Two weeks after construction on Joseph Brescia’s North Shore property was abruptly halted by Kaua‘i Police Chief Darryl Perry, a dust fence was quietly installed yesterday, signaling construction is set to begin.
After seeking clarification from the county attorney and the state attorney general, Perry said Brescia has not broken any law.
“The Brescias had met all of the criteria set in (Hawai‘i Administrative Rule) 13, therefore, they should be allowed to build,” Perry said.
Brescia has been fighting to begin construction on his property for the past seven years. After approximately 30 graves, or iwi, were found on his property last year, Brescia asked the Kaua‘i/Ni‘ihau Island Burial Council for permission to move seven of the burials that would be impacted by his home.
In April, the burial council voted 4-2 that the graves must all be left in place in order for him to build a residence.
Perry stopped the controversial groundbreaking June 24, saying construction could be in violation of the Hawai‘i Revised Statutes 711-1107.
HRS 711-1107(b) defines worship or burial site desecration as “defacing, damaging, polluting, or otherwise physically mistreating in a way that the defendant knows will outrage the sensibilities of persons likely to observe or discover the defendant’s action.”
In a prepared statement, Perry said that he decided to warn Brescia of HRS 711-1107, which carries criminal penalties, in contrast with Hawai‘i Administrative Rules Title 13, which is civil in nature. The Hawai‘i Administrative Rules falls under the umbrella of the state Historic Preservation Division.
Perry found that the wording of HRS 711-1107 did not make a connection to HAR 13.
“From a strict law enforcement perspective, it is obvious that damaging or otherwise mistreating a place of worship or burial site in a manner that outrage the sensibilities of a person of reasonable caution constitutes a violation,” Perry said in the statement. “And exactly who is a person of reasonable caution? A person of reasonable caution is the members of our community, like you and I.”
Before allowing construction to begin on Brescia’s property, Perry said he had to clarify, not interpret, how far-reaching HAR 13 could be applied.
Perry asked if the permitting approval by the DLNR, based on the recommendations of the Kaua‘i/Ni‘ihau Island Burial Council, nullified the elements of HRS 711-1107 and if the burial council had the authority to define what constitutes “damaging, mistreatment and outrage of sensibilities.”
According to state Attorney General Mark Bennett, the contractor could be in violation of HRS 711-1107 should intentional damages occur to the burials.
As for yesterday’s installation of a dust fence around the perimeter of Brescia’s property, Perry said he was not personally informed.
In a weekend phone call with Walton Hong, Brescia’s attorney, Perry said he asked to be informed when construction would begin.
“I had asked that they inform us and they agreed to do so,” Perry said.
Hong said, from his understanding, the contractor had called the Hanalei substation to inform the police of the installation of the dust fence.
Hong also said he wasn’t exactly sure when construction on the property would start, but when it did the police would be informed.
“Mr. Brescia intends to continue work on the site pursuant to all the necessary permits and approvals he has received,” Hong said.
A phone call to Brescia was not returned as of press time.
Perry is not certain of what will happen once construction starts.
“Certainly there will be protesters, and the county, mainly KPD, will once again have to deal with issues that were created by the state entities,” Perry said. “Nevertheless, we will continue to demonstrate compassion, sensitivity and extraordinary restraint in enforcing the law.”
One noticeably absent protester during the installation of the dust fence was Ka‘iulani Huff.
Huff had been camping on the beach for weeks near Brescia’s property in protest.
Huff said she was staying home to “cool off” after a deal made with Perry was broken.
“We had a deal,” Huff said. “Perry said there would be no construction.”
Because the deal was broken, Huff said she wants to file charges against Brescia, the contractor, DLNR and the state Historic Preservation Society.
“It’s not over,” Huff said. “He (Brescia) doesn’t have clear title to the property. The property is an institution of religion. It is a cemetery.”
Perry said the police department was in the process of making contact with Huff to explain what has happened.
“We are trying to make sure we are on the same page and things work out so that everybody’s safe and sound,” Perry said. “While we’re really sensitive to what’s going on, we have to abide by the law.”