Musings: A Question of Rights

There wasn’t much space between the eastern horizon and a cloud bank, but it was filled with orange when Koko and I set out on the mountain trail this morning. It’s a walk that gains elevation, so as we climbed, so did the sun, until it was fully buried in a pile of soft gray.

The light show, however, didn’t end, and as we turned around to come down, I gazed upon a curtain of silver shafts that extended out from a hidden spotlight that shone down upon the sea.

The Garden Island and blogger Andy Parx did a great job yesterday of shining a light on the despotism that represents Kaipo Asing’s rein as County Council chair. The question here is whether King Kaipo should have the right to exercise so much power over what matters the Council takes up.

It seems that Kaipo refuses to place items proposed by Councilman Tim Bynum on the agenda, and at the last meeting successfully resisted an attempt by Tim to add a proposed resolution clarifying the rules under which the chair is empowered to sanction agendas.

Taking a stance that differed from one offered by the Office of Information Practices, County Attorney Al Castillo said the proposed resolution was of “reasonably major importance” and so could not be placed on the agenda without public notice.

But as Michael Levine, a bright spot at TGI, reported in his article, Kaipo has no plans to put the resolution on the next agenda, either.

When asked if there was any reason why it would not be, as there is now enough time to bring the council into compliance with the Sunshine Law by posting the agenda item in advance of the June 16 meeting, Asing said, “Nothing especially.”

The entire exchange prompted Levine to astutely note that although Kaipo came in fourth in the last election — and behind Tim — he has…

…essentially vested in himself a preemptive veto power even surpassing that held by Mayor Bernard Carvalho Jr. in that Asing’s decisions cannot be overridden by a supermajority vote and that his decisions are shielded from public view.

Andy provides even more detail in his blog post, along with the welcome news that Tim and new Councilwoman Lani Kawahara have started a website, kauaiinfo.org, “to document efforts to improve transparency in Kauai's government and to facilitate access to documents not easily available elsewhere.”

It’ll be interesting to see how mayoral hopeful Jay Furfaro and newcomer Derek Kawakami, who has his own political aspirations, weigh in on the underlying issues of promoting transparency and public participation in government. So far, their performances haven’t been impressive. As for the other Councilmembers, Dickie Chang and Daryl Kaneshiro, I don’t imagine anyone expects they’ll do anything more than follow the herd.

Whle we're on the topic of dysfunctional government, Paul Curtis has an even-handed account of yesterday’s Burial Council meeting — the matter was deferred — in today’s Garden Island, so I’ll just add some things that jumped out at me.

While the treatment of ancient burials is at the crux of the dispute, there’s a deeper issue at stake here. It was addressed by a Burial Council member who called in to KKCR while I was reporting on the meeting.

“Who guarantees anybody they can build?” he asked.

And that’s essentially the problem here. Joseph Brescia wants to build a large house on a relatively small lot that has a heavy concentration of burials. Even his archaeologist agrees that the 30 that have been found represent only a fraction of what’s there.

If the desired outcome, as expressed by the Burial Council, is to preserve the burials in place, it’s not a site that’s conducive to building. Yet state archaeologist Nancy McMahon told me that all her efforts have been devoted to figuring out to squeeze Brescia’s house onto the site with the least amount of impact on the burials.

“We have to figure out where he can live on this property with these burials," she said. "The AG tells me I can’t do a taking."

But is it a “taking” to tell someone no, you can’t build, because this site has too many burials? Does someone have the automatic right to build the largest possible house, even if it impacts burials? And should the AGs office unilaterally make that call?

That's really the core topic here. Because if government is coming always from the premise that building must be allowed, the iwi are always going to get short shrift.

This case, however, is making it difficult for government to duck the question. As burial council member Keith Yap noted in moving to reject the latest burial treatment plan that the State Historic Preservation Division presented for Brescia’s site:

“There were a couple of things that came up. One is the septic tank issue. We’re really concerned about that because the property has the propensity for graves on every square foot. We’re really nervous if we approve this plan, that could come up.

“This is a unique property. We believe more [burials] will come up. We felt vertical buffers [over the six burials under the house] are not appropriate.”

Then he delivered the kicker:

”We would only look at a burial treatment plan where the building is not located over the graves.”

And that stance doesn’t leave much wiggle room for Brescia or the state.