Judge says law may not do enough to protect burials

After the third and final day of testimony yesterday, Fifth Circuit Judge Kathleen Watanabe said she’ll rule by Sept. 15 on a preliminary injunction request to halt construction at a Wainiha homesite known to contain at least 30 iwi, or ancient Hawaiian burials.

Watanabe is expediting the decision in part because she denied another oral motion for a temporary restraining order yesterday — the third since the hearing began Aug. 14 — which would have put a stop to work in the interim.

Testimony yesterday revealed that concrete jackets have already sealed seven iwi impacted by the footprint of the house, owned by California businessman Joseph Brescia, and one of two concrete garage slabs has been poured. Concrete footings for the foundation have been in place since mid-August.

Wainiha resident Jeff Chandler, who claims ancestral ties to the land, brought the injunction request in a counterclaim against Brescia and the state Historic Preservation Division, after Brescia sued him and a number of protesters for allegedly trespassing and interfering with construction.

Attorneys for Chandler, Brescia and the state have debated a wide range of procedural issues relating to the discovery and treatment of iwi, as well as the cultural significance of the burials and whether the actions taken actually protect or harm them.

Given the emotionally charged nature of the hearing and the broad scope of the claims, Watanabe cautioned yesterday that the court’s jurisdiction in the matter is “very, very narrow,” as are the remedies.

She added that she recognizes the importance and sensitivity of the issues brought up during the hearing, but that she can’t legislate from the bench.

“I think the biggest problem is the law doesn’t go far enough to protect these burials,” Watanabe said. “Perhaps the best thing is changes in law.”

She identified for counsel some of the legal issues she would be considering in her decision, namely whether the Kaua‘i/Ni‘ihau Island Burial Council was properly informed when it made its April decision to preserve the burials in place.

Chandler’s attorney, Alan Murakami, argues that Deputy Historic Preservation Division Officer Nancy McMahon reversed the Kaua‘i/Ni‘ihau Island Burial Council’s April decision by later approving a Burial Treatment Plan that included vertical buffers for the house and concrete jackets.

Two Burial Council members, Barbara Say and Presley Wann, testified Wednesday that they had not discussed those plans with McMahon before she OK’d them. They also said they declined opportunities to offer recommendations at the April meeting on how to implement their decision.

Murakami claims that such procedural missteps have resulted in irreparable damage to the iwi kupuna.

But Deputy Attorney General Vince Kanemoto, on behalf of the state, said there was no denial of opportunity for the council to make recommendations and that proper protocol was used.

“It’s clear that what has occurred at the Brescia property is very unfortunate, and I don’t think anyone feels good about it,” Kanemoto said. “But the state defendant followed the law.”

One of Brescia’s attorneys, Calvert Chipchase, bypassed all questions of procedure and argued that the iwi are not in threat of demolition, alteration or transfer, which is the basis of Chandler’s lawsuit.

He further said that Brescia will be financially harmed if construction is stopped. Ted Burkhart, Brescia’s project manager, testified that already the delays, among other factors, have driven the cost up considerably. To date about $400,000 has been spent on the foundation, compared to the initial $255,000 estimate, Burkhart said.

Brescia has been trying to build a home on the 15,500-square-foot North Shore lot for the past seven years. His attorneys say that state and county requirements have been met, and Brescia should be allowed to proceed with his plans for a single-family residence.

Late last year, building permits were approved by the county Planning Department with the knowledge that remains had been discovered during excavation work.

Hawaiian archaeology expert Michael Dega, who was contracted to complete an archaeological inventory survey for the lot, testified yesterday that more iwi could exist on the property. The remains discovered date as far back as the 13th century and as recent as the 18th, he said.

Attorneys for all parties have until Sept. 11 to submit proposals of findings of fact and conclusions of law. Watanabe asked counsel to focus on the areas of concern she identified, and to stay away from the issues that are not within her purview to decide.

“I’m sure that all parties will walk out not happy with anything the court has said,” Watanabe said, noting the “difficult” decision ahead.

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

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