Thursday, November 6, 2008

Musings: Living in Limbo

It was a beautiful day, and I spent the first half it at the Burial Council meeting and the second half at Midas, where the guys are really nice, btw. But there was still time when I got home to hit the mountain trail, which Koko thought was a splendid idea.

As she circled through the pastures, rounding up cattle that didn’t need to be herded, I stuck to the fern-lined path, where a pueo flew overhead and circled back, making its distinctive little click-click-click call. Later, a barn owl screamed as it zeroed in on its prey in the gathering dusk, and the Moon, Jupiter and Venus gave a repeat performance of last night’s rosy sky line-up.

Today’s Burial Council was not, fortunately, a repeat performance of last month’s tense, dramatic and highly-charged meeting. Perhaps it had something to do with the setting at Queen Liliuokalani’s Children Center, where the doors were open to the sunshine and a maile and mokihana lei-bedecked portrait of the Queen graced the room, as did signs with Hawaiian value words like makaala (pay attention), aloha, ahonui (patience) and lokahi (harmony).

While the tone of today’s meeting was entirely different, it again ended in a sort of limbo about what should be done with the iwi on the Naue land where Joe Brescia wants to build a house. But whereas the Council simply continued the matter at last month’s meeting, today it took action, rejecting the burial treatment plan (BTP) presented by the state.

That plan would have approved what is already a done deed: capping seven burials that lie under the house in cement. And a very interesting bit of information surfaced today about that capping process: it seems it was done without the approval of either Kauai state archaeologist Nancy McMahon or Mike Dega, the lead contract archaeologist on the project.

Nancy, who as you may recall was found by the court to have failed to consult with the Council and others before approving the first BTP, divulged that nugget during an emotional outpouring that came across as part confession and part self-defense — AKA CYA.

“I wanted you guys to be a part of it,” she told the Council. “I did not approve the capping. I reprimanded the archaeologist for what they did.”

Now that raised a few eyebrows, as did her comment that the late LaFrance Kapaka, who for many years was a strong force on the Burial Council, “was my best friend.”

So I asked Mike Dega what happened. Seems that while he was at a convention in Ireland last June, he had a phone conversation with some of his company’s “guys in the field” and they told him they’d capped the burials. He asked if that was OK with Nancy and they said they hadn’t asked.

“We screwed up on that one,” he said, noting that yes, Nancy had scolded him soundly, and he’d scolded the guys who did it.

But the fact remains that the burials were capped without permission, and ain’t no amount of scolding going to rectify that — although Mike said the caps could be removed in a matter of hours without damaging the iwi.

Now this is important for two reasons, one cultural and the other legal. On the cultural side, Council Chairman John Kruse likened the caps, which are four inches thick and six feet in diameter, and rest about three feet above the iwi, to “sewer covers.” Elaine Dunbar, in her testimony, called it “post-mortem incarceration.”

On the legal side, capping the burials allowed work on the concrete foundation pilings to proceed shortly before Circuit Judge Kathleen Watanabe was to hear a motion for a restraining order to stop construction. And with the pilings in place, the judge three times refused to grant the order — precisely because significant work had already been done on the house.

So whom do you suppose told the “guys in the field,” who are working for Brescia, to cap those burials? All signs seem to point to Brescia, or one of his representatives. It’s kinda hard to believe they got a wild hair up their ass and decided on their own, hey, let’s cap the iwi.

And so what about accountability? Remember back in June, when Police Chief Perry halted construction on the project, saying it could violate a law prohibiting desecration of burial sites?

“Unless we have a directive or some kind of documentation or some kind of decision that is made at a higher level, as far as we’re concerned, if construction begins on this burial site, they’ll be in violation of Hawai‘i Revised Statutes,” Perry told protestors and workers.

Well, no decision was made at a higher level. So wasn’t the law violated?

That’s not the only squirrely thing. As John Kruse noted, the building permit for the house was issued before the planning commission had granted its approval and set conditions for the project. This revelation prompted Walton Hong, Brescia’s attorney, to explain that the permit was actually one that had been granted before Brescia had to redesign his house to move it back from the shoreline, and that Public Works had simply amended the original permit “and didn’t want to hang on to it.”

Hong said he’d sent a letter to the Planning Department saying “Public Works is forcing us to take the permit, so we’re taking it, but we won’t do any work whatsoever until the conditions have been met.”

Caren Diamond testified that the county was supposed to revoke the original building permit and issue a whole new one, but it never did. Instead, it amended it twice to reflect first the setback change and then a new contractor for the project.

Meanwhile, Caren said, the county gave Brescia’s contractor verbal approval to proceed with the foundation with no inspectors on site, and no foundation reports have ever been filed, as is required by law.

Perhaps now you can understand why some folks question Brescia’s claim that he’s been a victim in this whole thing.

When I asked Mike if that type of unauthorized capping had ever occurred on any of his other projects, and he has many around the state, he replied: “never.” When I asked what, then, was up with this project, he said, “I don’t know. It’s hexed.”

Question is, it hexed by unhappy spirits, or Brescia’s own impatience and greed?

Anyway, although the speakers strongly encouraged the Burial Council to send a letter to the planning commission, asking it to revoke Brescia’s permit, it didn’t go that far. Instead, it rejected the BTP. But even that is just a recommendation to the state Historic Preservation office, which has final say.

In other words, Nancy could go ahead and approve the BTP. When I asked the Deputy AG what, then, was the point of the judge’s ruling, which required Nancy to bring the plan back for the Council’s approval, he said the judge was merely concerned because some of the proper consulting hadn’t been done. And he didn’t think anyone needed to worry about Nancy proceeding unilaterally with the BTP, like she’d done before, because typically the state and the Councils “work hand in hand on these things.” And besides, if she did that, people could always take her back to court.

Following the Council's decision, Nancy said she needed to comply with the court order and do some consulting about the BTP with Hawaiian groups, anyway. That was interesting, seeing as how she hadn't felt compelled to do that consulting prior to trying to push the BTP through at the last two meetings.

So there you have it, or at least, the latest installment in this ongoing, crazy-making serial.


Ed Coll said...


Only tangentially related to this post so perhaps for your eyes only but it does involve graves and George Orwell is blogging from his. see
and enjoy.

Anonymous said...

Joan: Interesting piece. One major detail needs to be clarified, which may change the "legal" part of your blog a bit.

The BTP was approved by SHPD and the archaeologists were working under the guise of that approval in June-July 2007 when construction began. The accepted BTP called for installing a CMU around each of the 7 burials under/near the proposed residence. A CMU is typically a four-sided structure used to keep burials in place, esp in sand, which constantly shifts. As the archaeologists began the process of preerving the 7 burials, the fieldcrew thought it more prudent to only put one flank to protect the burials..only one of four sides, so that the burials would not be disturbed in any way. There was also little chance of the sand there migrating, as it typically does on slopes and in heavily exposed areas. Installing a full CMU, in this case, may have even slightly impacted the burials. The field crew made a field decision to "cap" the top and leave the other three sides open and within their natural context. They made the correct call, methodologically, in terms of protecting the burials within their natural context without being fully encased, enclosed, incarcerated, etc.

The only "screw up" was in not immediately informing the SHPD that we had put in one side, and not four sides, as outlined in the BTP. We made the field call to further protect the burials. The field crew did an exceptional job in protecting those remains within their natural context.

Also, in regards to the "caps" being "sewer covers"...interesting comment, esp as the suggestor had likely never seen the caps in person. In fact, it is strange that only one member of the burial council had ever been to the parcel. The caps did not appear to be sewer covers to anyone else, including the cultural monitor. Two of the capped seven have additional visible markings on the surface as a planting area (circular rock formation) and as a paving (horizontal distribution of rocks).

Another point of the meeting: Mr. Chandler referred to the Burial Plan as "garbage", etc. I don't think Mr. Chandler cares for or appreciates the time, effort, and dedication required to conduct such intensive archaeological work or the dissemination of the results. His opinion, whatever.

I stand by the fieldcrew 100% as doing exceptional work out there for long times periods. It is our job, sure, our choice, but the methodology utilized there was among the most sensitive and time consuming used, the goal being to accurately and precisely document each burial site on the property, as well as the rich and variable cultural deposit (habitation).

Katy said...

The fact remains that all this activity, whether "legal" or not, works to legitimize an outrageous practice - allowing building upon burial sites.

There is undeniable and perhaps insurmountable tension between the interests of capital (private property rights, development, etc) and the survival interests of Native people in Hawai'i and beyond. This is the central struggle.

Mitigation (capping, treatment plans and the rest) of the forward march of profit as it gobbles up every last square inch of Native land can hardly erase the central injustice which it attempts to legitimize.

Anonymous said...

The BTP was approved by SHPD and the archaeologists were working under the guise of that approval in June-July 2007 when construction began. the date should read June July 2008.

Anonymous said...

boy if the future of ethnic hawaiians rests in that heavily in things like this....times are gonna be tough

but hey, at least that approach and set of priorities takes light away from inadequate sewer systems, affordable housing, education, etc

Joan Conrow said...

Thanks for the clarification, Mike. I only wish it had been explained at the meeting.

As for just one Council member having been to the site, I really feel that site visits by both the Burial Council and Planning Commish would have made a huge difference on this project. I think it would have been clear then that any construction on the lot would impact iwi, whether they were under the footprint, or in the yard.

I know site visits are time consuming, but with so many projects, not just those involving burials, a written report just doesn't tell the whole story.

Anonymous said...

"inadequate sewer systems, affordable housing, education, etc"

Boy you got that right.
I've got a renting family in my neighborhood that apparently can't afford the honey wagon to pump the cesspool.
They ladle the aqua negra out into the backyard onto what we call the surface leachfield.
What do you do,call the Dept. of Health and hope they are not thrown out because they or the landlord doesn't want to pop for a new $ 10,000 septic system. Or just endure the smell for the day so they can maintain a "normal existence."

Anonymous said...

> Mitigation (capping, treatment plans and the rest) of the forward march of profit as it gobbles up every last square inch of Native land can hardly erase the central injustice which it attempts to legitimize. <

Bingo. From strip mining sacred mesas (Arizona) to building snowplay parking lots atop sacred mountains (California), "mitigation" has become a cynical sop to keep Native concerns under political control -- a cover for politicians who pander to the money mongers who own them.

Anonymous said...

"Meanwhile, Caren said, the county gave Brescia’s contractor verbal approval to proceed with the foundation with no inspectors on site, and no foundation reports have ever been filed, as is required by law."

What law is that that requires a "foundation report" be filed? Caren Diamond has been dogging this poor guy for going on a decade. I wouldn't accept her statements without serious question, or quote her so liberally. She's not what you might call a disinterested source. It's a little hard to take her interest in these graves seriously when she has made it her life's work to stop this house from being built.

Joan Conrow said...

In reviewing my notes, Caren simply said the foundation reports are required. I added the "by law." Whether it's by law or code or whatever, they are required by the county and they haven't been filed.

As for the rest of your statement, I take Caren's interest in the graves very seriously, as I know her to be a sincere person. In working with on her a number of stories over the years, I've found her to be a very reliable source who does her homework. Just because she's not disinterested doesn't make her a liar or misinformed.

And if that "poor guy" hadn't tried to get a variation to the setback regs and plant vegetation to extend his lot onto the public beach, Caren wouldn't have been dogging him.

I only wish there were more Carens willing to stand up for what's right and fight for the public interest.

Anonymous said...

"Whether it's by law or code or whatever, they are required by the county"

How do you know? Because Caren told you? Sounds fishy to me, like it sounds good to imply he has broken the law but you can't actually name the law.

Anonymous said...

all im sayin is, i think a person or two will think twice about trying to grow their beach lot by growing ferns or roses or whatever on the beach thanks to that diamond lady. so nice job on that one ms diamond

Joan Conrow said...

Anonymous wrote: "What law is that that requires a "foundation report" be filed?"

From the county charter

Article XIII, Section 13.03 Powers, Duties and Functions, D. Examine and enforce the construction requirements and standards of all public and private construction and improvements in accordance with the building code, subdivision code or such other regulations as may be in effect in the county.

Proof of these inspections is supposed to be filed with the building department. To date, project architect Ross Anderson, who requested approval to use special inspection services for inspection of the foundation concrete work, has not provided those reports.

Anonymous said...

That doesn't explain whether a "foundation report" is even due at this time. Nothing in the charter indicates that inspections are to be done in piecemeal fashion as you seem to assume.

Anonymous said...

Regarding iwi on Kaua'i, I wish that more awareness was given to the massive Kukui'ula project. There are "sites of historical significance" that are blocked off with orange safety nets. These certain areas are off-limits to all individuals and contain iwi and critically endangered species. The orange fences are easily viewed on the new Western Bypass road, going South, at the intersection of the old site road (where the fruit stand was.)
Unfortunately, these sites are only feet from busy roads and have had thousands of cars and heavy equipment zoom by.
On a thousand-plus acre site, I wonder how many iwi were not contained in a small preservation area. There is no doubt that an expansive ahupua'a would have remains littered throughout the numerous lava tubes and rock formations. So, the rich billionaire Bennett Dorrance of Arizona has hired companies to scoop up the rocks, grind them into a huge machine and make little rocks to pave roads and change elevation.
SO, when you are driving on the Western Bypass and golfing at the new golf course, the remains of Native Hawaiians litter the path below.
There are numerous reasons why I will never use Kukui'ula, but perhaps I should list them on another post.
Kukui'ula = D.M.B. Development = Bennett Dorrance worth $4.2 BILLION dollars (Campbell's Soup heir.)
To all those people, contractors and executives, who lost their job at Kukui'ula - do you REALLY think they are running out of money?