A thin sliver of moon in a star-dotted sky greeted Koko and me when we went walking this morning. The ground was wet from a passing shower in the night, and the air was clean and refreshingly cool. It seems that summer is at long last behind us.
As dawn approached, Makaleha sloughed off her clouds and so did Waialeale, leaving their summits silhouetted against a lavender-pink sky. And as we walked past the neighbor’s chicken coop, a rooster let loose with a raucous “watch dog” crow that startled me and a cat, which jumped out of its hiding place in the hedge, which startled Koko, causing her to whine and lunge in a thwarted desire to engage in hot pursuit.
The Garden Island today carried the startling story that the Planning Commission is actually, and finally, going to review the permit for Joe Brescia’s house, which is being built atop burials at Naue.
Those opposed to the construction have repeatedly pointed out that the permit was granted even though Brescia had failed to meet a condition that specified the requirements of the Kauai-Niihau Island Burial Council and state Historic Preservation Division must be met. And those requirements cannot be met because no burial treatment plant (BTP) has been approved.
It’s been 13 months since Judge Kathleen Watanabe found that state archaeologist Nancy McMahon erred in approving a BTP without properly consulting the Burial Council.
Watanabe ordered SHPD to conduct the proper consultation, which still has not been done. In the meantime, version 12 of the BTP has been released and the guv has finally appointed two new members to the Council — James W. Fujita and Debra U. Ruiz — while pointedly passing over two "burial friendly" candidates, Nathan Kalama and Puanani Rogers. So now the Council, which for months has been conveniently short of enough members to form a quorum, can finally meet. But since no agenda has yet been published, it’s unclear whether they’ll take up the Bresica BTP, or how the new members will get up to speed.
All this time, construction has continued unabated, and the planning commission hearing on the matter isn’t set to begin until January. So by the time it’s debated, will the issue be essentially moot? Or could Brescia be ordered to do a major remodel or tear-down?
As you may recall, when Watanabe issued her ruling she warned Bresica’s attorney, Calvert Chipchase, that the Burial Council’s actions 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.
The judge also said:
“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.”
We know now that Brescia’s archaeologists did not place jackets on the burials. Instead, they capped the burials, an action that was not approved even under the discredited BTP. We also know that a majority of the Burial Council did not think a house would be built atop the iwi when they voted to preserve in place.
So would it be possible to move those burials without taking down the house? Archaeologist Mike Dega told me at the courthouse last year that some burials do lie beneath the concrete footings, with a buffer of soil atop them, and as I read through version 12 of the BTP, I didn’t see anything to counter that.
I did see one reference to the foundation providing “horizontal protection” for one burial. I also saw numerous references to burials being disturbed by a backhoe during excvation. The plan also referenced the highly contested process of consultation, describing it as:
In total, during the course of fieldwork and during the preparation of this BTP, SCS consulted with the SHPD-Kaua`i archaeologist, SHPD-Culture History division, members of the KNIBC, the Office of Hawaiian Affairs (OHA), the landowner, and the general public (through newspaper legal ads and numerous burial council meetings). Testimony on this plan was also received at the eight KNIBC meetings noted above. The current plan (BTP-12) will also be submitted to OHA for review.
Further, the SHPD has extensively consulted with interested individuals and organizations regarding the project and the various BTP drafts.
I'd really like to know more about that extensive consultation that SHPD supposedly did. And how, exactly, do you consult with people through newspaper legal ads?
The BTP also glosses over the issue of Brescia’s septic tank, which "will be excavated to a depth of approximately 6 feet below surface." But despite the heavy concentration of burials on the lot, none are expected to be encountered during the septic install.
Meanwhile, another case that deals with circumventing state burial laws is wending its way through the courts. A circuit court judge yesterday refused to dismiss a lawsuit against the state and Kawaiahao Church that claims burials were disturbed when the church's expansion plans were fast-tracked. Construction on that site has been stopped.
So after all the litigation and angst, will Joe Brescia be allowed to keep his house, with the case instead serving as an example of what not to do next time? As The Garden Island reported:
[NHLC attorney Camille] Kalama said Monday that even if the house is allowed to stand, one of Native Hawaiian Legal Corporation’s main goals is that the procedure of approving permits before the burial treatment plan is in place or cultural issues are addressed will not happen again.
“Even having a declaration from the county would prevent this from happening in the next round,” Kalama said.
That would be good. Still, it seems that the key questions raised by this case remain unanswered. Just how much power do the Burial Councils have? Can they stop development if they want to preserve burials in place, and the site is too small or too full of iwi to move the structure? Are their only options digging up and moving burials, or allowing structures to be built atop them? And is that what the earliest iwi advocates envisioned when they fought so hard for burial protection laws?