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.