Wednesday, October 6, 2010

Musings: Dangerous Precedents

We’ll continue today with a report on the litigation surrounding the house that Joe Brescia built atop ancient Hawaiian burials at Naue, and the precedents that are being set by this project.

There are two distinct legal actions stemming from that project, which marks the first time the State Historic Preservation Division (SHPD) overrode the recommendations of an Island Burial Council and allowed construction on a previously identified burial site.

One set of claims was brought by the Native Hawaiian Legal Corp. on behalf of its clients, Nani Rogers and Jeff Chandler, challenging the process SHPD followed in approving the Burial Treatment Plan (BTP) for Brescia’s property. As I reported yesterday, Judge Kathleen Watanabe ruled in favor of the state on Monday, effectively quashing those claims unless NHLC appeals.

The other action was brought by Joe Brescia, who filed a civil suit against Kaiulani Edens Huff and 15 other named defendants — several of them were never served — and numerous unnamed defendants. He claimed they had caused him to suffer financial damages due to slander of title, construction delays and the need to hire security due to actions taken at the job site back in June 2008.

Alan Murakami of the NHLC told me last April that Brescia’s civil suit against those who protested his house was worrisome because it “has chilled people’s ability to speak up.”

Or as Kaiulani noted the other day: “It’s heavy duty psychological warfare.”

Brescia already won default liability judgments against some of the defendants, and an October trial had been scheduled for his suit against Jeff Chandler, Nani Rogers and Louise Sausen.

But attorney Harold Bronstein negotiated a settlement on behalf of Louise, as did NHLC for Jeff and Nani. One provision called for offering a settlement to those with default judgments, absolving them of any damages. Jim Huff and Palikapu Dedman opted to settle, but Kaiulani, Hale Mawae, Andrew Cabebe and Dayne Gonsalves, who was never even involved in this issue, did not.

Next Tuesday, Judge Watanabe will decide what damages they have to pay. During Monday’s court proceedings, Brescia’s attorney, Andrew Salenger, noted that his client might be willing to seek minimal damages if the state prevailed that day in court, which it did. So I guess we’ll see on Tuesday whether Brescia lets them off the hook, or tries to stick it to ‘em.

Hanalei “Hank” Fergerstrom, who was initially named, then dropped from the action, argued against settlement, calling the suit a “well-worn scare tactic. If you went with the proper intent in mind, to protect the iwi kupuna, then we didn’t do anything wrong.”

He said that by going after money damages against the defendants, Brescia was “threatening to take away the stuff they have for protecting what’s theirs.”

The settlement, which Brescia apparently pushed because it would have kept NHLC from pursuing any action against the state that would have resulted in him having to take down his house, has a number of interesting provisions.

It specifies that Jeff may go on to the property to pay respects to the iwi kupuna four times each year, and he may be accompanied by a kahu and Chandler family members. Once a year he can take no more than 10 people, whose names must be provided in advance. The other three times he can be accompanied by no more than two persons.

They get a four-hour window for the visits, with two more than two hours on site, and they can come no earlier than 30 minutes after sunrise and stay no later than 30 minutes after sunset. They cannot visit on any of the conventional major holidays, and must give Brescia two weeks’ notice. Brescia, however, can cancel with 48 hours’ notice.

While on property, they can’t alter the “preservation sites” — aka burials — or disturb or destroy any vegetation. They cannot erect any altars or plant anything, either. And here’s my favorite: “The preservation sites must be treated with reverence and must not be covered in any fashion.”

Now that’s rich, considering he built his fricking house right on top of seven burials.

It further states that they must “exercise decorum,” which specifically precludes directing profanities at Brescia or any of his guests, engaging in unruly behavior, being intoxicated, consuming drugs and alcohol and bringing in unauthorized guests. Jeff will be held responsible for the conduct of all those he brings on site, and if any one acts up, no future visits will be allowed.

The settlement also specifies that neither side admit any wrongdoing. The defendants who signed also agreed “not to knowingly assist others to prepare for or conduct litigation against Brescia with regard to any issue regarding the property.”

If the property is sold, the settlement specifies that Brescia will contribute one-fourth of one percent of the actual gross sales price — not to exceed $7,500 — to a nonprofit organization that Brescia and Jeff choose, so long as he and Nani have complied with the agreement through that date.

The others who signed had to agree that they “will forever remain off the Property except as and if provided for in the Burial Treatment Plan.”

And just to make sure everything ends on a really positive note, Jeff, Joe and Nani “agree to meet at a mutually convenient time in the future to discuss any unresolved feelings.” I’d love to be a fly on the wall at that meeting....

As a result of this settlement, Jeff, Nani and Louise are spared the stress of a trial, as well as the prospect of possibly losing their homes if Brescia were to prevail. I certainly don’t fault them for settling. They’ve all been through a lot of turmoil and stress over the past two years, and for those who did not settle, the drama will continue at least through next week, when they’re finally told what they have to pay, and maybe longer, if they appeal.

But as Hanalei Fegerstrom noted, “getting a judgment is one thing. Collecting money is another.” Or to put in Kaiulani’s words, “you can’t get blood out of a turnip.”

As the litigation wraps up, I think it’s crucial to remember what is at the core of it, and that’s the state’s misdeeds in handling this project. If it had not improperly approved the BTP, Brescia wouldn’t have gotten his building permit and started construction and folks wouldn’t have needed to protest construction.

Unfortunately, as I noted in yesterday’s post, as a result of Monday’s court ruling, the state is still free to do it all over again.

What’s worse, developers can look at the dangerous precedents that SHPD set in the Brescia case — overruling Burial Councils, allowing construction atop a known burial site, failing to conduct meaningful consultation on burial treatment plans and allowing “buffers” between buildings and burials — and say, "I want that, too."

And how will the state be able to say no? And who, after a bruising battle like this one, will have the heart and means to challenge it?


Anonymous said...

The state did not "over-rule" the burial council. The council called for preservation in place. That is what happened. The State cannot order a "taking" of someone's land nor prevent them from building. The current laws need to be changed. The laws here were followed.

Joan Conrow said...

Yes, the state did overrule the Burial Council, which rejected the 16th version of the Burial Treatment Plan. SHPD went ahead and approved it anyway.

Anonymous said...

"And how will the state be able to say no?"

when a new law is written, legislated, signed into law and applied.


Anonymous said...

Burial Council can only make recommendations.

No binding decisions.
That's why they need to go the the legs. Change the laws there, not in the courts.

Anonymous said...

The burial councils can only make one decision - preserve a burial in place or relocate it. That's it. The burial treatment plan highlights the landowner's preferred decision (preserve in place or relocate) but includes other aspects of that decision: landscaping, access, etc.

The plan itself is not subject to the council's up-or-down approval. The council can and does make recommendations to change the plan (e.g., different landscaping plans or better access procedures) but these are only recommendations to DLNR who has the final approval.

In the Brescia case, the KNIBC did not like the 16th *plan* but they had already made the only decision they could -- preserve in place -- on which the 16th plan was based.

The commenters who are saying the law needs to be changed are correct. The law will have to be amended to require the council's approval not only of the treatment decision but of all aspects of a burial treatment plan in order for them to have maximum control over their decisions.

Anonymous said...

The State did not over-rule the council. The council can only give a recommendation, the SHPD makes the final determination on a burial plan.

Anonymous said...

"The law will have to be amended to require the council's approval not only of the treatment decision but of all aspects of a burial treatment plan in order for them to have maximum control over their decisions."

Unfortunately that will never happen. The public will not allow an appointed body to have final say over private property rights.

Anonymous said...

"The law will have to be amended to require the council's approval not only of the treatment decision but of all aspects of a burial treatment plan in order for them to have maximum control over their decisions." that a pro-development administration can stack it with pro-development members and they can rubber stamp all the burial treatment plans. Whee!

Anonymous said...

Works for me!