Curator of Historic Preserve Sues NELHA Over Loss of Job

posted in: November 1997 | 0

The curator for an archaeological preserve at Keahole has asked a court to bar the Natural Energy Laboratory Hawai’i Authority from dismissing him. In addition, he sought an injunction against the NELHA to prevent it from destroying what he says are several historical sites as a result of Cyanotech’s blasting. (To prepare sites for new algae ponds, Cyanotech blasts the rough lava, crushes it, and then grades the land.)

From late 1993 until July of this year, the curator, Alena Kaiokekoa, had a contract with NELHA to be curator of a small archaeological and cultural preserve at Keahole. At its July meeting, NELHA cancelled the contract, following years of disagreement between the agency and Kaiokekoa over his job performance.

A hearing on the cease-and-desist request was held last month in Third Circuit Court, with Judge Ronald Ibarra presiding.

According to Robert Kim, who is representing Kaiokekoa on a pro bono basis, most of Ibarra’s rulings were in favor of NELHA. However, at press time, attorneys for both parties were preparing briefings for the judge’s consideration on the issue of NELHA’s very right to manage the site and whether or not Kaiokekoa was given due process in the handling of his termination.

Kim regards the matter of NELHA’s status as critical. As he explains it, after NELHA was established by the Legislature, it filed articles of incorporation with the state Department of Commerce and Consumer Affairs. But when it failed to file the required annual reports with the DCCA, it was involuntarily dissolved by the DCCA in 1994.

If indeed NELHA was dissolved, Kim says, all actions it has taken since 1994 are invalid.

Guy Archer, the deputy attorney general representing the state, has a different take on it. Chapter 227D-2, which created NELHA in 1990, set it up as a public agency attached to DBEDT. As such, Archer argues, there is no need for NELHA to incorporate at all.

To explain the source of confusion, Archer goes back to 1978, when a predecessor body, the Natural Energy Laboratory of Hawai’i, was formed. That agency did file articles of incorporation. After the 1990 legislative changes, Archer continues, “NELH dissolved and NELHA sprang to life… In 1992, someone came upon the NELH articles of incorporation and filed a name change, changing NELH to NELHA. Afterward, NELHA was advised that it did not need to incorporate we’re a public agency, not a corporation.

“The executive director wrote the DCCA Business Registration Division, saying we don’t want to be a corporation. Subsequently, the Business Registration Division dissolved the corporation based on the nonpayment of the annual fee.”

“Our position is that dissolution of corporate firm has no impact or effect whatsoever on the status of NELHA.”

Stewardship

On the matter of the stewardship of historic sites, both NELHA and Kaiokekoa agree there have been problems. According to Kim, in the past, a sand dune containing burials was bulldozed out of existence.

More recently, Kaiokekoa has been concerned about the fate of archaeological sites in the area being blasted and bulldozed by Cyanotech.

On the other hand, records of NELHA board meetings suggest members were growing increasingly dissatisfied with Kaiokekoa’s stewardship of the archaeological preserve. Last December, the board was shown pictures taken of the preserve taken by NELHA’s operations manager Jan War. According to minutes of the board meeting, the pictures showed “KEEP OUT” signs posted near the closed entrance gate erected by the curator; several pigs in and around a mud-filled pen built in the middle of the archaeological area; abandoned vehicles and boats in the same area; a large shipping container with household items stacked around it; extensive tents, tarpaulins and plumbing suggesting the presence of a sizable community; and a large structure being built over an open pit “apparently destined to be a six-hole open-pit latrine.”

According to Kim, all these things can be readily explained. The “latrine” was merely a cover over a hole in the lava; there was never any intention to make a pit toilet, nor is there a need, since portable chemical toilets are on site, he says. The pigs were being raised in anticipation of observing a Hawaiian religious event; when the pigs were seen to be a problem, they were removed. (The NELHA staff at one point counted 12 pigs on site, some in a pen, others roaming freely, and a few even wallowing in the anchaline ponds.)

The abandoned truck on the fringe of the preserve did not belong to Kaiokekoa, who was himself trying to locate the owner in an effort to get it removed, Kim says. As to the shipping container, the NELHA had approved it being there as a toolshed for the curator.

Tents were used by the curator and other caretakers to provide overnight security, Kim says. While fishermen and others who use the site may not intend to, often they disturb historic sites. Having knowledgeable people on site 24 hours a day is therefore important to protect the preserve’s integrity, Kim says, and tents are necessary to protect the people.

NELHA claims Kaiokekoa’s caretakers were really members of his family and friends and that the overnight stays constituted occupancy of the preserve – which was not anticipated in the curator agreement. Public access was often limited by Kaiokekoa, who, NELHA says, often posted “Private Property” signs in addition to the “KEEP OUT” notices – in direct violation of the curator agreement.

Water Issues

The use of water by Kaiokekoa was another sore point. According to Tom Daniel of NELHA, water use at the archaeological site “has climbed steadily, reaching 300,000 gallons per month.” NELHA installed a drip irrigation system for new plantings of Hawaiian species, but Kaiokekoa, Daniel says, seems to have felt that was not adequate and so installed “a series of broadcast sprinklers throughout the site, which frequently operate all day long. Many of the plants have yellow leaves, indicating excess watering.”

“In addition,” Daniel says, “there are leaky faucets on showers and sinks, a leaking ice maker, and other places where water is wasted.”

NELHA did not act in haste when terminating Kaiokekoa’s contract, Daniel says. “The NELHA board devoted many hours attempting to resolve the issues of the curatorship,” he notes – and board minutes reflect this. “Every monthly meeting since late 1994 has had discussion of the situation, and several special meetings have attempted to find compromises.”

Ross Cordy of the state Historic Preservation Division of the Department of Land and Natural Resources was asked to help prepare a report on possible courses of action, which report was given to the board in late 1996. “Attempts were made to discuss the issues with Mr. Kaiokekoa,” Daniel says, “but he completely rejected any attempt to limit his occupancy of the site.”

In the spring of 1997, a committee appointed by the NELHA board, working with Kaiokekoa’s attorney Kim, developed a list of potential mediators, with Judge Patrick Yim – now involved in the Bishop Estate controversy – eventually being selected to handle the case. “Yim agreed to serve as mediator within strict time constraints in June and July of 1997,” Daniel says. “NELHA allocated $10,000 of its operating funds to cover the costs of the mediation.”

In the end, however, Kim did not confirm selection of the mediator in time to secure Judge Yim’s participation. In July, the NELHA board finally voted to terminate Kaiokekoa’s contract, effective a month later. According to Daniel, the board’s determination to end the agreement remains in effect, but the actual termination has been postponed pending resolution of the court complaint.

Volume 8, Number 5 November 1997

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