I awoke several times in the night to see that moon, still incredibly bright, though shrinking, peering persistently through the skylight. My new house is so quiet that it was easy to linger in dreamland, and by the time Koko and I rolled out of bed, the sky was already stained orange-pink behind the Giant.
Waialeale wore just the faintest brush of fluff and all the other mountains, from Haupu to Makaleha, were clear. As we walked, shama thrush flitting in front of us, singing beside and above us, the sky and mountains turned gentle lavender before fading into the soft grey of a cloud-obscured sunrise.
The key cultural issue related to installing the Path on Wailua Beach — the possible presence of Hawaiian burials — will be similarly obscured under the stipulations contained in a 2006 Memorandum of Agreement between the feds, state and county. (Interestingly, the signature line for Office of Hawaiian Affairs was blank.)
The MOA acknowledges:
...this project has an “area of potential effects” consisting of lands that are either owned or under the jurisdiction of the County within project corridors generally located between Lydgate Park at Wailua north up to Kapaa Town, and situated from the shoreline inland up to Kuhio Highway...
Just so it’s clear, that means we’re talking about the beach. The MOA then goes on to stipulate that a monitoring plan shall be developed for the project “with provisions for addressing burial treatment that are to be implemented during construction activities.”
The MOA further stipulates (emphasis added):
[A-3]c. A follow-up monitoring report for the Undertaking shall be submitted to State Historic Preservation Division (SHPD). The monitoring report, containing the location and description of any human burial remain discovered during the course of the Undertaking shall remain confidential and the precise data may be provide in a separate confidential index.
In other words, even without conducting a full Archaeological Inventory Survey (AIS) of the area government officials know that it’s likely to have burials. But when they’re found, that information will be kept secret.
We may get an inkling under stipulation C-1 (emphasis added):
A burial treatment plan will be prepared when appropriate to address the preservation of any burials or other human remains encountered in the course of this project.
Unfortunately, it won’t ever be appropriate because any burials found will be “inadvertent discoveries,” which is what happens when you don’t do an AIS first to find out what’s there. And inadvertent discoveries are handled internally by SHPD — in other words, Nancy McMahon — not the Burial Council.
The MOA then goes on to say that:
The pertinent provisions of the KNIBC [Kauai-Niihau Island Burial Council] approved burial treatment plan shall be executed prior the completion of the undertaking.
Just how meaningful is such a stipulation? As you may recall, the county Planning Commission approved Joe Brecia’s house at Naue on Dec. 11, 2007. That approval was conditioned on him meeting mitigation measures set forth by the Burial Council and SHPD. The Burial Council has yet to approve a burial treatment plan (BTP) for that property, which has some 30 known burials, seven of which are under the house. Judge Watanabe also found that Nancy McMahon failed to properly consult with the Council and other interested parties prior to approving “preservation measures” for the project, and ordered her to go back and do it right.
That was back in October 2008, and the Burial Council has yet to approve a new BTP.
Meanwhile, Brescia’s contractor has been busily building, and the house is nearly complete.
Now we’ve got Planning Director Ian Costa adding insult to injury with a report that will come before the Planning Commission at its meeting on Tuesday. In his report, dated Oct. 27, 2009, Ian recommends Commissioners reject a request from Puanani Rogers and Jeff Chandler to either revoke the panel’s prior approval of Brescia’s house plans, or amend its decision to specify that Brescia does not have approval to build over iwi kupuna without the express approval of the Burial Council and an approved BTP.
In his report, Ian comes to the conclusion that Brescia “has not failed to comply with the conditions of the Planning Commission.” He bases that conclusion on the circular argument that because the court found that Brescia has all the necessary approvals to construct his home, it must be legit, even though Ian knows darn well that the approvals were granted based on a SHPD preservation plan that the same court found to be invalid.
As the Native Hawaiian Legal Corp. explained Judge Watanabe's ruling:
Besides, by concluding that Brescia does not have a validly approved burial treatment plan because Nancy McMahon had failed to properly consult in advance with the burial council, she was saying that a requirement of the State Historic Preservation and burial council, i.e., to have a valid burial treatment plan properly approved, had not been met.
So keeping this mess in mind, let’s return to the subject of the Path. Given the performance of Nancy McMahon and county on the Brescia issue, do you really feel confident that you can trust them to do the right thing if burials are found on Wailua Beach?