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Ian Lind • Online daily from Kaaawa, Hawaii

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Land director misstates law and exceeds authority in trying to muzzle news reporting

March 18th, 2011 · 31 Comments

Bill Aila, newly appointed as director of the Department of Land and Natural Resources, appears to have tripped up in one of his first official acts by far exceeding his authority in trying to limit news reporting.

In a March 17, 2011 letter addressed to “all news agencies,” Aila threatened news media with fines up to $10,000 per violation for publishing, without prior state approval, any photographs showing human remains believed to be Native Hawaiian and more than 50 years old.

The letter refers to reporting earlier this week on remains found at Blaisdell Park in Pearl City by the Star-Advertiser and Hawaii News Now.

A video clip from Hawaii News Now displayed along with the Star-Advertiser story online is now “unavailable,” and it no longer appears on the Hawaii News Now web site.

Aila wrote:

In the future, we request that all news agencies show due respect for the dead and refrain from photographing human remains.

According to the letter, “state law strictly prohibits photographing any human remains over 50 years old” without express approvals from the state.

It would certainly seem that there are First Amendment issues involved in attempting to apply the department’s rules to the news media in this manner.

Did someone say “prior restraint”?

But first there’s an unwritten rule I always refer to when confronted with this kind of blanket assertion: “May I see a copy of that policy, please?”

It’s amazing how often the supposed authority can’t be found or is simply being exceeded. In this case, Aila’s letter fails to identify any specific statutory authority beyond his general reference to “state law.”

His only legal citation is to the authority to levy finds, found somewhere in HAR 13-300, and to the confidentiality requirements found in HAR 13-300-31.

So I went to look for the administrative rules Aila’s letter cites, Section HAR 13-300, and the specific rule 13-300-31.

Turns out there’s so much wrong with Aila’s letter.

The $10,000 fines? The only $10,000 fines authorized anywhere in that rule apply to the illegal sale of human remains and burial artifacts (Section 13-300-42), and the illegal excavation or destruction of burial sites in the state.

The prohibition on photography? The only reference I could find is in a rule (13-300-32 Physical Examination of Human Remains), applying to the scientific examination of remains that may be necessary in the processing of historic remains.

(c) Physical examination methods shall consist only of the observation of metric, non-metric, or other relevant traits needed to suggest ethnicity, or a combination thereof, if necessary. Any intrusive or destructive examination method including, but not limited to, x-ray, radio carbon dating, and mitochondrial DNA analysis, is prohibited unless a written request is made to the department and written approval is granted prior to the initiation of any such examination. Photography of human skeletal remains subject to examination pursuant to this subsection shall be prohibited, unless written consent is first obtained from the council where ethnicity is suggested to be Native Hawaiian, or the department, where ethnicity is suggested to be non Native Hawaiian. Failure to comply with this subsection may subject a violator to the penalties stated in section 13-300-43.

That’s a very specific context, stemming from past disputes between native communities and scientists who seek to study human remains. There’s no indication that it would apply to news media outside of this context.

So then I turned to Hawaii Revised Statutes to test the letter’s assertion that state law “strictly prohibits photography.”

The provisions relating to burial sites appear in Section 6E-43, 6E-43.5, and 6E-43.6 Hawaii Revised Statutes.

The words “photo” or “photograph” do not appear anywhere in the statute, nor are there any limits suggested on news reporting regarding the inadvertent discovery of human remains, Hawaiian or otherwise.

Admittedly, I’m not a lawyer. But, at least on its face, the letter from the DLNR director lacks the necessary substance to accompany the threats.

There’s still the First Amendment to deal with, but I’ll pass on that for today.

Just a hint…The Supreme Court recently ruled that a groups saying the most vile and hateful things in a public protest at the funerals of military personnel who died in combat is protected by the First Amendment. It doesn’t look to me like any photo cleared for being shown on the news is going to come anywhere close to territory that would be unprotected by the First Amendment. But a full look at that issue is best left for another day.

Tags: Media · Sunshine

31 responses so far ↓

  • 1 Tim Ruel // Mar 18, 2011 at 8:44 am

    Excellent research, Ian! Way to stand up for things! :)

  • 2 Gestapo // Mar 18, 2011 at 8:57 am

    “The letter refers to reporting earlier this week on remains found at Blaisdell Park in Pearl City by the Star-Advertiser and Hawaii News Now.

    A video clip from Hawaii News Now displayed along with the Star-Advertiser story online is now “unavailable,” and it no longer appears on the Hawaii News Now web site.”

    Scary. Very Scary. Very Very Scary.

  • 3 Censored // Mar 18, 2011 at 9:16 am

    But…but…but…[deleted. If you want to comment, please do not resort to such ridiculous ad hominem attacks. They will not be approved.]

  • 4 MynahBlog // Mar 18, 2011 at 10:49 am

    When did Mr. Aila’s cultural beliefs become state law? Answer: When Abercrombie appointed him head of DLNR.

    This is becoming a pattern with the new administration…making up the rules as you go.

  • 5 MynahBlog // Mar 18, 2011 at 10:50 am

    Now I know why they used to engrave laws on rock.

  • 6 roy cameron // Mar 18, 2011 at 10:53 am

    where’s today’s cat pics????

  • 7 ohiaforest3400 // Mar 18, 2011 at 10:56 am

    I guess Hawaii News Now doesn’t have Jeff Portnoy on retainer. Otherwise, he’d be crowing his usual self-aggrandizing and (in this case, correctly) righteous crow.

  • 8 Ian Lind // Mar 18, 2011 at 11:05 am

    They are late, late, late.

  • 9 Badvertiser // Mar 18, 2011 at 11:31 am

    How can you determine if remains are ancient if they can’t be completely examined? And why is the SA bending over on this issue?

  • 10 ForwardObserver // Mar 18, 2011 at 12:56 pm

    Wow, the William Aila I know is a real sweet and humble guy who would never try to bullying tactics or threats of “legal action” to get someone to see things his way. What’s that old saying about absolute power?

  • 11 Ilima // Mar 18, 2011 at 1:25 pm

    Great job on this Ian.

  • 12 Sean McLaughlin // Mar 18, 2011 at 1:51 pm

    Thanks Ian!

    Timely report, given that we’re still in “Sunshine Week” celebrating open government and freedom of information!

  • 13 Stan // Mar 18, 2011 at 2:26 pm

    There are many things that could be said about the last administration in a negative light. However, I will say here that the one thing they did not do was have Directors make up the rules as they went along in their job. While the last administration did ignore laws…at least they acknowledged their existence…not making up the rules as they went along. Abercrombie better be careful and reign in his troops to be sure that stuff like this does not become commonplace….confidence in an administration evaporates faster than water in a nuclear plant when people who work with government loses confidence in the integrity of it’s leaders.

  • 14 Ken Conklin // Mar 18, 2011 at 2:59 pm

    There’s a belief among some truly indigenous people that if you photograph a living person, you thereby steal his soul. Anyone who believes that might also believe that the spirit of a dead person remains in his bones, and therefore the bones should not be photographed for the same reason that the living person should not be photographed.

    There are a few radical ethnic Hawaiians who desperately want to portray themselves as truly “indigenous” and therefore they mimic the prohibition on photographing bones. The group “Hui Malama i Na Kupuna O Hawai’i Nei”, headed by Eddie Ayau, is one such group. Bill Aila is a member of (perhaps even an officer of?) Hui Malama.

    This issue about photographing bones (or even artifacts buried with the bones) came up during the controversy over the Kawaihae (Forbes Cave) artifacts a few years ago. Hui Malama raised strenuous objections to photographs of them, including one or two photos of Forbes Cave moepu (burial artifacts) which had appeared in a brochure published by Bishop Museum. But there were other ethnic Hawaiian groups who opposed Hui Malama on this issue; and Ka Wai Ola (the OHA newspaper) even ran side-by-side lengthy commentaries expressing these opposed views.

    I guess from a cultural perspective the question is, how far should an entire society go to defer to strongly felt views of a small minority of a minority? If a few people believe the wrath of God will come down on a whole society if a woman eats a banana (ancient Hawaii) or if anyone eats pork (some orthodox Jews), then should we prohibit such actions? But from a legal standpoint, the question is how far can a government department head go to impose his cultural views on an entire society when there is no law to give him the authority to do so?

  • 15 Hawaiino // Mar 18, 2011 at 3:04 pm

    Usually the Chair signs his name to a document drafted by someone else. There are a lot of attorneys and pseudo-attorneys in that building, he probably got bad advice that suited, or was delivered to appeal, to his instincts. I’ve met him, he was sincere and didn’t come across as a bully.
    I’ve had serious issues with careerists in this Dept. They make up rules and law to advance their personal agendas. This might be something foisted on the Chair rather than emanating from him. The DLNR is hamstrung by too much portfolio, inadequate funding, and poor middle managers. Good luck to the Chair cleaning up these stables.

  • 16 Anonymous // Mar 18, 2011 at 4:25 pm

    Please go to law school before doing legal analysis. I cringe when non lawyers try to do legal analysis.

  • 17 Ian Lind // Mar 18, 2011 at 5:01 pm

    No need to throw stones. Seriously, Just throw additional light on the situation. I appreciate anyone who tries to make the picture clearer. Oh, I should add that I heard from several lawyers today who agreed with my assessment.

  • 18 wlsc // Mar 18, 2011 at 5:19 pm

    Mr. Aila may also be relying in part on the sentence in HAR 13-300-1 (Purpose) which says the following:

    “The photographing of human skeletal remains reasonably believed to be Native Hawaiian
    may take place only after consultation with known lineal descendants and the appropriate
    council. ”

    Not exactly forbidding photography of such remains altogether, and no mention of fines here, but definitely intended to discourage such actions.

  • 19 hugh clark // Mar 18, 2011 at 5:32 pm

    Appears from here that the new director may have been trained by the old one whose administrration this week received the Big Island Press Club’s annual Lava Tube award for closed behavior — not benefitting the public.

  • 20 Bill // Mar 18, 2011 at 7:11 pm

    I cringe at lawyers that think the law is out of reach for those that don’t go to law school — what a contemptuous and arrogant view of the public that is

  • 21 Ben C. // Mar 18, 2011 at 8:04 pm

    Judging from some of the comments above, there seems to be a sense that a public official is imposing his religious beliefs on the press, or at least imposing the pretense that such archaic beliefs still exist.

    This might not be what is happening. This could be an attempt by the political forces pushing for the rail system to remove from sight photographs that could have an inflammatory effect. After all, one of the first things the US military did in the invasion of Iraq is to ban photographs of coffins containing dead American soldiers. There could be many, many remains of Native Hawaiians along the rail route, and there is a concerted effort to nip protest in the bud.

  • 22 Ulu // Mar 18, 2011 at 8:04 pm

    The letter would appear to try to ban taking photographs in Punchbowl or other cemeteries, as they provide identifiable locations.

    DLNR is fast becoming Hawaii’s TSA, without that agencies deft public relations touch ;)

  • 23 Ian Lind // Mar 18, 2011 at 10:12 pm

    Generally, though, these expressions of intent don’t mean much unless actually written into the statute itself.

  • 24 MynahBlog // Mar 18, 2011 at 10:55 pm

    Funny, I cringe when lawyers do legal analysis.

  • 25 wlsc // Mar 19, 2011 at 2:41 am

    Interesting that these bans, or “discouragements,” on the photography of skeletal remains have been in place since the mid-1990s and yet only now is it a matter of outrage — and only, apparently, because they’re being applied to the news media.

    Does this mean it hasn’t mattered that, for nearly 15 years, these bans may have seriously hampered the scientific/legal documentation of skeletal remains found in the state?

  • 26 Nahoaloha // Mar 19, 2011 at 7:15 am

    Interesting. My reading of the administrative rules cited is that the photography ban would apply in the context of the “department” (DLNR, meaning historic preservation division) being called in to ascertain whether the remains are Hawaiian. I would think that it would apply to anyone taking pictures of bones being examined.

    But I’m not clear that this rule would even apply here. It seems the bones were found on federal property, the shoreline of Pearl Harbor. Archaeologists with the Naval Facilities Engineering Command took over, according to the Star-A.

    Haven’t studied the federal NAGPRA regs, but I would think those rules, not the state’s, would be relevant here. In any case, it would appear Aila is offbase.

    I’m not a lawyer, either, but I can read!

  • 27 Xfiles // Mar 19, 2011 at 10:12 pm

    Talking about Star Advertiser and Hawaii News Now. Have you noticed that Star Advertiser is now partnering with Hawaii News Now?

    Hawaii News Now is even partnering with developers like Hawaii Reserves and the proposed Envision Laie.

    http://www.hawaiinewsnow.com/Global/story.asp?S=14284715

    Note: The talking heads are not just residents. They are Laie Community Association Board members – the ‘in-group’. It is most unfortunate to see this caliber of ‘news’.

  • 28 Tom Dye // Mar 20, 2011 at 8:52 am

    This kind of property rights analysis isn’t applicable in the case of human bones. They are not bananas or pork chops. It is appropriate to recognize and privilege the social relationship that still exists between an individual’s bones and living descendants. If Bill Aila has an expansive view of “the law” in this instance (I’m not certain that he does), then good on him!

  • 29 Carl Christensen // Mar 20, 2011 at 9:40 pm

    On the issue of “making up the rules as they went along in their job,” Abercrombie’s people will have a hard time topping Lingle’s Superferry fiasco.

  • 30 HUH // Mar 21, 2011 at 9:47 am

    You’ve got to kidding right? Attorneys will only complicate matters so they can get paid more. They’d would like think there is a special brandof English no one else can understand.

  • 31 Dean // Mar 21, 2011 at 6:26 pm

    Back in 1983, when lava was obliterating Royal Gardens subdivision and more on the Big Island, the director of civil defense, Harry Kim, told a group of residents that he was going to close the airspace over the area to keep the annoying helicopters out. That included news media.

    There was a cheer from the people at the meeting.

    Nice try, but only the FAA has the authority to close air space. And even then any legitimate news media flight has the option of applying for an exemption, which is often granted.

    So this isn’t the first time someone tried to claim more authority than was assigned by law.

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