OK, get out your chili pepper water, your A-1 sauce or your other favorite condiment. Because it’s time to eat some crow — and not the Alala kine, since it’s almost extinct.
I’m talking to all you Hawaiian-haters, nay-sayers, stink-talkers and anybody else who was making like Kaiulani guys were wacko trouble-makers when they started the drive to protect the iwi on Joe Brescia’s property at Naue.
Yup, Judge Kathleen Watanabe vindicated them yesterday when she ruled the State Historic Preservation Division failed to follow its own rules and the law in this matter.
Turns out, after a protracted hearing and “very difficult” deliberations, that the iwi-defenders were right all along. State archaeologist and county council candidate Nancy McMahon made a big boo-boo when she approved the final burial treatment plan for the project without first consulting the Kauai-Niihau Island Burial Council, lineal descendants of the iwi, Hawaiian groups and even Brescia.
Now the matter must go back before the Burial Council for the proper review. That ought to be one highly-charged meeting, with all kinds of fancy footwork going on behind the scenes to get the Council to rubber stamp what Nancy already approved.
Since I know some of you have been feeling sorry for poor Joe Brescia, the judge did give him a little pat on the head when she said that he had complied with all the county requirements and permits, as well he should have.
But, and this is a big but, Watanable also said that doesn’t mean he was authorized to start pouring his foundation, effectively capping some seven iwi in concrete so he could erect pilings for his house. And why? Because the Burial Council hadn’t approved that particular treatment plan.
“While the burials were preserved, they were not authorized according to law and it could be argued that construction of jackets constitutes alteration,” Watanabe said from the bench. “Although construction is under way, that does not hold relief is impossible.”
That raises the big question, which both The Garden Island and The Advertiser failed to touch upon in their coverage today, of whether Brescia’s building permit can be revoked.
It seems the planning commission specified in its December decision that “no building permit shall be issued until the requirements of the Burial Council are met, and they weren’t met,” attorney Alan Murakami of the Native Hawaiian Legal Corp. said. “I think the planning commission should revoke the building permit.”
So while the judge didn’t stop Brescia from building, although I’ve heard things are on hold right now, anyway, while they wait for materials, she did warn his attorney, Calvert Chipchase, that the Council’s action could affect his building plans.
The Council could take any number of steps, she said, such as having the jackets taken off the iwi and removing the seven burials that are now under the house and reinterring them elsewhere. As an aside, Deputy AG Vince Kanemoto yesterday claimed in court that only five now are under the house, prompting Murakami to say, “I don’t understand why they can’t keep track of their own burials they’re trying to protect.”
The Council also could require Brescia to provide the Chandler family and other lineal descendants with access to visit the burials, and it’s pretty certain nobody wants to pay their respects to the kupuna under somebody’s house.
Hmmm. Seems old Joe and his plans to build another beachfront spec house ain’t in the clear quite yet.
What this whole issue points out is that the state isn’t following its own rules when it comes to burials. And if the community wasn’t there to serve as a watchdog, file lawsuit, hold protests and stage vigils, the state’s misdeeds would be continually swept under the rug.
Those actions obviously made an impression on the judge, who cited “the public interest in this matter” in her decision to walk everyone through her analysis of the case.
“As Mr. Murakami argued, process is absolutely critical, especially when two branches of government, the legislative and executive, have spoken so clearly about the need to protect” Hawaiian iwi, Watanabe said. “Whether there are shortcomings in the law, we need to start with the process.”
So to all of you who were screaming that the iwi-defenders should get the hell out of the way because they didn't follow "the process," all I can say is, "bon appetit."
Tuesday, September 16, 2008
Musings: Bon Appetit
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The judge vindicated the criticism that burial preservationists were woefully tardy in filing their motion (that was my criticism - for which I took a ton of shit). She pointed out that she had to deny motions for a TRO three times since they weren't made until after jackets and footings were already poured. She gave the impression that had preservationists been more timely she would have been able to grant their motion. Had that been the case, there might be no construction at all to date on the property.
From the first, I said the iwi should be relocated, ideally off-property. Short of that, to a corner of the property bordered by his property lines so as to allow visitation.
That's what some friends of ours on the BI did with their property.
Bresca did follow the law as it was defined to him by all relevant authorties, including pouring the foundations. Therefore, any changes based on the court-mandated back-and-forth with the planning dept and burial council could very well be paid for by the county. Bresca could easily win a suit for such costs.
Bottom line. His house will go up.
The iwi will most likely be moved, and life will go on. Just like it thought it would at the start of this mess.
The county can ill affort the massive lawsuits it would definately lose if Bresca is prevented from building. They are already liable (most likely) for the cost of any changes from this point on.
Just like the HSF. State/county negligence must be covered up or "allowed" to prevent crippling lawsuits.
I've never been in a state with so much ineptitude of state/county government.
I am FOR development, providing the iwi can be relocated. I am AGAINST blocking off whole areas because of some ancient bones that someone, even the goven't, says must stay in place.
Anyone violating Bresca's "no trespassing" signs could face a stiff fine, if he presses it. Regardless of reason, trespass on private property is a crime. There is no "higher authority" justification that would permit this.
If I were him, I'd continue to press it.
Charley, I did talk to Alan Murakami about that, and he said that Brescia began pouring cement within three weeks of the burial treatment plan being approved. "We were all thinking, how could this preservation in place decision result in construction over the burials? So everybody had to scramble to get this thing filed and i just couldn't pull it together any sooner. It caught us by surprise. You think you've got a great decision and you don't."
So let's not be being blaming the preservationists for the construction. It still goes back to the wrong actions of the state.
Charlie wasn't blaming the preservationists for construction, just for being negligent in filing a motion. If I were that lawyer's client, I could sue and win a malpractice action against him.
Bresca has always had the high legal road, if not in your opinion, the high moral road in this.
Maybe each county should have designated "ancient iwi cemetaries" to which all discovered ancient bones would be reinturred.
I'm all for "preservation", but not necessarily "preservation in place".
Maybe "each county" should put the interests of the Kanaka Maoli first for a change.
Maybe we should put the survival of an entire culture ahead of the narrow financial interests of developers.
It's a small price for us to pay given that they have shared this incredible place with so many, so generously, for so long.
I believe Alan scrambled to file once he was brought in. I just think it took a while to contact him. The burial treatment plan was approved April 24. If construction commenced within 3 weeks that's the middle of May. The motion wasn't filed until July 27. That's not a scramble to get an emergency tro filed. An emergency tro is filed within hours or days - not a month and a half.
Don't get me wrong. I'm not blaming anyone for the construction. From a legal standpoint, I'm not convinced that short of the state acquiring the property there's any way at all to prevent construction - whether or not the council votes to preserve in place.
What I was grumbling about before - and I admit I was ham-fisted and not as sensitive with my criticism as I should have been - was an attitude I have read that disdains using legal means to preserve burials in favor of 'direct action.' I have no problem with the idea that direct action can play a role in publicizing the issue. But I think to say 'forget legal remedies, direct action gets it done' is self defeating. (Not that everyone among the preservationists has that opinion).
You want cultural survival? You have Niihau. Call it "Hawaiiland" and charge admission.
The rest of the state is ours (i.e., Americans).
> Maybe we should put the survival of an entire culture ahead of the narrow financial interests of developers. <
> You want cultural survival? You have Niihau. Call it "Hawaiiland" and charge admission.
The rest of the state is ours (i.e., Americans). <
You mean the ugly Americans. The greedmongering, land-grabbing Americans in business and government. The Me Uber Alles Americans who for decades have been doing whatever they damn well want, thanks to their paid lobbyists and gutless legislators.
Not that it'll matter to you, but if you look around you'll see that Americans have just about gotten a gut full of your kind of "Americans."
Whether a trespass law can be invoked or not when it conflicts with a cultural practice would seem to come under the PASH II decision. I'm not an attorney, but I do wonder whether a developer could block access using trespass law.
In PASH II, the Hawaii Supreme Court allowed a native Hawaiian group access to an undeveloped portion of land on the island of Hawaii in order to harvest shrimp for their personal use. So far as I know, the right to enter lands to exercise traditional practices has always been limited to undeveloped land, and an extension of the right to include developed land would be a new expansion in Hawaii law. That's my understanding, anyway.
Foster opined; " I think to say 'forget legal remedies, direct action gets it done' is self defeating."
If that were true I think the United States would still be a British Colony. Laws are written to protect entrenched power. If laws fail to do so, entrenched power simple re-writes the laws.
Legislatures trump Courts, and grassroots movements trump legislatures. The "law" did not stop the Superferry from going to Maui, but direct action stopped it from coming to Kauai (so far). Stay tuned.
That was another outstanding article. I had not read TGI or Advertiser today because I knew they would not have grasped the essentials as you did.
Clearly, the ONLY avenue of action now is for the Planning Commission to Revoke the Permits.
The process begins again, this time according to law:
1) Revoke permits,
2) Burial Council,
3) Planning Commission.
So whoʻs going to get the ball rolling?
I was kind of taken aback by Murakamiʻs comment when I heard it in court and glad you brought it up again: “I don’t understand why they can’t keep track of their own burials they’re trying to protect.” ???? What is this comment?
Lastly, it should be even more clear now that Nancy McMahon is not good material to be overseeing laws and ordinances on the County Council.
She has proven herself again to be on the take. She is undeserving to say the least. One less leech sucking from our hard earned taxes.
Thanks. I'm glad you enjoyed it.
As for: I was kind of taken aback by Murakamiʻs comment when I heard it in court and glad you brought it up again: “I don’t understand why they can’t keep track of their own burials they’re trying to protect.” ???? What is this comment?
It seems SHPD keeps coming up with different numbers of burials that are under the house. It was always 7 through the hearing, then suddenly yesterday Kanemoto is saying 5, leaving us all to wonder what happened to the other 2, and why there would be any discrepancy if the foundation construction and "capping" had been carried out according to Nancy's burial treatment plan. Alan's use of the term "their own burials" referred to SHPD's responsibility for burials under the law.
"I am FOR development, providing the iwi can be relocated. I am AGAINST blocking off whole areas because of some ancient bones that someone, even the goven't, says must stay in place."
It doesnʻt really matter what YOU are FOR.
Donʻt you get it yet? You are just another one of the big mouths that come over here pushing your way and thinking your ʻopinionʻ matters. You could go start another useless poll. It seems to make you people feel better in a kind of righteous indignation way.
As far as Bresciaʻs impending lawsuits of trepidation, what needs to be looked at now, by Brescia, is his desecration. And this is where I stop and say no more.
Itʻs not for your ears.
Revoking the permit is not the ONLY action available. That would be the costliest option, considering suit liability.
The planning dept and burial council have to meet again, but not necessarily to change existing plans. Just follow the letter of the law as the judge pointed out...not come to a different conclusion.
I don't know if the Native Hawaiian Legal Corporation was involved with this case from the beginning but if it wasn't then people wanting their help have to make a request then wait for MHLC to get back to them. A response can be anywhere from a few days to weeks. It seems like they have a small staff and are already maxed out with cases.
But the real blame should be placed on Nancy McMahon and SHPD, right? Josephine
I interpret Murakami to be commenting on the impossibility of SHP adequately protecting resources (i.e., doing their job) without knowing what resources exist.
No, I don't think Alan was saying that.
"So to all of you who were screaming that the iwi-defenders should get the hell out of the way because they didn't follow "the process," all I can say is, "bon appetit."
Right on Joan. Great reporting. You are the only one who has reported thoroughly on this throughout. Sorry to hear/read that you were improperly questioned/harassed by authorities on your observations, but glad that you have stuck with it.
Maika'i loa keia mana'o. Mahalo nui loa me ke aloha no na iwi kupuna o Naue. Mahalo nui loa kakou ke kanaka no ka mea e hui pu ke ku'e ia ka hale hewa o Joe Brescia.
Thank you Joan for sharing such wonderful mana'o and allowing those who don't seem to understand the importance of upholding kanaka maoli culture first, and the descendants of those kanaka who have been left here as eternal caretakers of the land.
I would like to share a few things for those who are still continuing to wrongfully label the property in question at Naue as the private property of Joe Brescia. Historical documents disprove Joseph Brescia's quiet title of land at the property in question. Those documents have been filed through the illegitimate corporate state, to exercise the Land Commission Award that shows clear title to lineal descendants of M. Kekauonohi.
Some of you are absolutely right that trespassing on private property is a crime. I suggest that you educate yourselves on exactly WHO is a TRESPASSER. When you look at the reality of it, the scope of the paperwork that has been laid, and before any foreign nationals with illegal insurance policy's took interest in the land, it clearly states who a trespasser is.
The answer in this case: Joe Brescia.
The state can only uphold itself as a medium to resolving the issue, and will only protect its corporate entity with the revised statutes that have been created. Those revised statutes hold no jurisdictional value over the property in question, only over the office of persons, who in this case are being pursued by the state on the behalf of the office of person, Joe Brescia.
It's a corporate entity(the State) protecting a corporate affiliate of that entity(Joe Brescia). I would like to see the state present any type of documentation that proves that jurisdiction of revised statute holds weight over anyone who can show direct connection through their paperwork as a title holder of that property.
So yes absolutely "No Trespassing," but first educate yourself on who is the trespasser on the basis of law that truly holds weight. The same thing is happening in places on Maui, Moloka'i, Hawai'i island, and right in front of your faces here on Kaua'i. I suggest you talk to whoever sold you your house and check what your title guarantee really means. Seriously...
That's very vague Hale. Could you be specific and tell us what historical documents disprove Joseph Brescia's quiet title of land at the property in question?
The Advertiser has an editorial this morning on the desecration, kind of. I need a cup of coffee and then another look at it. For some reason, the first read through rubbed me the wrong way.
Sure, anonymous, I would love to give you some places where you could begin to educate yourself on historical facts of clear land title and documents that speak for themselves.
Try taking a read through of the Great Mahele indicies, which are accessible in public record and you can find the tax map key for where you rest your head at night.
Then you will see that our kupuna with an immense knowledge and expertise of division of land, laws surrounding those divisions, and a purpose to uphold kuleana created documents that never ceased to exist and hold jurisdiction over every piece of Ko Hawai'i Pae 'Aina that was lawfully patented.
If you are intelligent enough to read you will find thousands of names signed to a little thing called royal patent(LAWFUL) and land commission award's(ALSO LAWFUL) marked there in giving kuleana to those who put their claim on said real properties.
Then I might suggest you take a look at the Magna Carta of 1839, written by Kamehameha Ekolu prior to the Mahele. A document securing the rights of all people living within the jurisdiction of Ko Hawai'i Pae 'Aina, which has never ceased to exist TO THIS VERY SECOND, MINUTE, and DAY I WRITE THIS TO YOU.
Clear Land Title documents created to state that patented lands are forever held "in perpetuity" by said lineal descendants of that kuleana.
Then maybe you can cross-reference some law-definitions of vocabulary in Bouvier's Law Dictionary and Black's Law Dictionary to better "understand" the jurisdiction of the de jure claimant's clear title and the vocabulary marked within those documents so you can get a really clear picture of the pure ignorance of some people who work so hard to quiet title.
Take a look at the historical documents and treaties of Ko Hawaii Pae 'Aina, which you will find to your surprise that ABSOLUTELY NONE of the land patents had ever been legally annexed to any of the other 46 International Community who held treaty with Ko Hawaii Pae 'Aina as well as the United States Occupier during the attempted overthrow of the lawful government of Ko Hawai'i Pae 'Aina. Attempted meaning that a group of people tried to, and unsuccessfully overthrew the government, the people, nor the land and property rights they've held perpetually.
Not only no overthrow, but absolutely NO ANNEXATION, meaning simply that kuleana land rights held in perpetuity have never ceased to exist because there has never; nor will there ever be; a legal transfer of lands to anyone who has laboriously tried to cede, quiet title, title guarantee, or just plain as we Kanaka Maoli like to say "steal" the land, land access, natural resources, and access to those natural resources.
It's not like we have been trying to hide the truth from anyone. It's always been right there. I think some people just refuse to recognize the criminality of their self-imposed ignorance in the name of trying to continue the illegal occupation of the United States.
Do the research...you'd be amazed what you will begin to understand.
Unless you want to go on believing that "Ignorance is truly bliss." Does that help point you in the right direction anon? I sure hope so.
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