Musings: Living in Limbo

It was a beautiful day, and I spent the first half it at the Burial Council meeting and the second half at Midas, where the guys are really nice, btw. But there was still time when I got home to hit the mountain trail, which Koko thought was a splendid idea.

As she circled through the pastures, rounding up cattle that didn’t need to be herded, I stuck to the fern-lined path, where a pueo flew overhead and circled back, making its distinctive little click-click-click call. Later, a barn owl screamed as it zeroed in on its prey in the gathering dusk, and the Moon, Jupiter and Venus gave a repeat performance of last night’s rosy sky line-up.

Today’s Burial Council was not, fortunately, a repeat performance of last month’s tense, dramatic and highly-charged meeting. Perhaps it had something to do with the setting at Queen Liliuokalani’s Children Center, where the doors were open to the sunshine and a maile and mokihana lei-bedecked portrait of the Queen graced the room, as did signs with Hawaiian value words like makaala (pay attention), aloha, ahonui (patience) and lokahi (harmony).

While the tone of today’s meeting was entirely different, it again ended in a sort of limbo about what should be done with the iwi on the Naue land where Joe Brescia wants to build a house. But whereas the Council simply continued the matter at last month’s meeting, today it took action, rejecting the burial treatment plan (BTP) presented by the state.

That plan would have approved what is already a done deed: capping seven burials that lie under the house in cement. And a very interesting bit of information surfaced today about that capping process: it seems it was done without the approval of either Kauai state archaeologist Nancy McMahon or Mike Dega, the lead contract archaeologist on the project.

Nancy, who as you may recall was found by the court to have failed to consult with the Council and others before approving the first BTP, divulged that nugget during an emotional outpouring that came across as part confession and part self-defense — AKA CYA.

“I wanted you guys to be a part of it,” she told the Council. “I did not approve the capping. I reprimanded the archaeologist for what they did.”

Now that raised a few eyebrows, as did her comment that the late LaFrance Kapaka, who for many years was a strong force on the Burial Council, “was my best friend.”

So I asked Mike Dega what happened. Seems that while he was at a convention in Ireland last June, he had a phone conversation with some of his company’s “guys in the field” and they told him they’d capped the burials. He asked if that was OK with Nancy and they said they hadn’t asked.

“We screwed up on that one,” he said, noting that yes, Nancy had scolded him soundly, and he’d scolded the guys who did it.

But the fact remains that the burials were capped without permission, and ain’t no amount of scolding going to rectify that — although Mike said the caps could be removed in a matter of hours without damaging the iwi.

Now this is important for two reasons, one cultural and the other legal. On the cultural side, Council Chairman John Kruse likened the caps, which are four inches thick and six feet in diameter, and rest about three feet above the iwi, to “sewer covers.” Elaine Dunbar, in her testimony, called it “post-mortem incarceration.”

On the legal side, capping the burials allowed work on the concrete foundation pilings to proceed shortly before Circuit Judge Kathleen Watanabe was to hear a motion for a restraining order to stop construction. And with the pilings in place, the judge three times refused to grant the order — precisely because significant work had already been done on the house.

So whom do you suppose told the “guys in the field,” who are working for Brescia, to cap those burials? All signs seem to point to Brescia, or one of his representatives. It’s kinda hard to believe they got a wild hair up their ass and decided on their own, hey, let’s cap the iwi.

And so what about accountability? Remember back in June, when Police Chief Perry halted construction on the project, saying it could violate a law prohibiting desecration of burial sites?

“Unless we have a directive or some kind of documentation or some kind of decision that is made at a higher level, as far as we’re concerned, if construction begins on this burial site, they’ll be in violation of Hawai‘i Revised Statutes,” Perry told protestors and workers.

Well, no decision was made at a higher level. So wasn’t the law violated?

That’s not the only squirrely thing. As John Kruse noted, the building permit for the house was issued before the planning commission had granted its approval and set conditions for the project. This revelation prompted Walton Hong, Brescia’s attorney, to explain that the permit was actually one that had been granted before Brescia had to redesign his house to move it back from the shoreline, and that Public Works had simply amended the original permit “and didn’t want to hang on to it.”

Hong said he’d sent a letter to the Planning Department saying “Public Works is forcing us to take the permit, so we’re taking it, but we won’t do any work whatsoever until the conditions have been met.”

Caren Diamond testified that the county was supposed to revoke the original building permit and issue a whole new one, but it never did. Instead, it amended it twice to reflect first the setback change and then a new contractor for the project.

Meanwhile, Caren said, the county gave Brescia’s contractor verbal approval to proceed with the foundation with no inspectors on site, and no foundation reports have ever been filed, as is required by law.

Perhaps now you can understand why some folks question Brescia’s claim that he’s been a victim in this whole thing.

When I asked Mike if that type of unauthorized capping had ever occurred on any of his other projects, and he has many around the state, he replied: “never.” When I asked what, then, was up with this project, he said, “I don’t know. It’s hexed.”

Question is, it hexed by unhappy spirits, or Brescia’s own impatience and greed?

Anyway, although the speakers strongly encouraged the Burial Council to send a letter to the planning commission, asking it to revoke Brescia’s permit, it didn’t go that far. Instead, it rejected the BTP. But even that is just a recommendation to the state Historic Preservation office, which has final say.

In other words, Nancy could go ahead and approve the BTP. When I asked the Deputy AG what, then, was the point of the judge’s ruling, which required Nancy to bring the plan back for the Council’s approval, he said the judge was merely concerned because some of the proper consulting hadn’t been done. And he didn’t think anyone needed to worry about Nancy proceeding unilaterally with the BTP, like she’d done before, because typically the state and the Councils “work hand in hand on these things.” And besides, if she did that, people could always take her back to court.

Following the Council's decision, Nancy said she needed to comply with the court order and do some consulting about the BTP with Hawaiian groups, anyway. That was interesting, seeing as how she hadn't felt compelled to do that consulting prior to trying to push the BTP through at the last two meetings.

So there you have it, or at least, the latest installment in this ongoing, crazy-making serial.