OK, get out your chili pepper water, your A-1 sauce or your other favorite condiment. Because it’s time to eat some crow — and not the Alala kine, since it’s almost extinct.
I’m talking to all you Hawaiian-haters, nay-sayers, stink-talkers and anybody else who was making like Kaiulani guys were wacko trouble-makers when they started the drive to protect the iwi on Joe Brescia’s property at Naue.
Yup, Judge Kathleen Watanabe vindicated them yesterday when she ruled the State Historic Preservation Division failed to follow its own rules and the law in this matter.
Turns out, after a protracted hearing and “very difficult” deliberations, that the iwi-defenders were right all along. State archaeologist and county council candidate Nancy McMahon made a big boo-boo when she approved the final burial treatment plan for the project without first consulting the Kauai-Niihau Island Burial Council, lineal descendants of the iwi, Hawaiian groups and even Brescia.
Now the matter must go back before the Burial Council for the proper review. That ought to be one highly-charged meeting, with all kinds of fancy footwork going on behind the scenes to get the Council to rubber stamp what Nancy already approved.
Since I know some of you have been feeling sorry for poor Joe Brescia, the judge did give him a little pat on the head when she said that he had complied with all the county requirements and permits, as well he should have.
But, and this is a big but, Watanable also said that doesn’t mean he was authorized to start pouring his foundation, effectively capping some seven iwi in concrete so he could erect pilings for his house. And why? Because the Burial Council hadn’t approved that particular treatment plan.
“While the burials were preserved, they were not authorized according to law and it could be argued that construction of jackets constitutes alteration,” Watanabe said from the bench. “Although construction is under way, that does not hold relief is impossible.”
That raises the big question, which both The Garden Island and The Advertiser failed to touch upon in their coverage today, of whether Brescia’s building permit can be revoked.
It seems the planning commission specified in its December decision that “no building permit shall be issued until the requirements of the Burial Council are met, and they weren’t met,” attorney Alan Murakami of the Native Hawaiian Legal Corp. said. “I think the planning commission should revoke the building permit.”
So while the judge didn’t stop Brescia from building, although I’ve heard things are on hold right now, anyway, while they wait for materials, she did warn his attorney, Calvert Chipchase, that the Council’s action could affect his building plans.
The Council could take any number of steps, she said, such as having the jackets taken off the iwi and removing the seven burials that are now under the house and reinterring them elsewhere. As an aside, Deputy AG Vince Kanemoto yesterday claimed in court that only five now are under the house, prompting Murakami to say, “I don’t understand why they can’t keep track of their own burials they’re trying to protect.”
The Council also could require Brescia to provide the Chandler family and other lineal descendants with access to visit the burials, and it’s pretty certain nobody wants to pay their respects to the kupuna under somebody’s house.
Hmmm. Seems old Joe and his plans to build another beachfront spec house ain’t in the clear quite yet.
What this whole issue points out is that the state isn’t following its own rules when it comes to burials. And if the community wasn’t there to serve as a watchdog, file lawsuit, hold protests and stage vigils, the state’s misdeeds would be continually swept under the rug.
Those actions obviously made an impression on the judge, who cited “the public interest in this matter” in her decision to walk everyone through her analysis of the case.
“As Mr. Murakami argued, process is absolutely critical, especially when two branches of government, the legislative and executive, have spoken so clearly about the need to protect” Hawaiian iwi, Watanabe said. “Whether there are shortcomings in the law, we need to start with the process.”
So to all of you who were screaming that the iwi-defenders should get the hell out of the way because they didn't follow "the process," all I can say is, "bon appetit."