The pre-dawn sky was clear with a hint of gold this morning, prompting Koko and me to head for the beach where we could watch the sun, bold and orange, rise from a sparkling sea that, for a briefly blissful time, also contained me.
I really needed to top up my joy supply after spending hours yesterday observing the machinations of what is passed off as justice. Despite its grandeur, the new Kauai courthouse always leaves me feeling dirty and ice cold, with a brooding despair.
Yesterday’s Circuit Court hearing, which ended with the construction ban at Joe Brescia’s Naue house lifted and plaintiff Nani Rogers sobbing in the hallway — “They’re going to let him build over bones” — was no different.
Here’s the gist of what happened: The hearing for a preliminary injunction to stop construction of Brescia’s house will resume Sept. 3 before Circuit Judge Kathleen Watanabe. Meanwhile, she’s allowing work to continue using the same reasoning that prompted her to deny an earlier motion for a temporary restraining order: since the concrete footings for the oceanfront house have already been poured, the burials aren’t at risk.
Before the proceedings got to that place, Watanabe refused to qualify Dr. Michael Graves, a witness called by the Native Hawaiian Legal Corp., as an expert in Hawaiian archaeology. Never mind that he spent 21 years at UH teaching undergraduate and graduate students in archaeology and served as head of the department.
Since that prohibited Graves from discussing whether the State Historic Preservation Division (SHPD) acted properly in its treatment of the Naue burials, much of the hearing was devoted to Kauai state archaeologist Nancy McMahon defending her decisions regarding the burials there.
Quite a few intriguing tidbits emerged from her testimony. For instance, when the Burial Council was voting whether to relocate the burials or preserve them in place, McMahon hadn’t even provided the panel with the most current burial treatment plan.
And when she later wanted to give the Council a revised plot plan that showed where the burials would be in relation to the house, the panel’s chairman — Mark Hubbard of Grove Farm — told her no, he didn’t want the issue back on the agenda.
Her testimony also seemed to indicate that Brescia’s consultants either failed to publish an accurate legal notice, or didn’t publish one at all, when a second set of burials were found on the site. These notices are intended to give descendants a chance to claim the burials.
Further, McMahon repeatedly stated that none of the concrete footings for the house were placed atop the burials, which she had decided — without consulting the burial council — should be encased in a concrete cap. But Brescia’s archeology consultant told me that some of the pilings were indeed atop burials, although there was an 18-inch “vertical buffer” between them and the actual bones.
What’s more, due to a strange quirk in county planning laws, people can actually get permits to build in the Special Management Area, which includes the shorelines where burials are typically found, without first having their projects reviewed by SHPD.
So then you run into the scenario, which is what happened up at Naue, of a landowner securing county approval to build, then finding burials, which puts his project before the burial council when it’s too late for them to do much of anything about it.
Yet way back in 1991, the former head of SHPD, Don Hibbard, had sent the county a letter saying the Sylvester Stallone subdivision at Naue was likely to contain burials and so his office wanted to review permit applications for those parcels prior to any permits being issued.
That obviously was not done, further strengthening NHLC’s case that Brescia's permits were improperly granted. But the judge refused to accept Hibbard’s letter into evidence.
Deputy Attorney General Vince Kanemoto, trying to get SHPD off the hook, asked the judge to dismiss all charges against the state, saying it was the county that had approved the house. She denied that motion.
Watanabe went on to say the court was making every accommodation for the case “because I understand the issues on all sides are very critical and I understand we have a community that’s split and this issue continues to create divisiveness in this community …. and so it needs to be resolved.”
But I wondered, is the issue really causing divisiveness? Or is it more accurately causing embarrassment for government officials, and the kind of public unrest that makes them so uneasy?
After the hearing, I was talking in the parking lot with Andrew Cabebe, one of the Hawaiians who camped out for weeks to protect the bones. “These places never work for us,” he said, gesturing toward the courthouse. “They just distract us and delay us. The only thing that’s going to make any difference is getting independence.”
Frankly, I had to agree.