Hefty fine levied for damage to archaeological features

  • The BLNR levied a $180,000 fine on Friday for unpermitted grading on a North Kona property in 2019. (Courtesy photo/West Hawaii Today)

A Kailua-Kona woman and an environmental consulting firm were fined $180,000 Friday for unpermitted grading resulting in the damage or destruction of 40 archaeological features on a North Kona property.

The fine approved by the state Board of Land and Natural Resources, originally recommended by the State Historic Preservation Division (SHPD) to be $415,000, will be split; $144,000 will be paid by the firm Garcia and Associates (GANDA) and its principal investigator Cacilie Craft. Property owner Nichole Kanda is responsible for the remaining $36,000. Kanda is also to be credited $30,795 for an original archaeological inventory survey and subsequent survey conducted by archaeological consultant ASM Affiliates.

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The unpermitted grading took place in 2019 on Kanda’s 22-acre property in North Kona, located on the mauka side of Mamalahoa Highway, across from Makaula Road. Kanda had hired GANDA in 2018 to conduct an archaeological inventory survey of the property and create a preservation plan to allow for construction of housing for her family. The preservation plan called for a five-meter buffer around each identified historical site and removal of vegetation using only hand tools, allowing for the issuing of a grubbing permit from Hawaii County.

A field inspection of the property conducted by ASM Affiliates on Sept. 23, 2019, however, revealed many of the sites had been damaged or destroyed by machinery including a bulldozer, the use of which would have required a grading permit.

A primary point of contention arose when Kanda and her family, not GANDA, marked the sites on the property for preservation, resulting in improper fencing and several preservation spots being missed. Craft argued the marking of sites did not fall under GANDA’s scope of work.

“Ms. Kanda retained GANDA to provide an archaeological inventory survey and a preservation plan,” said Craft. “She did not retain us to provide any other services.”

ASM Affiliates — and ultimately the board — disagreed.

“Had the proper protective fencing been in place around these sites – and that’s usually the responsibility of the monitoring archaeologist and the monitoring firm, then SHPD’s responsibility to verify that that’s correct before the grading happens – there would have been room to do the work that was done on the property and these sites would have remained unaffected,” said ASM Affiliates CEO Bob Rechtman.

The recommended $415,000 fine was reduced by the board due to the nature of the damaged features; most were agricultural including retaining walls and livestock pens. Some were assessed at less than 50 years old, and at least four features were not considered native.

“Clearly, many of the features impacted were not of the significance of a heiau, a burial, a really well-constructed house platform and the like,” said board member Christopher Yuen.

While the board members appeared sympathetic to Kanda, they did not absolve her of all wrongdoing.

“I just feel that so many people have failed Ms. Kanda,” said board member Doreen Canto. “I just feel like she’s been given the boot by so many people; it’s unfortunate. The county, the state, all private parties involved.”

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“The inventory survey is completely clear that they’re only supposed to use chainsaws and hand tools,” added Yuen. “…I still cannot absolve (Kanda) of all responsibility as a landowner for not following what is clearly the plan.”

Craft requested a contested case hearing following the board’s decision, but indicated the request could be withdrawn following a discussion with others at GANDA. A follow-up in writing must be made within 10 days.