Usually, by the time shovels hit dirt on a jobsite, the ground they are breaking has been obtained and controlled by the owners and there's no question that workers will be able to proceed with construction. But what happens when that ground is considered holy or ownership is still disputed, despite all the legal land ownership paperwork and all necessary permits being in place?
A perfect example of the tension that land disputes bring unfolded not long ago, when crews set out to build one of the world's largest telescopes in Hawaii. Protests halted construction of the $1.4 billion Thirty Meter Telescope (TMT) International Observatory project at Mauna Kea, the 14,000-foot mountain on the Big Island of Hawaii, land that many native Hawaiians hold sacred.
Native Hawaiian groups have said Mauna Kea, a dormant volcano, is sacred land, and they oppose construction of the astronomical observatory under any circumstances.
Activists have been blocking construction crews’ access to the site on and off since 2015 and backed a legal battle that resulted in the Hawaii Supreme Court vacating the TMT’s original building permit on procedural issues regarding the land lease. At the end of last year, however, the state Supreme Court upheld the second building permit issued for the project, paving the way for construction to begin — in theory. Recent arrests there have re-energized protesters who remain intent on stopping TMT construction.
This kind of negotiation, said attorney Allison Binney, partner at Akin Gump in Washington, D.C., is not unusual. For instance, it’s not uncommon for other special conditions to include a regularly scheduled quiet time, during which all construction activity stops while those who still have access to nearby religious sites conduct their ceremonies.
But a developer or owner throwing in the towel on a project because of religious or cultural concerns is not the usual outcome, she said.
“Rarely do you see these projects die,” Binney said, “because the law is really set up to force a due process and to identify any harm.”
The law is also why the fights are more about protesters trying to steer public opinion against the project or run out the clock by driving up developers’ legal fees and creating so many other delay-related costs that project officials decide either to abandon their plans or build elsewhere, she said.
Another example came to light last week when human remains believed to be of Native American origin were found as part of the 405 Freeway widening project in California.
Construction workers found the bones Sept. 25, according to the Orange County Transportation Authority spokesman Eric Carpenter, and construction was halted immediately while officials consulted with an archaeologist and the county coroner.
And controversies around sacred sites are not just limited to Native American or indigenous ceremonial grounds. In Cincinnati, some groups are pushing back against the Port of Greater Cincinnati Development Authority’s and the FC Cincinnati soccer team’s intentions to demolish a 154-year old former synagogue in order to make way for the ancillary projects planned for a new $250 million stadium.
See into the future
Binney’s advice to developers is to “get out in front” of potential issues, make sure their environmental reviews are airtight so they won’t be vulnerable to process lawsuits down the road and be willing to compromise around the treatment and use of what some groups consider sacred land.
But what about the construction itself? Many contractors arrive on a project after all of these negotiations have taken place, ready to perform their work but unprepared to deal with protests or potential finds — i.e. artifacts or remains — that might stop the project. What are contractors’ responsibilities?
First, said attorney Keith Poliakoff, a partner in the Fort Lauderdale office of Saul Ewing Arnstein & Lehr and co-chair of the firm’s government relations practice group, it is the contractor’s responsibility to self-report any finds and stop construction until a determination can be made as to whether the project has revealed something significant. “[Self-reporting] will tremendously speed up the process and avoid fines, penalties or criminal violations,” he said.
Many jurisdictions, Poliakoff said, have archeologists on staff who will be happy to come to the site immediately in order to review remains or artifacts and advise contractors on how the discovery fits in with the construction tasks ahead. In this way, the project can be back up and running as soon as possible.
Sometimes, the land in question is more than just ceremonial but actually a former burial site, like in the case of a proposed $192 million mixed-use development in Columbus, Ohio, being built over the site of a 19th-century graveyard.
Michael Schiff, founder and president of the Schiff Capital Group, which is developing the North Market project, told the Columbus Dispatch that the project team will “do the right thing” if human remains are found.
“Our plan is to respectfully handle that situation in respect to how it manifests itself,” he said.
When dealing with an undocumented graveyard, Poliakoff said, it’s typically incumbent on the property owner to make arrangements for removal and reburial of remains in a proper location.
Just about every state has its own collection of laws dealing with how to handle the bodies buried in a cemetery, said attorney Kenneth Tinkler of law firm Carlton Fields. But whenever construction crews find bodies with no obvious markings, like tombstones, no matter if they appear to have been in that location for decades, the first call should be to law enforcement.
The authorities, Tinkler said, will determine whether or not the remains are from “the distant past.” It’s always possible that contractors could find themselves in the middle of a crime scene as well. “It happens more often than you would think, depending on the location,” he said.
Contractors should also be proactive before starting a construction project, Tinkler said. If the project is large in scale and has been through the standard environmental review processes, then the owner will clue in contractors about any special rules of construction or what they should be looking for on the site. Barring that, contractors can do their own research, even via Google, about previous projects nearby and whether there have been any sensitive finds in the area.
What it all boils down to for contractors, Poliakoff said, is that they should act in a responsible way when they come across artifacts or remains during the course of a construction project and report them to the appropriate agency. “The temptation [not to report discoveries] may be there, but it is not worth the risk and not advisable to proceed in that manner,” he said.