Commission describes Kapakai (Kapaa kai) analysis requirement and seeks better community verification
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Summary
Commission staff discussed the Supreme Court–driven Kapakai analysis framework used to identify and protect traditional and customary practices when agencies approve permits. Staff said the process is evolving and that guidance, practitioner outreach and stronger verification methods are needed.
Kira Kahohane, deputy director at the Commission on Water Resource Management, described how a Hawaii Supreme Court decision has required agencies and applicants to assess impacts on traditional and customary practices through what staff called a Kapakai (sometimes referenced in the meeting as Kapaka/Kapa'akai) analysis.
Kahohane said the commission and applicants must identify valued practices in a project area, assess impacts and propose feasible protections or mitigation. “At present, staff does their best to check online resources like the Kipuka database that's maintained by OHA,” Kahohane said, and she added that applicants are increasingly contracting consultants or cultural practitioners to prepare analyses.
Why it matters: Commissioners and staff stressed that Kapakai analyses are a relatively new, evolving responsibility for the commission. Commissioners and Ahomoku Council engagement were cited as sources the commission uses to interpret cultural findings and determine whether proposed mitigation is adequate.
Key points
- Framework: staff summarized the three-step framework they apply: identify valued cultural/historical resources and extent of customary practice in the project area; assess how the project would affect those practices; and determine feasible actions the agency or applicant can take to protect the practices if impacts are found.
- Verification and practitioners: public commenters and staff urged that the commission and applicants consult kupuna and recognized practitioners in project areas. A public commentor who identified as a practitioner with the PUC asked whether the commission seeks out kupuna; staff said applicants’ Kapakai analyses often document interviews with practitioners and that the commission intends to develop guidance for better community consultation.
- Relationship with other reviews: staff noted Kapakai analyses and other statutory reviews (for example, the Section 106–style consultations modeled in DLNR rules) are separate analyses under different bodies of law; they sometimes overlap but are not identical, and staff said applications commonly include both types of reports.
Context and next steps
Staff said the commission will produce guidance on Kapakai analysis procedures and community consultation and that the Ahomoku Council is one of the bodies used to identify appropriate practitioners for particular places. Commissioners identified development of internal processes and improved verification as near‑term priorities.
Ending: Kahohane acknowledged gaps in current practice and told the meeting, “there's definitely room for improvement in that process.”
