Tuesday, October 5, 2010

Musings: Out in the Cold

After enduring five hours of bitter cold in a Kauai Circuit Courtroom yesterday, the folks who have been fighting the governmental process that allowed construction of Joe Brescia’s house atop burials at Naue were essentially left out in the cold.

Judge Kathleen Watanabe ruled in favor of the state’s motion for summary judgment, while suggesting that Native Hawaiian Legal Corp. and its clients, Nani Rogers and Jeff Chandler, might wish to pursue relief through the Legislature or administrative rule changes instead.

But before she issued her decision, Watanabe went to great lengths to make it clear that “these rulings are based on what should be, which is the law in effect and the facts as presented. This court is setting aside personal feelings and emotions, as it should.”

Before that, she talked about how she had been “surprised and disappointed” by the State Historic Preservation Division’s (SHPD) actions in the Brescia project. Nevertheless, she could not base her decision “on personal feelings or emotions or respect for cultural positions taken by the parties.”

Furthermore, she could not allow herself to be swayed by “community input and criticism of the court’s rulings in the past,” and “comments made by the community or media.”

“I believe there is a need for some finality in this matter…it is the court’s hope that this is final and we can all move on and do better in our respective cases,” she said.

As a result of her ruling, the core of the long-running dispute —the definition of “preserve in place” when it comes to Native Hawaiian burials, or iwi kupuna — remains unsettled. And an emotional, controversial, angst-ridden scenario like the one that's unfolded at Naue could happen all over again.

To provide a little backstory, the Kauai-Niihau Island Burial Council originally determined that the 31 burials found on Brescia’s lot should be preserved in place, which they understood to mean no structure would be built atop them.

Instead, Nancy McMahon of SHPD approved a Burial Treatment Plan (BTP) that allowed the house to be built atop seven burials. It was revealed in court yesterday that the so-called “buffers” between the burials and the house were determined not by archeological or cultural considerations, but solely by the house design.

NHLC challenged that approval, saying the Burial Council had not been properly consulted. In September 2008, Watanabe agreed and ordered SHPD to take the BTP back to the Council for the proper review. After much dithering and numerous revisions of the plan, SHPD finally took it back to the Council, which rejected it this past February. SHPD overrode the Council and approved it anyway.

Meanwhile, construction of Brescia’s house continued unabated because Watanabe refused to grant an injunction to halt it two years ago, even though the county had given him a building permit on the premise that he had met all of his conditions — one of which was satisfying all the requirements of SHPD and the Burial Council.

During this time, Brescia also filed a civil suit against 17 persons, not all of whom were ever served, claiming they had trespassed, slandered his title and generally caused him expense and aggravation by protesting against his house. Several of the parties, including Jeff and Nani, reached a settlement on that case, which I’ll get into tomorrow.

So by the time things went to court yesterday, NHLC had already agreed it wouldn’t challenge the approved BTP or try to make Brescia take down his house. What NHLC wanted, attorney Alan Murakami said, was for Watanabe to issue a declaratory order “that would basically invalidate” the process SHPD followed so it couldn’t be repeated in the future.

Watanabe asked if they had sought legislative relief, but Murakami said what is needed is a legal interpretation of the existing law.

At the core of the issue, NHLC attorney Camille Kalama told the judge, is the meaning of preserve in place. By allowing Brescia’s house to be built atop burials, “the state’s interpretation of that (burial preservation) law eviscerates the Legislature’s intent,” which was to protect Native Hawaiian burials and give the Burial Councils some say in their treatment by allowing them to recommend whether they should be relocated or preserved in place.

“If ‘preserve in place’ means only that burials are left in place, then the decision to preserve in place has very little meaning,” Kalama argued. “We are disputing the [state’s] interpretation of that statute, and until there is an interpretation [by the courts], a legislative remedy is not needed.”

Randy Ishikawa, deputy state attorney general, disagreed, saying they should be going through the legislative and administrative rule-making processes, not the courts. He said the only remedies available through the existing process are restraining orders and injunctions, not declaratory orders.

But Kalama said that if Watanabe went along with that argument, “it would mean the state is essentially insulated from court review unless a person can get an injunction. It would say the state’s actions are not reviewable.” And that puts tremendous burden on the public, she said, especially since they aren’t given notice when a BTP is approved and so can’t challenge it.

It was clear, however, that Watanabe did not want to do any defining or interpreting.

“If the court were to dictate what preserve in place means, this court would be clearly overstepping the administrative and legislative processes,” she said. “Perhaps you should be looking…to those processes.”

Afterward, Murakami said he didn’t believe the court’s power is as narrow as Watanabe claims. NHLC will be reviewing its options and deciding whether to appeal.

Despite Watanabe’s desire for closure on the Brescia case, it will be back in her courtroom next week when there’s a hearing to determine how much the remaining defendants in the civil suit should have to pay. I’ll delve into that aspect of this rather convoluted issue in tomorrow’s post.


Anonymous said...

mahalo joan for continue to report on this travesty. an appeals sounds appealing but so far justice has not been served for the kanaka maoli who have stood up for their culture and their iwi kupuna.

Anonymous said...

Now those concerned about changing the laws have missed two election cycles. How much more time are they going to waste with courtroom drama!
They should have been camping out on the county and state's doorsteps not playing on the beach.

Anonymous said...

Thanks Joan. Your blog has been much more informative than The Garden Island. Keep it going.

Anonymous said...

It is in the interpretation, the existing laws could protect if they were followed, but if you slither through at each step of the way. Whatever the court outcome, quaranteed, there will not be a peaceful feeling there. Only the creepiest of the creepiest would build right atop Hawaiian bones and fight the people of this island like he has.

Anonymous said...

I said it at the very beginning of this case: Brescia will win.

He won.

I wonder who will be the next winner. Not the Hawaiians.

Anonymous said...

nice victory, he gets to have a haunted house. he can gloat, i live on top of a cemetary,

Anonymous said...

And Halloween is coming...
we be scared!

Anonymous said...

Or as one kapuna has viewed it.

The new owners of the land with burials are being hanai'ed by the iwi. It is now their responsiblity (the new owners) to care for the iwi,the new members of their family!

Anonymous said...

If he doesn't want it anymore, I'll take it off his hands. Beautiful house and location. And if I found bones, I'd feed them to my dogs.

Dead is dead. There are no spirits. I'm cool living over a cemetery.

I have a friend who molded the ashes of his father into a toilet seat. No love lost there, but many a "movement".

Anonymous said...

yes, we already know only the souless would even consider living there. life is a good teacher

Anonymous said...

"I said it at the very beginning of this case: Brescia will win.

You must have a big brain if you figured that one out.

Anonymous said...

Joan, you do the public a disservice in the way you attack the judge and by not encouraging those kanaka maoli to do the right thing and focus on making the state legislature take action. "How much more time are they going to waste with court drama!" is right.

Joan Conrow said...

I did not attack the judge and it's not my place to encourage "those kanaka maoli" to do anything.

Anonymous said...

Mahalo Joan for your informative update for those of us working to survive and can't show up in court to support our fellow kanaka. In my humble opinion, every step of the way in this long convoluted process, the ball was dropped by the State and County. Brescia manipulated the incompetence of the Planning Commission and SHPD in his favor. The power his wealth wields made our spineless County quiver in their pants.

I am humbled by the courage Kaiulani and others have for refusing to settle. They are true warriors. I don't fault the others for settling because of their Ipersonal situations. But we must support those who are making a stand for the sake of the iwi.

Mahalo for your invaluable support. It is out battle to fight but you understand how to help in a way that is not intrusive.

Anonymous said...

Correct spelling is KUPUNA...a'ole kapuna.

Anonymous said...

Brescia dosesn't have to worry, the house at Naue was always intended for investment purposes as a bread and breakfast unit like his other B&B in that area. It was never intended as his place of residence. SHPD should be dismantled as it is a conflict of interest serving more for the developer than historic preservation. Watanabe is inept and derelict. With such controversy, legally there should have been an injunction to stop building until it is resolved.

Anonymous said...

Does anyone know why Nancy McM was fired?

Anonymous said...

Case Closed!
No winners no losers.

Anonymous said...

No winners no losers"
You must be friggin nuts, the losers are every person who cares about justice, more important the Iwi are the losers. Heard people who sleep near there feel a suffacating presence. I clean for vacation rentals, and several guests staying nearby have reported the same nighmare of being suffacated. One tourist left in the night.

Hanna Barbara said...

Heard people who sleep near there feel a suffacating presence. I clean for vacation rentals, and several guests staying nearby have reported the same nighmare of being suffacated. One tourist left in the night.

This is a job for Scoobie Doo Mysteries Incorporated!

Anonymous said...

"I said it at the very beginning of this case: Brescia will win.

You must have a big brain if you figured that one out.


And you (plural) must have little brains to think that anything else will happen in the future without new legislation being passed.

What's the chance of that? Legislators risking losing the backing of the monied constituency that has supported them in the past?

Judges shouldn't "legislate from the bench" and typically shy away from it since it increases the probability of their decisions being overturned in appeal.

Money talks. Whining walks.

You lose fast or you lose slow, but eventually you lose. Think Oahu. Think Maui. Big Island is still to big for most to care.

You're next.

Anonymous said...

This is a job for Scoobie Doo Mysteries Incorporated

It's a certain native Hawaiian activist scaring the tourists with a bed sheet and tow chain. He would have gotten away with it too if it hadn't been for those meddling kids!

Anonymous said...

From Hidden Travel Gems:

Ghost Tourism and Haunted Houses

Ghosts don't exist.

They sure are a boon for the tourist industries of places like New Orleans and Salem, Mass.

According to LiveScience, the industry is a growing one, fueled by Ann Rice books and cable "ghost hunting" shows.

Just about every city has some supposedly haunted mansion, cemetery or lunatic asylum ("if you listen carefully to the wind on moonless nights, you can hear the screams of the insane..."). Most cities, in fact, have at least one company offering tours of their spookiest places.

So what can you expect on one of these spooky tours? Some good ghost stories and maybe a few chills. Though there are some accreditations for "ghost hunters" or whatever, the most skilled haunted tour guides are the best storytellers. Some groups, like this one in New Orleans, blend a little history and legend into the tour.

Sure, I'm a skeptic of the whole supernatural thing, but I still wouldn't mind a good ghost story, especially on Halloween.

This one could have a Hawaiian theme! Like that one Brady Bunch episode where Bobby takes a tiki from a tiki cave and gives everybody bad luck.

Anonymous said...

"Money talks. Whining walks.

You lose fast or you lose slow, but eventually you lose."

Hey, Mr. Cliche, don't you get tired of being boring and obnoxious? Wow, people with money have an advantage and American law favors property owners. What revelation will you thrill us with next? That the sun will rise in the morning?

Anonymous said...

Yes it will...on another fine development over your "sacred" lands.

If the unavoidable truth is so apparent to you, why are you fighting it?

Prolonging the inevitable?

Anonymous said...

ps - I'm never tired of dancing the victory dance...over "dem bones"!

(imagine rude gesture in your direction)

Anonymous said...

Preen all you want, nature will have its way one day.
Tsunami's, high waves, hurricanes, flooding...

Anonymous said...

"ps - I'm never tired of dancing the victory dance...over "dem bones"!"

The Obvious Geek

Anonymous said...

Since you can't win anything of real substance or merit in this case or cases like it, feel free to declare a "win" with your rapier-like verbal thrust.

- The Obvious[ly thrilled to have won, again, dancing the 'moon you' dance] Geek

See you at the next trampling of indigenous "rights" due to exceedingly inept legislation and corrupt bureaucracy.

Don't forget to ineffectually wave your signs. Don't trespass, though, or impede progress, or engage in any form of slander. We'll sue your asses into a higher degree of poverty than you already occupy.

Anonymous said...

"The Obvious[ly thrilled to have won, again, dancing the 'moon you' dance] Geek"

Obvious Geek, read a world history book. That will give you a real thrill. Sheesh, how pathetic.

Anonymous said...

World history tells me that big, powerful, monied countries take over and overrun smaller ones.

Anonymous said...

Another insightful observation. Yawn.

Anonymous said...

Thank you Joan for your reporting! People should respect grave sites. Period. If it walks like a duck, quacks like a duck...

Watanabe and the SHPD blew it in my opinion.

Anonymous said...

Problem with the whole "iwi" thing is that humans have been burying people for 100,000 years.

In Europe and the Middle-East they're so thick on the ground that you can't dig a hole anywhere without coming up with some. So should the people that live there just give up a let their houses and other buildings disintegrate around them? If they shouldn't, why should we? There's nothing disrespectful about carefully moving a burial.

For anyone who disagrees, would you rip down your $700,000 house or abandon your property if someone discovered iwi buried beneath it? Anyone know anyone who has?