Legal Research: Step 1: Identify the Key Facts

TO:      Associate

FROM:  Assigning Partner

RE:       Moepu Found on Private Property in Kalihi – Li Family

We were recently retained by the Li family to advise them on a construction project taking place on their residential property.  I need some background work on contract terms when the state or municipality requires work to stop and what liability they might incur based on work done so far.  I’ll need an oral briefing from you before I meet with them in 2 weeks.  The intake attorney is on maternity leave, but wrote up her notes from her phone conversation with the Li Family:

Recently, three hand-carved bowls, some burial kapa, and a gourd were uncovered when the Li Family dug into their hillside to shore up the back portion of their house. The Li Family had recently moved to Hawaiʻi from Hong Kong and purchased a house in Kalihi. Their house was near where the new rail project was proposed and the Li Family worried that the vibrations from the rail might cause their house to slide down the hill. So, they decided to shore up the back of the house by digging a deep trench and filling it with concrete.

They hired Deke, a friend of a friend, to excavate a portion of the ground and planned to pour a three-foot concrete footer themselves. The Li Family got a good price from Deke and agreed to pay him cash for even more savings. Fifty percent down, fifty percent when Deke finished the work.

He started on a Sunday, but when Deke saw the artifacts, he immediately stopped operations. He was afraid the next bucketful would include iwi kupuna, or old bones and that would be trouble, big trouble for him and the Li Family. At the very least, he recognized them as native Hawaiian cultural items and did not want to proceed in case he damaged them.  Deke took his excavator and left leaving the artifacts for the Li Family where he found them.

Before leaving Deke told the Li Family that the artifacts were valuable ancient Hawaiian cultural items. Initially the Li Family planned to put the artifacts up for sale on eBay thinking they could defray the cost of their renovations with the sale of the ancient Hawaiian artifacts.

Later, when Deke told his family about what he found on the Li property, they told him the artifacts had to be reported and if he didn’t report them he could go to jail. After a restless night, he called DLNR the next morning and reported the items but gave the Li Family name and address.

The Li Family were visited by someone from the SHPD later that week, but they didn’t understand why the artifacts mattered or what laws they had violated. Their friends said that they could be fined for not reporting the findings. The SHPD said all work had to stop because it appeared that the Li Family could have a Native Hawaiian burial site on their property. They would have to research their databases to determine whether it was a known site or if this was an inadvertent discovery of moepu or funerary objects.

Do they need to stop their renovations? What will happen next to the building site and the Li Family? Can they get any of their money back?

After I meet with the Li’s and confirm our engagement, we will probably need to do additional research.  I know that they are afraid of being deported and want to sell the house.  They will probably want to get their money back from Deke and demand that Deke refill the trench so they can sell the property.

Key Facts are legally significant facts because they satisfy the elements of a cause of action and are necessary to prove or disprove a claim.  Thus, they determine the outcome of the case and are often called determinative facts since were they to change, the outcome of the case would change.  A useful test in determining whether a fact is key is to ask the question, “If this fact were changed, would the application of the rule of law change, or would a cause of action or conflict even exist between the parties?” 

Recently, three hand-carved bowls, some burial kapa, and a gourd were uncovered when the Li Family dug into their hillside to shore up the back portion of their house.

The Li Family got a good price from Deke and agreed to pay him cash for even more savings. Fifty percent down, fifty percent when Deke finished the work.

When Deke saw the artifacts, he immediately stopped operations.  He was afraid the next bucketful would include iwi kupuna, or old bones and that would be trouble, big trouble for him and the Li Family. At the very least, he recognized them as native Hawaiian cultural items and did not want to proceed in case he damaged them.

After a restless night, Deke called Department of Land and Natural Resources (DLNR) the next morning and reported the items but gave the Li Family name and address.

The State Historic Preservation Division (SHPD) said all work had to stop because it appeared that the Li Family could have a Native Hawaiian burial site on their property. They would have to research their databases to determine whether it was a known site or if this was an inadvertent discovery of moepu or funerary objects.