Judge upholds Wainiha construction again

Fifth Circuit Judge Kathleen Watanabe yesterday affirmed that construction may continue at the Wainiha homesite known to contain at least 30 iwi, or graves, while attorneys for the property owner, state and protesters named in a related lawsuit debate a preliminary injunction.

At the end of the hearing yesterday, which will continue Sept. 3, Watanabe denied a last-minute motion from the protesters’ attorney to temporarily halt building until the next court date.

The judge declined the temporary restraining order request, made by the Native Hawaiian Legal Corp. on behalf of two of its Kaua‘i clients, because the foundation for the home in question is already completed and no further disruption to the ground is anticipated. She also put an end to a previously agreed-upon break in construction, in place since Tuesday.

Watanabe reminded the court that she denied an earlier TRO request July 28 for the same reason.

About two dozen concrete pilings are in place at Joseph Brescia’s 18,000-square-foot beachfront property, none of which sit on top of the known iwi, according to the state.

“There’s no risk of additional earth movement,” Watanabe said.

While the judge has appeared unconvinced that further progress on Brescia’s residence as planned will harm the iwi, Watanabe denied an oral motion to dismiss the case from Deputy Attorney General Vince Kanemoto, saying the “contentious” issues at stake are of clear importance to the community and need resolution.

“This court is not about to dismiss the case,” she said. “… The community needs finality and closure.”

Protesters have maintained a steady presence at the property over the last few months, which prompted Brescia’s June 5 lawsuit against protesters Jeff Chandler, Ka‘iulani Edens-Huff, Puanani Rogers, Dayne Gonsalves, Louise Listman and Hale Mawaesued.

Most recently, a group of a dozen or so protesters from around the state occupied the site for eight hours. Anticipating arrest for trespassing, they were prepared to link themselves together via PVC pipe segments and self-releasing lock devices. None were made that day, though police have since announced plans to issue warrants.

Native Hawaiian Legal Corp. attorney Alan Murakami spent the majority of the six-hour hearing questioning his first three witnesses on procedures and processes that led to the Kaua‘i/Ni‘ihau Island Burial Council’s April decision to preserve the burial sites.

The major issues raised included the state’s classification of the individual iwi as unrelated to one another, whether the State Historic Preservation Division properly noticed the public in soliciting for possible ancestral claims to the land, and the communication between the division and the Burial Council.

The first witness, Dr. Michael Graves, an archeological expert from the University of New Mexico, testified that archaeologists look at the spatial proximity of individual burial sites to determine whether there is a relationship, or perhaps a cemetery. Graves, who was not qualified by the court as an expert on Hawaiian archaeology, was not permitted to comment specifically on the Wainiha burial sites.

Murakami then pressed second witness archaeologist Nancy McMahon, deputy administrator of the State Historic Preservation Division, on her involvement in reviewing the burial treatment plan for the property as well as her assessment that the 30 graves do not constitute a cemetery.

McMahon, who serves as a state liaison of sorts to the Kaua‘i burial council and contractors who prepare burial treatment plans for property owners, testified that the existing cement footings and iwi are separated by horizontal and vertical buffers.

She also said that subsequent fragmented human remains have been inadvertently discovered at the site, and left in place.

Lenneth Lorenzo, a Hawaiian genealogy and title expert, briefly testified on the number of possible claims to the land among Hawaiian families on Kaua‘i before the court was dismissed for the day.

Though the hearing is far from over, about nine Kaua‘i residents opposing construction near the iwi, left Watanabe’s courtroom yesterday disheartened — some in tears.

The group remained for a good 15 minutes, stunned by the turn of events in the 23rd hour of the hearing to allow construction to continue.

“That doesn’t mean this is the end of the desecration because the foundation is paved,” said Rogers, a defendant named in the Brescia lawsuit.

Speaking to her peers, Rogers continued, “All we give is aloha to these guys, and they dig up our graves, they exploit the ‘aina and then they go home to California.”

• Blake Jones, business writer/assistant editor, can be reached at 245-3681 (ext. 251) or bjones@kauaipubco.com

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