Musings: Digging Deeper

Jupiter, not far from the moon, was the first to fade from view, then Venus disappeared as the pink light of pre-dawn filled the sky while Koko and I were out walking this morning.

Waialeale was cloud-cloaked, which allowed her to soak up the purples, reds and oranges cast by the rising sun, and I caught the fragrances of mock orange, spider lilies, angel’s trumpets and plumeria at various points along our route.

I’m going to miss this road, and all the people who wave as they pass, and Farmer Jerry, even though I haven’t seen him in a while because this time of year I’m out way earlier than he is, and my neighbor Andy, who today was walking slowly, and not wanting to laugh, because he likely cracked a rib while paddling yesterday.

But things inevitably change — except when it comes to Wainiha subdivision landowners, who remain reluctant to dig too deeply on their lots for fear of finding burials.

It seems that at least some members of the county Planning Commission have been sensitized to the presence of burials in that subdivision following the outcry over construction of Joseph Brescia’s house atop some 30 burials there. So when a proposal to build a house just two lots down from Brescia’s came before the panel this week, it caused a bit of uneasiness.

As The Garden Island reported:

Commission Chair Jimmy Nishida, Commissioners Hartwell Blake and [Herman] Texeira all expressed a level of discomfort about approving the construction of a house in an area where there might be human remains, though [county planner Dale] Cua’s report on the review was received and approved unanimously.

According to the notes of a person who attended the meeting, Nishida also asked: “Do we have the latitude that we don't want a building over the bones? We are uncomfortable allowing the building over the bones.”

The proposal also sparked discussion over just how deep the contractor should dig during excavation for the foundation. Archaeologist David Shideler, who was hired by the “homeowner,” Gan Eden LLC, a consortium of investors, said excavation would be done to a depth of three feet in preparation for the house’s concrete footings.

Shideler, county planners and state archaeologist Nancy McMahon advocate shallow digging in order to avoid disturbing burials. Their stance is based on two questionable premises: ignorance is bliss, and building a house atop burials —known or unknown — doesn’t constitute a disturbance.

But given the likelihood that burials do exist in the area, some residents said a more thorough review, and deeper digging, should be done to find out what’s there before the house goes up. As Caren Diamond testified:

Wainiha subdivision is known to have significant archaeological findings including many ancient burials. In order to avoid unnecessary adverse effects on burials we recommend that there be a full archaeological inventory done on all sections of the lot where the ground will be disturbed, including the landscape plan.

Since the Brescia debacle, it has been the strategy of other landowners in the area to dig as shallowly as possible, and avoid full archaeological inventories, to keep from finding burials that could prompt construction delays. When burials are identified during a survey, the project must go before the Kauai-Niihau Island Burial Council, which makes a recommendation to the State Historic Preservation Division (SHPD) on whether the iwi should be preserved in place or moved.

But if burials are found during construction, they’re considered inadvertent discoveries, and so are handled administratively by SHPD, without any Burial Council review or consultation.

According to The Garden Island:

Commissioner Herman Texeira asked if they could dig deeper than that to see if any human remains are present, and Shideler said proper state protocol is to dig only as deep as is necessary to facilitate construction, and only at the places necessary for said construction.

County Planning Director Ian Costa also said that “We don't require the landowner to dig up the whole lot."

But as Alan Murakami, staff attorney for the Native Hawaiian Legal Corp. (NHLC), noted in an email in which he cited HAR sec. 13-300-31(b)(2):

As this rule envisions, you survey, identify possible burial sites, treat them as "previously identified" before the burial council when appropriate excavations confirm the presence of actual iwi kupuna. You don't avoid trying to find out, as Schiedler and McMahon would allow, under the guise of minimizing disturbance. That is a faux minimization; the harm is building on top of the burial, even when you don't confirm that they are there.

…digging shallow knowing that burials are likely to be present below violates the requirement that the SHPD provide the burial council with all information on a burial site, actual or possible. That's when you get all those distortions that arose during the Brescia case.

As one planning department observer noted: “This is a recurring theme, no look, no see.”

Meanwhile, NHLC has filed a motion to enforce the prior order issued by Judge Kathleen Watanabe on the Brescia project and is again asking her to halt construction at least until the Burial Council finishes its consultation and the state approves a Burial Treatment Plan for the project. That hearing is set for July 21.