Friday, June 5, 2009

Musings: A Question of Rights

There wasn’t much space between the eastern horizon and a cloud bank, but it was filled with orange when Koko and I set out on the mountain trail this morning. It’s a walk that gains elevation, so as we climbed, so did the sun, until it was fully buried in a pile of soft gray.

The light show, however, didn’t end, and as we turned around to come down, I gazed upon a curtain of silver shafts that extended out from a hidden spotlight that shone down upon the sea.

The Garden Island and blogger Andy Parx did a great job yesterday of shining a light on the despotism that represents Kaipo Asing’s rein as County Council chair. The question here is whether King Kaipo should have the right to exercise so much power over what matters the Council takes up.

It seems that Kaipo refuses to place items proposed by Councilman Tim Bynum on the agenda, and at the last meeting successfully resisted an attempt by Tim to add a proposed resolution clarifying the rules under which the chair is empowered to sanction agendas.

Taking a stance that differed from one offered by the Office of Information Practices, County Attorney Al Castillo said the proposed resolution was of “reasonably major importance” and so could not be placed on the agenda without public notice.

But as Michael Levine, a bright spot at TGI, reported in his article, Kaipo has no plans to put the resolution on the next agenda, either.

When asked if there was any reason why it would not be, as there is now enough time to bring the council into compliance with the Sunshine Law by posting the agenda item in advance of the June 16 meeting, Asing said, “Nothing especially.”

The entire exchange prompted Levine to astutely note that although Kaipo came in fourth in the last election — and behind Tim — he has…

…essentially vested in himself a preemptive veto power even surpassing that held by Mayor Bernard Carvalho Jr. in that Asing’s decisions cannot be overridden by a supermajority vote and that his decisions are shielded from public view.

Andy provides even more detail in his blog post, along with the welcome news that Tim and new Councilwoman Lani Kawahara have started a website,, “to document efforts to improve transparency in Kauai's government and to facilitate access to documents not easily available elsewhere.”

It’ll be interesting to see how mayoral hopeful Jay Furfaro and newcomer Derek Kawakami, who has his own political aspirations, weigh in on the underlying issues of promoting transparency and public participation in government. So far, their performances haven’t been impressive. As for the other Councilmembers, Dickie Chang and Daryl Kaneshiro, I don’t imagine anyone expects they’ll do anything more than follow the herd.

Whle we're on the topic of dysfunctional government, Paul Curtis has an even-handed account of yesterday’s Burial Council meeting — the matter was deferred — in today’s Garden Island, so I’ll just add some things that jumped out at me.

While the treatment of ancient burials is at the crux of the dispute, there’s a deeper issue at stake here. It was addressed by a Burial Council member who called in to KKCR while I was reporting on the meeting.

“Who guarantees anybody they can build?” he asked.

And that’s essentially the problem here. Joseph Brescia wants to build a large house on a relatively small lot that has a heavy concentration of burials. Even his archaeologist agrees that the 30 that have been found represent only a fraction of what’s there.

If the desired outcome, as expressed by the Burial Council, is to preserve the burials in place, it’s not a site that’s conducive to building. Yet state archaeologist Nancy McMahon told me that all her efforts have been devoted to figuring out to squeeze Brescia’s house onto the site with the least amount of impact on the burials.

“We have to figure out where he can live on this property with these burials," she said. "The AG tells me I can’t do a taking."

But is it a “taking” to tell someone no, you can’t build, because this site has too many burials? Does someone have the automatic right to build the largest possible house, even if it impacts burials? And should the AGs office unilaterally make that call?

That's really the core topic here. Because if government is coming always from the premise that building must be allowed, the iwi are always going to get short shrift.

This case, however, is making it difficult for government to duck the question. As burial council member Keith Yap noted in moving to reject the latest burial treatment plan that the State Historic Preservation Division presented for Brescia’s site:

“There were a couple of things that came up. One is the septic tank issue. We’re really concerned about that because the property has the propensity for graves on every square foot. We’re really nervous if we approve this plan, that could come up.

“This is a unique property. We believe more [burials] will come up. We felt vertical buffers [over the six burials under the house] are not appropriate.”

Then he delivered the kicker:

”We would only look at a burial treatment plan where the building is not located over the graves.”

And that stance doesn’t leave much wiggle room for Brescia or the state.


Anonymous said...

It's ridiculous to think that the dead have any "rights" other than if interred in official county/state cemetaries.

Move 'em. That's what they do in the other states.

Stop being so "tribal".

Anonymous said...

Good blog.

Regarding the "kicker", Yap and other council members apparently have had a long time to review the plans it seems and finally offerred something of comment. However, if they don't want to review the plan anymore, it seems they take themselves out of the process.

Wouldn't rejection constitute a better statement than we don't want to review it anymore?

Anonymous said...

id love to have a detailed demographic breakdown of who voted for which of the council persons....we would see the support base for each member; would be very telling

"“Who guarantees anybody they can build?” he asked."

-- i thought there were one or more US Sup Ct cases holding that a landowner has a constitutional right to fair economic use of their land? and how it was / is zoned influenced this much

also, "takings" law is pretty straightforward fyi

anyways, to have a set of "black letter law" HRSs and/or county codes (along with the corresponding internal county and state administrative rules) which have unavoidable and built-in "checks" and protections so that no more human remains along the shore are moved, would not be very hard...and obviously the reason this is not in place is that it would prevent the vast majority of future development within a few hundred yards of kauai's shores


Anonymous said...

Let's follow the law until we don't agree with the outcome.

Miliaulani said...

If a map dated in 1920, during the time when Hawaii was a Territory of the U.S. designates this property as a "cemetery" where and when did this information fall through the cracks and how the hell did Stallone and than Brescia get ownership of a piece of property designated a cemetery in every sense of the word? I don't see vacation rentals being built on designated cemeterys like Punchbowl or Oahu Cemetery. Is it because these are "unmarked" kanaka graves? County and state government officials were incompetent and/or corrupt and this is what we are left with today. There is nothing right about this whole situation and it will only get uglier...wait till his home goes up and people won't want to stay there because the spirits of that aina will make their unhappiness known. Joe will sell to the next clueless buyer and the scenario will repeat itself. There will be no satisfactory resolution as long as the graves are desecrated.

Anonymous said...

"Is it because these are "unmarked" kanaka graves"

-- unmarked. it happens all over. not that uncommon. the rules on it vary state to state, as does the enforcement

"people won't want to stay there because the spirits of that aina will make their unhappiness known."

-- that assumes they are superstitious. most wealthy people, those who would buy/rent that place, are not superstitious

that 1920 grave map dynamic is very compelling. a title search on that lot would be interesting as to who got their hands on it in the 20's or whenever, and how; and together with a jpeg of that map...would make for a heck of a good blog article


Anonymous said...

Why haven't the kanaka given this 1920's map to the burial council or others? Seems logical, if it exists....

Anonymous said...

After the house is finished, people should welcome the occupants with 24/7 festivities on the beach.

Anonymous said...

Again, the "kicker" could be the 1920s map that shows a cemetery...why not produced yet for the public? Is this map made up? Seems like all had plenty time to show it and make a point. Must be made up.

Anonymous said...

The only spirits that are going to exist there will be in Bresca's Mai Tai's.

Superstition is for fools.

I'd buy his house in a heartbeat if he put it at an outragious lowball price.

Dawson said...

June 5, 2009 7:21 PM:
"After the house is finished, people should welcome the occupants with 24/7 festivities on the beach."
-- Anonymous

June 5, 2009 8:28 PM:
"The only spirits that are going to exist there will be in Bresca's Mai Tai's.
Superstition is for fools.
I'd buy his house in a heartbeat if he put it at an outragious lowball price."
-- Anonymous

June 5, 2009 9:38 AM:
"I respect a blog owner who deletes offensive posts. Joan is trying to engage folks in an intelligent discussion of important issues. Those with something to contribute appear to be welcome. Those who make comments designed to debase the discussion should have their posts deleted.

If you go into a bar and are argumentative, you will be 86'ed and the other customers will applaud the bouncer. If you walk into a classroom, church or civic meeting and are rude, you will also be asked to leave.

Blogs are private discussions and the host is entitled to ask disruptive posters to leave the discussion.

I applaud her and wish more bloggers would carefully weed their gardens."
-- SMelman

I too applaud a blog owner who deletes offensive posts.

I also applaud a blog owner who deletes anonymous idiotic posts, anonymous trolling posts, anonymous mindgame posts and anonymous piss-on-the-conversation-because-it's-fun posts.

Anonymous said...

Brescia is guaranteed the right to build because he got all his permits in place.

Takings: An owner gets to use his property. if the state wants to take away his use of the property for some public purpose, it has to pay him just compensation.

Either condemn his property and pay him just compensation for it, or he gets to build. It's that simple. It's in the constitution so you don't get to use any "special" Hawaiian cultural practices law to steal property. Got to pay for it. State has to put up or shut up. That's it.

Miliaulani said...

Only reason cultural burial practices of Kanaka Maoli aren't recognized as such is because the indigenous people of these islands represent 20% of the population in Hawaii today. Our voices are drowned out by the voices of westerners/occupiers that shove their ideologies down our throat. Not unlike the anonymous posts on this blog. A title search in the Bureau of Conveyances is revealing. Funny, how a map in 1920when Hawaii was already "occupied" is given more credibility than our oral traditions within families that recognized these properties as burial sites. Not funny really when the west has a tradition of not recognizing indigenous cultures with oral traditions as cultures of value or deserving of respect. The genocide is very real today as it was from the time of westen contact in 1778.

Anonymous said...

Anonymous said...
It's a real shame that this house was allowed to begin construction. After all, we Kauaians know that once an owner starts building, tearing down an illegal project almost never happens. The one good thing about this project is that the owner can't make this house into a vacation rental. On the other hand, is he the kind of person who even cares about being a good permanent resident? After being so oblivious and disrespectful of Kauai and it's people, do we actually picture him being a generous and involved community member? Does he really think he will be welcomed here with open arms after causing all this stink? Good luck Mr. Brescia.

June 7, 2009 6:54 AM

Anonymous said...

Think twice about coming, Mr. Brescia. A handful of local hippies and activists will always hate you if you do. And who could live with that hanging over their heads?

Anonymous said...

Many North Shore residents are busy working one or two jobs, but make no mistake; We are respectful and supportive of the protesters, who not only manage to hold jobs and raise families but still make time to stand up for what they believe in.

Anonymous said...

And they are standing in opposition to others who likewise are standing up for what they believe in.

Who wins is usually a matter of who has the power, money and legal backing.

Winners and losers...