LIHU‘E — Fifth Circuit Judge Kathleen Watanabe Tuesday denied a motion asking her to enforce her earlier order regarding ongoing residential construction at the Joseph Brescia property in Ha‘ena. Attorney Alan Murakami of the Native Hawaiian Legal Corporation, representing Nani
LIHU‘E — Fifth Circuit Judge Kathleen Watanabe Tuesday denied a motion asking her to enforce her earlier order regarding ongoing residential construction at the Joseph Brescia property in Ha‘ena.
Attorney Alan Murakami of the Native Hawaiian Legal Corporation, representing Nani Rogers and Jeff Chandler, argued unsuccessfully that Brescia was ignoring her October 2008 order by continuing to build his home atop known Native Hawaiian burial sites near the YMCA Camp Naue.
Watanabe said she heard no evidence Tuesday that continued construction, which she in October warned Brescia was at his own peril and should not destroy, alter, disturb or deny access to burial sites, is doing anything to damage or deny access to the burial sites.
She also would not rule on Murakami’s motion for a temporary restraining order against further construction, saying the motion was “procedurally defective” and filed just in case Watanabe didn’t move to enforce her earlier order.
Murakami said building a home over known Native Hawaiian burials is akin to allowing home construction to occur over known graves at the Mainland’s Arlington National Cemetery, or Punchbowl Cemetery, O‘ahu’s National Memorial Cemetery of the Pacific.
Further, Murakami said there is no approved state burial treatment plan for the property. A 12th draft is being considered by the state Department of Land and Natural Resources State Historic Preservation Division.
“We are basically running out of time,” said Murakami, adding that construction on the home is scheduled to be done before the end of 2009.
But Watanabe, concurring with Brescia attorney Calvert Chipchase, said little has changed since her October ruling, except construction has progressed.
Chipchase said in order to move to enforce Watanabe’s earlier ruling, a violation has to be proven, and none was.
The footings, columns and burials are all in the same place as when Watanabe made her October ruling, and no lineal descendants of the iwi kupuna (Native Hawaiian remains) on Brescia’s property have been formally recognized, Chipchase said.
When and if one or more comes forward, Brescia will deal with them, Chipchase said.
Consultation with Native Hawaiian groups has continued regarding the latest burial treatment plan for in-place preservation of the iwi kupuna, and once the Kaua‘i/Ni‘ihau Island Burial Council gets a quorum, the burial treatment plan will be presented to them for their action, Chipchase added.
“We want to bring it to conclusion,” Chipchase said of the burial-treatment-plan process.
“I see compliance by the plaintiff,” who has hired a cultural monitor to be present on site, Watanabe said.
Around 20 people were in Watanabe’s courtroom at the Lihu‘e state courthouse, where Watanabe also granted attorney Dan Hempey’s request to withdraw as counsel for co-defendant Ka‘iulani Edens-Huff.
Watanabe granted the request even though Hempey admitted that, upon his withdrawal, Edens-Huff, who was not present in the courtroom, is left without counsel.
