NAGPRA Issues in Hawaii, 2008

Coverage of NAGPRA-related topics in Hawaii first came to this website in 2003 when the national NAGPRA review committee decided to devote its national meeting to the Forbes Cave controversy. Forbes cave was the most intensively covered topic from 2003 to 2007. But other topics also came to public attention, including Bishop Museum, the Emerson collection repatriated and reburied at Kanupa Cave, the discovery of ancient bones during a major construction project at Ward Center (O'ahu), etc.

The Forbes cave controversy up until the NAGPRA Review Committee hearing in St. Paul, Minnesota, May 9-11, 2003 was originally described and documented at:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbes.html

The conflict among Bishop Museum, Hui Malama, and several competing groups of claimants became so complex and contentious that the controversy was the primary focus of the semiannual national meeting of the NAGPRA Review Committee meeting in St. Paul, Minnesota May 9-11, 2003. A webpage was created to cover that meeting and followup events related to it. But the Forbes Cave controversy became increasingly complex and contentious, leading to public awareness of other related issues. By the end of 2004, the webpage focusing on the NAGPRA Review Committee meeting and its aftermath had become exceedingly large, at more than 250 pages with an index of 22 topics at the top. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html

That large webpage became so difficult to use that it was stopped on December 29, 2004; and a new webpage was created to collect news reports for NAGPRA issues in Hawai'i during year 2005. An index for 2005 appears at the beginning, and readers may then scroll down to find the detailed coverage of each topic. For coverage of NAGPRA issues in Hawai'i in 2005 (about 250 pages), see:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html

For year 2006 another new webpage was created, following the same general format. See:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html

For year 2007, another new webpage was created, following the same general format. See:
https://www.angelfire.com/planet/bigfiles40/nagprahawaii2007.html

Continue forward to 2009 at
https://www.angelfire.com/big09a/nagprahawaii2009.html

NOW BEGINS 2008

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LIST OF TOPICS FOR 2008: Full coverage of each topic follows the list; the list is in roughly chronological order, created as events unfold during 2008.

(1) Impact of NAGPRA-like issues on individual property owners seeking to build houses. On Kaua'i, at the end of the road at Haena Beach a building permit has been held up since 2001 because of a combination of shoreline setback requirements and burial council issues. One issue is whether the owner should be required to dig below a 6-foot depth to look for burials, or whether it is better for undiscovered forgotten deep burials to remain undiscovered even if built over. The issue got progressively "hotter" as the police chief first sided with the protesters and ordered the landowner not to start construction; but then backed off after the state Attorney General told him he was mistaken about the law. On July 8 OHA wrote a 6-page letter on official stationery to Laura Thielen, head of DLNR supporting the protesters:
https://www.angelfire.com/planet/big60/OHAdemandHaenaDLNR.pdf

** NOTE: TOPIC (1) ALONE OCCUPIES MORE THAN HALF THE CONTENT OF THIS WEBPAGE, DUE TO NUMEROUS NEWS REPORTS AS THE CONTROVERSY UNFOLDS.

(2) A bypass road for Ali'i Parkway in Kona has been designed and redesigned for many years at a cost of many millions of dollars, with no actual construction. Each time a design is completed, concerns are raised about a newly rediscovered or suspected burial that might need to be moved. See item # (6) in the webpage for NAGPRA 2007. See also the major commentary "Hawaiian Bones -- Rites For the Dead vs. Rights Of the Living" at
https://www.angelfire.com/planet/big60/HawaiianBonesRitesRights.html
On February 13, 2008 the project once again came to public attention in the Kona newspaper, as OHA makes public objections to newly approved plans.

(3) What should be the balance between protecting ancient burials or culturally sensitive areas vs. protecting the lives and property of living human beings during emergencies such as forest fires?

(4) NAGPRA-like issues in the news of other nations. In Belarus (now-independent nation formerly part of Soviet Union), a sports stadium had been built on top of an 18th century Jewish cemetery; many skulls and bones are being unearthed during rebuilding of the stadium, and under local law, since the bones are more than 50 years old, they are being taken to the city dump. In Guam, ancient bones from about 2500 years ago unearthed during construction are being given DNA tests, and cultural artifacts buried with the bones are being studied.

(5) Plans for Lahaina bypass road cause race and class antagonisms on the issue of avoiding burials and cultural sites.

(6) Hawaiian skulls for sale on Hilo-based website

(7) Concern that construction for rail transit on O'ahu will cause disturbance to ancient burials; what should be done during the planning process.

(8) First Hawaiian Bank construction project in Kailua O'ahu was redesigned, in consultation with "cultural descendants", when ancient burials were found on the site.

(9) Ward Village development project in Honolulu: Settlement reached between developers and Hui Malama, with help from Native Hawaiian Legal Corporation, to avoid contested case hearing before Hawaii Community Development Authority

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http://www.kauaiworld.com/articles/2008/01/12/news/news01.txt
The Garden island News (Kaua'i), January 12, 2008

Landowner OK’d to build home despite burial site concerns

by Nathan Eagle - The Garden Island

A Wainiha landowner this week told the county Planning Commission to stop tolerating stall tactics that environmental advocates have employed to delay construction of his North Shore home.

Joseph Brescia has fought since 2001 to secure necessary permits. Any further hold-up is “unconscionable,” said his attorney, Walton Hong.

The commission upheld its Dec. 11 decision to allow building a single-family residence on Wainiha Subdivision Lot 6 — denying a request Tuesday for reconsideration from a North Shore contingency that opposes the construction.

Local attorney Harold Bronstein, who won two related state Supreme Court cases representing Hanalei resident Caren Diamond and the North Shore ‘Ohana nonprofit, said the commission should wait for the Kaua‘i Burial Council to decide how to handle 30 grave sites found during excavation of the property.

He also asked that a certified shoreline setback line be defined by metes and bounds and “clearly dimensioned” on the site plan to ensure the law is properly followed before construction commences.

Diamond refuted Brescia’s claim that community members were simply stalling for more time.

If he had completed the necessary shoreline certification and implemented the required setback in the first place, she said yesterday, the community would not have had to appeal to the state’s highest court to force him to follow the law.

The Hawai‘i Supreme Court in July reaffirmed the commission’s decision in enforcing the shoreline setback line as shown on the July 1, 1983, subdivision map — which indicates a setback on Brescia’s lot of roughly 61 feet at the northeastern makai corner ranging to 71 feet at the northwestern makai corner.

The landowner in 2002 had requested an amendment or variance from the county to build within 31 feet of the shoreline.

County law required a 40-foot minimum setback with an option to appeal up to 20 feet. After the commission denied his application on June 10, 2003, and his subsequent request for reconsideration, Brescia appealed to the Fifth Circuit Court. He won there in a March 4, 2005, decision partly because he claimed he could not make reasonable use of his property if the developer’s setback was imposed.

When the county let that decision stand, Diamond and the North Shore ‘Ohana picked it up with Bronstein and carried it to the state Supreme Court, where it was overturned two years later.

But in the meantime, the commission gave Brescia the go-ahead to build his house. Construction stopped soon thereafter when excavation uncovered human remains and burials.

Now that Brescia must move his planned home farther from the shore, the question has become whether more digging for burials should be done at the site of the new foundation.

State archaeologist Nancy McMahon has testified before the commission that the preference is to leave undiscovered remains undiscovered, but Bronstein said Hawaiians he has talked to want to know what is there.

Brescia’s attorney cautioned the commission, saying this would set a bad precedent.

Hong asked whether the county going to require every landowner now to dig up the entire location of the house.

Bronstein in a Jan. 7 letter to the commission requested a condition that the excavation at the foundation locations or any other location of the proposed house necessary for an archaeological survey be at a depth of 6 feet or whatever is reasonable.

He said his understanding was that subsequent excavation work for the new location of the house was roughly 3 feet deep — substantially shallower than the digging that turned up 30 grave sites.

A March 20, 1991, letter to then-county Planning Director Peter Nakamura from state Historic Preservation Division Administrator Don Hibbard details concerns then over the Wainiha subdivision.

“We believe that an archaeological inventory survey would be needed on these properties and quite possibly mitigation work would be needed prior to any construction in the area,” Hibbard says. “Otherwise, any construction clearly could have an ‘adverse effect’ on significant historic sites and burials.”

Commission Chair Steven Weinstein said experts, not the commission, should decide how deep to dig.

Brescia said he will keep coming back to the commission as long as it takes, and the Burial Council will leave no stone unturned. “This is just an all-too-transparent attempt to manipulate you to further delay me,” he told the commission. “I’m going to do the right thing.”

Hong said his client has gone through two shoreline certifications and two appeals. “We think that six years is long enough time to get to the point,” he said. “Let him proceed toward meeting the remaining conditions.” There is no reason to go to greater lengths to determine the setback line other than to “harass Mr. Brescia,” he said. “When will the madness end?” Hong added.

Diamond said yesterday that Brescia did not want to wait for the Supreme Court decision and maintains a similar attitude over the Burial Council recommendations.

Law allows Brescia to apply for the building permit, Hong said. The condition says no building permit shall be issued until requirements of the state Historic Preservation Division and Burial Council have been met.

“It’s not us that have been stalling,” Diamond said, noting that the community has just been forced to fight in court for county laws to be enforced.

Diamond won another state Supreme Court case with Bronstein in October 2006 that reaffirmed the highest wash of the waves marks the shoreline. This is the point from which the setback line is drawn. “I’m not saying the applicant is not doing his best to find the line ... but make sure,” Bronstein said.

Commissioner Ted Daligdig III said the commission sites the building, but confirmation comes from the Building Department. “It’s not my job to go out and measure metes and bounds,” he said.

The Planning Department told Weinstein that it feels comfortable with the setback line and its accuracy. Diamond described the site as an “incredible spot.” She said the beach at Ha‘ena Point fronting the property is beautiful and the public will work to ensure its protection.

• Nathan Eagle, staff writer, can be reached at 245-3681 (ext. 224) or neagle@kauaipubco.com

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http://www.kauaiworld.com/articles/2008/05/11/news/news01.txt

The Garden Island News (Kaua'i), MAY 11, 2008

Campers protest land use and burial rights

by Rachel Gehrlein - THE GARDEN ISLAND

WAINIHA — After the last Kaua‘i Island Burial Council meeting on April 3, Kapa‘a resident Ka‘iulani Huff was so upset, she grabbed a tent and headed to the North Shore.

At the meeting, the council voted 4-2 that the 30 burials discovered on Wainiha landowner Joseph Brescia’s property last year must all be left in place in order for him to build a residence. Brescia would also have to change the burial treatment plan for the property.

Huff set up an encampment on the beach fronting Brescia’s property in protest, and she remains there today.

“The burial treatment plan is very flawed,” Huff said. “It is a clear violation of our rights as indigenous people.”

Brescia has been fighting to begin construction on a single-family residence since 2001. His attorney, Walton Hong, said the State Historic Preservation Division subsequently approved an amended burial treatment plan that allows for seven burials to be relocated for the home’s foundation.

Brescia can build on the property so long as he follows the plan approved by the state and obtains proper permits, according to Hong.

Though aware of the encampment near Brescia’s property, Hong had no comment on the campers.

Since Huff arrived, others have joined her. Sandy Herndon of Kapa‘a said she comes to the camp for a few days at a time to stand up for protecting burial rights and Hawaiian culture.

“I’m down here because this is such an important thing that I can do personally,” Herndon said. “I cannot change the world, but I can change my world by standing up for what I believe is right.”

Since the ruling almost six weeks ago, seven tents have joined the encampment at the entrance of Brescia’s property, which features stakes and ti leaves marking iwi, or graves.

“I’m here to protect what belongs to us,” Huff said of the burials and the land.

Brescia’s attorney says his client is the legal owner of the land and will proceed with the construction of the residence.

Work will begin as soon as building plans “meet conditions of approval,” Hong said. “(Brescia is) trying to do everything he can to be respectful.”

Brescia has been held back from building his house for the last seven years.

Most of the delays have been legal in nature, including a shoreline setback case won by local environmentalists in 2005 at the state Supreme Court.

At a burial council meeting in February, Michael Vega, senior archeologist of Scientific Consulting Services, said Brescia has moved the house farther from the beach four times and redesigned the house 15 times.

But Huff won’t be happy until no house is built at all. “We will be staying until further notice and until the state of Hawai‘i acknowledges the property was fraudulently sold to Brescia,” Huff said.

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http://www.kauaiworld.com/articles/2008/06/04/news/news02.txt
The Garden Island, June 4, 2008

Home approved, bones remain

by Nathan Eagle - THE GARDEN ISLAND

HA‘ENA — As the dawn sun sent rays through stormy clouds yesterday morning on the North Shore, some 40 Kaua‘i residents of diverse backgrounds rallied on a sandy Ha‘ena beach to pray for Hawaiian ancestors buried at a nearby home site.

Landowner Joseph Brescia and Red Hot Chili Peppers lead singer Anthony Kiedis have plodded for several years down a winding road of government agencies to build adjacent beachfront homes on their Wainiha properties.

The pursuit has involved multiple court rulings, county Planning Commission denials and approvals, Kaua‘i Burial Council decisions and numerous house redesigns.

The route is now free of any legal barrier, but community resistance has risen.

Construction on Brescia’s narrow lot was rumored to start at 7 a.m. yesterday and residents showed up prepared to protest.

“This is beyond Hawaiian,” Anahola resident Mickey Sussman said. “This is the ultimate desecration. Human beings bury their remains. It’s what distinguishes us.”

For many who gathered at the site, it was about respect.

“Who would want to build their house on a known graveyard?” Gina Mears said.

Tamara Leonard, of Hanalei, agreed.

“As settlers of the island, it is our duty to practice and have respect for the host culture,” she said.

Wooden stakes labeled with numbers marked some 30 graves, or iwi, that archaeologists discovered last year during excavation.

Several concerned residents, who have camped at the beach fronting the property for at least the past several weeks, have erected small torches next to each stake and placed ti leaves on the property.

The community members strolled through the ancient cemetery yesterday morning. They stooped to pay their respects, paused to wipe away tears and hugged friends who have persisted in the once rural neighborhood despite its transformation over the years into mostly vacation rentals and luxury homes.

“I can’t stop crying,” said Linda Derohan, who has lived in Wainiha for 40 years. “I don’t even have the words for it. Whether you’re Hawaiian or not, if your heart is there, your heart is there.”

Brescia’s contractor, Ted Burkhardt, showed up some time after 9 a.m. but left with his crew without performing any work at the site.

Lady Ipo came with an assistant soon after his arrival to conduct a blessing for the house, but left after a reportedly emotional conversation with some of the residents who were protesting.

The Kaua‘i Police Department arrived later in the morning, but left without making any arrests.

Kaua‘i Police Chief Darryl Perry said his officers responded to a complaint concerning possible trespassing by Ka‘iulani Edens-Huff, who has laid claim to the land by royal patent.

She has been one of the residents leading the charge in “defending the sacred site from desecration.”

There was a demonstration by a number of individuals in support of Huff. The officers arrived at the scene and “abated the situation,” Perry said.

The chief said his officers are in the process of determining who rightfully owns the property before deciding on a course of action.

“Everything was kept very mellow and respectful and pono,” said Eastside resident Andrea Brower, who took part in the early morning prayers and Hawaiian chants.

The protesting group dispersed around 11:15 a.m., according to resident Katy Rose.

Brescia, a California-based contractor who also lives on the North Shore, hung up on The Garden Island after being asked on the phone Monday to offer his side of the story.

Walton Hong, his attorney, has said his client has been trying to build a house on the land he legally owns since 2001 but has been delayed by environmentalists’ “stall tactics.”

The county Planning Commission on Dec. 11, 2007 approved with certain conditions Brescia’s application for a single-family residence on Wainiha Subdivision Lot 6.

He has told the commission multiple times that he will “do the right thing.”

The burial council, whose authority is limited to deciding whether the burials should remain in place or be moved to another location, voted on April 3 that the graves should stay where they are.

Burial councilwoman Barbara Say said at the council’s Feb. 7 meeting that Brescia should just cut his losses and return the parcel to the state and the Hawaiians.

Local attorney Harold Bronstein, who won two related state Supreme Court cases representing Hanalei resident Caren Diamond and the North Shore ‘Ohana nonprofit, has challenged Brescia’s proposed home for several years on legal grounds.

The landowner in 2002 had requested an amendment or variance from the county to build within 31 feet of the shoreline. County law required a 40-foot minimum setback with an option to appeal up to 20 feet.

After the commission denied his application on June 10, 2003, and his subsequent request for reconsideration, Brescia appealed to the 5th Circuit Court.

He won there in a March 4, 2005, decision partly because he claimed he could not make reasonable use of his property if the setback was imposed.

When the county let that decision stand, Diamond and the North Shore ‘Ohana picked it up with Bronstein and carried it to the state Supreme Court, where it was overturned two years later.

But in the meantime, the commission gave Brescia the go-ahead to build his house. Construction stopped soon thereafter when excavation uncovered human remains.

A March 20, 1991, letter to then-county Planning Director Peter Nakamura from state Historic Preservation Division Administrator Don Hibbard details concerns then over the Wainiha subdivision.

Historic burials are often discovered in the state, particularly in sandy areas.

Hong said last month that Brescia is “trying to do everything he can to be respectful.”

A shoreline setback case that local environmentalists eventually won in 2005 at the state Supreme Court, along with other reasons, have forced Brescia to move the proposed house site farther from the coast four times and redesign it 15 times, Scientific Consulting Services senior archaeologist Michael Dega told the burial council in February.

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http://www.kauaiworld.com/articles/2008/06/06/opinion/edit01.txt
The Garden Island, June 6, 2008

Homeowner’s rights

I can understand why people are upset that others are building on burial grounds (“Home approved, bones remain,” A1, June 4). However, what I don’t get is why this land was ever for sale. If Hawaiians knew that their ancestors were buried there, why on earth would they ever put the land up for sale in the first place? The people who chose to buy the land did so not knowing it was burial grounds, they just wanted a nice piece of land to put a house on. Why is that wrong?

Why are they being persecuted? Isn’t buying land and homes a right afforded to all of us? Let me ask those who are so eager to pass judgment on the current landowners: (1) If you purchased a piece of land, legally, for what was probably a huge sum of money and then found out that it happened to be a burial ground at one time, would you just “give” that land away without some sort of payment in return? (2) If you knew that it was a burial ground, why did you not speak up before these people purchased the land? and (3) If it was so important to preserve this land, why didn’t you all get together and purchase the land yourselves so that nobody else could do so, so that you could use it the way you believe it should be used.

Maybe you ought to look in the mirror and answer these questions honestly before you sit there and judge others.

Rusty Baker
Lihu‘e

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http://www.kauaiworld.com/articles/2008/06/22/news/news02.txt
The Garden Island News (Kaua'i), June 22, 2008

Property owner set to begin work

by Michael Levine

Ka‘iulani Huff, the Kapa‘a resident who has been tent camping for nearly three months on a Wainiha property discovered to be an ancient Hawaiian burial site in protest of planned developments, met with Kaua‘i Police Department officials Friday.

“Essentially, they wanted to warn me that they’re coming to our graveyard on Tuesday, and that — they didn’t say it out loud — but they were warning me that we’re going to get arrested,” Huff said after the meeting.

“We did not ask her to leave, but if the developer decides they want to go in, they’ve provided all the documentation and we will be there to ensure their legal rights are protected, to minimize potential conflict with her (Huff’s) group and make sure nobody gets hurt,” said KPD Assistant Chief Clayton Arinaga.

“We agreed as a department that we needed to meet with Ms. Huff and the rest of the demonstrators to get on the same page and make sure we respect their right to protest, but also to make sure they keep it peaceful,” said KPD Chief Darryl Perry.

Huff claims that the Wainiha subdivision should instead belong to her as it was granted to her family by the Hawaiian crown prior to American intervention.

A Jan. 31 Hawai‘i Supreme Court ruling determined that the state cannot sell any of the 1.2 million acres of ceded lands that once belonged to the Hawaiian monarchy until all claims are settled.

Huff said that “things are conspiring in our history right now” that could lead to her recovering the land. She expects a variety of Hawaiian sovereignty groups to join in her protest.

“We are sympathetic to her side, but we have a duty to perform our jobs,” Arinaga said.

Landowner Joseph Brescia, according to attorney Walton Hong, has been trying to build a home on the land since 2001, but has been delayed by various environmental, legal and community challenges.

The Kaua‘i Island Burial Council determined in April that 30 burials discovered on the property in a December 2007 archaeological survey must be left in place in order for construction to begin.

Groundbreaking was rumored to start earlier this month, but contractor Ted Burkhardt and his crew left without performing any work as some 40 residents were assembled at the site in protest.

Tuesday is now rumored to be the first day of construction.

Brescia said yesterday in a phone interview that he was “considering” building a 2,350-square-foot, three-bedroom home on the property and that he would likely be issuing a formal statement this week.

“I’m not a developer, I’m just a regular guy in a very unfortunate, uncomfortable situation,” he said. “I’ve done everything I can to make this sensitive and respectful, and I don’t know what else can be changed.

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http://www.kauaiworld.com/articles/2008/06/25/news/news01.txt
The Garden Island News (Kaua'i), JUNE 25, 2008

Building at burial site on hold

by Michael Levine - the garden island

WAINIHA — A controversial groundbreaking at an oceanfront Wainiha property was halted by Police Chief Darryl Perry at the 11th hour yesterday, saying construction could violate a law regarding 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.

HRS 711-1107(b) defines burial site desecration as intentionally “defacing, damaging, polluting, or otherwise physically mistreating in a way that the defendant knows will outrage the sensibilities of persons likely to observe or discover the defendant’s action,” tying it indelibly to community standards.

“I’m aware of the statute and do not agree with his (Perry’s) interpretation,” said Walton Hong, attorney for property owner Joseph Brescia.

Workers had already moved a gate and were preparing to enter the property, instruct protestors to leave, file trespassing complaints and begin construction when Perry had some 20 assembled Kaua‘i Police Department officers “stand down.”

Perry announced that construction would not begin, drawing a loud round of cheers and mahalos from protestors, including some 30 men in matching black T-shirts who may have been “Lua” — members of a secretive ancient Hawaiian martial arts sect that serves as an unofficial police force.

“We are here today as peacekeepers, to respect those that came before us and to respect the place in which they were laid to rest,” reads a written statement by Keone Kealoha.

Kealoha declined to answer questions regarding the organization’s title or affiliations, saying only that they were a “group of cultural practitioners.”

Ka‘iulani Huff, who had been camping for weeks on the abutting beach in protest, described yesterday as a “good victory for us.

“I’m very proud of our police department today, and all the people that were here. I’m really proud of all of us that we made our stand and stood strong,” she said.

Brescia has been trying to build a home on the land since 2001, but has been delayed by various environmental, legal and community challenges and forced to undergo numerous planning adjustments.

The Kaua‘i Island Burial Council determined in April that some 30 burials discovered on the property in a December 2007 archaeological survey must be left in place in order for construction to begin.

Hong said yesterday that, in light of the ruling, his client had submitted a burial plan to the State Historic Preservation Division, part of the Department of Land and Natural Resources.

DLNR spokesperson Deborah Ward said the SHDP-approved burial plan ensured that the burials would not be moved through the use of buffers.

“(T)he Kaua‘i-Ni‘ihau Island Burial Council ... made their decision to preserve in place with full knowledge that (seven) of the iwi would be in the footprint of the house (which is on pilings),” Ward said via e-mail. “We rely on the burial council’s knowledge of culture and protocol to make the right decision.”

Looking forward, KPD Assistant Chief Roy Asher said the issue will be addressed by the judicial system.

“It’s in the courts now, which is where it belongs,” he said.

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http://kgmb9.com/main/content/view/7636/40/
KGMB9 TV, Wednesday June 25, 2008

Construction Halted at Kauai Ancient Remains Site

Written by Tina Chau - tchau@kgmb9.com

About 75 protesters were prepared to stop construction, but they didn't need to. The Kauai chief of police stopped it himself, citing a Hawaii law protecting Hawaiian remains or iwi. "The construction will not begin until section 711-1107 is addressed and that section deals with desecration," said chief Perry.

He threatened to arrest contruction crews if they disturbed the beachfront Haena lot. It's yet another set back for property owner Joseph Brescia, a California contractor who's been trying to build a home here for the past seven years.

It's a culture clash playing out around the state. Just this week, First Hawaiian Bank announced it was re-designing its Kailua branch after remains were found during an excavation in March.

Dozens of sites have been uncovered in Kakaako, an area undergoing massive renovations. And it's going to be an issue for future projects.

City officials planning Oahu's mass transit line believe ancient bones are bound to be unearthed somewhere along the 19-mile route. The Kauai beach lot, with about 30 graves, is just the latest example.

The landowner said he's not a greedy developer; just someone looking to build a home for his family. And he believes he's followed all protocol and rules, speaking with the island's burial council, appearing before the planning commission and revising his floor plan fifteen times.

He plans to take all necessary steps to proceed with construction. Until that happens, Hawaiians are celebrating.

"It's a good victory for us," said protest leader Kauilani Huff. "I'm really really proud of our police department for really doing the investigation."

Brescia said he's already invested more than a million dollars. He says if anyone is willing to buy the land from him, he's willing to listen.

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http://www.kauaiworld.com/articles/2008/07/01/news/news03.txt
The Garden Island News (Kaua'i), July 1, 2008

Burial property offered for sale

by Rachel Gehrlein

After seven years of trying to build a home on the North Shore, landowner Joseph Brescia recently announced, in a statement released June 24 by his attorney, he would consider offers for his property in Ha‘ena.

“I am not wealthy enough to abandon as a charitable donation the more than a million dollars of my family savings nor the more than seven years invested toward our home,” Brescia said in the statement. “If there is anyone or any organization willing to pay for the property, I am willing to listen.”

From his understanding, Brescia said that the state and/or Kaua‘i County have the ability to step in and purchase, at fair value, properties which have cultural and historic value to the community.

“It’s unrealistic for him to walk away,” said Walton Hong, Brescia’s attorney.

Keone Kealoha of Malama Kaua‘i said there is a gap in the policy regarding burial sites and the state should figure out a way to fill in that gap.

“I think they (the state) need to step in and do something,” Kealoha said. “The state has the ability to pick up this parcel, put it in a burial trust and create a burial policy.”

Kealoha said he would be willing to meet with Brescia and his attorney to help figure out a solution. “The first (solution) is immediate and provides that the location will remain a cemetery in perpetuity, as it was intended,” Kealoha said in a written statement. “The second seeks to proactively resolve similar situations in the future through policy change.” In the statement, Kealoha suggested that state legislators and administrators work with the community to develop a more comprehensive policy to handle burials in a more sensitive manner.

Brescia has been fighting to begin construction on his property since 2001. A majority of the delays have been legal in nature, including a shoreline setback case won by local environmentalists in 2005 in the state Supreme Court. Brescia claims he did not know about the burials on his property when he purchased the land in 1999. But after later learning about the possibility of graves in Ha‘ena, he said excavations were done in the presence of an archaeologist.

After approximately 30 graves, or iwi, were found on his property last year, Brescia asked the burial council for permission to move seven burials that would be impacted by his home. In April, the Kaua‘i Island Burial Council voted 4-2 that the graves must all be left in place in order for him to build a residence. Brescia would also have to change the burial treatment plan for the property.

Since acquiring the property, Brescia has had to move the house farther from the beach four times and redesign the house 15 times, Scientific Consulting Services senior archaeologist Michael Dega told the burial council in February. The final approved house will use less than one-fourth of the lot.

Work on Brescia’s property was set to begin last week, but at the last minute, Kaua‘i Police Chief Darryl Perry stepped in and said construction could be in violation of the Hawai‘i Revised Statutes. Perry said that until there was a decision from a higher power, and as far as the police department was concerned, construction on the property would not begin.

For now, construction is halted with no immediate timeline as to when it will begin, if ever.

Walton Hong, Brescia’s attorney, said it was “premature to comment on that now.”

“I was disappointed that Kaua‘i Police Chief Perry took it upon himself to treat any work done on my property as a violation of Section 711-1107 of the Hawai‘i Revised Statues, and interrupted and halted the work planned,” Brescia said. “The law was obviously designed to punish those persons who desecrate burials without authorization.”

“Any work on my property will be done in full compliance with the burial plan which was approved by the State Historic Preservation Division of the Department of Land and Natural Resources,” Brescia said.

Brescia said he and his attorneys are proceeding with the necessary steps to resume construction.

“I am very sorry we find ourselves in this situation,” Brescia said. “I do not wish anyone any harm, and have no disrespect for any person, living or dead.”

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http://starbulletin.com/2008/07/08/news/story06.html
Honolulu Star-Bulletin, July 7, 2008

Home work starts atop graves

By Tom Finnegan

LIHUE » After declaring victory last month, protesters trying to preserve a Hawaiian cemetery were blindsided when construction began yesterday at a home site in Haena. After threatening the contractor and landowner Joseph Brescia with arrest for the alleged desecration of the 30 graves on the site last month, Kauai Police Chief Darryl Perry said yesterday that the permits obtained by Brescia, however misguided, keep workers or the landowner from being charged with any crime.

Police said construction started yesterday, with the clearing of the lot and the erecting of silt fences at the site, which sits on Naue Point, just off Alealea Road. Protesters said there was also a cement pour over some of the graves.

The chief's decision was a betrayal, said Kaiulani Edens-Huff, who has camped near the site for months to protect the graves of her ancestors. She was not on site yesterday, as she was supposed to meet Perry in Lihue around the same time that construction began. "Nobody ... told us the deal was off," Edens-Huff said yesterday. "Police are taught not to believe in coincidences, and neither do I."

"Yesterday's quiet beginning, in which only one person videotaped the construction, was in contrast to last month's planned protest, when about 75 people were on the site, ready to protect the graves with force.

At the time, Perry threatened the contractors with arrest.

The "clarification" yesterday came after meetings with the county attorney and the attorney general's office.

The Department of Land and Natural Resources and the Kauai Island Burial Council have the right to define what is desecration, Perry said.

"Does putting a cement slab on burial sites constitute desecration?" he asked. "No, not according to the DLNR on the recommendation of the Burial Council."

"Brescia, who bought the land from movie star Sylvester Stallone in 2001, has jumped through numerous legal hoops in the past few years to build on the site. In 2003 his shoreline certification was challenged, and later the case of his setback from that shoreline was reversed by the state Supreme Court. Brescia finally received approval to build his home in April, despite protests from native Hawaiians who said the land was a cemetery and should be left alone.

Edens-Huff said yesterday that she intends to file legal challenges and that plans she has seen do not include septic tanks. "I'm disappointed but I'm not done yet," she added.

Perry said yesterday that he expects more protests, but police officials said they were taking no special precautions to protect the site. Perry also said he hopes it is not the end of the discussion. "I hope that somewhere down the line, a leader of great vision will ... correct the unconscionable decisions by some of our appointed public officials who authorized/permitted the building of this home, and future homes under similar circumstances," he wrote.

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http://www.kauaiworld.com/articles/2008/07/08/news/news02.txt
The Garden Island (Kaua'i), JULY 8, 2008

Brescia clear to build on land, chief says

by Rachel Gehrlein

Two weeks after construction on Joseph Brescia’s North Shore property was abruptly halted by Kaua‘i Police Chief Darryl Perry, a dust fence was quietly installed yesterday, signaling construction is set to begin.

After seeking clarification from the county attorney and the state attorney general, Perry said Brescia has not broken any law. “The Brescias had met all of the criteria set in (Hawai‘i Administrative Rule) 13, therefore, they should be allowed to build,” Perry said.

Brescia has been fighting to begin construction on his property for the past seven years. After approximately 30 graves, or iwi, were found on his property last year, Brescia asked the Kaua‘i/Ni‘ihau Island Burial Council for permission to move seven of the burials that would be impacted by his home.

In April, the burial council voted 4-2 that the graves must all be left in place in order for him to build a residence.

Perry stopped the controversial groundbreaking June 24, saying construction could be in violation of the Hawai‘i Revised Statutes 711-1107.

HRS 711-1107(b) defines worship or burial site desecration as “defacing, damaging, polluting, or otherwise physically mistreating in a way that the defendant knows will outrage the sensibilities of persons likely to observe or discover the defendant’s action.” In a prepared statement, Perry said that he decided to warn Brescia of HRS 711-1107, which carries criminal penalties, in contrast with Hawai‘i Administrative Rules Title 13, which is civil in nature. The Hawai‘i Administrative Rules falls under the umbrella of the state Historic Preservation Division.

Perry found that the wording of HRS 711-1107 did not make a connection to HAR 13. “From a strict law enforcement perspective, it is obvious that damaging or otherwise mistreating a place of worship or burial site in a manner that outrage the sensibilities of a person of reasonable caution constitutes a violation,” Perry said in the statement. “And exactly who is a person of reasonable caution? A person of reasonable caution is the members of our community, like you and I.”

Before allowing construction to begin on Brescia’s property, Perry said he had to clarify, not interpret, how far-reaching HAR 13 could be applied. Perry asked if the permitting approval by the DLNR, based on the recommendations of the Kaua‘i/Ni‘ihau Island Burial Council, nullified the elements of HRS 711-1107 and if the burial council had the authority to define what constitutes “damaging, mistreatment and outrage of sensibilities.”

According to state Attorney General Mark Bennett, the contractor could be in violation of HRS 711-1107 should intentional damages occur to the burials.

As for yesterday’s installation of a dust fence around the perimeter of Brescia’s property, Perry said he was not personally informed.

In a weekend phone call with Walton Hong, Brescia’s attorney, Perry said he asked to be informed when construction would begin. “I had asked that they inform us and they agreed to do so,” Perry said.

Hong said, from his understanding, the contractor had called the Hanalei substation to inform the police of the installation of the dust fence. Hong also said he wasn’t exactly sure when construction on the property would start, but when it did the police would be informed. “Mr. Brescia intends to continue work on the site pursuant to all the necessary permits and approvals he has received,” Hong said.

A phone call to Brescia was not returned as of press time.

Perry is not certain of what will happen once construction starts. “Certainly there will be protesters, and the county, mainly KPD, will once again have to deal with issues that were created by the state entities,” Perry said. “Nevertheless, we will continue to demonstrate compassion, sensitivity and extraordinary restraint in enforcing the law.”

One noticeably absent protester during the installation of the dust fence was Ka‘iulani Huff. Huff had been camping on the beach for weeks near Brescia’s property in protest. Huff said she was staying home to “cool off” after a deal made with Perry was broken. “We had a deal,” Huff said. “Perry said there would be no construction.”

Because the deal was broken, Huff said she wants to file charges against Brescia, the contractor, DLNR and the state Historic Preservation Society. “It’s not over,” Huff said. “He (Brescia) doesn’t have clear title to the property. The property is an institution of religion. It is a cemetery.”

Perry said the police department was in the process of making contact with Huff to explain what has happened. “We are trying to make sure we are on the same page and things work out so that everybody’s safe and sound,” Perry said. “While we’re really sensitive to what’s going on, we have to abide by the law.”

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On July 8 OHA (State of Hawaii Office of Hawaiian Affairs) wrote a 6-page letter on official stationery to Laura Thielen, head of DLNR, supporting the protesters and demanding the construction be stopped:
https://www.angelfire.com/planet/big60/OHAdemandHaenaDLNR.pdf

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http://www.hawaiireporter.com/story.aspx?de553c04-e935-42f0-8711-96d61fbfcc3f
Hawaii Reporter, July 11, 2008

Brescia Decision Prevents Desecration of Ancient Burial Site on Kauai
Report from Kauai Police Department

By Darryl D. Perry

In the recent circumstances involving Joseph and Jodie Brescia’s property in Wainiha, I made the decision to warn the contractor of Hawaii Revised Statute 711-1107 entitled Desecration that carries criminal penalties as contrasted with Hawaii Administrative Rules Title 13 that is civil in nature and falls under the umbrella of the Historic Preservation Division, Department of Land and Nature Resources (DLNR).

Basically, the wording of Penal Code HRS 711-1107 does not clearly make the connection to Hawaii Administrative Rules 13 (HAR). From a strict law enforcement perspective it is obvious that damaging or otherwise mistreating a place of worship or burial site in a manner that outrage the sensibilities of a person of reasonable caution constitutes a violation. And exactly who is a person of reasonable caution? A person of reasonable caution is the member of our community, like you and I.

Therefore prior to allowing construction, I had to clarify (not interpret) how far-reaching HAR 13 could be applied. The basic questions were:

1. Does the permitting approval by DLNR based on recommendations of the Niihau/Kauai Island Burial Council nullify the elements HRS 711-1107?

2. Does the Niihau/Kauai Island Burial Council have the authority to define what constitutes “damaging, mistreatment, and outrage of sensibilities?”

To both questions the answer is a resounding “Yes,” according to our County Attorney and State of Hawaii Attorney General; that the Brescia’s had met all of the criteria set in HAR 13, therefore, they should be allowed to build. However, there was a caveat to question #1 according to AG Bennett, whereby the contractor would still be in violation of HRS 711-1107 should intentional damages occur to the burial graves.

We now must ask question 2: Who defines the meaning of desecration? We need not look far because Mr. Brescia stated it matter-of-factly, “The law was obviously designed to punish those persons who desecrate burials without authorization.”

The optimal word in his sentence states it perfectly: “authorization.” The owner did follow all proper protocols and now has authorization to build a home on top of burial sites that many would consider a cemetery. Does putting a cement slab on burial sites constitute desecration? No, not according to the DLNR on the recommendation of the burial council.

So, what happens now? Certainly there will be protestors, and the county, mainly the Kauai Police Department (KPD) will once again have to deal with issues that were created by State entities. Nevertheless, KPD will continue to demonstrate, compassion, sensitivity, and extraordinary patience and restraint in enforcing the law.

Without a doubt our kupunas and those who have come before us are an important part of who we are as individuals and who we are as a culture because they are the foundation of our existence.

This respect does not only hold true in Hawaii but also in every culture throughout the world—they are our guiding light. And I have yet to speak to one kupuna who believes that it is “pono” to build this house over the graves of our Hawaiian ancestors, even if it is “authorized.”

I hope that somewhere down the line, a leader of great vision will take up this cause and correct the unconscionable decisions by some of our appointed public officials who authorized/permitted the building of this home, and future homes under similar circumstances.

Darryl D. Perry is the Chief of Police for the Kauai Police Department

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http://starbulletin.com/2008/07/12/news/story06.html
Honolulu Star-Bulletin, July 12, 2008

Protesters, workers clash over graves

By Tom Finnegan

HAENA, Kauai » Native Hawaiian protesters on the beach clashed with construction workers yesterday after a tense day at a home site at Naue Point where at least 30 bodies are buried.

No one was arrested or injured, but both the protesters and the construction workers filed complaints with the police, who arrived at about 1 p.m.

The site, where a home is being constructed by California businessman Joseph Brescia, has been the subject of numerous legal battles over where to put the building, how far it should be set back from the ocean, and where the property line exists.

Construction started Monday after Kauai Police Chief Darryl Perry issued a clarification that the work done over the graves was not desecration. He halted the work last month when he said that work over the graveyard was a criminal offense.

However, Brescia received all permits, including approval from the Kauai Burial Council, to leave the graves in place.

A number of native Hawaiians have camped out on the beach since April to honor and protect the bodies unearthed and then covered over when Brescia started clearing the area in 2007.

Yesterday, officials from the state Department of Land and Natural Resources told them to remove their tents. And the construction staff put up a fence along the certified shoreline and began using a backhoe to clear the land over the graves.

The native Hawaiians, joined by members of the Office of Hawaiian Affairs Nature Rights and Culture Hale, said they were saying a pule, or chant, when construction workers came through the dust fence and started yelling at them.

But construction workers told police that it was they who were harassed and yelled at through the dust fence.

They filed a complaint. Protesters also filed a complaint, alleging the construction was keeping them from practicing their cultural rites.

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http://www.kauaiworld.com/articles/2008/07/30/news/news03.txt
The Garden Island News, JULY 30, 2008

Burial hearing set

by Michael Levine

A hearing that could put a halt to controversial construction on a Wainiha property containing some 30 burials is scheduled for Aug. 12 after a judge denied protesters’’ request for a temporary restraining order Monday.

Attorney Alan Murakami of the Honolulu-based Native Hawaiian Legal Corporation said yesterday that his client, Jeff Chandler, and five co-defendants hope to convince 5th Circuit Judge Kathleen Watanabe to grant a temporary injunction, stopping further construction until the full civil suit is adjudicated.

In that lawsuit, plaintiff and landowner Joseph Brescia is seeking unspecified damages from protester defendants Chandler, Ka‘iulani Edens-Huff, Puanani Rogers, Dayne Gonsalves, Louise Listman and Hale Mawae, according to electronic court records.

The original complaint was filed by Brescia’s O‘ahu-based attorney, Philip J. Leas, on June 5, two days after some 40 protesters rallied on the adjacent beach to pray for Hawaiian ancestors.

The suit seeks temporary restraining orders and injunctions against the six defendants to keep them off of the Wainiha subdivision where Brescia has been trying to build a home for some seven years despite a litany of environmental, legal and community challenges.

On June 24, Kaua‘i Police Chief Darryl Perry halted groundbreaking at the 11th hour, saying construction could violate a law regarding desecration of burial sites.

After seeking clarification from the county attorney and the state attorney general, Perry said two weeks later that Brescia had not broken any law, and that construction could commence.

On July 18, the NHLC filed a counterclaim on behalf of Chandler, a native Hawaiian who disagrees with a State Historic Preservation Division burial plan that allows building above seven of the gravesites, or ‘iwi, as long as none of the bones are physically disrupted, according to Murakami.

The temporary restraining order that the NHLC began pushing for in earnest on Friday was denied Monday, meaning the court refused to intervene, at least for now.

Watanabe could, however, change her mind between now and the injunction hearing, which will feature arguments and evidence from both parties.

Phone messages left for Brescia and Leas seeking comment were not returned as of press time. Local attorney Walton Hong, who represents Brescia in other matters, confirmed that he is not handling the civil suit.

• Michael Levine, staff writer, can be reached at 245-3681 (ext. 252) or via e-mail at mlevine@kauaipubco.com

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http://www.khnl.com/global/story.asp?s=8807593
KHNL TV, August 7, 2008

Native Hawaiian protest to prevent construction on ancient burial site

NAUE, Kauai (KHNL) - Luxury home construction in the prime areas of the islands have been booming over the past couple decades. Kanaka Maoli (native Hawaiians) from all over Hawaii gathered on the residential property of Joseph Brescia in a dramatic attempt to stop further luxury home construction over an ancient Hawaiian cemetery on Kauai's North Shore.

Over 30 protestors and cultural practitioners from Oahu, Maui, Molokai and Hawaii arrived Thursday morning and secured themselves to each other and the property. It is estimated that it will take law enforcement authorities and several hours in an attempt to remove them.

"Our goal is to make them forcefully remove us," said protestor Andre Perez of Pohaku O Kane. "This is not just about Kauai. We're serious about protecting our iwi kupuna, our 'aina, and our lahui."

The property, formerly owned by actor Sylvester Stallone, and purchased by California luxury homebuilder Joseph Brescia seven years ago, is considered culturally sacred. It contains at least thirty ancient burials as well as numerous artifacts. With legal challenges currently in progress, previous protests stopped construction until recently when concrete was poured directly over the well-documented bones of ancient Hawaiians on the property.

"We're sick of rich foreigners coming over here and destroying the resting places of our families," stated Keli'i Collier. "Hawaiians do not desecrate the graves of others, why do they desecrate ours?"

Construction of a home or any other substantive structure on a cemetary is considered an extreme cultural affront. The claim of property ownership is also in dispute because specific Hawaiians can trace their families having lived on that parcel going back centuries. No clear title of the property exists throughout Hawaii.

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http://starbulletin.com/2008/08/08/news/story02.html
Honolulu Star-Bulletin, August 8, 2008

Group stops construction at burials

By Tom Finnegan

HAENA, Kauai » The construction of a beachfront home on top of an ancient Hawaiian cemetery was halted yesterday as more than a half-dozen protesters linked themselves together on the site.

The protest, carried out by a group of mostly native Hawaiians from all four major islands, ended after a peaceful eight-hour standoff. No one was arrested.

However, the protesters vowed to return if work begins anew at the site, which contains at least 30 sets of remains and has been the source of protests for months and numerous court cases stretching back to 2002.

Police told the protesters that all work would be halted until Thursday, when a hearing on a preliminary injunction is to be held in Circuit Court in Lihue.

The protesters, however, were asking yesterday for Gov. Linda Lingle to step in and condemn the property and cease work completely and forever at the burial site.

"As the (legal) process continued to fail us, we had to take matters to a higher level," said Andre Perez, of Oahu. "The Burial Council has been undermined ... and is not doing the job they were created to do."

The seven protesters came prepared with "black bears" to make it difficult for them to be removed from the property. The "black bears," Perez said, were used by protesters in the Pacific Northwest to keep loggers from cutting down old-growth forests. They consist of two PVC pipes connected with an elbow joint. Two protesters link hands inside the pipe, tie a rope around their wrist, connect the other end to a mountain-climbing carabiner and then use two carabiners to connect themselves inside the pipe.

The only way to remove them is to saw through them.

They removed the devices, however, when it became apparent that the half-dozen police officers who arrived at the scene would not attempt to arrest them or their two dozen supporters who entered the construction site yesterday. Construction crews that arrived in the morning left by about 10 a.m.

After eight hours at the site, protesters heard rumors that police would use Tasers to subdue them, and, according to their spokesman, Ehu Cardwell, they did not want to risk serious injury or death, as a number of the protesters had heart conditions.

"They proved their point yesterday," Cardwell added. "We will be back in force" if construction proceeds.

Kaiulani Edens-Huff, who camped out at the site for 16 weeks to protest the construction, stayed away from the protest yesterday, attending the Kauai-Niihau Burial Council meeting in Lihue. About 50 other burial supporters angrily testified that the council had failed to uphold its responsibilities, Edens-Huff added.

At the site, about 24 concrete pilings have already been poured, and at least a dozen grave markers have been removed.

The plans for the home have been approved by the county Planning Commission, the state Historic Preservation Division, the Kauai-Niihau Burial Council and others after the bones were found last year.

The homeowner, Joseph Brescia, a California businessman, bought the lot, which sits on Naue Point just off Alealea Road, in 2000 from actor Sylvester Stallone.

But numerous legal battles over the size of the house, its setback from the beach and its shoreline certification delayed construction even before the burials were found.

Brescia has said he has complied with all county and state rules and just wants a home on the lot he paid for.

"I now have no choice," Brescia said in a prepared statement in June. "I have done what I could after learning of the burials."

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http://www.kauaiworld.com/articles/2008/08/08/news/news01.txt
The Garden Island (Kaua'i), August 8, 2008

Burial protest dissolves 8 hours after start

by Blake Jones - THE GARDEN ISLAND

HA‘ENA — Eight hours after more than a dozen protesters took over the construction site of a Ha‘ena home, where roughly 30 ancient Hawaiian graves are known to exist, the group left of its own accord.

Yesterday about 15 individuals occupied the triangular beachfront slip owned by Joseph Brescia. Still in the early stages of development, the site has close to 30 concrete posts positioned around the numerous iwi markers.

Surveyors working onsite gave way to the demonstration, which started at 9:30 a.m. and continued undisturbed until the evening. The more than half dozen police officers, who waited on the street throughout the day, did not make any arrests.

The peaceful conclusion to the demonstration was not the end many had expected. At least eight members of the group, anticipating arrest for trespassing, intended to link themselves together by hooking carabiners to the inside of PVC pipe segments known as “black bears.” The self-releasing lock-down devices are difficult for law enforcement to disassemble, and have been used in high-profile demonstrations on the Mainland.

While protesters have maintained a steady presence near the property for months, it has until recently been a local effort. Yesterday’s demonstration, however, featured representation from all four counties.

Opponents of construction near the sacred site say they want to see activity halted and the iwi honored with a heiau. Building around the graves, or moving them — even with the state’s approval — is still desecration, they say.

“If they can do this here, they can do this on all Hawaiian burial sites throughout the Hawaiian islands,” said Hanalei Colleado, who flew in from Maui.

The protesters expressed disappointment with state and local government for having allowed work to continue at the site.

“They’re not doing the job they’re supposed to do,” Andrew Cabebe, a Kaua‘i resident, said of the Burial Council. “And when they try, they seem to be overruled anyway.”

O‘ahu resident Andre Perez called for Gov. Linda Lingle to intervene. He pledged the group will return “in force” should construction start up again. “By any standard, by any culture or ethnic group, this is just wrong,” Perez said. “From a human perspective, this is just wrong.”

Kaua‘i resident Ka‘iulani Huff, who camped in front of the home site in protest for months until a restraining order was issued, said the existing laws protecting sacred Native Hawaiian cultural sites “would be OK if they were upheld.”

She and several other residents testified before the Kaua‘i Island Burial Council yesterday morning.

For more on that story, see the accompanying headline “Burial council hears testimony.”

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http://www.kauaiworld.com/articles/2008/08/08/news/news02.txt
The Garden Island (Kaua'i), August 8, 2008

Burial council hears testimony

by Nathan Eagle

The Kaua‘i Island Burial Council heard testimony from several residents yesterday at the Historic County Building on the status of the burials at the Ha‘ena property owned by Joseph Brescia, said Chair Mark Hubbard.

The item was placed on the agenda at the request of a group called ‘Ohana O Naue, he said.

Aside from communicating a strong message of “don’t mess with our iwi,” the residents who testified requested the council to do several things, Hubbard said.

These included passing a resolution saying the state Historic Preservation Division decision regarding the burial plan was inconsistent, exercising greater authority in the Brescia property burial dispute and demanding a separate attorney from the department’s attorney.

The council declined to act on the residents’ recommendations, Hubbard said. “The public wants us to join this movement up at Naue,” he said. “So they’re trying to convince us we have additional authority.”

The appointed body is an administrative arm of the historic preservation division. Its primary responsibility is to determine if previously identified Hawaiian burials more than 50 years old should be relocated or preserved in place.

At its April meeting, the council in a split decision determined that the roughly 30 burials discovered during excavation of the Brescia property should remain in place.

Outside of that duty, state law limits the council’s power mostly to recommendations to the Department of Land and Natural Resources, such as on the appropriate management, treatment and protection of Native Hawaiian burial sites.

The council is also authorized “to take any other appropriate actions in furtherance of this chapter,” according to Hawai‘i Revised Statutes.

Hubbard called the Naue situation a Catch-22.

On the one hand, the iwi remain preserved in place by the council’s decision to not have them reinterred. But the council lacks the power to stop construction on the site.

“Yes, it does offend people that there’s going to be iwi under a building,” Hubbard said. On the other hand, if the council chose to relocate the remains, it would have been a disturbing process digging them up and moving them to another location.

The division currently responds to some two to three inadvertent discoveries each week and is involved in up to 250 burial cases annually.

“Since 1991, approximately 3,000 sets of Native Hawaiian skeletal remains have been reinterred thanks to the collaborative efforts of the division, various Hawaiian organizations and property owners,” the division’s Web site states.

A lawsuit, Joseph Brescia v. Kaiulani Edens-Huff et al., was filed June 5 in 5th Circuit Court, according to online court records. The next hearing is Tuesday before Judge Kathleen Watanabe.

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http://www.kauaiworld.com/articles/2008/08/10/news/news02.txt
The Garden Island (Kaua'i), Sunday August 10, 2008

KPD seeking warrants for protestors

by Michael Levine - The Garden Island

Kaua‘i Police Chief Darryl Perry said Friday that he will work in conjunction with the County Prosecutor’s Office to secure arrest warrants for individuals who trespassed on a beachfront Ha‘ena property Thursday to protest the planned construction of a home above some 30 iwi, or graves.

At 9:30 a.m. Thursday, surveyors working on site gave way to the protestors, who occupied the property undisturbed for around eight hours.

At least eight members of the group, anticipating arrest, intended to link themselves together with self-releasing lock-down devices. However, the more than half-dozen police officers who waited on the street throughout the day did not make any arrests.

Perry told The Garden Island that when he and other officers went to the property, owned by Joseph Brescia, to talk to the protestors that evening, they had already dispersed.

Perry said the KPD was analyzing photographs and other information to determine the identities of some 15 demonstrators, who would then be served with papers charging them with criminal trespass in the second degree, a petty misdemeanor.

A phone message left for County Prosecuting Attorney Craig De Costa was not returned as of press time.

“If that’s the channel they have to take, then that’s their decision,” said Keli‘i Collier, a spokesman for the protesters. “They’re going to try to quietly pick us off, one by one, hidden from the view of the public. It’s a new tactic to try to dismember this movement.” Collier added, however, that KPD has shown “respect, compassion and understanding” and that Perry, personally, has been both “empathetic” and “sympathetic” to their cause. “It’s not an attack on the KPD or the workers trying to feed their families,” Collier said. “We are just trying to protect the sanctity and peace of our kapuna. “We expected a reaction from the authorities, but it doesn’t diminish our commitment to the iwi,” said Collier, who said the group will return if construction commences.

In a civil lawsuit filed June 5, Brescia is seeking temporary restraining orders and injunctions against protester defendants Jeff Chandler, Ka‘iulani Edens-Huff, Puanani Rogers, Dayne Gonsalves, Louise Listman and Hale Mawae, according to electronic court records.

Attorney Alan Murakami of the Honolulu-based Native Hawaiian Legal Corp. filed a counterclaim on behalf of Chandler July 18 seeking to halt construction on the property until the suit is adjudicated.

On Thursday, 5th Circuit Judge Kathleen Watanabe will decide whether or not to grant the temporary injunction. She previously declined to grant a temporary restraining order in late July.

As recently as June 25, Perry, citing a law protecting Hawaiian burial grounds, was at the site, turning away workers about to start construction.

In December, some 30 burials were discovered on the property during an archaeological survey. The Kaua‘i Island Burial Council determined in April that the sites must be left in place in order for construction to begin.

Brescia has been trying to build a home on the site since 2001.

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http://www.kauaiworld.com/articles/2008/08/13/news/news01.txt
The Garden Island (Kaua'i), August 13, 2008

Burial locations to be investigated in Ha‘ena

by Nathan Eagle

A group of concerned residents yesterday continued to fight for the protection of a sacred Hawaiian burial site where a home is being built on the North Shore.

Some 15 members of the newly formed ‘Ohana O Naue rallied at the Mo‘ikeha Building to urge the county Planning Commission to revoke California resident Joseph Brescia’s permits to build a house on his Ha‘ena lot where at least 30 ancient Hawaiian burials have been identified.

“We are in mourning,” Puanani Rogers, a kanaka maoli, said. “The iwi of our kupuna are an important part of who we are as a people ... They are the reason why I am here today.”

The residents — some tearful, some frustrated, some holding cardboard signs protesting the “desecration” and calling for “respect” — asked the seven-member appointed body to review the burial treatment plan approved by the Kaua‘i Island Burial Council, an appointed arm of the state Historic Preservation Division.

James Huff, a long-time builder who has camped on the beach adjacent to the homesite for the past few months along with other residents trying to protect the iwi, said the commission was “betrayed” in issuing the permits.

He said his independent GPS research shows the burials identified in the burial treatment plan fail to align on the ground with the burials marked in the building plans, which were designed to have the footings avoid the known burials.

The commission unanimously voted to direct the county Planning Department to investigate the accuracy of the plans.

“Based on the information that was provided I think we have some things that we need to verify,” Planning Director Ian Costa said.

On June 24, Kaua‘i Police Chief Darryl Perry halted groundbreaking at the 11th hour, saying construction could violate a state law regarding desecration of burial sites.

After seeking clarification from the county attorney and the state attorney general, Perry said two weeks later that Brescia had not broken any law and that construction could commence.

The footings were poured, but work has reportedly been on hold.

A hearing for the lawsuit between the landowner and protesters is scheduled at 8 a.m., tomorrow, 5th Circuit Court.

Brescia and his attorney, Philip Leas, could not be reached for comment at press time.

“This is a really serious issue,” ‘Ohana O Naue member Hale Mawae, who is named in the lawsuit, told the commission. “If you don’t fix that mistake, you will live with that mistake.”

After noting his dissatisfaction with Commission Chair Steven Weinstein’s decision to remove the protest signs from the meeting room, Kilauea resident Andrew Cabebe said he feels the Hawaiian people are losing everything when buildings are permitted to be constructed on top of ancient graveyards.

“If I have to go back to that site to stop the building, I’m going to be there,” he said. “This can not go on anymore. This is our burial sites.”

The commissioners — including Herman Texeira, James Nishida, Stuart Hollinger and Camilla Matsumoto — made efforts during the meeting to show their willingness to find a solution to the problem that satisfies both sides.

They suggested increasing county inspections at the site and relocating the burials.

“It’s almost like we’re getting reports from something happening in a place we can’t see,” Matsumoto said.

Weinstein said the commission needs the information from the Planning Department’s investigation, which is expected to be completed in two weeks, in order to make a decision.

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http://starbulletin.com/2008/08/14/news/story11.html
Honolulu Star-Bulletin, August 14, 2008

Kauai panel to probe construction atop graves

By Tom Finnegan

LIHUE » The Kauai Planning Commission said it would investigate claims made by a Kauai group that the home being built atop the cemetery in Haena is illegal.

At a commission meeting Tuesday, James Huff, one of the protesters who linked themselves together last week to stop construction at a home site at Naue Point, said the plans submitted by California businessman Joseph Brescia are not accurate.

"You have been betrayed," he added. "The plans as submitted were wrong."

Huff, who has worked in construction for decades, said the plans submitted to the Planning Commission erroneously show the location of 30 or so ancient Hawaiian burials at the property. Huff claims that the contractor or the architect moved the Global Positioning System coordinates on the plans to keep the footings of the home from being located on top of a burial.

However, at least seven bodies were capped and interred underneath the foundation, which has already been poured. It was part of the burial plan as agreed upon in April by the Kauai Niihau Burial Council.

Using GPS technology, Huff said he mapped the property and found the known graves were in locations different from the original construction plans. He also claims that the home's septic system will be too small for the size of the home and that the leach field will contaminate a grave.

The Planning Commission, after hearing at least two hours of testimony, unanimously voted to have the planning department investigate. But many of the speakers, some of whom, like Huff, have spent months protesting this project, wanted the commission to issue a cease-and-desist order. "You're going to get sued either way," Michael Sussman said. "You might as well do the right thing."

One lawsuit -- filed by Brescia against the protesters for trespass and harassment -- has a hearing on an injunction today in Circuit Court in Lihue.

Brescia, who has been trying to build a house on the property since 2002, has asked for and received permits from the Planning Commission, the Burial Council, the Kauai Building Department and others. He has already started construction and finished the fittings, according to a letter submitted by his lawyer to the Burial Council last week.

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http://starbulletin.com/2008/08/15/news/story07.html
Honolulu Star-Bulletin, August 15, 2008

Building may continue atop burials
A hearing on a request for an injunction will continue, and a judge lets construction go on

By Tom Finnegan

LIHUE » California businessman Joseph Brescia will be able to continue building his home at Naue Point, at least for now, a circuit judge ruled yesterday.

A hearing on a request for a preliminary injunction, filed by the Native Hawaiian Legal Corp. to stop construction of the house, was not finished after about six hours of testimony in court yesterday, and has been continued until Sept. 3.

But an oral motion to keep Brescia from continuing the project until September was denied, Judge Kathleen Watanabe said, because the concrete footings for the home have already been poured. "I understand the community is split," Watanabe said. "I understand the need for finality and ... some closure."

The site has been the source of protests for months as native Hawaiians fight the building of a luxury beachfront home on a site where burials were found.

Brescia, however, has said in court papers that his workers are being harassed even though he followed all state and county laws in getting permits.

The Native Hawaiian Legal Corp., on behalf of Jeff Chandler, a Haena resident who has family buried on the site where the home is being built, argued that the state archaeologist reversed the decision of the Kauai Niihau Burial Council when she allowed Brescia's contractors to build the home and cap seven grave sites with concrete.

Chandler's lawyers blame state Historic Preservation Division archaeologist and Kauai County Council candidate Nancy McMahon for pushing through both the permits at the county level and the burial council's plan to keep the burials in place. Then, the lawyers argued, she approved the contractor's plan without returning to the burial council for its input.

McMahon, who testified yesterday, said that she double-checked to make sure that the footings were not directly above the graves, and made sure the project followed the instructions of the burial council. She also testified that no evidence has been found that would make anyone believe the area was a cemetery, rather than 30 individual graves.

However, Alan Murakami, Chandler's lawyer, said that the burial council wanted to preserve the burials as a unit, and McMahon took it on her own to interpret its ruling. By allowing the house to be built atop the graves, rather than preserving them, "the state has disemboweled the burial council," Murakami added.

The lawsuit was originally brought by Brescia against Chandler and a number of other protesters for allegedly harassing construction workers and trespassing.

But Chandler argued that it was the Historic Preservation Division that caused the problems by its failure to follow the burial council's ruling, so he sued the division and the Department of Land and Natural Resources.

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http://www.kauaiworld.com/articles/2008/08/29/news/news02.txt
The Garden Island (Kaua'i), August 29, 2008

Fight for iwi continues
Commission votes against sending letter to landowner

by Nathan Eagle - THE GARDEN ISLAND

The county Planning Commission on Tuesday entertained a motion that would have sent “a signal” to Wainiha landowner Joseph Brescia regarding the home he has started building on a small coastal lot known to contain at least 30 ancient Hawaiian burials.

Commissioners James Nishida and Herman Texeira backed a motion to have the county Planning Department send a letter to the California businessman asking him to consider giving community members more time to come up with money to purchase his property in exchange for an extension on his building permit.

Although the motion was ultimately defeated in a 5-2 vote, it allowed a group of residents advocating for greater protection of Native Hawaiian rights and “respect for our iwi” to publicly renew their concerns over the project.

“Isn’t there something you can do to condemn that land because it is a cemetery?” Kapa‘a resident Puanani Rogers told the commission. “It is a land use issue ... an issue that is your responsibility.”

Chair Steven Weinstein said the commission’s hands are tied.

“If they’re following the conditions, that’s all we can ask them to do,” he said, pointing at a recent Planning Department status report confirming that Brescia has met the conditions of his permit approval.

“It’s not a designated cemetery,” he said, noting the landowner was unaware of any burials on the property when he bought it.

Rogers disputed the claim that the remains are being preserved in place as the Kaua‘i Burial Council directed.

“It’s not being preserved if you’re building around them and in between them,” she said. “The bones have a spiritual essence. It extends throughout … up, down, sideways. We need people who understand our cultural practices to be making decisions on this.”

The burial council is a seven-member appointed arm of the state Historic Preservation Division whose authority is mostly limited to deciding whether remains should be preserved in place or reinterred.

When Brescia learned the house foundation would affect seven of the 30 marked burials, he asked the burial council to have them be relocated, according to his attorney, Walton Hong.

The council in a split vote in April decided the remains should be left in place.

“Mr. Brescia did not want to do this,” Hong said, so the burial treatment plan was revised and house redesigned so the footings would not be on top of the burials.

James Huff, a long-time builder, told the commission Aug. 12 that his independent GPS research shows the burials identified in the burial treatment plan fail to align on the ground with the burials marked in the building plans, in some cases falling directly under the footings.

The Planning Department, directed by the commission to investigate the claim, reported its findings on Tuesday.

Planner Dale Cua said the department, under the guidance of a state archaeologist, concluded with its equipment, which has a tolerance level of four to five meters, that the plans were accurate.

“Understand it’s not an exact science,” he said. “It’s going to be within the general vicinity.”

Brescia has been trying to build a home on his 18,000-square-foot North Shore property for the past seven years, but has been delayed mostly due to legal challenges, including a shoreline setback case environmentalists won in 2005 at the state Supreme Court.

The remains, or iwi, were discovered during excavation work last year.

After the commission approved Brescia’s permits on Dec. 12, there have been protests at the site and a group of residents camped on the beach at Ha‘ena Point adjacent to the property for months.

Brescia in a June 24 news release announced his openness to selling the lot at a fair price, but community members said they needed more time to find the funding. Since then, the footings to the home have been poured and some critics say the damage has already been done.

The Kaua‘i Police Department halted construction in June, but two weeks later Police Chief Darryl Perry said, after seeking clarification from the county attorney and state attorney general, that Brescia had not violated any law.

Fifth Circuit Judge Kathleen Watanabe on Aug. 14 affirmed that construction may continue at the homesite while attorneys for the property owner, state and protesters named in a related lawsuit debate a preliminary injunction.

State archaeologist Nancy McMahon testified then that the 30 burials do not constitute a cemetery.

Hong said construction must continue because permit conditions require it to be built within a certain time frame and because of the amount of money the landowner has already had to absorb.

“We can’t wait around one, two years hoping this offer is going to come,” he said, referring to the community’s effort to purchase the property.

“I’d like to buy some more time,” Texeira said, adding later that the letter from the Planning Department would “send a signal” to Brescia that the commission is concerned about what is happening at the site.

But a majority of commissioners, while noting their sympathy for the concerned residents, disagreed. “I think as planning commissioners ... that’s not a hat that we wear,” Commissioner Cavin Raco said. “It’s Mr. Brescia’s legal right to make that decision (on whether to delay construction while the community searches for funding to buy it) ... I’m not here for that.”

Commissioner Kurt Akamine said that although he agreed with the premise, it would be premature. “It’s really painful to have a house being built on a cemetery,” North Shore resident Caren Diamond said. “I feel very sick and sad.”

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http://www.kauaiworld.com/articles/2008/09/05/news/news03.txt
The Garden Island (Kaua'i), SEPTEMBER 5, 2008

Judge says law may not do enough to protect burials

by Blake Jones - The Garden Island

After the third and final day of testimony yesterday, Fifth Circuit Judge Kathleen Watanabe said she’ll rule by Sept. 15 on a preliminary injunction request to halt construction at a Wainiha homesite known to contain at least 30 iwi, or ancient Hawaiian burials.

Watanabe is expediting the decision in part because she denied another oral motion for a temporary restraining order yesterday — the third since the hearing began Aug. 14 — which would have put a stop to work in the interim.

Testimony yesterday revealed that concrete jackets have already sealed seven iwi impacted by the footprint of the house, owned by California businessman Joseph Brescia, and one of two concrete garage slabs has been poured. Concrete footings for the foundation have been in place since mid-August.

Wainiha resident Jeff Chandler, who claims ancestral ties to the land, brought the injunction request in a counterclaim against Brescia and the state Historic Preservation Division, after Brescia sued him and a number of protesters for allegedly trespassing and interfering with construction.

Attorneys for Chandler, Brescia and the state have debated a wide range of procedural issues relating to the discovery and treatment of iwi, as well as the cultural significance of the burials and whether the actions taken actually protect or harm them.

Given the emotionally charged nature of the hearing and the broad scope of the claims, Watanabe cautioned yesterday that the court’s jurisdiction in the matter is “very, very narrow,” as are the remedies.

She added that she recognizes the importance and sensitivity of the issues brought up during the hearing, but that she can’t legislate from the bench.

“I think the biggest problem is the law doesn’t go far enough to protect these burials,” Watanabe said. “Perhaps the best thing is changes in law.”

She identified for counsel some of the legal issues she would be considering in her decision, namely whether the Kaua‘i/Ni‘ihau Island Burial Council was properly informed when it made its April decision to preserve the burials in place.

Chandler’s attorney, Alan Murakami, argues that Deputy Historic Preservation Division Officer Nancy McMahon reversed the Kaua‘i/Ni‘ihau Island Burial Council’s April decision by later approving a Burial Treatment Plan that included vertical buffers for the house and concrete jackets.

Two Burial Council members, Barbara Say and Presley Wann, testified Wednesday that they had not discussed those plans with McMahon before she OK’d them. They also said they declined opportunities to offer recommendations at the April meeting on how to implement their decision.

Murakami claims that such procedural missteps have resulted in irreparable damage to the iwi kupuna.

But Deputy Attorney General Vince Kanemoto, on behalf of the state, said there was no denial of opportunity for the council to make recommendations and that proper protocol was used.

“It’s clear that what has occurred at the Brescia property is very unfortunate, and I don’t think anyone feels good about it,” Kanemoto said. “But the state defendant followed the law.”

One of Brescia’s attorneys, Calvert Chipchase, bypassed all questions of procedure and argued that the iwi are not in threat of demolition, alteration or transfer, which is the basis of Chandler’s lawsuit.

He further said that Brescia will be financially harmed if construction is stopped. Ted Burkhart, Brescia’s project manager, testified that already the delays, among other factors, have driven the cost up considerably. To date about $400,000 has been spent on the foundation, compared to the initial $255,000 estimate, Burkhart said.

Brescia has been trying to build a home on the 15,500-square-foot North Shore lot for the past seven years. His attorneys say that state and county requirements have been met, and Brescia should be allowed to proceed with his plans for a single-family residence.

Late last year, building permits were approved by the county Planning Department with the knowledge that remains had been discovered during excavation work.

Hawaiian archaeology expert Michael Dega, who was contracted to complete an archaeological inventory survey for the lot, testified yesterday that more iwi could exist on the property. The remains discovered date as far back as the 13th century and as recent as the 18th, he said.

Attorneys for all parties have until Sept. 11 to submit proposals of findings of fact and conclusions of law. Watanabe asked counsel to focus on the areas of concern she identified, and to stay away from the issues that are not within her purview to decide.

“I’m sure that all parties will walk out not happy with anything the court has said,” Watanabe said, noting the “difficult” decision ahead.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080909/NEWS25/809090324/1004/LOCALNEWSFRONT
Honolulu Advertiser, Tuesday, September 9, 2008

Kauai judge to rule in burials dispute
North shore lot known to have 30 graves; plans call for building a home

By Diana Leone
Advertiser Kaua'i Bureau

LIHU'E — Within Joseph Brescia's 15,667-square-foot beachfront house lot on Kaua'i's north shore are 30 known burials of pre-Western-contact Native Hawaiians.

To Kaua'i residents Jeff Chandler, PuaNani Rogers and numerous other Native Hawaiians and others following the case, that constitutes a cemetery. The proper action for such a small land area with so many burials is that the iwi, or bones, be left in place and nothing be built there, they say. That's actually what they thought — or hoped — was going to happen after the Kaua'i-Ni'ihau Island Burial Council voted April 3 to "preserve in place" all 30 sets of remains.

The council is charged under state law with deciding whether to preserve in place or move burials discovered before construction on a site begins. Disposition of inadvertent discoveries of bones after a project begins are handled by a state archaeologist in collaboration with the builder.

Brescia has every right to build a house over the graves on his land because he's complying with a burial treatment plan for the property that the State Historic Preservation Division approved on April 24, his attorneys say.

But Chandler's attorney, Alan Murakami, of the Native Hawaiian Legal Corporation, says that Nancy McMahon, the division's deputy administrator for archaeology, improperly approved the treatment plan without consulting with the Burial Council and with lineal and cultural descendants of the iwi as is spelled out in state law.

McMahon also didn't try hard enough, or require Brescia's contract archaeologist to try hard enough, to inform members of the public of the 30 burials with enough detail about them, Murakami alleges.

Brescia's attorneys, Philip Leas and Calvert Chipchase, say that McMahon's approval of the burial treatments was correct. If Chandler had a problem with either the Burial Council's or McMahon's actions, he could have formally registered as a descendant and filed appeals, but he did not, they said. Besides, Brescia's attorneys argued, the "concrete jackets" forming underground vaults around the burials and concrete footings that will support the house are already in place.

No more earth-moving work is expected that would disturb the other 23 burials on the property.

The two parties have been facing off before Fifth Circuit Judge Kathleen Watanabe, and Chandler is seeking a preliminary injunction to stop any further construction on Brescia's property.

Vince Kanemoto, a deputy state attorney general who represents both the Burial Council and the State Historic Preservation Division, has been defending McMahon's actions in court.

Watanabe said she will rule on the matter by Sept. 16.

Chandler, a lifelong Kaua'i resident who is seven-eighths Hawaiian, says he never intended for this to end in a courtroom. Chandler testified that when he appeared before the Kaua'i-Ni'ihau Island Burial Council on Feb. 7 and April 3, identified himself as a descendant of the iwi and asked that they not be moved, he expected that would happen.

Testimony from Chandler and from Kai Markell, the former director of the state Burial Council program, emphasized that traditional Hawaiian cultural practice holds that the skeletal remains of Hawaiians should be protected from intrusion from strangers.

In Markell's opinion, moving, desecration or disturbance of iwi can produce real harm in living descendants in the form of 'eha (hurt, pain or suffering), kaumaha (feeling burdened, sorrowful), and manewanewa (grief, sorrow and mourning).

When asked if construction over the graves has personally harmed him, Chandler wept and choked back emotion before saying: "It's already taken its effect on me. ... Not only me, it's affecting my family." Chandler also testified that he doesn't believe he should have to prove to the state that his family is from the area and therefore he is likely to be related to the iwi.

Chandler said he wants to preserve the site, which has archaeological evidence that ancient Hawaiians lived there, "as a significant cultural site for future generations." Among the artifacts found in addition to the burials are fishing lures and tools, fire pits and post holes.

Chandler filed his lawsuit against Brescia after Brescia sued Chandler, Rogers, Ka'iulani Huff and others, alleging they were trespassing on his land, harassing him and depriving him of the use of his property. That lawsuit was filed June 5, two days after protesters rallied on a nearby beach to pray for the Hawaiian ancestors' bones.

From Brescia's point of view, as he spelled out in a press release in June: "I am not wealthy enough to abandon as a charitable donation the more than a million dollars of my family savings, nor the more than seven years invested toward our home. If there is anyone or any organization willing to pay for the property, I am willing to listen." In the meantime, he's moving ahead with house construction.

Watanabe warned parties Thursday that based on the legal guidelines, "this court has a very small amount it can do with this case." "The biggest problem is the law does not go far enough to protect these burials," Watanabe said. "Perhaps the best thing that will come out of this case will be some changes in the law," she said.

Public concern over the treatment of 1,000 Native Hawaiian burials found at the site of a Ritz-Carlton resort at Honokahua, Maui, in 1989 led to current state law regarding unmarked graves.

But chronic staff shortages at the State Historic Preservation Division and questionable actions by staff weaken the effectiveness of the law, Murakami said.

Watanabe emphasized Thursday that each party in the case brought out some points she found helpful. Testimony by Burial Council members Presley Wann and Barbara Say "clearly indicated to the court (that the council's decision) may not have been an informed decision on their part." Watanabe said she found Chandler's description of how the situation pained him "very sincere." "The court will prioritize this despite our heavy trial schedule, because the treatment and preservation of burials — this court recognizes as very significant and the court takes the matter very seriously," she said.

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http://www.kauaiworld.com/articles/2008/09/12/news/news02.txt
The Garden Island News (Kaua'i), SEPTEMBER 12, 2008

3 Ha‘ena iwi protestors arrested

by Michael Levine - The Garden Island

The Kaua‘i Police Department confirmed yesterday that three men present at an Aug. 7 protest of development on a Hawaiian burial ground were arrested last week on suspicion of second-degree trespassing, a petty misdemeanor.

Arrests had been delayed as police worked to identify those that had been on the Ha‘ena property. Kaua‘i Police Chief Darryl Perry said the day after the protests that he would be working in conjunction with the County Prosecutor’s Office to secure arrest warrants.

“We looked at photos, talked to the officers on the scene and people who knew them,” Assistant Chief Clayton Arinaga said yesterday. “Based upon that information, we got arrest warrants.”

Officials reported that Andrew Cabebe, 59, of Kilauea, James Hoff, 51, of Kapa‘a, and Harry Fergerstrom, 59, who gave his local address as Pahoa, were arrested on Sept. 5.

At least eight of the roughly 15 protesters, anticipating arrest, intended to link themselves together with self-releasing lock-down devices. However, the more than half-dozen police officers who waited on the street did not make any arrests at that time, instead opting to wait.

“If that’s the channel they have to take, then that’s their decision,” Keli‘i Collier, a spokesman for the protesters, said last month. “They’re going to try to quietly pick us off, one by one, hidden from the view of the public. It’s a new tactic to try to dismember this movement.”

Cabebe said yesterday that the KPD was using the arrests as a scare tactic to keep him and others away from Joseph Brescia’s beachfront subdivision. “They made me feel really bad, like I was a criminal, a murderer or something,” said Cabebe, who was showering when he saw police approaching his home. “They came in and they were ready to drag me away.”

Still, Cabebe, who said the arrest cost him $50, has already been back to pay his respects. “I’m going to keep going back,” he said. “I was just trying to do something for people who cannot speak. I’m just there to protect the iwi, my family.”

Attempts to reach Hoff and Fergerstrom were unsuccessful.

More news on the future of the controvertial home construction may come next week, as 5th Circuit Judge Kathleen Watanabe is expected to rule on a motion for a preliminary injunction that would halt development.

Testimony earlier this month revealed that concrete jackets have already sealed seven iwi impacted by the footprint of the house, and one of two concrete garage slabs has been poured. Concrete footings for the foundation have been in place since mid-August.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080915/BREAKING01/80915059
Honolulu Advertiser, Breaking News/Updates
Updated at 4:15 p.m., Monday, September 15, 2008

State agency broke law over Hawaiian remains found on Kauai

By Diana Leone
Advertiser Kauai Bureau

LIHU'E, Kauai — The State Historic Preservation Division failed to follow state law regarding Native Hawaiian burials in a Kaua'i beachfront houselot where 30 sets of human remains were found, Fifth Circuit Judge Kathleen Watanabe ruled this afternoon.

The agency must now consult with the Kaua'i-Ni'ihau Island Burial Council, any lineal descendants of the remains, interested Hawaiian organizations, and the landowner about a revised burial treatment plan, Watanabe said.

That step should have been taken earlier this year, after the burial council voted in April to preserve the burials in place, Watanabe noted. Instead, a state archeologist improperly approved a burial treatment plan for property owned by California developer Joseph Brescia, without the consultation, she said.

Watanabe did not stop construction of a house on the 15,667-square-foot lot, as requested by plaintiff Jeff Chandler, a Hawaiian who claims the burials as his forebears. But she warned that any additional construction on the house proceeds with the understanding that the burial council could decide to relocate the graves now underneath it. "The state Legislature and the DLNR recognized the significance of Native Hawaiian burials when they drafted these laws and promulgated these rules," Watanabe said. She said her decision "comes after much thought and consideration."

Vince Kanemoto, a deputy state attorney general, said the burial plan proposed by Brescia and already undertaken by his contractors, will be presented to the burial council at its October meeting.

The proposal enclosed seven burials underneath the house in "concrete jackets" and maintains a "buffer" distance from them via that house's elevation on pilings above ground level. That treatment is culturally unacceptable, Chander and others testified during procedings in Watanabe's court in August and earlier this month.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080916/NEWS0102/809160332/1004/LOCALNEWSFRONT
Honolulu Advertiser, Tuesday, September 16, 2008

Judge faults state agency over human remains found on Kauai
Burial council will be consulted; construction of house can continue

By Diana Leone
Advertiser Kaua'i Bureau

LIHU'E, Kaua'i — The State Historic Preservation Division failed to follow state law regarding Native Hawaiian burials at a Kaua'i beachfront house lot where 30 sets of human remains were found, Fifth Circuit Judge Kathleen Watanabe ruled yesterday.

The agency must now consult with the Kaua'i-Ni'ihau Island Burial Council, any lineal descendants of the remains, interested Hawaiian organizations, and landowner Joseph Brescia about a revised burial treatment plan, Watanabe said.

That step should have been taken earlier this year, after the burial council voted in April to preserve the burials in place, Watanabe noted. State archaeologist Nancy McMahon then improperly approved a burial treatment plan without the required consultations with the burial council and others, Watanabe said.

Watanabe did not halt construction of a house on the 15,667-square-foot lot on Kaua'i's north shore, as requested by plaintiff Jeff Chandler, a Native Hawaiian who claims the burials as his forebears. But she warned that any additional construction on the house proceeds with the understanding that the burial council could decide to relocate the graves now underneath it.

State rules governing burial protection recognize "that Native Hawaiian burials, especially, are vulnerable and often not afforded protection," Watanabe noted in her decision.

Chandler said he was grateful for the decision yesterday, although he'd have preferred that construction stop on the house. "This is just the beginning for us as Native Hawaiians," Chandler said. "The court recognizing our rights is another door opening."

PuaNani Rogers, a Hawaiian activist who has followed the case, said she believes the burial council should be able to stop anything from being built on the graves.

Vince Kanemoto, the deputy attorney general handling the case, said the burial plan proposed by Brescia and already undertaken by Brescia's contractors will be presented to the burial council at its October meeting. Construction to date has encased seven burials underneath the house in "concrete jackets" and maintains a "buffer" distance from them because the house is built on pilings above the ground.

That treatment is culturally unacceptable, Chandler and others testified during proceedings in Watanabe's court in August and earlier this month. "We're pleased with the judge's ruling, without seeing an actual order," Kai Markell, director of Native Rights, Land and Culture for the state Office of Hawaiian Affairs, said yesterday. "We feel you really need to have people thinking about the ultimate disposition of these kupuna and carefully weighing the different options."

Markell said OHA may publicize a list of potential descendants of the iwi in an effort to find other families who might claim the burials and become involved in their care.

Native Hawaiian Legal Corporation attorney Alan Murakami, who represented Chandler, criticized efforts made by Brescia's contracted archaeologist and by the State Historic Preservation Division in trying to locate descendants. "If this is not a shot over the bow of the SHPD, I don't know what is," Murakami said of Watanabe's ruling. "The state needs to step up and truly be a caretaker of these resources."

Calvert Chipchase, an attorney for Brescia, declined to comment on the judge's ruling. McMahon's attorney, Deputy Attorney General Kanemoto, said she had no comment.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080918/NEWS25/809180365
Honolulu Advertiser, Thursday, September 18, 2008

Buyout proposed for lot with burials
Hawaiian nonprofit will raise money to preserve remains on Kauai land

By Diana Leone
Advertiser Kaua'i Bureau

LiHU'E, Kaua'i — Malama Kaua'i is coordinating an effort to raise money to buy a Kaua'i beachfront house lot where 30 Native Hawaiian burials were discovered last year.

The nonprofit sustainability group has received a $75,000 pledge from an anonymous donor and is seeking other pledges of any size to acquire the Wainiha lot, said Keone Kealoha, Malama Kaua'i executive director.

"We believe that purchasing the site is the best way to ensure that the iwi kupuna (Hawaiian ancestral bones) are allowed to peacefully remain in place," Kealoha said in a written statement. "The purchase also would provide the community with coastal open space and help to prevent beach erosion by allowing the natural cycles of ocean and sand movement to occur unhindered by development."

Native Hawaiians and others have said the small lot should be considered a cemetery and not built upon.

Fifth Circuit Court Judge Kathleen Watanabe ruled Monday that the State Historic Preservation Division failed to follow state law in approving a burial treatment plan. Her decision sends the proposed plan back to the Kaua'i-Ni'ihau Island Burial Council for advice in consultation with descendants of the iwi and Native Hawaiian organizations.

"We have a window of opportunity to move forward on this before additional construction and disturbance of the iwi occurs," Kealoha said.

Landowner Joseph Brescia said in a statement released by his attorney on June 24 that he would consider selling the lot if a buyer stepped up. He said he had invested more than $1 million in the land and attempts to build on it and couldn't afford to give it away.

Brescia's attorney didn't respond to a request for comment on Malama Kaua'i's buyout efforts yesterday.

Protesters at the Brescia property twice managed to postpone construction of a house on the property this summer.

Kaua'i Police Chief Darryl Perry also halted construction for two weeks while attorneys investigated whether building a house over the graves constituted a criminal offense.

Brescia, a California developer who has built a number of houses on Kaua'i and sold them, battled in court with state and county authorities for six years about how far back from the shoreline he could build on the Wainiha lot. Burials were discovered on the property in 2007, after the shoreline issue had been settled.

More information about the fundraising drive is available at
www.malamakauai.org
or by contacting Kealoha at
keone@malamakauai.org or 808-828-0685.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080919/OPINION01/809190335/1105/OPINIONFRONT
Honolulu Advertiser, Friday, September 19, 2008
EDITORIAL

Burials discord shows need for legal clarity

Ideally, a court ruling settles a legal battle, but the seething discord over burials protection on Kaua'i is far from over and may require legislation to clarify.

It involves property at Wainiha where a private residence is planned and where 30 Native Hawaiian burials are located. Following a recommendation by the Kaua'i-Ni'ihau Island Burial Council, in a process set up in law, the decision was made to leave the burials in place.

On Sept. 15, Fifth Circuit Court Judge Kathleen Watanabe ruled that the State Historic Preservation Division did not meet its obligation to do further consultation with the council and descendants of those buried on the site over treatment of the burials.

Watanabe ordered that consultation resume over the burial plan, which would involve the council, Native Hawaiian groups and others. That discussion, which will begin when the council next meets in October, is sure to be an explosive one: Many opponents to the project argue that once the burials are left in place, it's unacceptable to allow construction over them.

But the judge stopped short of halting construction. "This court has a very small amount it can do with this case," Watanabe said during a Sept. 4 hearing. "The biggest problem is the law does not go far enough to protect these burials."

At the very least, there's a sharp disagreement over what the legal protection includes.

In the rules governing the "preservation in place" option, possible protection measures include fencing, buffers and site restoration, landscaping and provisions for access to the site by known descendants.

Although some people attending the burial council meeting interpreted the "preservation" finding to mean no construction on the site, that is not spelled out.

There was no apparent way the landowner, Joseph Brescia, who went through all the approval processes, could have known this would be the outcome and no reason he should be penalized for it. There is a fundraising campaign to buy out Brescia's interest in the land and preserve it; this may be the most practical solution for this case.

But it doesn't erase the fact that the parties involved in burials protection are unclear on how to proceed and what to expect. The whole mess is reminiscent of past stumblings in government processes, such as the Superferry environmental dispute, in which government approvals were later countermanded by the courts. Lawmakers granted an exemption to extricate the state from possible lawsuits. But then, as now, the better route is to fix the law rather than to continually waive it.

The state Department of Land and Natural Resources needs to have a meeting of the minds with Native Hawaiian advocacy groups to determine how the law and its administrative rules could be made more explicit.

With the development that's in the pipeline throughout the state, it's essential for those embroiled in these emotional discussions to have the clearest understanding of the legal landscape.

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http://www.kauaiworld.com/articles/2008/09/30/news/news02.txt
The Garden Island (Kaua'i), SEPTEMBER 30, 2008

Purchase of burial site moving ahead

The Kaua‘i Public Land Trust has joined Malama Kaua‘i’s effort to purchase the Hawaiian burial ground at Naue point in Ha‘ena, according to a weekend press release.

The KPLT, which already has acquired four Kaua‘i parcels appraised at $8.3 million and totaling 28 acres, agreed at its Sept. 25 meeting to take on the Naue project, said Keone Kealoha, executive director of Malama Kaua‘i.

“With our two organizations working together, we feel confident that this endeavor will meet with success,” Kealoha said in the release. “KPLT brings a strong track record and high degree of experience to this initiative.”

Donors can take advantage of the tax deduction associated with making donations to either of the two nonprofit organizations.

Malama Kaua‘i launched the acquisition drive on Sept. 15 with a $75,000 pledge from an anonymous donor. The objective is to raise enough funds to purchase a 15,000-square-foot oceanfront lot where 31 burials were discovered during preparations to build a single-family home.

Pledges promised to date total over $85,000 and that total continues to grow daily.

“I’m confident that the people of Hawai‘i will come together to do the right thing,” Kealoha said. “It will take all of us pooling our resources, large and small, for this effort to be successful.”

The land is now owned by Joseph Brescia, who is proceeding with plans to build a house atop the burials. No purchase price has been identified, but Brescia previously stated he has invested more than $1 million in the project. KPLT will meet with Brescia to solidify a purchase price, Kealoha said.

Meanwhile, construction continues and seven burials that will remain directly under the house have been capped in concrete.

However, the future of the project remains in question. In a recent court ruling, Circuit Court Judge Kathleen Watanabe found that the State Historic Preservation Division failed to consult with the Kaua‘i-Ni‘ihau Island Burial Council, descendants of the burials and Hawaiian community groups before approving the final burial treatment plan for the project.

The issue will go back to the Burial Council at its Thursday meeting, which starts at 9 a.m. in the Council Chambers in Lihu‘e. The Burial Council could take a number of actions, such as having the concrete caps removed from the iwi, ordering visitation access to the burials and having the burials under the house removed and reinterred elsewhere.

Kealoha said that Malama Kaua‘i has applied to the SHPD to gain standing as an “appropriate Hawaiian organization” that must be consulted on the new burial treatment plan. He urged other groups, especially those located on Kaua‘i and involved in protecting Hawaiian cultural practices, including burials, to also apply for consulting status.

Written requests for such status must be submitted prior to the Burial Council meeting by e-mailing SHPD Kaua‘i district archaeologist Nancy McMahon at nancy.a.mcmahon@hawaii.gov

Kealoha also encouraged all persons of Hawaiian descent who believe they may be descendants of the burials to apply for access rights. A form can be obtained from McMahon or downloaded at http://hawaii.gov/dlnr/hpd

To download a copy of the land acquisition pledge form and learn more, visit http://www.MalamaKauai.org or call 828-0685.

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http://www.starbulletin.com/news/hawaiinews/20081003_Burial_council_hears_outrage_over_home_site.html
Honolulu Star-Bulletin, October 3, 2008

Burial council hears outrage over home site

By Tom Finnegan

LIHUE » Dozens of Hawaiians and their supporters testified yesterday in tears and with shouts and voices crackling with emotion before the Kauai Niihau Burial Council.

After about five hours of testimony, the council deferred to its Nov. 5 meeting the issue of construction on a Haena property that contains at least 30 ancient Hawaiian burials.

"The state has made a mistake, a big, major mistake," said Jim Medeiros, a Big Island resident. "Once you start building on the graveyards, it will become a (precedent) in the state."

The property has been the source of numerous lawsuits during the past five years, and a judge's decision last month sent the item back to the council.

Joseph Brescia, who bought the land in 2000 from actor Sylvester Stallone, has received permits from the county and state to build the home and has already poured the fittings for the home and a concrete cap for the five burials underneath the home.

But Judge Kathleen Watanabe decided last month that the burial council was not consulted on a revised burial treatment plan adopted by the state Historic Preservation Division.

The burial council had decided to preserve the seven graves in place that were to be under the house plot, but only five were actually under the home.

Members of the council testified at last month's hearing that they believed keeping the bones in place would halt the project, rather than allow Brescia to continue building the house.

"The building should not be there, period," said council member Barbara Say yesterday. "I didn't know they were going to be cemented. ... What is wrong with this man?"

The speakers implored the council yesterday to do everything in its power to stop the building of the home and protect the bones.

"It's been such a personal and dishonorable struggle that we have faced," said Hale Mawae. "The procedures and ... rules are ... fictional." The permits given to Brescia are akin "to permitting desecration," said Hanalei Fergerstrom, a Big Island resident who flew in to attend the council meeting. "It is very important to nip this in the bud now."

Alan Murakami of the Native Hawaiian Legal Corp., who sued the state to get the item back on the agenda, said the council had the power to send the items back to the Kauai Planning Commission with a note that the conditions of the council have not been met.

The planning commission approved the permits with the provision that the burial council approve the treatment plan.

"What you do today will reverberate," Murakami added. "Let the planning commission play a role."

While speakers said the council was misinformed, they reserved their criticism for state archaeologist Nancy McMahon, who testified at the court hearing that she believed the area was not a cemetery, but 30 individual burial sites.

The land is not only a cemetery, many speakers said, but a special place of immense spiritual and cultural importance.

Brescia's attorney, Walton Hong, who watched the meeting, would not comment afterward.

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http://www.kauaiworld.com/articles/2008/10/03/news/news01.txt
The Garden Island News (Kaua'i), October 3, 2008

Public charges Island Burial Council
Protest against home being built over iwi persists

by Michael Levine - The Garden Island

Dozens of concerned citizens yesterday voiced their displeasure with the construction of a single-family home on a Naue Point Hawaiian burial ground, pleading with Kaua‘i-Ni‘ihau Island Burial Council members to do whatever they could to protect the 30-plus confirmed iwi on the property.

In the first regular council meeting since 5th Circuit Judge Kathleen Watanabe’s Sept. 15 decree that the State Historic Preservation Division had erred in not properly consulting the council before approving the initial Burial Treatment Plan, cultural practitioners suggested the council reject an amended version of the plan and use its newfound authority to redefine the “preserve in place” decision it first handed down in April.

Alan Murakami, litigation director for the Native Hawaiian Legal Corporation, successfully represented opponents of the construction in that suit and said yesterday that Watanabe’s ruling gave the council the power to pull the building permit.

“The key fact that you may not have appreciated is that the Kaua‘i Planning Commission gave you that power when it conditioned the issuance of a building permit for Mr. (Joseph) Brescia on him meeting your requirements,” Murakami said in his prepared remarks. “Please directly communicate your intentions regarding Naue to the Planning Commission.”

A representative of the landowner did not read the permit the same way. “I don’t necessarily agree with Mr. Murakami’s interpretation,” said Walton Hong, an attorney who said that he was taking notes to bring back to Brescia but declined to comment further on the testimony.

Burial Council Chair Mark Hubbard, unable to enforce his three-minute per-person limit, was forced to sit in silence as attendees vented their frustrations with the process, occasionally interrupting each other with insults deriding the council and SHPD as desecrators.

“After blowing my stack at you, I realized that you didn’t know your responsibilities,” said Ka‘iulani Edens-Huff, who said she camped out on the beach adjacent to the property for nearly four months after the April decision that effectively allowed construction to commence. “You were brainwashed.”

“If this council cannot preserve the iwi and designate a graveyard ... why does it even exist?” said Keone Kealoha, executive director of Malama Kaua‘i, which is spearheading an effort to raise funds to purchase the property from Brescia as a last resort.

Hale Mawae, who wore traditional island garb and carried a large stick, led a tearful rendition of “Hawai‘i Pono‘i” before taking his seat at the microphone, and later pounded the table as he read from a book about Pele, the fire goddess.

“We’re all to blame for what has happened here,” said Council member John Kruse, referring to the council, the state and other entities. “It’s your right to come and vent to us ... but we should be heard before the Planning Commission.”

Others offered their support for the council, gently encouraging them to “do the right thing.”

“Do not worry about developers and their money,” said Palikapu Dedman, who traveled from the Big Island to voice his opinion and said that he was involved in the creation of the various islands’ burial councils in the mid-1980s. “The Burial Council is here to protect the burials.”

At least one Burial Council member was sympathetic to the pleas.

“We didn’t know they were going to be cemented. ... Encaging them like this does not allow their spirits to flow. ... We don’t do that to our kupuna,” Barbara Say said. “I am not comfortable with all of this. Not at all. ... It shouldn’t be underneath a house. The building should not be there. Period.”

But the council did not make a new ruling on the burials, a recommendation to the Planning Commission or even have a chance to deliberate on the testimony.

Just before 2 p.m., almost five hours after the meeting began, with multiple council members, including Hubbard, having departed during a recess, the matter was deferred to the Burial Council’s next public meeting, scheduled for November.

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http://www.kauaiworld.com/articles/2008/11/07/news/kauai_news/doc49140328c3dcb874069222.txt
The Garden Island (Kaua'i), November 7, 2008

Burial Council rejects Naue plan
Planning Commission’s role in protecting iwi now in question

By Michael Levine

In a 6-0 vote yesterday, the Kaua‘i Ni‘ihau Island Burial Council recommended that the Department of Land and Natural Resources Historic Preservation Division reject the revised burial treatment plan proposed by landowner Joseph Brescia for his planned house at Ha‘ena’s Naue Point, according to a written statement from Native Hawaiian Legal Corporation attorney Alan Murakami.

The plan, amended in light of 5th Circuit Judge Kathleen Watanabe’s Sept. 15 decree that SHPD had erred in not properly consulting the council before approving the initial burial treatment plan, would have allowed Brescia to continue construction of his one-family home on the site of some 30 confirmed graves, or iwi.

Though the council later declined to vote to formally transmit its decision to the Kaua‘i Planning Commission, the decision could possibly lead to a revocation of the building permit.

Conditions for the approval of construction included a requirement that SHPD and the Burial Council be satisfied before a permit could be issued.

“This decision makes it clear that Brescia has failed to comply with the Kaua‘i Planning Commission’s Condition No. 5, giving it a basis to revoke the building permit issued by the county,” Murakami said in an e-mail. “Supporters of the iwi kupuna at Naue can now demand that the KPC act on enforcing its own condition for approval.”

Planning Commission chair Steven Weinstein said yesterday the commission tries to rely on various agencies in their authority, and declined to comment on the specifics of the case.

He explained that in the event of a condition for approval not being met, the commission would generally direct the Planning Department to conduct an investigation. Even a violation would not guarantee revocation, as other mitigation measures can be considered.

The Planning Commission’s next meeting will be held Wednesday morning in the Mo‘ikeha Building. Weinstein said forms required for a member of the public to report a permit violation could be obtained at the Planning Department.

Not in attendance at yesterday’s council meeting was former chair Mark Hubbard. When reached at his home, Hubbard said that he had resigned from the council after the Oct. 3 meeting because “life’s too short to put up with some of the things we put up with at the burial council.”

“I was willing to run the meetings, but it’s not good to have a haole as the chair. You need to have a Hawaiian, a kupuna, to command some respect,” Hubbard said. “People were looking at council with disrespect just because I was the chair.”

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http://www.honoluluadvertiser.com/article/20081107/NEWS0102/811070363/1004/localnewsfront
Honolulu Advertiser, Friday, November 7, 2008

Council rejects burial plan for iwi on North Kauai houselot

By Diana Leone
Advertiser Kaua'i Bureau

LIHU'E, Kaua'i — The Kaua'i-Ni'ihau Island Burial Council yesterday rejected a burial plan proposed for 30 ancient Hawaiian burials on a North Kaua'i beachfront houselot.

The proposed plan was a revision of an earlier plan that Circuit Court Judge Kathleen Watanabe ruled Sept. 15 had been improperly approved by the state Historic Preservation Division.

In moving to reject the October revision, Burial Council member Kunane Aipolani said, "I'm not comfortable with the definition of 'preserve' — we need to define it more clearly."

The proposal sought to "preserve in place" the burials, including seven located underneath the house that is under construction on the 15,667-square-foot lot.

Several members of the Burial Council said they didn't expect a house to be built on top of the burials after they voted in April for the graves to be preserved in place.

The burials under the raised foundation of the house have been covered by with 4-inch-thick, 6-foot-diameter cement slabs that Burial Council Chairman John Kruse yesterday likened to "sewer covers."

Nancy McMahon, deputy state historic preservation officer for the Historic Preservation Division, said she will continue to seek input from Native Hawaiian groups, including the state Office of Hawaiian Affairs and Hui Malama I Na Kupuna O Hawai'i Nei, about the burial plan the Burial Council has now rejected.

McMahon said she has e-mailed copies of the revised burial plan to some groups that indicated interest and met with some individuals.

Judge Watanabe ordered the consultations to occur as part of her finding that they had not been properly conducted before.

Kruse described the fate of the burials and whether the house will be allowed to remain on top of them as "being in limbo right now," pending the completion of those consultations.

"I'm happy. I finally feel like they're listening," said Nani Rogers, who along with fellow Kaua'i resident and native Hawaiian Jeff Chandler has been pushing the burial council to take a stronger stand in defense of the iwi kupuna (human remains) since April.

"I finally feel like they felt our sincerity and compassion and our spiritual and cultural sense of how we protect iwi," Rogers said.

"I don't know what effect the council's action will have," homeowner William Brescia's attorney, Walton Hong, said after the council decision.

Hong said he wasn't sure what kind of construction activity has been going on at Brescia's property since Watanabe's Sept. 15 ruling.

The archeological study of the site says the burials could be 1,000 years old.

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http://www.starbulletin.com/news/20081108_contractor_changed_plan_for_protecting_kauai_bones.html
Honolulu Star-Bulletin, November 8, 2008

Contractor changed plan for protecting Kauai bones
Workers failed to pour separate concrete casings for each grave, a state official says

By Tom Finnegan

HAENA, Kauai » Contractors did not follow an approved plan to protect skeletal remains while building a home on Kauai's north shore in August, a state archaeologist said yesterday.

Nancy McMahon, archaeologist and the former interim director of the state Historic Preservation Division, said contractors were given a written reprimand in September for not following the plan when they poured a concrete slab over seven graves instead of individual concrete jackets to protect them. But McMahon said the bones had not been harmed.

The site of the home, an oceanfront lot on Naue Point, has been the source of protests, vigils, arrests, lawsuits and numerous heated discussions in front of county and state boards and commissions, including the Kauai/Niihau Burial Council on Thursday. The council, which objects to construction of a house on the property, decided to reject the current burial treatment plan.

Contractors for the homeowner, California businessman Joseph Brescia, were supposed to put three-sided concrete jackets over the seven burial chambers underneath the home.

Instead, McMahon said yesterday, contractor Galante Construction of Kapaa was worried that any work along the edges of the graves could damage the bones. Instead, workers poured a concrete cap atop the graves so as not to further disturb them.

Any changes to the plan, however, should have been approved by McMahon. Plus, work should have been halted, probably for two weeks, to give her a chance to review an amended treatment plan, she said.

"It would've been fine if they called me," she added. "If they told me, I might have approved it."

A recent court case sent the burial treatment plan back to the burial council. A Circuit judge ruled in September that McMahon did not adequately get the council's input before coming up with a burial treatment plan.

In April, the council decided to preserve the graves in place, but opinions from councilmembers vary on whether that decision meant to keep the bones underneath the house or reject the plan altogether. Although the council's ideas are taken into consideration, it is the Historic Preservation Division that ultimately has the final say.

McMahon testified in August that the graves had been protected on all three sides, as per the agreement. However, after receiving a request from the county, McMahon found the concrete had been poured only on top. The lack of protection on the sides could potentially cause underground utilities to come into contact with the burial chambers, she added.

McMahon said she is working with native Hawaiian groups and Brescia's contractors informally, via e-mail and small meetings, to discuss an amended burial treatment plan. The plan should be done in a couple of weeks.

Nani Rogers, one of dozens of protesters over the past few months at the site, said the cemetery should be protected and the concrete should be removed. She said she will file paperwork with the Kauai Planning Commission, asking them to rescind Brescia's permits for not following the conditions of the burial plan, which was one of the conditions of the permit.

"We've been deceived. We've been duped. We've been lied to," Rogers said. "We said reject (the plan) from the beginning. This was not a good burial plan."

Calls requesting comment from Brescia's attorney, Walton Hong, or Rogers' attorney, Alan Murakami of the Native Hawaiian Legal Corp., were not returned yesterday.

======================

http://www.westhawaiitoday.com/articles/2008/02/13/local/local02.txt
West Hawaii Today [Kona], Wednesday February 13, 2008

Alii Parkway
Project faces another potential detour

by Bobby Command

Despite 19 previous archaeological investigations in the last 25 years, the county has again agreed to concerns by the Native Hawaiian community about human remains that may have been missed in the Alii Parkway corridor.

Those claims, if found to be substantive, may jeopardize construction of the highway, according to a letter from Clyde Namuo, administrator of the Office of Hawaiian Affairs.

Cultural Surveys Hawaii said it will gather all archaeological resources already collected for the long-anticipated project and then walk the entire length of the 4.5-mile project to locate and reassess each feature of each site in the planned corridor.

All actions, according to Bruce McClure, county director of Public Works, will be reported to the Hawaii Island Burial Council, the Native Hawaiian community and the public.

Hawaii County's actions come less than five months after the Burial Council approved a revised treatment plan for remains discovered in a lava tube near the path of the parkway project. The bones -- likely relocated by nearby landowners after being unearthed by children -- were rediscovered after the area was declared clear of burials by previous archaeological examinations.

To date, the county has spent more than $6 million on planning and design of the proposed Alii Parkway, which is planned to run from just makai of the Keauhou Shopping Village, travel parallel and 1,000 to 2,000 feet makai of the shoreline and then swing mauka where it would emerge at the intersection of Queen Kaahumanu Highway and upper Hualalai Road.

It was the original treatment plan for the Kahaluu remains that the burial council turned down in 2004, causing encumbered federal funding for the first phase of the highway to be lost. Part of the September agreement with the council included a pledge to conduct another sweep of the highway corridor.

The October letter from OHA to the Federal Highways Administration, written only days after the Burial Council accepted the treatment plan, asserts that human remains were missed during the numerous examinations of the 100-foot-wide corridor. OHA also seeks a comprehensive review of all archaeological information related to the proposed highway, calling it a "proactive initial step" toward addressing the concerns about burial sites the organization claims is in the right-of-way.

"At this critical juncture, the need for this road is evident to the people of Kona," said Namuo. "The need, however, does not warrant that the eha (pain) and kaumaha (sadness) being expressed by OHA beneficiaries, the Native Hawaiian people, continue to be addressed in an ineffectual piecemeal fashion."

According to Namuo, concerns "may have a direct impact on the actual road alignment within the right of way. Design and engineering concepts, which will be used during road construction may also be impacted."

McClure told Namuo that a number of proactive measures have already been instituted, including a narrower road design, completion of all data recovery, re-examination of the corridor and communications with all interested parties and the public.

OHA is a signatory of a 1987 memorandum of agreement made between the Federal Highways Administration, the state and county and the Advisory Council on Historic Preservation that requires the proper treatment of all burials within the project right-of-way.

Namuo wrote that the burial council is being asked to make recommendations on a site-by-site basis rather than as a complete project.

"While project maps and plans may relegate Native Hawaiian burials sites to disarticulated points on paper, it is important to note that from a cultural point of view, all of the traditional and cultural sites (including burials) found within the project area have an interconnectivity which contributes to the cultural landscape of the sacred lands between Keauhou and Kahului."

McClure said the data recovery program was formulated with the concurrence of the state and OHA. "The basic premise of the program was to expand and advance the knowledge of human habitation in the area."

Namuo's letter also claims a private landowner has identified human remains in at least two sites located in the Alii Parkway right-of-way.

McClure noted that two sets of remains in the Kahului ahupuaa will be avoided by the narrower highway. In addition, other sites that OHA has concerns about were wiped out when bulldozers cut a fire break to protect homes from a runaway brush fire in the 1980s.

Namuo said OHA maintains there is adequate evidence to suggest a high probability that additional archaeological sites containing iwi kupuna (bones of ancestors) are currently misinterpreted as having a "non-burial" function," Namuo wrote. "These sensitive sites may be directly impacted by any road construction."

McClure said fragments of human bones were found in a habitation site, and they were reported to the state, which labeled them inadvertent, which allows an administrative decision to be made on their disposition.

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http://www.westhawaiitoday.com/articles/2008/02/27/local/local03.txt
West Hawaii Today (Kona), February 27, 2008

Kahaluu area remains to be reinterred

by Bobby Command

Human remains found during the construction of a housing project in Kahaluu almost three decades ago will be returned to a Native Hawaiian organization for reinterment.

None of the remains found at Ka Hale O Kahaluu was moved from the adjacent Alii Parkway corridor, nor were any of the other remains found during work on the housing project moved into the parkway right-of-way, according to a consultant working for Hawaii County.

According to the state's Environmental Notice publication, the remains of four Native Hawaiians, discovered in soil collected from the site for the housing project, have been examined and inventoried by the National Park Service, as directed by the Native American Graves Protection and Repatriation Act.

A detailed assessment of the situation also has been assembled by the school's professional staff in consultation with the Hawaii Island Burial Council, Department of Hawaiian Homelands, Hui Malama I Na Kupuna O Hawaii Nei and the

Office of Hawaiian Affairs.

In August 1980, fragments of human remains were unknowingly removed from a site known as the Kahaluu Habitation Cave and a small adjacent lava tube by the University of Hawaii at Hilo and Paul H. Rosendahl Inc., during excavations for the West Hawaii Housing Foundation's 50-unit housing project.

At the time, other sets of pre-contact remains were also unearthed and reburied at a nearby cemetery. However, it was later discovered that midden deposits from both sites contained the remains of at least four individuals from a time prior to 1778. Midden deposits are collection of materials left over from habitation, including food waste, tools or other objects. No funerary objects were found with the remains.

"This project took place before NAGPRA and any burials were reinterred, but there was a short time before the area was destroyed and so the midden was taken out and stored," said Peter R. Mills, chairman of the anthropology department at UH-Hilo. "This is a typical ongoing issue in the state."

The U.S. Housing and Urban Development-funded project was completed in 1981.

Mills said the midden, which was removed from an area that served as a mixed habitation and burial site, was examined recently and found to have a number of bone fragments in it. The findings were voluntarily disclosed by UH-Hilo.

"I'm all for returning anything that even smacks remotely of human remains," Mills said.

Hui Malama is a cultural advocacy organization that provides traditional interment and reinterment services. The group also provides cultural and legal oversight of laws affecting Native Hawaiian burial sites, skeletal remains and burial goods.

Chester Koga, a consultant from R.M. Towill, which is aiding the county as it prepares to re-examine the 4.5-mile Alii Parkway corridor for more remains, said remains from this site were not relocated into the parkway right-of-way.

In 2003, archaeologists discovered human remains in a cave about 100 feet from Ka Hale O Kahaluu in an area that already had been surveyed. Officials of Kamehameha Investment Corp. said the remains were likely relocated into the cave after being unearthed nearby by children.

The county has proposed to realign the parkway closer to Ka Hale O Kahaluu and build a bridge over the entrance to the cave to avoid the remains. According to the burial treatment plan, the remains will not be disturbed and the parkway will not pass over them.

Representatives of any other Native Hawaiian organization that believes to be culturally affiliated with the human remains have until March 14 to contact Peter R. Mills, University of Hawaii at Hilo, Department of Anthropology, Social Sciences Division, 200 West Kawili St., Hilo, HI 96720-4091, or to call him at 974-7465.

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http://www.westhawaiitoday.com/articles/2008/03/15/opinion/letters_-_your_voice/letters02.txt
West Hawaii Today (Kona), Saturday, March 15, 2008, Letter to editor

Burial sites
A possible solution

My wife and I have lived in Keauhou, on the Big Island, for almost 20 years. We have seen the traffic gradually get worse, year after year.

What's the solution to our traffic problems going to be?

First of all, the Kona Burial Council has to get together and decide what to do (unanimously) with the bones found and yet to be found in "roadways."

Why can't a plot of land be set aside for "bones of contention" and have a "Sacred Hawaiian Cemetery," as our veterans have.

The way it's going now, we'll never see cars on Alii Parkway in our lifetime.

I'd say our problems are not as "severe" as Honolulu's, so why can't find a simple solution and get our traffic moving along faster.

In the article enclosed, Paul Tyksinski, of Kailua, Oahu, has similar views.

He says that in Poland, his homeland, they cannot populate their land "forever" with bones. Families pay to keep a lot for 20 years. At the end of 20 years, if they can't pay or don't need the lot any longer, the bones are removed and buried in a common grave-site.

So, why can't the Hawaiian bones be buried in a "common-grave" in a "common-cemetery?"

Don Shirk
Keauhou-Kona

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http://www.westhawaiitoday.com/articles/2008/09/11/local/local01.txt
West Hawaii Today (Kona), Thursday September 11, 2008

Study clears way for 'Alii Parkway'

by Bobby Command

The construction of the former Alii Parkway can be accomplished without disturbing any more identified human remains, according to the head of Public Works.

Bruce McClure said Wednesday a re-examination of 1995 field work along the corridor of what is now called Ke Ala O Keauhou has found the report to be accurate enough to allow the county to pursue development of the 4.5-mile limited-access road.

"Construction of the highway is not affected," said McClure.

However, a former councilman said the county should not start the project until it is absolutely certain there are no previously identified burials that will stop the construction of the highway. "The highway cannot be segmented," said Curtis Tyler. "If the entire highway cannot be built, or it does not comport to federal standards, we could be stuck with the entire bill."

The four-month investigation, conducted by Cultural Surveys Hawaii Inc., was completed in late August. A report is now being assembled and will be presented next month to state Historic Preservation Division, McClure said. The final findings will also be released to the Burial Council, descendants and the public.

County officials also said acceptance by Historic Preservation will prompt them to re-apply for federal funding of the project. About $35 million in highway funds was pulled from the first phase of the $44 million project in September 2004 when the Hawaii Island Burial Council nixed a plan to relocate unrecorded remains "discovered" a Kahaluu cave.

A redesign of the project, which consists of raising the road over the entrance to the cave holding the Keauhou remains, was determined in 2007 by the Burial Council to be an appropriate treatment of the burial site, contingent upon the additional sweep not coming up with additional undiscovered burial sites.

The additional check of the corridor was promised to the Burial Council by Hawaii County after the group approved the treatment of the Kahaluu burial. McClure said the re-examination was also in response to statements from some members of the public who believed a 1995 report assembled by Paul H. Rosendahl was inadequate, and a closer look would reveal additional sites that would make it impossible to build the highway.

Ke Ala O Keauhou, also known as the Alii Highway, Alii Parkway and Kahului-to-Keauhou Parkway, is planned to intersect the Queen Kaahumanu Highway at upper Hualalai Road, swing south along the coast and eventually emerge at the makai entrance to the Keauhou Shopping Village. From there, Ke Ala O Keauhou would be connected with the Mamalahoa Highway bypass being built by the developers of the Hokulia luxury subdivision. That road would re-join Mamalahoa Highway at Napoopoo Junction.

The Cultural Surveys study -- there have been 20 examinations of the corridor in the last quarter century, costing taxpayers more than $6 million -- consisted of a search on foot to relocate and reassess each site. According to Cultural Surveys, sites not identified as burials were re-checked to make sure they were not misidentified.

Alii Parkway has been discussed since the 1960s as a collector road between Kailua-Kona and Keauhou. Most of Hawaii County's land use decisions along the coastal area between Keauhou and Kailua-Kona have been based on the assumption that the road would be built.

Those assumptions include the approval of numerous developments and both the Lako Street and Laaloa Avenue extensions, which are to serve as major mauka-makai connectors between Alii Drive and Kuakini Highway. The first half of the project would be from Keauhou to the Lako Street extension.

Ironically, the remains that halted the project were placed into the Kahaluu cave by one of the highway's biggest supporters, Keauhou Investment Corp., which is a for-profit arm of Kamehameha Schools.

The remains were discovered by children living in the area, prompting Kamehameha Investment officials to place the bones into the cave and seal it with an iron grating, door and lock.

Another area of concern brought up by the Office of Hawaiian Affairs in a February letter was in the Kahului ahupuaa, where it was believed that numerous remains discovered in an earlier sweep had been left off the Rosendahl study.

But McClure responded to OHA that two sets of remains were avoided when the highway was redesigned in 2004 and others in the area were scattered when bulldozers cut a fire break to protect homes from a runaway brush fire in the 1980s.

Tyler said there is proof that burials still exist in the highway right-of-way. "How do I know these exist?" he said. "I got them out of old studies conducted by the county."

The former councilman from North Kona said piles of rubble that were created during the firefighting efforts still exist. "The idea that these burials were destroyed is not true," he said. "They need to be investigated."

Instead of building Ke Ala O Keauhou, Tyler said the county should concentrate its efforts on mauka-makai connectors.

Cultural Surveys' attention to previously identified sites was also spurred by the OHA letter, which claimed there was a high probability that additional archaeological sites containing remains were misinterpreted as having a "nonburial" function.

------------------

http://www.westhawaiitoday.com/articles/2008/10/25/local/local02.txt
West Hawaii Today (Kona), Saturday, October 25, 2008

'Alii Parkway' plans ready for funding requests

by Bobby Command
West Hawaii Today

Paperwork for "Alii Parkway" should be finished by Election Day and a completed application for federal funding on the desk of a new Public Works director when the new administration takes office on Dec. 1.

Outgoing Public Works Director Bruce McClure said Friday the final touches are being put on design changes to the 4.5-mile limited access road that is a vital segment of the overall transportation system in West Hawaii.

Changes were made in order to avoid areas identified as burials by a previous archaeologist. A four-month reassessment by Cultural Surveys Hawaii in August determined the sites to be related to agricultural use.

McClure said the county, however, will not disturb these areas. "We are avoiding the sites and providing for site preservation to the maximum extent possible," said McClure. County officials also said the reassessment will be made available for public inspection next week, when it is forwarded to the state Historic Preservation Division. Acceptance by that office will complete federal funding requirements for the project.

Whether it is submitted for consideration for the State Transportation Improvements Program, also known as STIP, will be up to the next mayor. "The next mayor will be faced with priorities," said McClure, who said only $1 million of county money has been set aside for the project at this time. "It's going to be up to him whether or not this should be considered for funding."

The county has to date spent more than $6 million planning the roadway proposed for more than four decades, though it has built none of it, and there have been 20 examinations of the corridor in the last quarter century.

The Alii Parkway, also known as Ke Ala O Keauhou, Alii Highway and Kahului-to-Keauhou Parkway, is planned to intersect Queen Kaahumanu Highway at upper Hualalai Road, swing south along the coast and eventually emerge at the makai entrance to Keauhou Shopping Center. From there, Alii Parkway would be connected with the Mamalahoa Highway bypass being built by the developers of the Hokulia luxury subdivision. That road would re-join Mamalahoa Highway at Napoopoo Junction.

About $35 million in highway funds was pulled from the first phase of the $44 million project in September 2004 when the Hawaii Island Burial Council nixed a plan to relocate unrecorded remains "discovered" in a Kahaluu cave. Those remains, though known, were not identified in the county's plans.

McClure said the Cultural Surveys reassessment will also be presented to the Burial Council.

The Cultural Surveys study consisted of a search on foot to relocate and reassess each site. Cultural Surveys did not excavate the sites to confirm if they were burials. The work was limited to an observational interpretation.

Ironically, the remains that halted the project were placed into the sealed Kahaluu cave -- they were discovered by children playing in the area -- by one of the highway's biggest supporters, Kamehameha Investment Corp., a for-profit arm of Kamehameha Schools.

===============

(3) What should be the balance between protecting ancient burials or culturally sensitive areas vs. protecting the lives and property of living human beings during emergencies such as forest fires?

http://www.westhawaiitoday.com/articles/2008/04/11/local/local01.txt
West Hawaii Today, Friday April 11, 2008

Culture and disaster pose enigma: Disturb the dead for the sake of the living?

by Bobby Command

The law is straightforward and to the point:

In the event that human skeletal remains are inadvertently discovered, any activity in the immediate area that could damage the remains or the potential historic site shall cease until the discovery is reported to the state Department of Land and Natural Resources, the remains are examined and, if found to be Native Hawaiian, removed only after consultation with Native Hawaiian organizations and after a mitigation plan is prepared.

But what if a brush fire is raging through the area? Who is responsible for issuing a decision that could disturb the remains of the dead for the sake of the living?

The situation has presented itself a number of times in West Hawaii, most recently April 3 when bulldozers were poised to cut a firebreak in the area between Kuakini Highway and Hualalai Road -- an area rich in cultural remains -- to control a blaze that was making its way toward homes, including an elderly housing project.

Last year, heavy machinery had to be diverted around South Kohala petroglyph fields during large brush fires in Puako which threatened luxury homes. Known burials were also scattered in March 1992 by bulldozers fighting a huge brush fire that threatened homes along Alii Drive and the Alii Kai subdivision.

On April 3, smoke from the fire forced about 70 elderly people from their homes in a retirement community as the brush fire consumed the undeveloped area. Potentially difficult choices were averted when the fire was brought under control by firefighters and water drops by the county helicopter.

Laura Thielen, director of the state Department of Land and Natural Resources, said the state has no set policy to deal with such a situation but said human life is the most important factor when making decisions regarding emergencies.

"We would definitely ask the firefighters for their professional opinion in such a case," Thielen said. "There is a difference between life and property, and differences in terms of property."

Thielen said situations will be handled on a case-by-case basis, but she added a decision would be much easier to make if an uninhabited garden shed was in danger as opposed to 300 homes in a subdivision. "We would rely on the experts in the field," she said. "We would respect their professional opinions."

The owner of an earth-moving business in Kona said he hopes his operators never have to make a decision between saving homes or burials or historic sites. "That's a mean call," said Christian Twigg-Smith, owner of CTS Earthmoving Inc. "Who has the authority to allow something like that? I don't want to touch that, because you know what happens next." Twigg-Smith said he was called to help fight the Kailua-Kona fire but his services were not needed. However, he thought about the sensitivity of the area when he was called. "When I heard it was around the Kuakini wall, I said 'whoa,'" he said. "Somebody told me Civil Defense had a map, but when you're fighting a fire and you're going at 100 percent, you can get carried away."

When heavy equipment is needed to fight a fire, the county has a list of operators who are willing to help. Twigg-Smith said the work is relatively safe -- "As long as you keep the ground clear behind you and don't go too deep, you'll be OK" -- but added he is aware of the sensitivity with remains. "Fighting fires with a bulldozer is a tricky business," he said. "We worry about the Hawaiian stuff, but we also have to worry about things like unexploded ordnance, especially in Waikoloa." But Twigg-Smith compared it to surfing. "You don't take off on any wave," he said. "You look at it and measure it up before you do anything."

Larry Kimura, professor of Hawaiian language and culture at the University of Hawaii at Hilo, said he did not want to make comment on hypothetical situations, and instead posed more questions. "If the lives of people are in jeopardy, then what would you do? If it is possessions, then what are the circumstances?" Kimura said. "You have to weigh the situation, but instead of putting me on the spot, you need to reassess your concern."

Kale Gumapac, of the Kanaka Council, said the situation should not present itself in the first place. He said subdivisions in sensitive areas must be proactive about keeping the brush around them from becoming a threat. "The people who thought it was a good idea to live in these subdivisions should know that after a big rain that the brush is going to grow," he said. "It's not an option to react after a fire starts and then ask the county to call in the bulldozers." Gumapac said there is no situation where historical sites and burials can be destroyed to protect possessions. "Do something before the fire happens," he said. "Don't use a fire as an excuse to bulldoze graves."

But Kona attorney Frank Jung said the county may not have a choice. "In any emergency situation where lives and property are at risk, the county has an obligation to act," Jung said. "It is an emergency obligation." However, Jung also said the owner of vacant property could be obligated to avoid creating an unreasonable risk.

According to the Hawaii County Code, only the owners of unoccupied lots which front public streets are obligated to clear all refuse and uncultivated undergrowth up to a depth of 100 feet -- if there is refuse or uncultivated undergrowth that has created a fire, health or crime hazard. "I think you are safe if you're meeting code requirements," Jung said. "But something like that would ultimately be decided by a judge and jury."

Thielen said a way to avoid such hard choices is to have a comprehensive inventory of cultural sites. She said her current departmental budget included geographic information system equipment and operators as well as compliance officers for Kona, but the money was axed by the state Senate. "We are seeking a GIS inventory so fire and county personnel have access to the information," she said. "But the budget is the key."

==============

http://www.latimes.com/news/nationworld/world/wire/sns-ap-belarus-jewish-bones,1,7036933.story
Los Angeles Times, April 12, 2008

Jewish Remains Dug Up in Belarus

By YURAS KARMANAU
Associated Press Writer

GOMEL, Belarus — Workers rebuilding a sports stadium on the site of an 18th century Jewish cemetery in Belarus say they have no choice but to consign the bones to city dumps.

"It's impossible to pack an entire cemetery into sacks," said worker Mikhail Gubets, adding that he stopped counting the skulls when the number went over 100.

But critics say it's part of a pattern of callous indifference toward Belarus' Jewish heritage that was prevalent when the country was a Soviet republic and hasn't changed.

The stadium in Gomel, Belarus' second largest city and a center of Jewish life until World War II, is one of four that were built on top of Jewish cemeteries around the country.

The Gomel cemetery was destroyed when the stadium was built in 1961, but the remains lay largely undisturbed until this spring when reconstruction began and a bulldozer turned up the first bones.

A Jewish leader in Gomel, Vladimir Gershanok, says he asked the builders to put the bones into sacks for reburial at a cemetery that has a monument to Holocaust victims.

"We know we can't stop the construction but we're trying to minimize the destruction," Gershanok said.

But city authorities have ruled that the construction can go ahead because the bones are more than 50 years old.

Igor Poluyan, the city official responsible for building sports facilities, says he doesn't understand the problem. "If something was scattered there, we'll collect it and take it away," he said.

A history professor, Yevgeny Malikov, sees the cemetery as part of the city's heritage. He has filled three sacks with bones and pulled aside two of the unearthed marble gravestones. Other gravestones are piled near a trash bin or already carried away. Some of the bones have been carried off by stray dogs. "The history of the city is being thrown into the dump together with the human remains," Malikov said.

Jews began settling in Gomel in the 16th century and by the end of the 19th century made up more than half of the population. In 1903, they made history by being the first to resist a pogrom, defending 26 synagogues and prayer houses.

Most of Gomel's 40,000 Jews managed to flee before the Nazis arrived. The 4,000 who remained were shot in November 1941. Only a few thousand Jews now live in the city of 500,000.

Oleg Korzhuyev, 38, who lives on Karl Marx Street at the edge of the site, said the workers aren't happy about digging up human bones, "but if they find a gold tooth then it's a real celebration."

Another city, Grodno, experienced a similar problem while reconstructing a stadium built on a Jewish cemetery. The excavated earth and bones were scattered into a ravine.

Jewish graves also have been disturbed in neighboring Ukraine.

"It's not just a Jewish issue, it's this general Soviet legacy," said Ukraine's chief rabbi. Yakov Blaikh. "They didn't respect people while they were alive and they don't respect them when they are dead."

This month, the Jewish community in the city of Vinnyntsa was able to stop construction of an apartment building on a pre-World War II Jewish cemetery.

Ukrainian authorities apologized, saying they did not realize the construction would affect the cemetery. Belarus, on the other hand, has been "one of the least responsive countries on all Jewish issues," according to Efraim Zuroff, director of the Israeli Simon Wiesenthal Center.

"The government is simply erasing Jewish history from the face of this land," said Yakov Basin, vice president of the Belarusian Jewish Council.

Before the war, about 1 million Jews lived in Belarus and 800,000 of them died in the Holocaust. Today they number 27,000 in the country of 10 million.

Belarus' president, Alexander Lukashenko, has shown little respect for Jewish culture. In a radio broadcast in October that provoked a sharp protest from the Israeli government, he suggested that when Jews were numerous in another town, Bobruisk, they turned it into "a pigsty."

"You know how Jews treat the place where they live. Look at Israel; I was there," he said.

___

Associated Press writers Maria Danilova in Kiev, Ukraine, and Matti Friedman in Jerusalem contributed to this report.

--------------------

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080525/BREAKING01/80525013/-1/BACKISSUES#pluckcomments
Honolulu Advertiser, BREAKING NEWS/UPDATES
Updated at 3:00 p.m., Sunday, May 25, 2008

Ancient human remains unearthed on Guam

Associated Press

HAGATNA, Guam — More than 350 human skeletons dating back as far as some 2,500 years have been discovered on Guam with the removal of a hotel swimming pool.

"This discovery represents one of the oldest, largest and best-preserved prehistoric burial populations ever uncovered in the Western Pacific region," archaeologist David DeFant said.

"The results of this research will make a significant contribution to our understanding of how these early people lived and perhaps where they came from," said DeFant, who is with the archaeological firm Paul H. Rosendahl Inc.

Previous finds in the Marianas island chain dated back no further than 1,000 to 1,500 years, he said this past week.

As old as they are, the skeletons unearthed from beneath the pool at the Guam Hotel Okura in Tumon Bay aren't those of the first humans to inhabit Guam, DeFant said. DNA testing will be attempted in an effort to trace their ancestry, he said.

The swimming pool was removed to renovate the hotel, which is now called the Guam Aurora Resort Villa and Spa.

"It's amazing how they survived underneath the pool," DeFant said.

The 367 sets of human remains were probably not buried so deep, but were covered over the millennia by sand deposits, as well as dirt that eroded from higher ground, he said.

The 18-month excavation of the site also turned up a large number of finely made tools and ornaments.

"These artifacts include nearly complete pottery vessels, necklaces made of hundreds of both small and large shell beads, shell bracelets, shell pendants, woodworking tools made of stone and shell, stone tools used for food preparation, unusually large shell fish hooks, net sinkers made of stone and shell, and large oyster shells of unknown function," DeFant said.

Guam is a U.S. territory located about 3,700 miles southwest of Hawai'i.

--------------

*** Note from website editor Ken Conklin: The above news report about Guam raises numerous questions, such as whether NAGPRA law applies to U.S. territories and whether local law might take priority over federal law. Research uncovered the following news report about Guam from about six weeks previously. Note particularly the Guam law allowing removal and reburial of remains into a memorial located nearby, or a memorial in a museum.

http://www.guampdn.com/apps/pbcs.dll/article?AID=/20080415/NEWS01/804150313/1002
Pacific Daily News (Guam), April 15, 2008

Ancient remains found

By Gaynor Dumat-ol Daleno
Pacific Daily News

A reminder that the Ritidian area once was a village before Magellan's 1521 landing on Guamhas surfaced with the discovery of five sets of ancient human remains starting about a week ago.

The remains were discovered when a contractor dug up part of the parking lot at the Guam National Wildlife Refuge headquarters to replace a septic tank and leaching field, said Chris Bandy, refuge manager. One set of human remains was found last week and four more sets were found in the succeeding days.

Bandy said when the refuge has a project that requires digging, it requires the contractor to hire an archeologist to ensure proper handling of ancient remains that the contractor might come across.

David DeFant, an archeologist with the firm PHRI, said the human remains could be as old as between the Latte Settlement and 1521, when Magellan landed on island.

"It was a village in ancient time as well as during the early historic time," DeFant said, adding it's not uncommon for ancient remains to be found in the area.

The find not only serves as a reminder of an ancient village on Guam, but also of unrealized plans -- started more than a decade ago -- to build a proper memorial for ancient remains as part of a Guam museum. Guam law requires ancient remains to be placed in the planned memorial. Without such memorial in place, the policy has been to leave ancient remains undisturbed or reburied as close as possible to where they were found, DeFant said.

===============

(5) Plans for Lahaina bypass road cause race and class antagonisms on the issue of avoiding burials and cultural sites.

http://www.mauinews.com/page/content.detail/id/503285.html?nav=10
The Maui News, May 2, 2008

Lahaina byplass plan skirts cultural sites
Roadway work uncovers community divide

By CHRIS HAMILTON, Staff Writer

LAHAINA — The state Department of Transportation expects to begin construction on the often-delayed Lahaina bypass in January with a new route that will avoid two archaeological sites, department officials announced Wednesday.

A public meeting on the status of the Lahaina bypass Wednesday also exposed sharp community divisions over the planned expressway apparently based on ethnicity or socioeconomic status.

The $48 million, half-mile phase 1A of the bypass has been stalled since last fall when two archaeological sites were discovered within the path of the highway that would run from Lahainaluna Road to an extension of Keawe Street.

Transportation officials said Hawaii Cultural Surveys completed its investigation of one site, and is nearly finished with the second. So far, no burials have been found to within the 32 acres of terraces and walls, which state officials said they believe were built for hand-cultivated sugar cane perhaps as early as the mid-1800s.

Still, in order to avoid the sites, Ed Sniffen of the Highways Division, said planners are seriously considering a realignment to go around the sensitive sites.

On Wednesday, most Native Hawaiians who spoke out stated their heritage and then their opposition to a plan that they said could further disrupt burials as well as cultural sites — and promote further high-end development in West Maui.

Others in the audience spoke in favor of speeding the bypass construction, often opening with a statement on how many years or decades they’d lived on the isles. And then advocating for construction jobs, public safety and quicker commutes.

Thirty-three people testified of about 200 people crowding the downstairs meeting room at the Lahaina Civic Center where tensions sometimes ran high and civility appeared to be low.

At one point, longtime hotel cultural specialist Lori Ululani Sablas, a member of the governor’s Maui advisory council, asked those in favor of the plan to stand up. About half the people did; and nearly all of them were together on one side of the room.

“It’s all haoles standing up,” one man shouted from the back.

Planning for a Lahaina bypass began more than 30 years ago and has been regularly stalled by disputes over the route and the costs. It is intended to relieve traffic along the Honoapiilani Highway through Lahaina town and the Kaanapali Resort, which is frequently jammed to near standstill from visitors heading to their hotels when workers are usually heading home.

The first phase 1A is aimed at alleviating traffic from Lahainaluna Road by providing a second route to the roadway that is now the only access for three public schools — Lahainaluna High School, Lahaina Intermediate School and Princess Nahienaena Elementary School. Phase 1A would connect to Lahainaluna Road at Ikena Avenue, just below the three schools, and allow traffic to avoid the often-jammed Lahainaluna-Honoapiilani intersection to connect to Keawe Street that intersects at the Lahaina Cannery Mall.

Maui County has committed to building the Keawe Street extension. When completed, the entire corridor will be 10 miles long, running from Launiupoko to Honokowai.

Representatives of Mayor Charmaine Tavares and Rep. Angus McKelvey, a Democrat representing residents of West Maui and north Kihei, said the two supported the new alignment.

Theo Morrison, head of Lahaina Bypass Now, thanked the Transportation Department for all its hard work.

Kirk Kirkpatrick of Kahana arrived wearing a costume construction hat and carrying a shovel. He said he was ready to break ground Wednesday night.

For their part, state officials and contractors said that if all goes as planned, construction on the Phase 1A could begin in January. An environmental assessment should be completed by August.

Sniffen said the state is complying with federal law that requires it to avoid historic sites.

Still, several speakers repeatedly asked state officials to reconsider using the old cane haul road as an alternative route, if they have to build anything at all. This option would utilize existing easements that served the old Pioneer Mill. After a century of use by cane-hauling equipment, it is less likely to unearth more discoveries, proponents said.

Laura Mau, senior planner for consultant Wilson Okamoto Corp., said the cane road was thoroughly examined. But it is too narrow at only 80 feet wide. It’s also bent and twisted, is just a few hundred feet from Honoapiilani Highway and would cut through the Sugar Cane Train rail line.

At least two homes and a section of the railroad line, which follows a historic rail track, would be removed, she said.

There remains the possibility of finding more archaeological sites at the cane road as well, Mau said.

“The iwi of our kupuna is our life,” said Albert Dizon. “I’m sick of the degradation, of all this development.” Toni Kaahanui Dizon said that the bypass and other realignment of Honoapiilani farther southeast won’t stop congestion anyway because the pali will continue to bottleneck traffic.

The issue was also raised as to whether the state even has the right to build on ceded lands in lieu of a recent state Supreme Court decision that bars the government from selling or transferring the properties indefinitely.

“This place is not for sale,” said Maui/Lanai Islands Burial Council member, Keeaumoku Kapu, speaking against the bypass route. Kapu said he has been in conversations with state transportation officials as a family representative of descendants of the Hawaiians who originally populated the Lahaina lands.

Conversely, Ezekiel “Zeke” Kalua, with the West Maui Taxpayers Association, spoke out against the racial overtones that permeated some arguments. He said he was part Filipino, Hawaiian and white. “If I’m going to be accused of being a haole for supporting the bypass, then call me haole,” Kalua said. “The bottom line is, there are 3,000 students on the top of that road with no other way getting them home if there is a flood or fire.”

================

(6) Hawaiian skulls for sale on Hilo-based website

http://www.hawaiireporter.com/story.aspx?ed2093df-78c0-4cc7-b900-8cb9463edfce
Hawaii Reporter, May 12, 2008
Special from Hawaii Free Press

Hilo-Based Website Sells Human Skulls

By Andrew Walden

Human skulls purported to be Hawaiian are apparently being offered for sale at a newly-created website: http://www.HawaiianSkulls.com

Contacted at the telephone number listed on the website a male at first said that the caller had the wrong number. Then he mentioned that a price of $600 each for skulls at was a “good price.”

Saying his name was “Conrad” he declined to give an address or last name but said he lives in Puna. He claimed that “Kaleo” a “gentleman friend in Mountain View” was “into that kind of stuff”.

Asked where Kaleo lives, Conrad said “no address, in the bushes on generator”. Conrad did not give a last name for Kaleo. Conrad claimed that he had not received any calls about the website. A reporter posing as a potential buyer attempted to set up a meet but Conrad was a no-show at two Hilo nightspots May 4.

According to Conrad’s website:

“…we do not condone the use of these skulls for any type of satanic ritual, or candleholder, but what you do with your skull is your business.”

“Our human skulls are priced based on completeness, dentition, and general bone quality. Skulls begin at $400 for toothless specimens and end at around $900 for perfect specimens. The vast majority are males and all are from Hawaii Lava Tubes collected by privately contracted specialists at the Imiloa Astronomy Center.”

Asked about the claim, Peter Giles, Executive Director of Imiloa, tells Hawai`i Free Press: “Its just not true. That’s just preposterous.”

“While there may be controversy surrounding the sale of these Hawaiian skulls and artifacts to the public, no laws prohibit anyone from doing so at this time…. However, this could change at any time, so get your skull or artifact soon.”

Actually it is a violation of state and federal laws to remove human remains from their burial site in Hawaii without the participation of the State Department of Historic Preservation.

The website contains photographs of skulls allegedly offered for sale. Most are described as coming from Big Island locations, predominantly in East Hawaii. A typical entry reads: “Human Skull #96, Male from Hawaiian Acres, Hawaii Mismatched but well fitted mandible. 28 teeth; 18 replaced, 2 plastered in, 4 lost ante-mortem, 1 chipped. $600.00”

But the photos of skulls are identical to skulls found on a Berkeley, CA based bone-selling website,
http://www.BoneRoom.com

At BoneRoom, a photo identical to “Human Skull #96” is instead listed as: “Human Skull #986 Male from China Mismatched but well fitted mandible. 28 teeth; 18 replaced, 2 plastered in, 4 lost ante-mortem, 1 chipped. $600.00.” A call to the Bone Room retail store on Berkeley’s Solano Ave was not immediately returned.

Another page purports to offer Hawaiian burial items—some of which appear to be newly made. The website reads: “Most of these items are a mystery to us. They were all found inside the lava tubes in close proximity to the skeletons. If you like a particular object, please feel free to make us an offer. We have over three hundred unique artifacts in stock at this time with more to come, and will be more than happy to email you a complete catalog.”

A “whois” search of the web address indicates that the site was set up April 30, 2008. The identity of the owner of the site is disguised. The website says: “page last updated April 15. Copyright 2008 Hawaiian Skulls (Hilo, HI).” The website does not come up on a Google search of
www.HawaiianSkulls.com.

A phone number listed as a sales contact on the site is a Hilo based cellular phone with prefix “333”. A reverse directory lookup reveals only that the first name of the cell phone owner is “John”. “Conrad” claimed to have purchased the number with a pre-paid cell phone at Wal-mart.

DLNR and Hawaii County Police are investigating.

http://hawaii.gov/dlnr/hpd/reports/cavesapndx_b.htm

http://www.hawaiianskulls.com

http://www.who.is/whois-com/ip-address/hawaiianskulls.com

==================

(7) Concern that construction for rail transit on O'ahu will cause disturbance to ancient burials; what should be done during the planning process.

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080622/NEWS09/806220357/1001/LOCALNEWSFRONT
Honolulu Advertiser, Sunday, June 22, 2008

Ancient burials likely in transit path
City expects to have to deal with burial sites, archaeological artifacts

By Sean Hao

The city's planned $3.7 billion elevated commuter rail has a high potential of encountering Native Hawaiian burials and other archaeological artifacts once construction enters urban Honolulu.

Traditional Hawaiian burials are generally unmarked graves, and their locations have resulted in setbacks for developers and alarmed some Native Hawaiians and archaeologists. The issue of how to deal with the discovery of iwi, or burial remains, arose at the Kaka'ako Wal-Mart and Ward Villages projects and likely could reoccur if the city proceeds with plans to build a 20-mile rapid transit system linking East Kapolei to Ala Moana.

According to a preliminary study, there's a reasonable potential the transit project will affect burials and precontact archaeology as it traverses Nimitz Highway, Halekauwila Street and Kapi'olani Boulevard. An expansion spur to Waikiki also has high potential to disrupt historical sites.

Other portions of the route along Farrington and Kamehameha highways and an airport spur have a medium potential of encountering such sites, according to an October 2006 draft environmental consequences report prepared for the city by Parsons Brinckerhoff, the New York-based project manager.

More details about the project's potential impact on archaeological resources are expected to be disclosed when the city releases a draft environmental impact statement later this summer. Moses Aiai, an attorney for the Native Hawaiian Legal Corporation, agreed the city could encounter iwi in urban Honolulu. That makes it critical that the city conduct archaeological surveys at each location where digging will occur, he said.

"I would expect some kind of an impact on burial sites or other historic sites in that area," Aiai said. "That's what's so important about doing this sort of analysis up front before you begin digging, because you want to still have the flexibility ... and you're able to look at design alternatives."

IWI INSTANCES

The Native Hawaiian Legal Corporation unsuccessfully sought to temporarily halt construction at both the Wal-Mart and Ward Villages sites after iwi were discovered there. The group, which represents people it says are descendants of those remains, contends that developers and the state don't conduct adequate research into the potential for disturbing iwi prior to construction projects.

About 42 sets of remains were found at the Ke'eaumoku Wal-Mart site after construction began in late 2002. The Wal-Mart now is open, but iwi that were unearthed during construction have not been reburied because of ongoing legal proceedings.

Separately, about 60 sets of remains were discovered at the site of General Growth's Ward Villages development, mauka of Ward Centre. Eleven sets of remains were noted during a 2006 archaeological survey of the site. Work, which was halted for a time, resumed after the O'ahu Island Burial Council voted to allow the developer to move those 11 remains.

When workers went to remove the initial remains, more burials were discovered.

The finished project is to include a Whole Foods Market, a 17-story apartment building, retail shops and a parking garage at the diamondhead end of Auahi Street. The Whole Foods Market, which was to open at the end of this year, was slightly delayed and is now set to open in January. In addition, construction of the 218-unit rental apartment building is on hold following a state decision that 30 remains must be preserved in place. Thirty unearthed remains were recently reinterred in a nearby central burial area.

General Growth is looking at redesign options that will allow the apartment project to proceed, said Jan Yokota, General Growth's vice president of development. Developers need to be prepared for added costs and delays when dealing with archaeological sites in a culturally sensitive way, she added.

"It's often difficult to know in advance" what will be found underground, Yokota said. "It typically happens that it's during the construction process that you encounter the iwi.

"One thing that's important for all developers is to know, as best as they can, (is) to do as much proactive research initially and to continue to work with the families (if iwi are found)," she said.

CONSULTATIONS

Mayor Mufi Hannemann's office didn't respond to questions last week asking what the city will do if it encounters burials or archaeological items during construction of the rail system.

If iwi are found, they may be preserved in place, if there's flexibility in the rail's construction design, according to the city's 2006 environmental consequence report. Any human remains impacted by the rail project would be handled within applicable state and federal laws, the report said.

The report said the city will consult with the O'ahu Island Burial Council and the state Historic Preservation Division about the project's impacts on archaeological resources.

The Historic Preservation Division operates under the Department of Land and Natural Resources. The division said it responds to approximately two to three inadvertent discoveries statewide each week, and is involved in up to 250 burial cases annually. The division is charged with preserving and maintaining cultural sites, including management of burial sites more than 50 years old. The O'ahu Island Burial Council makes recommendations on how to handle inadvertent finds of burials on the island.

Factors that have been considered when deciding whether to preserve human remains in place include whether descendants can be located, the concentration of burials and the timing of the discovery of remains.

The Historic Preservation Division said it is in preliminary discussions with the city and project consultants regarding potential cultural and historic resources along the route.

"As the discussions are preliminary because the route has not been definitely determined, we have not made any determination as to the effect of the corridor on historic or cultural sites," the division wrote in an e-mail to the Advertiser.

According to the city's preliminary research, the Iwilei-to-Waikiki portion of the train route has the greatest potential for impacting archaeological resources because of the area's intensive land use through pre-contact and historical times.

MAKING ADJUSTMENTS

The likelihood of encountering iwi depends on the depths, locations and amount of digging needed to build the elevated commuter rail, said Thomas Dye, president of the Society for Hawaiian Archaeology. Coastal areas with subsurface beach sand are more likely to contain iwi. That's because sand was the preferred location for burials. Remains buried in sand also remain better preserved than remains buried at higher, wetter elevations, Dye said.

"Presumably the (city's) archaeologists have been doing their homework and they know where to find the sand deposits and where burials are likely," Dye said. "Those kinds of things always pose some delays. They're usually not insurmountable though."

Ideally the rail project's footings can be moved to accommodate any historical or archaeological sites that are discovered, Dye said.

Design changes "happen very typically now in Hawai'i, where people will redesign something so that human burials can be avoided," he said. "That's becoming more and more common."

That's what occurred recently after three sets of human remains were discovered at the construction site of First Hawaiian Bank's new Kailua branch. The construction plans were revised following the discovery, said bank spokesman Brandt Farias. Those remains are being left in place and a monument was added to the site, he said.

Farias said he did not know how much the changes may have cost the bank.

"If there was additional cost, we're happy to do it, because it was the right thing to do for the families and the community," he said.

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080630/OPINION01/806300308/1105/OPINIONFRONT
Honolulu Advertiser, Monday, June 30, 2008
EDITORIAL

City needs plan for burials, sites along rail route

The chance of the city's 20-mile transit project being built without disturbances to Hawaiian burials and risks to historic or architectural assets is about zero.

In most cases, ancient burials are unmarked. They are more frequently found in sandy soil near the sea or in caves, but families also were known to bury their loved ones near their dwellings inland.

That's why it's imperative for the city to develop a plan for responding to burial discoveries in a sensitive way that involves the community but sets out the circumstances in which reburial of the remains nearby would be the most rational course.

Fortunately, the city seems to be on this path already, having witnessed multiple cases that have sparked new controversies:

* The unearthing of numerous burials on the Wal-Mart Ke'eaumoku site, a dispute that, years later, still isn't resolved.
* Start-and-stop construction at the site of the Whole Foods market, where many more remains than anticipated were disturbed.
* Most recently, a Kaua'i homeowner who passed the reviews by the island burial council and secured the permits nonetheless was told to halt construction by Kaua'i Police Chief Darryl Perry, who cited burial desecration law. Since the homeowner had followed council direction to leave the burials in place and decided to build above them on post-and-pier supports, this decision is utterly incongruous.

Bottom line: If it's this difficult to build markets and single-family homes without unforeseen obstacles, it's going to be impossible to build the city's largest public-works project without a plan.

Grasping this reality, city transit planners have begun discussions with state historic sites officials and with the O'ahu Island Burial Council. The aim is to develop a memorandum of agreement that would involve stakeholders in laying out protocols for how to proceed with the project.

This is a smart approach. Because the rail project involves federal funds, the bar is set high for the protection of native burials as well as historic sites.

The city, the council and the state Historic Preservation Division should collaborate on alerting government agencies and community groups and individuals who want a voice in the process.

The discussions should begin as soon as possible, and it should include those with concerns about other historic artifacts and buildings.

This will become an increasingly heated issue as construction approaches the central urban core. But simply resorting to crisis management is not an option for a project of this magnitude. These are anticipated conflicts that could, and should, be headed off at the pass.

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On July 1, 2008 the Honolulu Star-Bulletin published a cartoon by Corky. Its original URL is
http://starbulletin.com/2008/07/01/news/corky.html

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http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080711/OPINION02/807110325/1108
Honolulu Advertiser, Friday, July 11, 2008
Letters to the Editor

RAIL ROUTE
IWI WILL BE TREATED WITH GREAT RESPECT, SENSITIVITY

Your June 29 editorial, "City needs plan for burials, sites along rail route," pointed out that the city is taking steps to ensure any iwi or culturally significant artifacts found along the rail route will be addressed respectfully and appropriately.

Although the transit route will primarily utilize existing streets, and there is no disproportionate indication that any burial sites could be disturbed, there's always the possibility that iwi or sites of historic significance will be encountered during construction.

Mayor Mufi Hannemann is sensitive to this possibility, and takes such concerns seriously. Some readers may recall the furor nearly a decade ago as excavation work for a water main in Waikiki uncovered more than 50 iwi. As chairman of the City Council's Cultural Affairs Committee at that time, Mayor Hannemann was dissatisfied with the then-administration's handling of the iwi.

He brought the issue to the forefront before the City Council and the State Historic Preservation Division, sponsored legislation that pressed the administration to comply with state historic preservation laws and called for creation of a new commission on historic preservation.

At the mayor's direction, the city is taking the initiative to develop a memorandum of agreement with the State Historic Preservation Division establishing procedures and protocol so that any iwi discovered will be handled promptly and with respect.

In addition, the potential impact of the transit project on historic sites will be discussed in detail in the draft environmental impact statement.

As a keiki o ka 'aina, the mayor understands and appreciates the cultural and ancestral significance of this matter and will continue to ensure that any iwi discovered will be treated with sensitivity and respect.

David K. Tanoue
Deputy director, city Department of Planning & Permitting

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http://www.khnl.com/Global/story.asp?S=9340378
KHNL TV, November 12, 2008

Protecting ancient Native Hawaiian gravesites from rail

By Mari-Ela David

HONOLULU (KHNL) - State leaders in charge of protecting Native Hawaiian burial grounds, are stepping in to make sure rail doesn't disturb too many ancient gravesites.

On Wednesday, the Oahu Island Burial Council took an archaeological tour of the rail route to address cultural concerns about rail.

"With any construction in Hawaii, everybody knows that iwi are going to come up and so the issue there is how do we deal with those sensitively," said Oahu Burial Council Chair Jace McQuivey.

Council members began their tour in Kapolei, the start of the proposed transit route. As the bus drove along the path of the rail line, archaeologists pointed out possible burial sites rail may threaten.

If construction crews were to disturb any burial sites along the rail route, archaeologists believe they'd likely find 90% of the bones east of Nuuanu Stream.

"Once you go east of Nuuanu Stream into Chinatown, downtown Honolulu greater Kakaako, the concerns for cultural resources or iwi kupuna do increase significantly," said archaeologist David Shideler, Office Director of Cultural Surveys Hawaii.

State archaeologists plan to excavate and look for bones on or near the rail route.

"As time has gone on, the laws have gotten stronger, the Hawaiians have a voice in not only about the burial sites but about their cultural heritage that seems to be eaten up by development today," said archaeologist Nancy McMahon, State Historic Preservation Division Deputy Administrator.

Once burial sites are identified, the Oahu Burial Council plans to work with Honolulu transit leaders to protect grounds Native Hawaiians hold sacred.

Mcquivey admits it's impossible to avoid disturbing all the bones in the path of the rail route, but he says if bones are found on or near the transit corridor, there are three options: move support columns, keep the bones in place without disturbing them, or respectfully relocate them.

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(8) First Hawaiian Bank construction project in Kailua O'ahu was redesigned, in consultation with "cultural descendants", when ancient burials were found on the site.

http://www.honoluluadvertiser.com/apps/pbcs.dll/article?AID=/20080622/NEWS01/806220340/1001/LOCALNEWSFRONT
Honolulu Advertiser, Sunday, June 22, 2008

Iwi discovered at bank site in Kailua
2nd time burial remains found in contruction linked to Whole Foods

Advertiser Staff

KAILUA — The discovery of human remains at a First Hawaiian Bank construction site is the second incident in which a building project with ties to Whole Foods has encountered the issue.

The bank is moving into a parking lot adjacent to its present location at the center of town to make room for a new Whole Foods Market.

Texas-based Whole Foods plans to open four markets in Hawai'i: at Ward Village Shops, in Kailua, at Kahala Mall and on Maui.

At the Ward project, 64 sets of remains were found during construction, causing delays as the developer, General Growth Properties, worked with the state and cultural descendants on a treatment plan for the kupuna iwi.

In a private ceremony a few weeks ago, the last of the iwi was reinterred at a central location on site, said Jan Yokota, General Growth vice president of development.

The sanctity of burials is especially important to Hawaiians who believe that the remains of their kupuna empower their descendants.

DETAILED PROCESS

Whenever bones, or iwi, are unearthed at a construction site, work must stop and state and city agencies must be notified. A process is set in motion to decide the best resolution for the remains, including relocating them to a more appropriate site.

"You often can't anticipate anything like this occurring, so it's just something we acknowledge and we acknowledge that it's part of the process," Yokota said. "It is important for us that we continue to work closely with cultural descendants ... in the most sensitive way to deal with the iwi that has been found."

Whole Foods declined to comment about the remains found in Kailua but offered a statement through its consultant, Carrie Carlin, of Bennet Group Strategic Communications.

"Whole Foods Market is engaged in an ongoing collaborative effort with landowner and developer Kaneohe Ranch, as well as descendants of the ahupua'a, to ensure that all work in the area is undertaken in a culturally appropriate fashion," Carlin wrote in an e-mail.

The bank has leased the land for its new location and is constructing the building, said Kimo Steinwascher, vice president for leasing and development at Kaneohe Ranch.

"Kailua cultural descendants have been involved in all of the decision-making as well as the state Historic Preservation Division and the burial council," Steinwascher said. "It appears to have been resolved to everybody's satisfaction."

NO DELAYS FORESEEN

The discovery has prompted a relocation and redesign of the building, but the process has not delayed the construction or the opening of the bank branch, said Corbett Kalam, executive vice president and O'ahu region manager of First Hawaiian Bank.

A small ancient Hawaiian gravesite was found by the contractor while conducting a survey of the property, Kalam wrote in an e-mail. The area is approximately 350 square feet and located on the perimeter of the proposed branch property.

"In respect of the site and in cooperation and consultation with Kailua's Ahupua'a Cultural Descendants and the state Historic Preservation Division, the bank chose to move and redesign the proposed branch in order to leave the iwi undisturbed," he said. "An appropriate blessing was performed, and a marker will be provided for the site."

Three remains were uncovered during an archaeological inventory survey for the sewer lines, according to the April 9 minutes for the O'ahu Island Burial Council. Council members praised the bank for handling the situation with sensitivity and involving the community.

At a meeting this month, the council accepted the plan to preserve the burial site, said Deborah Ward, spokeswoman for the state Department of Land and Natural Resources, which oversees the state Historic Preservation Division, which in turn manages the burial council.

As part of the construction permit process, some projects are referred to the Historic Preservation Division, Ward said. The division reviews about 200 projects a month and responds to two or three inadvertent discoveries each week, Ward said. It is involved with up to 250 cases annually.

"The decision to move the branch and respect the site was absolutely the right thing to do," said Don Horner, CEO of First Hawaiian Bank.

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http://starbulletin.com/2008/06/24/business/story04.html
Honolulu Star-Bulletin, June 24, 2008

Iwi found at First Hawaiian’s Kailua site

By Nina Wu

First Hawaiian Bank will redesign its proposed new branch in Kailua Town after three native Hawaiian remains were uncovered at the construction site. The bank has a long-term lease with Kaneohe Ranch, and is building it from the ground up behind McKenna's Ford dealership.

Construction began this summer and is still on schedule to be completed the first quarter of 2009. The existing First Hawaiian Bank, meanwhile, will remain open with uninterrupted service until the new one is completed.

Corbett Kalama, executive vice president and Oahu region manager of First Hawaiian Bank, said in a written statement that the contractor found a small, ancient Hawaiian gravesite at the proposed site of the new branch during a property survey. The area measures about 350 square feet, and is on the perimeter of the proposed branch property.

"In respect of the site and in cooperation and consultation with Kailua's Ahupua'a Cultural Descendants and the state Historic Preservation Division, the bank chose to move and redesign the proposed branch in order to leave the iwi undisturbed. An appropriate blessing was performed and a marker will be provided for the site."

Hal Hammatt of Cultural Surveys Hawaii and Alani Apio, cultural consultant for First Hawaiian Bank, presented these findings to the Oahu Island Burial Council, according to April 9 minutes. The council praised the bank for their cultural sensitivity.

A public notice also went out in late April, informing interested parties that these lands were claimed by Queen Hakaleleponi Kalama.

The bank -- after consulting with Kailua descendants -- decided to redesign.

Kalama was out of town yesterday, and unreachable for additional comment.

The remains were discovered in March, and the burial council this month approved First Hawaiian Bank's redesign plans to leave the burials in place, according to Deborah Ward, spokeswoman for the Department of Land and Natural Resources.

Ward said the archaeological inventory survey was conducted just for the bank site, and not for the entire redevelopment site, which would include a brand-new Whole Foods Market.

If history repeats itself, then a concentration of more iwi are bound to be uncovered in the area, which is rich with native Hawaiian history -- and near a heiau that was surrounded by taro fields and a large fishpond.

Texas-based Whole Foods Market has been unlucky in its real estate deals entering the Hawaii market.

At the Ward site, which is where its flagship store was expected to open this year -- what originally was reported as 11 sets of iwi remains eventually grew to a count of 64, resulting in protests and a lawsuit from a cultural descendant seeking to halt construction.

Developer General Growth Properties was ordered by the state to redesign a planned high-rise condo at the six-acre site, which, to date, has not been resurrected. Whole Foods Market, however, was allowed to proceed, and is expected to open at Ward next year.

The iwi at Ward have were reburied last month at a central location at the site during a private ceremony.

When a developer encounters bones determined to be more than 50 years, it must notify the state historic preservation division and await further instruction.

In Kailua, Whole Foods Market plans a 40,000-square-foot store slated to open in 2010 at the site of the old Straub Clinic and existing First Hawaiian Bank. Both plans were announced in July 2007.

Landowner Kaneohe Ranch issued a statement saying it has worked hard to "do the right thing" by consulting with cultural descendants, SHPD and the burial council in this matter. Kaneohe Ranch will develop the store to be leased to Whole Foods Market.

First Hawaiian Bank, meanwhile, is building a state-of-the-art, energy-efficient branch which will be larger than the existing one. It will offer drive-through teller windows, new private banking and investment services, and an expanded staff.

"The decision to move the branch and respect the site was absolutely the right thing to do," said Don Horner, CEO of First Hawaiian Bank.

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http://www.starbulletin.com/business/20081218_contested_case_hearing_on_ward_plan_is_settled.html
Honolulu Star-Bulletin, December 18, 2008

Contested case hearing on Ward plan is settled

By Nina Wu

A petition for a contested case hearing before the state over the potential future handling of iwi in the Ward area has been settled.

The Native Hawaiian Legal Corp., representing cultural descendant Edward Halealoha Ayau, and General Growth Properties, developer of the Ward Neighborhood Master Plan, reached an agreement earlier this month.

The hearing was scheduled yesterday morning before Curtis Tabata, the presiding hearing officer for the case, at the Hawaii Community Development Authority conference room.

No additional parties intervened by a Nov. 26 deadline, and no individuals testified during the scheduled hearing yesterday morning.

Ayau agreed to withdraw his petition for a contested case hearing while Victoria Ward Ltd., an affiliate of General Growth, agreed prepare an archaeological inventory survey plan identifying potential burial sites for the Ward area.

General Growth envisions transforming the 60 acres it owns at Ward over 20-plus years into a mixed-use urban village with reconfigured roads and at least 4,300 residential units.

HCDA's decision on whether or not to approve General Growth's master plan is still scheduled for Jan. 14.

In the settlement agreement, the Legal Corp. acknowledged that although no iwi kupuna, or burial remains, have been discovered during the planning process for the Ward master plan, Victoria Ward is cognizant of the potential impact on historic properties.

Victoria Ward has hired Cultural Surveys Hawaii to identify culturally sensitive areas where iwi kupuna may exist within the 60 acres at Ward -- as well as attempt to identify the location of the ancient shoreline.

The archaeological survey is to be prepared in consultation with potential lineal or cultural descendants of the Ward master plan area, the Office of Hawaiian Affairs, Hui Malama I Na Kupuna O Hawaii Nei, and as well as the Oahu Island Burial Council and state historic preservation division.

It shall also "thoroughly explore and use reasonable efforts to avoid, through design options and alternatives, iwi kupuna" in consultation with all of the above.

It shall include procedures for a supplemental archaeological inventory survey following the demolition of a structure on a specific project site. If there is the likelihood that iwi kupuna are at a site, Victoria Ward needs to do an additional survey prior to getting a development permit.

Victoria Ward has hired consultant Ku'iwalu for ongoing consultations with recognized cultural descendants of the Ward Village Projects as well as potential descendants for the Ward master plan area.

Originally, Ayau had filed a petition for the hearing in October, asking for both an environmental assessment and archaeological inventory survey before HCDA rendered any decision.

The goal, said the Legal Corp., was to avoid another Ward Village Shops controversy, where more than five dozen iwi were found after construction had already started.

At the same time, General Growth, which has unresolved debt issues, has hired Eastdil Secured to market several of its shopping centers in Hawaii, including Ward Centers.

Legal Corp. attorneys Alan Murakami and David Kimo Frankel represented Ayau in the case, while attorney Douglas Ing represented Victoria Ward Ltd.

Both parties agreed to foot their own legal fees.

Continue forward to 2009 at
https://www.angelfire.com/big09a/nagprahawaii2009.html

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Send comments or questions to:
Ken_Conklin@yahoo.com

LINKS

This present webpage covers only the year 2008.

For coverage of events in 2005 (about 250 pages), see:

https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html

For year 2006 (about 150 pages), see:
https://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html

For year 2007, another new webpage was created, following the same general format. See:
https://www.angelfire.com/planet/bigfiles40/nagprahawaii2007.html

Continue forward to 2009 at
https://www.angelfire.com/big09a/nagprahawaii2009.html

GO BACK TO: NAGPRA (Native American Graves Protection and Repatriation Act) as applied to Hawai'i -- Mokapu, Honokahua, Bishop Museum Ka'ai; Providence Museum Spear Rest; Forbes Cave Artifacts; the Hui Malama organization

GO BACK TO OTHER TOPICS ON THIS WEBSITE