Burial law was not followed, judge says

A Ha‘ena landowner will be allowed to proceed with the controversial construction of a one-family home on a Naue Point plot containing more than 30 iwi, albeit with a few major caveats, 5th Circuit Judge Kathleen Watanabe said yesterday.

Watanabe granted, in part, a motion for preliminary injunction brought by attorney Alan Murakami of the Native Hawaiian Legal Corporation on behalf of Wainiha resident Jeff Chandler against the State Historic Preservation Division and landowner Joseph Brescia.

For the time being, Brescia is permitted to continue with construction, provided that doing so causes no irreparable damage to the burials and does not prevent access to them.

Calvert Chipchase, attorney for the absent Brescia, said that he was not an architect and would need to confer with his client before commenting on what those restrictions mean for the current construction plans, which call for the body of the house to be elevated 8 or 81/2 feet above the ground.

“No matter what you build on top, it’ll always be a graveyard to us,” said Kapa‘a resident Puanani Rogers. “Justice wasn’t served to stop the construction. I still feel like we’re hanging. It’s suspended animation.”

Chandler agreed that the hearing, although partially successful, left him unsatisfied.

“She should have stopped them,” he said. “I think we were robbed.”

However, Murakami, his attorney, disagreed.

“Jeff is gratified that she (Watanabe) listened to him.”

Per terms of Watanabe’s decision, SHPD will be forced to go back to the start of its Burial Treatment Plan process. The first time around, she said, SHPD did not properly follow the rules and laws pertaining to burials.

On April 3, the Kaua‘i/Ni‘ihau Island Burial Council decided to preserve the burials in place rather than removing them and reburying them at a different location.

Two Burial Council members, Barbara Say and Presley Wann, testified during the evidentiary hearing, which occured Aug. 14 and Sept. 3 and 4, that they did not have an opportunity to discuss the reasons for that decision with Deputy Historic Preservation Division Officer Nancy McMahon before she approved a Burial Treatment Plan featuring vertical buffers for the house and protective concrete jackets for the iwi.

Watanabe said that the injunction against the state will remain in place until it goes through proper procedures in formulating a plan that respects the council’s legally designated role in the process.

“I think she sent a clear message to (Deputy Attorney General) Vince (Kanemoto) and Nancy (McMahon) that they’re not doing the iwi justice. If this is not a shot over the bow of SHPD … I don’t know what is,” Murakami said. “If SHPD is sincere about protecting burials, they’ll listen to the council.”

Watanabe said that the decision came after much thought and consideration, repeatedly describing it as “difficult.”

“For the court to rule in any other fashion would, in the court’s opinion, be disregarding the importance of the Burial Council,” Watanabe said. “It’s not perfect, the court can only do so much. The court cannot legislate.”

• Michael Levine, staff writer, can be reached at 245-3681 (ext. 252) or via e-mail at mlevine@kauaipubco.com

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