LIHU‘E — With overtones of civil disobedience in the air during a sentencing Thursday, the judge emphasized that taking the law into your own hands is not the right choice.
Ka‘iulani Denelyn Edens, 49 of Kapa‘a was sentenced to 40 minutes as time served for her role last April in preventing a Wailua River dig where kupuna burials were discovered. She was also given a $250 fine for the misdemeanor offense of obstructing government operations.
Judge Edmund Dean Acoba of the 5th District Court was assigned to the case after the recusal of both circuit court judges. In his sentencing remarks, he said that a jury heard the arguments and Edens’ own testimony before finding her guilty following a two-day trial.
The Feb. 22 verdict indicated that the jurors did not believe her, Acoba said. He said Edens crossed the line as a citizen and committed an illegal act.
Edens said she was sorry for her actions, but wanted to court to understand the long and fruitless process of correspondence, meetings and other efforts before she “was moved” to block the digging in an effort to protect the kupuna burials.
With no criminal record, the judge said he would not sentence the popular radio personality to any more jail time or probation. He said that by taking the law into her own hands, Edens must now suffer the consequence of being labeled a criminal.
Her attorney, Charles Arthur Foster, said that the arrest record and conviction has accomplished the penal goal of the court.
Nobody is saying that Edens is anything other than a good person, said Deputy County Prosecuting Attorney John Murphy. He said the state is concerned with upholding the law and ensuring that this matter serve as a deterrent to similar activities.
Edens’ case was moved to circuit court for a jury trial in August from district court. She was arraigned on Aug. 30 before Chief Judge Randal Valenciano, who recused himself on Sept. 13, stating that he knew the defendant and had once represented her son.
The case was sent to Judge Kathleen N. A. Watanabe, who approved a defense motion for her recusal on Oct. 17. Watanabe said she did not agree with Edens’ statements regarding matters on a separate case, but agreed to recuse herself based on the sensitive nature of the motion.
Judge Acoba took the case the following day.
Edens and another protester, James Lee Alalem, 55, of Waimea, were arrested on April 28, 2011. Officers of the Department of Land and Natural Resources made the arrest with assistance from the Kaua‘i Police Department, and the two were charged with preventing a DLNR contractor from digging in Kaumuali‘i Park.
The dig had reportedly been halted near the Wailua River after ancient burials and artifacts were unearthed at the site. The dig started again to seek the presence of other burials or artifacts.
Alalem has a jury trial scheduled July 9 before Chief Judge Randal Valenciano of the 5th Circuit. The charge against him is also misdemeanor obstruction of government operations.
The DLNR project involves a new Kaumuali‘i Comfort Station for the park and Old Smith Landing. The size, location, and heavy use of the recreation areas require wastewater systems to be converted to large capacity cesspools in agreement with the U.S. Environmental Protection Agency.
DLNR rules authorize the removal of human remains or related burial items more than 50 years old. The State Historic Preservation Division reviews and approves the archeological inventory survey report of a find, along with the data recovery plan and report.
Burials were discovered in the project area in 2005, 2010 and 2011, and DLNR followed guidelines in consulting with the Kaua‘i Ni‘ihau Islands Burial Council. Its recommendations aided the Historic Preservation Division to mitigate adverse effects with activities monitored by an archaeologist, according to Hawai‘i Department of Transportation spokesman Dan Meisenzahl.
The Burial Council approved the Burial Treatment Plan for the site in 2005, and the Historic Preservation Division approved short-term and long-term treatment measures to keep new burials in place or move them when discovered after the start of construction-related activities.
The project was redesigned in 2006 to allow a burial discovered during the inventory survey to be preserved in place, and to reduce the probability of additional burials and cultural deposits being disturbed by the project, Meisenzahl said.
The Burial Council was consulted and issues were on the meeting agenda six times, Meisenzahl said. Opponents of the dig maintain their voices were not heard in the process with their presence and testimony noted in the Burial Council minutes.
Responding to concerns that the DLNR had not obtained required federal, state and county permits or approval prior to digging, Meisenzahl said the permit and approval process followed are consistent with standard practices.
“The responses also explain in detail why many of the laws and regulations cited by those with concerns do not apply to this project,” Meisenzahl said.
The DLNR sought alternative methods to minimize any disturbance and dispersal of treated water effluent near cultural deposits, Meisenzahl said, but added the physical constraints of the park, available technology and funding made it prohibitive.
Although Edens made it clear that this issue was not about the Kanaka Maoli sovereignty issues, it resonates with similar cases involving other cultural sites.
Issues concerning sovereignty, licenses and land rights are championed by advocates who hold a different view of the Department of Hawaiian Homelands, the Burial Council and Historic Preservation Division.
The legal system views many Kanaka Maoli issues as legislative concerns and have noted on occasion that it would uphold new laws affording the same rights.
The Kanaka Maoli groups respond that state and federal governments represent an external force without authority to take actions based on sovereignty status.