Tuesday, July 29, 2008

Details of Naue Burials Lawsuit

As I reported yesterday evening, the Native Hawaiian Legal Corp. was unable to secure a temporary restraining order to halt construction of Joe Brescia’s house atop some 30 burials at Naue.

However, the NHLC also has filed a motion for a preliminary injunction on behalf of Jeff Chandler, a fisherman whose family goes way back in the Wainiha-Haena area. That hearing is set for Aug. 12 in Kauai's Fifth Circuit Court.

The memorandum in support of that motion states:

Initially, Brescia’s contracted archaeologists produced an incomplete and misleading description of the affected burial site, leaving the Kaua`i/Ni`ihau Island Burial Council (KNIBC) with an incomplete picture of the extent of burials his luxury home construction would impact. In addition, following the KNIBC’s determination to preserve the thirty individual burials comprising the burial site located on the Brescia parcel in place, the State defendants failed to uphold their obligations pursuant to the State Constitution, Hawai`i Revised Statutes and the public trust doctrine to preserve the burial site. Instead, they improperly assented to county permitting and unilaterally usurped the Burial Council’s role, by approving a revised burial mitigation plan that allowed construction of yet another of a string of Brescia’s luxury residential investment property developments to commence.

In arguing that irreparable harm will be done if construction is allowed, NHLC cites OHA’s Kai Markell and Dr. KÄ“haunani Cachola-Abad as saying construction of a home or any other substantive structure on the cemetery at the Brescia parcel is “'an extreme cultural affront' and a profound desecration of a sacred place, a wahi kapu, of the Hawaiian people…”

The document further states:

Chandler is irreparably harmed thereby because he will be unable follow ancient traditions to protect the `iwi. One of his most deeply cherished traditional and customary native Hawaiian religious, spiritual and cultural beliefs and practices obligates him to ensure that the `iwi of his ancestors are not disturbed or desecrated. No mitigation can repair the damage that is done. In addition, even though construction has started, the damage is not complete. The existence of the home on the site will cause ongoing irreparable damage to Chandler and other Native Hawaiians.

The document also addresses the issue of traditional practices regarding burials:

One of the critical tenets of Native Hawaiian traditional and customary practices related to burials is the kuleana (obligation) to ensure that `iwi (“Native Hawaiian skeletal remains”) remain undisturbed; and that they receive proper care and respect. This kuleana is a traditional and customary practice of Native Hawaiians who inhabited the Hawaiian Islands prior to 1778. As a native Hawaiian, Chandler engages in this traditional and customary practice which is aligned squarely with the intent of Act 306.

The document states that Brescia bought the land from Sylvester Stallone on Feb. 11, 2000, and provides the following history:

In March 2007, Brescia began archaeological digging on the property and discovered a burial site, which is clearly “an ancestral native Hawaiian graveyard and cemetery” containing 30 individual human burials, seven of which would be directly affected by his proposed foundations. However, On December 11, 2007, Brescia prematurely received approval from the Planning Commission to construct his residence, subject to the condition that he comply with the requirements of the burial council and the SHPD [State Historic Preservation Division]. The Planning Commission also required Brescia to apply for the necessary building permits within four months after approval by the burial council, and the DLNR. On February 7, 2008, Brescia sought authorization from the KNIBC to relocate six of the thirty human burials identified through the AIS [Archaeological Inventory Survey] on the Brescia parcel. The KNIBC deferred its determination at that time. On April 3, 2008, the KNIBC announced that a revised burial treatment plan was submitted on behalf of Brescia that proposed the relocation of one additional burial, bringing the total to seven. However, the description of these burials failed to properly identify the extent of the burial site.

In placing the blame squarely on SHPD, specifically Kauai’s state archeologist, it further states:

In a letter dated April 24, 2008, then-acting State Historic Preservation Division administrator Nancy McMahon improperly approved the preservation component of Plaintiff’s burial treatment plan submitted by Brescia (revised BTP) without consulting the KNIBC or any appropriate native Hawaiian organization as to the proper treatment of the burial site, nor assuring consistency with its preservation determination. The revised BTP contemplated the construction of a portion of the planned Brescia residential development directly upon 7 individual burials within the burial site. The KNIBC was denied the opportunity to review the proposed treatment of the burial site and the seven individual burials located beneath the residence’s foundation.

Ultimately, it seems NHLC's argument is based on the assertion that Brescia submitted a burial treatment plan with maps that indicated the location of individual burials, but these maps failed to define the boundaries of the burial site. There is a difference, under state law, between individual burials and a burial site, which is identified as “any specific unmarked location where prehistoric or historic human skeletal remains and their associated burial good are interred, and its immediate surrounding archaeological context, including any associated surface and subsurface features.”

At Naue, burials as well as “a variety of traditional artifacts” were discovered, and NHLC is arguing that “contrary to what Brescia described in his BTP, the 30 burials constitute a single burial site” and “constitute ‘an ancestral native Hawaiian graveyard and cemetery.’” It also notes that under state law, “burial sites in areas with a concentration of skeletal remains are of ‘high preservation value.’”

The document further states:

In addition, the evidence points to two to three times the amount of unmarked burials on the Brescia parcel. Dr. Abad agrees there are “further burials in and amongst the 30 burials” on the undisturbed areas of the Brescia property, relying in part on Brescia’s own archaeologist, who conceded that “it is likely that more human burials remain unidentified and in situ in the land surrounding the project area.”

Of particular interest in the memorandum is this assertion:

At the April 3, 2008 meeting, due to erroneous legal advice it received from its appointed counsel, the KNIBC members announced that it was their understanding that they could not prevent the developer from building even if the Council voted to preserve in place. Nevertheless, the council voted to preserve all thirty burials in place, not only the seven which Brescia proposed to relocate, and voted to recommend that any future `iwi found during the construction process, also be preserved in place. Thus, the council effectively voted to preserve the entire burial site in place, but failed, due to erroneous advice, to identify the outer boundary of the site.

Well, I guess that kind of lays to rest claims that have been made in the comments section of this blog that Hawaiians don’t care about burials and none of them are up in arms about this and it’s not really a cemetery and it's no big deal and other such nonsense.

It also raises troubling questions about how well SHPD is carrying out its responsibilities of protecting burials and other ancient cultural sites. And that, it seems, is really at the crux of this issue.

26 comments:

Anonymous said...

"Hawaiians don’t care about burials and none of them are up in arms about this and it’s not really a cemetery"? I didn't see anyone say those things. But I don't read Gadfly's comments, so maybe.

Anonymous said...

Ahhh....so now we have a new liar in addtion to Huff. Now we have Chandler who because he says his "family goes way back in the Wainiha-Haena area" is therefore unequivocally a descendent of the dead buried at the Brescia property. Isn't that convenient! I love how easily evidence is manufactured out there.

Anonymous said...

So, now we have the great Chandler who all of a sudden "is irreparably harmed thereby because he will be unable follow ancient traditions to protect the `iwi. One of his most deeply cherished traditional and customary native Hawaiian religious, spiritual and cultural beliefs and practices obligates him to ensure that the `iwi of his ancestors are not disturbed or desecrated."

Chandler, when did you discover this great mission of yours? I'm sure you've been "protecting" and "cherishing" all of your ancestors graves. Ya, right! You have no clue as to where your ancestors are buried, except for maybe your immediate ones, because your ancestors dropped the bodies in the ground and went on their way. If the land was so "sacred" it would have been protected by your wonderfully concerned ancestors from the Mahele down to today. But no...you didn't give a crap about it until this moment. You didn't even know they were there until a haole found them. A lot of good your "protecting" and "cherishing" has done. What utter BS. If you want them, I’m sure Brescia will allow you to dig them up so you can chant and dance around blowing conches protecting and cherishing them somewhere else where you’re not such a nuisance.

Anonymous said...

Yah...they dug up Chandler to provide some basis of "standing" in this case, but it's still very weak. The ruling authority is the planning/zoning commission and the burial council, and they have given the OK.

Plus, the TRO wasn't granted, signaling the court's potential opinion.

Grasping at straws....

Anonymous said...

It absoutely does not lay to rest claims that Hawaiians in general don't give a shit.

This is Chandler and the lawyer's spin, that's all.

Nothing else has changed.

Katy Rose said...

Wow, such a vitriolic reaction. The similarity of style makes me suspect that the last four comments come from the same person.

Instead of leveling uninformed personal attacks against Jeff Chandler, how about explaining what it is about the contested site that means so much to YOU.

Anonymous said...

After being told by every branch of government that Bresca can do something with his own property, the idea of a minority interested party trying to thwart it irks me.

The law is on his side and, to me, that is all that counts. Don't like it? Change the law if you can for the NEXT situation...not this one.

Katy Rose said...

It's a bit like a "minority interested party" coming in with a gunship and bayonets and overthrowing a lawful government. So irksome!

Joan said...

After being told by every branch of government that Bresca can do something with his own property, the idea of a minority interested party trying to thwart it irks me.

The law is on his side and, to me, that is all that counts. Don't like it? Change the law if you can for the NEXT situation...not this one.


But what if, as the lawsuit alleges, government acted improperly in telling Brescia he could move ahead. Then the law is not on his side, and it is quite proper for anyone with standing to challenge those approvals.

Anonymous said...

If that's the case, the govn't owes Bresca tons of money, just like the barely averted superferry lawsuit that would have about bankrupted the state.

If the govnt was negligent, it should pay dearly and Bresca doesn't get his house. If not, he gets his house and the opposers should shut up about this case and move on to possibly win other battles.

I'm OK with either scenario.

Anonymous said...

"It's a bit like a "minority interested party" coming in with a gunship and bayonets and overthrowing a lawful government. So irksome!"

True, but it happens all the time. It's how the world works. If the US hadn't done it then, some other country would have sooner or later.

We, and other countries have "protectorates" and other alliances with tiny nations for similiar purposes.

Cultures come and go.

Anonymous said...

No, Joan. It's more like acting so self-righteous crying the HSF is "illegal" and then breaking trespass laws trying to subvert procedures established by our legally elected officials in the Brescia case. That's true anarchy... obeying only the laws one chooses to obey. That works really well in a society. "Let's not follow the democratic process because we know better than anybody else and will do exactly what we want, screw everyone else." What enlarged repugnant egos you have. If you think the law acted "improperly", court is the place for that arguement as the NHLF is doing, not someone's property that you happen to hate. There's a hate crime for you. Settling things in court is right; taking the law into one's hands as in tresspass is not.

Joan said...

What's the HSF got to do with this? And when have I ever advocated that people should trespass, selectively follow the law or circumvent the democratic process? In fact, my previous comment underscored the right of anyone with standing to challenge the government approvals in court, which is part of the process.

Btw, I've never heard anyone express hatred toward Joe Brescia. Disappointment, repugnance, frustration, yes. Hate, no.

Anonymous said...

I'm anon 8:38. The HSF is not related to this case at all, but shows a potential parallel if governmental negligence is proven.

The government cannot give and then take away entitlements unless significant new findings emerge.

My understanding is that the burial council and other official bodies knew of the 30 some sites and still granted the entitlement to build after Bresca altered his plan to suit them.

Not realizing the potential conflict of another statute in the process of granting entitlement and then, potentially, reversing their position is negligence. Compensitory and punitive damages could be awarded to Bresca.

And you never advocate selective following of laws. Katy is the one that does that.

Anonymous said...

> Well, I guess that kind of lays to rest claims that have been made in the comments section of this blog that Hawaiians don’t care about burials and none of them are up in arms about this and it’s not really a cemetery and it's no big deal and other such nonsense. <

It does indeed, but the people making those claims will not hear it. If the lawsuit decides in favor of the 'iwi, they still will not hear it. The facts of any particular case will remain irrelevant to their deafness, because to them the notion that the core of Western law deals unjustly with Native issues is anathema. All arguments that suggest otherwise are rejected.

If the history of Western dealings with Native concerns demonstrates anything, it is that when money and influence talk, common sense walks, abandoning even those of intellect and heart -- while rallying those who fear losing their own position, and empowering them with mistrust of the Others who they think would take it from them.

Katy Rose said...

"And you never advocate selective following of laws. Katy is the one that does that."

Yes, I advocate not letting "the law" do your thinking for you.

Is that a problem?

Anonymous said...

Well if you get to disobey the law when you want to, why shouldn't I disobey the law when I want to?

Katy Rose said...

Yeah, why not? My point is that all authority should be examined for legitimacy, including laws.

There are plenty of laws that seem to me to be based on totally legitimate reasoning, and often they are superfluous because most people don't break them because they have no desire to do any harm. And the people who do break them are just sociopaths who don't care that the law is there anyway so the only purpose of the law is to provide some kind of state-sanctioned punishment.

And there are others laws that aren't based on legitimate reasoning, in my opinion.

Just because something is "the law" does not automatically make it acceptable or right, or wrong, for that matter.

Questioning authority does not equate advocacy for anti-social and hurtful behavior. It just suggests that we think instead of just obey.

Anonymous said...

But what if you disagree with my rationale for disobeying the law? What if I think individual freedom is the highest good and I deem it legitimate to disobey any law that curbs individual liberty? That would be cool with you?

Katy Rose said...

Maybe not but that doesn't mean we should stop thinking and questioning authority, does it?

Anonymous said...

Oh, Joan....(duh) it's a hate crime against Brescia.

Anonymous said...

thinking and questioning authority isn't contingent on accepting that one should disobey laws that don't flatter one's personal philosophy.

Anonymous said...

Katy - You can think about it. I do that all the time when I think of slapping people such as yourself. But what's happening here is more than just entertaining a thought. People are actually breaking the law. Like the trespassers (Huff & stuff) you so readily advocate. You earn slap in my thoughts by egging on those less than intellectual folks.

Katy Rose said...

Well, in your case, I have to say I appreciate your blind obedience to the laws!

Anonymous said...

> Well if you get to disobey the law when you want to, why shouldn't I disobey the law when I want to? <

Good Lord, what sort of civics courses are they teaching in public schools these days?! Forget the energy crisis, just hook up electrodes to Dr. King -- at the rate he's spinning in his grave, he could power the whole country!

Anonymous said...

Very Interesting!
Thank You!