Sunday, December 6, 2009

Musings: Burial Obfuscations

I awoke several times in the night to see that moon, still incredibly bright, though shrinking, peering persistently through the skylight. My new house is so quiet that it was easy to linger in dreamland, and by the time Koko and I rolled out of bed, the sky was already stained orange-pink behind the Giant.

Waialeale wore just the faintest brush of fluff and all the other mountains, from Haupu to Makaleha, were clear. As we walked, shama thrush flitting in front of us, singing beside and above us, the sky and mountains turned gentle lavender before fading into the soft grey of a cloud-obscured sunrise.

The key cultural issue related to installing the Path on Wailua Beach — the possible presence of Hawaiian burials — will be similarly obscured under the stipulations contained in a 2006 Memorandum of Agreement between the feds, state and county. (Interestingly, the signature line for Office of Hawaiian Affairs was blank.)

The MOA acknowledges:

...this project has an “area of potential effects” consisting of lands that are either owned or under the jurisdiction of the County within project corridors generally located between Lydgate Park at Wailua north up to Kapaa Town, and situated from the shoreline inland up to Kuhio Highway...

Just so it’s clear, that means we’re talking about the beach. The MOA then goes on to stipulate that a monitoring plan shall be developed for the project “with provisions for addressing burial treatment that are to be implemented during construction activities.”

The MOA further stipulates (emphasis added):

[A-3]c. A follow-up monitoring report for the Undertaking shall be submitted to State Historic Preservation Division (SHPD). The monitoring report, containing the location and description of any human burial remain discovered during the course of the Undertaking shall remain confidential and the precise data may be provide in a separate confidential index.

In other words, even without conducting a full Archaeological Inventory Survey (AIS) of the area government officials know that it’s likely to have burials. But when they’re found, that information will be kept secret.

We may get an inkling under stipulation C-1 (emphasis added):

A burial treatment plan will be prepared when appropriate to address the preservation of any burials or other human remains encountered in the course of this project.

Unfortunately, it won’t ever be appropriate because any burials found will be “inadvertent discoveries,” which is what happens when you don’t do an AIS first to find out what’s there. And inadvertent discoveries are handled internally by SHPD — in other words, Nancy McMahon — not the Burial Council.

The MOA then goes on to say that:

The pertinent provisions of the KNIBC [Kauai-Niihau Island Burial Council] approved burial treatment plan shall be executed prior the completion of the undertaking.

Just how meaningful is such a stipulation? As you may recall, the county Planning Commission approved Joe Brecia’s house at Naue on Dec. 11, 2007. That approval was conditioned on him meeting mitigation measures set forth by the Burial Council and SHPD. The Burial Council has yet to approve a burial treatment plan (BTP) for that property, which has some 30 known burials, seven of which are under the house. Judge Watanabe also found that Nancy McMahon failed to properly consult with the Council and other interested parties prior to approving “preservation measures” for the project, and ordered her to go back and do it right.

That was back in October 2008, and the Burial Council has yet to approve a new BTP.

Meanwhile, Brescia’s contractor has been busily building, and the house is nearly complete.

Now we’ve got Planning Director Ian Costa adding insult to injury with a report that will come before the Planning Commission at its meeting on Tuesday. In his report, dated Oct. 27, 2009, Ian recommends Commissioners reject a request from Puanani Rogers and Jeff Chandler to either revoke the panel’s prior approval of Brescia’s house plans, or amend its decision to specify that Brescia does not have approval to build over iwi kupuna without the express approval of the Burial Council and an approved BTP.

In his report, Ian comes to the conclusion that Brescia “has not failed to comply with the conditions of the Planning Commission.” He bases that conclusion on the circular argument that because the court found that Brescia has all the necessary approvals to construct his home, it must be legit, even though Ian knows darn well that the approvals were granted based on a SHPD preservation plan that the same court found to be invalid.

As the Native Hawaiian Legal Corp. explained Judge Watanabe's ruling:

Besides, by concluding that Brescia does not have a validly approved burial treatment plan because Nancy McMahon had failed to properly consult in advance with the burial council, she was saying that a requirement of the State Historic Preservation and burial council, i.e., to have a valid burial treatment plan properly approved, had not been met.

So keeping this mess in mind, let’s return to the subject of the Path. Given the performance of Nancy McMahon and county on the Brescia issue, do you really feel confident that you can trust them to do the right thing if burials are found on Wailua Beach?

30 comments:

Anonymous said...

My hatʻs off to you, Joan, for your diligence in these issues.

Also, why is Ian Costa interpreting a judgeʻs ruling? Heʻs no lawyer or planner for that matter.
No wonder this commission runs into trouble so much.

Anonymous said...

seems like a grave failure on the part of the county, and it makes it particularly insulting for all those that were callinfg for the people to show them the evidence , as commenters have been saying on previous blogposts.
first the state fails to require an AIS, then they want to keep secret how many Iwi Kupuna they impact or remove.
premeditated...hmmmm disapointing,

Anonymous said...

"Given the performance of Nancy McMahon and county on the Brescia issue, do you really feel confident that you can trust them to do the right thing if burials are found on Wailua Beach? "

is that a rhetorical question ?

Hell no!

Anonymous said...

And that is what worries me about Wailua. We know that burials are in the sands of Mahunapu`uone. According to the kupuna who has had personal experience with having to exhume, relocate and rebury them in a nearby area, the kupuna are there. I have ZERO trust in the SHPD. Pua Aiu is Hawaiian but has no clue either. She's disconnected and knows nothing cultural from her heritage. Shame. Nancy McMahon? Her butt should just be fired. She is a great contributer to this and many other problems regarding our iwi kupuna. `Auwe...

Anonymous said...

Public Information Meeting

Wailua – Kapa`a Bike/Pedestrian Path

Kaua`i Convention Hall in Lihu`e

Monday, December 7 – 6:30p to 8:30p

Anonymous said...

I hope all of the empassioned people can keep your emotions in check and listen to facts, laws, and logic in the meeting tonight.

Anonymous said...

I hope all of the empassioned people can keep your emotions in check and listen to facts, laws, and logic in the meeting tonight.

Yes, let's also add to that list the kapu or sacred laws of nature and the land.

Anonymous said...

"Pua Aiu is Hawaiian but has no clue either."

I don't meant this to be insulting, but this is what I need help understanding ...

I keep reading that the proposed beach route will offend the Hawaiians, but then it seems that the Mayor (Hawaiian) favors the beach route, one of the County Attorneys (Hawaiian), favors the beach route, apparently Paua Aui (Hawaiian) is predicted by someone to favor the beach route, and there are a bunch of Hawaiians with the same view - and there are a bunch of Hawaiians with an opposite view. They then dismiss those Hawaiians who favor the path as "not having a clue".

Is there some sort of heirarchy of Hawaiians, that says the ones who oppose the path are the true Hawaiian voice, or should have more clout than those who favor the path? I mean, the mayor, attorneys, educated Hawaiians telling us the path is good, and its been in planning since 2006 (where was the opposition then, before everyone put so much effort in PLANNING it) - but now, way after its all planned, other Hawaiians (and their "followers") saying its all wrong. Who is a girl to believe?

It reminds me of the world thinking bad about all americans because Bush was president.

Are Hawaiians race traitors if they support the beach route? Is that the accusation?

As more and more Hawaiians seems to be saying they support the beach route, and more are also coming out on the other side, its seems more and more to simply be a situation of you can't please all of the people (or Hawaiians) all of the time - and waiting till its all been planned and is ready to be built before mobilizing a big oppositions seems ineffective and unfair.

Dawson said...

"I hope all of the empassioned people can keep your emotions in check and listen to facts, laws, and logic in the meeting tonight."

Whose "facts, laws and logic?"

You mean the spin doctored facts, stacked-deck laws and self serving logic of the power mongers who play games with the truth.

Anonymous said...

Note: historical photographs of the area show there is NO WAY any bones are buried on the north end of Wailua Beach - why - BECAUSE THERE WAS NO BEACH.

And the south end - totally descreated by the installation of the cane bridge.

get over it.

Anonymous said...

Thanks Dawson.
Thatʻs the point and the problem.

Until the proper political authority has been transferred and is in place, the ragtags will continue the free-for-all on Hawaiian lands.

So when we discuss ʻwhose lawsʻ that can only be addressed by the proper claimants stepping forward: Hawaii Nationals. (And yes they can be of all races)

This is about...!!!
CITIZENSHIP!!! NOT RACE!!! AND YES THESE ARE DEFACTO LAWS OF A DE FACTO GOVERNMENT ILLEGALLY OCCUPYING THE LANDS OF HAWAII!!!

Anonymous said...

why do you think a Hawaiian government wouldn't be dealing with the same controversy? The Hawaiian government isn't going to be a stone age government. It's going to be a modern government governing a modern country. There will be the same controversies of tradition vs. modernization that we have today. Hawaiians are all over the map on iwi. Do you suppose they will all of a sudden join together and be of one mind about it when there is a Hawaiian government? Of course not.

Dawson said...

"why do you think a Hawaiian government wouldn't be dealing with the same controversy? The Hawaiian government isn't going to be a stone age government. It's going to be a modern government governing a modern country. There will be the same controversies of tradition vs. modernization that we have today. Hawaiians are all over the map on iwi. Do you suppose they will all of a sudden join together and be of one mind about it when there is a Hawaiian government? Of course not."

Assumptions about a hypothetical future do not justify the status quo -- except to those interested in maintaining it.

Your argument smacks of the ancient "we have to govern them because they can't govern themselves."

Anonymous said...

Assumptions about a hypothetical future do not justify the status quo -- except to those interested in maintaining it.

The idea that there is anything wrong with the status quo (path along the beach) is one opinion out of many and one that not all, or maybe even not most, Hawaiians share. So don't get your nose out of joint.

Your argument smacks of the ancient "we have to govern them because they can't govern themselves."

Huh?! You completely missed the point. You gotta follow the thread of the conversation.

Anonymous said...

How come we haven't heard from Hooser or morita. They will claim support of kauai but are missing when there are real issues to comment on.
Is there an election out in the future...

Anonymous said...

I'm totally for the status quo.

If it tips any way, tip it towards mainland mentalities.

Anonymous said...

"Assumptions about a hypothetical future do not justify the status quo -- except to those interested in maintaining it.

Your argument smacks of the ancient "we have to govern them because they can't govern themselves."

December 7, 2009 2:51 PM

Thatʻs a good reply.

And itʻs not about ancient vs modern. Only the foreigners (haoles) think that way and infect Hawaiians with their self-serving mentality.
Itʻs about JURISDICTION. POLITICAL AUTHORITY.

I tell you one thing: When the Hawaiians get whatʻs rightfully theirs...there wonʻt be any more squabbling.

Anonymous said...

Hooser, Morita, Tokioka, and our councilmembers are all silent. They don't have the guts to take a stand in a controversial issue.

Anonymous said...

Yes but ʻMayorʻ Tokioka should be there.

Anonymous said...

"I tell you one thing: When the Hawaiians get whatʻs rightfully theirs...there wonʻt be any more squabbling."

---adorable

;)

Anonymous said...

"Path on Wailua Beach — the possible presence of Hawaiian burials"

-- "possible" seems a pretty reasonable description


"How come we haven't heard from Hooser or morita. They will claim support of kauai but are missing when there are real issues to comment on."

-- what?...you would put this in your top 5 list? would hope poor, hungry, and uneducated people are in that list


"Note: historical photographs of the area show there is NO WAY any bones are buried on the north end of Wailua Beach - why - BECAUSE THERE WAS NO BEACH."

-- we dont do fancy pants evidence here


otherwise, should be some good reports from the bike path party. we need another fiasco of a town meeting. find out if anti SF people stiff got their mojo

Anonymous said...

RE: HOOSER, MORITA,ET ALL....

this is a county issue......do not touch w/ten foot pole

Anonymous said...

heard there were 350 in attendance...

Anonymous said...

I;m sure it was a circus.

Anonymous said...

Anonymous said...
I;m sure it was a circus.

Perhaps if your butt showed up you might have learned a thing or two. Looks like the consultants, county, state and feds have dropped the ball in many places through the "process".

Anonymous said...

It was a circus, with the County clowns stealing the show. From the beginning, with Mayor Bernard addressing the crowd in Hawaiian, then reading a speech written by Asst. Mayor Beth Tokioka, to Maunakea Trask stating that there are no burials on Wailua Beach, and to Doug Haigh being exposed as a liar, it was a wonderful and entertaining circus. Thanks for the show.

Anonymous said...

Maunakea Trask and Jung jr are a full blown Saturday Night Live spooof.

Two twits, still wet behind the ears, acting cocky, arrogant and like theyʻre ʻin the leagueʻ. It was really quite sad and sickening at the same time. If they only knew what they look like to everyone theyʻd be wearing a frown of humble pie.
Guess Jung jr is following in footsteps of father to pursue a safe salary because the apple donʻt fall far from the tree when it comes to nothing special in the lawyering skills. Canʻt imagine him in a legal environment that didnʻt have daddy government to nurture his inadequacies.
Same goes for the Trask character.
No wonder this county gets sued so much. And Tagupa. What a prize!

Shaylene did good cleaning out her department.

Anonymous said...

I guess its okay to call Maunakea Trask Ian Jung "Saturday Night Live spooof" and "Two twits," but saying the same about Jeff Chandler is out of bounds?

Anonymous said...

Remember it was Chandler who recieved a monthly check from DLNR to do nothing out on the north shore...

Punohu's Politics,Environment and Culture said...

You people should really check the two other blog posts: musings on the path", and Cipping Away, and also Hope Springs Eternal.

I literally took a beating on the musings on the path blog post right here on Joans blog.

For any of you that think it may be a really bad idea to put the path on the sand due to many concerns, you should go and see how crazy the posting got on those posts.

I posted a lot on those ones, so I really don't want to repeat myself here, And Joan did a great job with her original, creative and beutiful writing.

There is a lot more debate on those posts as we.. I would recommend checking them out.

Aloha