specific, and, thus, must be determined case by case. Goldblatt, 369 U.S. at 594, 82 S. Ct. at 990, 8 L. Ed. 2d at 134.

The public interest in the conservation of historic and cultural property, including the protection of burial sites, human remains, and burial goods, is clearly declared in HRS '6E-1. (Exercise of police power is presumed to be constitutionally valid. Bibb v. Navajo Freight Lines, 359 U.S. 520, 529, 79 S. Ct. 962, 967, 3 L. Ed. 2d 1003 (1959); State v. Mallan, 86 Haw. 440, 446, 950 P.2d 178, 190 (footnote 10) (1998)).

With that background, we now turn to the questions you posed regarding the various steps that the department may take in efforts to protect and preserve burial sites in lava tubes.

B. Can the Department of Land and Natural Resources regulate or prohibit access to lava tubes with entries on private lands that are known or suspected to contain human skeletal remains?

The department is delegated the responsibility for the "[c]oordination of the evaluation and management of burial sites as provided in '6E-43" and the concomitant authority to adopt administrative rules necessary to carry out that function. HRS '6E-3(10), (15). This authority is an exercise of police power rather than of land management. In other words, this authority extends to burial sites on private property and is not limited to state lands. (Compare, on the other hand, HRS ''6E-8 and &endash;9 relating to the department's obligations and authority with respect to state projects and property.)

Whether that authority includes the power to prohibit access to a lava tube, we look first to terms of the enabling statute. "The agency power to . . . affect substantive individual rights and obligations carry with it the responsibility to remain consistent with the governing legislation." Morton v. Ruiz, 415 U.S. 199, 232, 94 S. Ct. 1055, 1073, 39 L. Ed. 2d 270, 292 (1974).

1. Known Burial Sites

With respect to known burial sites, HRS '6E-43 sets forth a procedure for determining whether to preserve the burial site in place or to remove and relocate the remains. That determination must be based on criteria adopted through chapter 91 rule-making proceedings. Such criteria have been adopted as HAR '13-300-33 and &endash;37. There shall be a proposed treatment plan for each burial site, whether the determination is to preserve in place or remove and relocate the remains. HRS '6E-43(d); HAR '13-300-33. The treatment plan can include limiting access to the site, at least temporarily, as a means of protecting a burial site. E.g., short term measures to protect burial sites can include fencing. HAR '13-300-33(b)(3)(A)(i) and (B)(vi).

While limiting access to the lava tube may be a means of protecting the burial site, the department must be mindful of other interests that are protected by the statute, not the least of which are the interests of the affected property owners. See, HRS '6E-43(b), where determination of whether to preserve burial in place or remove and relocate remains must be made within specified time period unless otherwise extended by agreement between department and landowner; and 6E-43(d) where affected property owner must be consulted in drafting preservation or mitigation plan. Implicitly, the statute requires that the various interests be accommodated or balanced, and such balancing must be done on a case-by-case basis. Thus, where a landowner is utilizing a lava tube to generate income by allowing tours, the economic impact on the landowner must be considered and balanced against the threat to the burial site that the visitors to the lava tube pose. See, Yankton Sioux Tribe v. U.S. Army Corps of Engineers, 83 F. Supp. 1047, 1058 (D. S.D. 2000) ("The appropriate method for protecting the remains is confined, to some extent, by the [Native American Graves Protection and Repatriation] Act and its regulations. Allowing the tribe an indefinite amount of time to perform its traditional ceremonies and gather its dead seems to be the best way to respect the Tribe's members. . . . However, the Act and regulations require that other interests be considered as well.")

In addition to statutory considerations, a decision to limit access to the lava tube must be considered in the constitutional context. As discussed above, government can encroach upon a private property right for a legitimate public interest, but when the encroachment is unreasonable, it amounts to an unconstitutional taking of private property. While it appears unquestionable that the protection of burial sites is a legitimate public interest, the reasonableness of limiting access to the lava tube for that purpose will depend on the availability and effectiveness of other less drastic protective steps, and the loss that property owners will suffer from the imposition of the regulation. Goldblatt, 369 U.S. at 595, 82 S. Ct. at 990, 8 L. Ed. 2d at 134; State v. Mallan, 86 Haw. 440, 452, 950 P.2d 178, 190 (footnote 10) (1998).

For example, since there is considerable discretion in determining whether to preserve the burial site in place or remove and relocate the remains, the department should consider removal as an alternative to prohibiting access to the lava tube. If there is persuasive reason for preservation in place, then the department should consider whether there are less intrusive means of protecting the burial, e.g., cordoning off a section of lava tube rather than closing the lava tube entirely.

Taking of private property is not unconstitutional per se. There is no constitutional infirmity when the landowner receives just compensation for a taking that promotes a legitimate public interest. The department has the express authority to acquire burial sites "in fee or in any lesser interest, by gift, purchase, condemnation, devise, bequest, land exchange, or other means, to be held in trust[.]" HRS '6E-3(11). The lava tube can be acquired separately from the surface realty. See, United States v. 428.02 Acres of Land, 687 F.2d 266 (8th Cir. 1982). If the department is able to acquire a lava tube, or a portion of a lava tube, then, as a landowner, it may prohibit access.

2. Suspected Burial Sites

HRS Chapter 6E, and more particularly, HRS '6E-43, which describes the department's responsibilities and authority with respect to burial sites, all relate to known burial sites. Where burial sites may be "suspected" but not known, the statutes provide opportunities for investigation. When the suspected burial sites are on private land, HRS '6E-10(e) provides:

The department may enter, solely in performance of its official duties and only at reasonable times, upon private lands for examination or survey thereof. Whenever any member of the department duly authorized to conduct investigations and surveys of an historic or cultural nature determines that entry onto private lands for examination or survey of historic or cultural finding is required, the department shall give written notice of the finding to the owner or occupant of such property at least five days prior to entry. If entry is refused, the member may make a complaint to the district court in the circuit in which such land is located. The district court may thereupon issue a warrant, directed to any police officer of the circuit, commanding the officer to take sufficient aid, and, being accompanied by a member of the department, between the hours of sunrise and sunset, allow the member of the department to examine or survey the historic or cultural property.

There is no case law interpreting this statute. Given this adversarial procedure that invokes the assistance of the courts and the police, and the issuance of a warrant, we could expect the district court to look to criminal search and seizure law in issuing warrants for investigations under this section. In other words, the courts may require that the department show that there is "probable cause" to believe that there are burial sites in the lava tubes. In administrative inspection programs, probable cause need not necessarily depend on specific knowledge of the particular premises. However, they must be based on some articulated standard. Camara v. Municipal Court of the City & County of San Francisco, 387 U.S. 523, 538, 87 S. Ct. 1727, 1735-1736, 18 L. Ed. 2d 930, 940-941 (1967). In Camara, which involved city-wide housing inspections for locating and abating public nuisances, the Supreme Court suggested that standards based upon such factors as the age of the building and the condition of the surrounding area would create sufficient probable cause to inspect a building even though the inspectors could not articulate any knowledge of nuisances in the particular building that is being subjected to the search. When seeking to investigate a lava tube for suspected burial sites, articulation of the frequency with which burial sites are found in lava tubes, especially in the particular area or type of area, and any historical basis for suspecting that there may be a burial in the lava tube may be sufficient for issuance of a warrant.

If probable cause is shown, the court may place restrictions on the time and manner of the investigation.

To pass constitutional muster, an administrative search must meet the Fourth Amendment's standard of reasonableness. . . . To meet the test of reasonableness, an administrative [ ] search must be limited in its intrusiveness as is consistent with satisfaction of the administrative need that justifies it. . . . Even though the government purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.

United States v. Davis, 482 F. 2d 893, 910-913 (9th Cir. 1973) (citations and quotation marks omitted.) Thus, a court, in issuing a warrant, may engage in the same balancing test that is used to analyze whether there has been a regulatory taking, i.e., the availability and effectiveness of other less drastic protective steps and the loss that the property owners will suffer from the imposition. See discussion in section II.A.3. above.

C. Can HRS section 6E-43.6, which provides a process for handling inadvertent discoveries of human skeletal remains, be applied to address lava tube burial situations?

We understand that by this question you are asking whether lava tubes can be temporarily closed and tours temporarily halted when previously unknown human skeletal remains are discovered. We answer in the affirmative.

HRS section 6E-43.6(a) provides:

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.

Subsections (b) through (d) provide a process by which the department and other agencies are notified of the discovery, gathering information to determine how the remains should be treated, and the process for removal of the remains, if removal is warranted. There is a very short period in which this process must be accomplished. If multiple skeletons are found on Oahu, the process must be completed within two working days; if on another island, then three working days are allowed. If only one skeleton is involved, then only one working day is allowed on Oahu, and two working days on the neighbor islands.

Under subsection (c)(3), if the decision is made to remove the remains, "the removal shall be overseen by a qualified archaeologist and a mitigation plan shall be prepared by the department or with the concurrence of the department."

HRS section 6E-43.6(e) goes on to provide: The mitigation plan developed by or with the concurrence of the department pursuant to subsection (c)(3) 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 the remains. Justifiable delays resulting from the discovery of burials shall not count against any contractor's completion date agreement;

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

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

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

The term "project" for purposes of HRS chapter 6E is defined as "any activity directly undertaken by the State or its political subdivisions or supported in whole or in part through appropriations, contracts, grants, subsidies, loans, or other forms of funding assistance from the State or its political subdivisions or involving any lease, permit, license, certificate, land use change, or other entitlement for use issued by the State or its political subdivisions." HRS section 6E-2.

A situation where people are touring lava tubes as a form of recreation on privately owned land would not fall within the definition of "project," nor would it constitute a "land alteration activity." Thus, neither (e)(1) nor (e)(2) would be applicable. However, paragraph (e)(3) addresses nonproject situations. Since "nonproject" is not defined in chapter 6E, it must include anything that does not fit within the definition of "project." And, it must mean activities other than land alteration activities since the latter are covered in paragraph (e)(1).

Thus, we conclude that HRS section 6E-43.6 encompasses situations such as people walking through lava tubes that are on privately owned land. Therefore, if human skeletal remains are inadvertently discovered in a lava tube, under 6E-43.6(a) the lava tube could be closed or tours halted, or both, for a few days in order to prevent damage to the burial site while a determination is being made as to how to handle the remains. Whether the entire lava tube should be closed and whether all tours should be halted will depend on the facts of each case, as discussed in the section on regulatory takings.

D. When human skeletal remains are located in a large lava tube, is it legally defensible to spatially extend the burial site definition to the entire tube, including when the tube extends for miles? If not, what would be considered reasonable protection for the actual skeletal remains?

The extent of any burial site will be dependent upon the facts of each individual case, but must fit within the confines of the statutory definition. As defined in HRS section 6E-2, "burial site" means

any specific unmarked location where prehistoric or historic human skeletal remains and their associated burial goods are interred, and its immediate surrounding archaeological context, deemed a unique class of historic property and not otherwise included in section 6E-41 [cemeteries].

"Burial good" means

any item believed to have been intentionally placed with the human skeletal remains of an individual or individuals at the time of the burial.

HRS section 6E-2.

A burial site, as defined in the statute, is limited in extent to the specific location of the human skeletal remains and items intentionally buried with the body. Any extension of the burial site beyond the precise location of the bones and related burial items must have an archaeological basis. In other words, there must be an archaeological reason for expanding the site, and even then, the expansion is limited to the "immediate surrounding" area. A burial site cannot be expanded solely for reasons of protecting the site from damage. A burial site, then, could not be expanded by inclusion of a buffer within the definition of "burial site."

That said, however, does not mean that burial sites cannot be protected by buffers. HRS section 6E-43, in pertinent part, provides:

(b) All burial sites are significant and shall be preserved in place until compliance with this section is met . . . . The appropriate burial council shall determine whether preservation in place or relocation . . . is warranted. . . .

(d) Within 90 days following the final determination, a preservation or mitigation plan shall be approved by the department in consultation with any lineal descendants, the respective council, other appropriate Hawaiian organizations, and any affected property owner.

The preservation plan called for in subsection (d) could, and probably in many cases will, include a buffer zone around the burial site as a necessary means for protecting the site. The provision for and dimensions of any buffer zone will have to be justified in the treatment plan as necessary for protection of the burial site.