The ancient Hawaiian cemetery at Naue, Wainiha, Hanalei, Kaua`i is revered in oli, mele and mythology for its distinctive role as a sacred leina-a-ke-akua, or jumping off point, for the deceased departing to the next world. See, photo at left of site before construction.  Accordingly, knowledgeable Hawaiians were not surprised that dozens of burials are known to have been interred at the site.

· In 1991, the State Historic Preservation Division warned the Kaua`i Planning Department that it should demand archaeological studies before granting any building approvals because of the high likelihood of burials being present in this historic area.
· But government officials dropped that ball when Brescia asked for approval of his house plans, as required in its 1983 approval of the Special Management Area permit for the subdivision of residential lots on this coastline.

 
        Subsequently, Joseph Brescia purchased the funnel-shaped 18,000 square foot beachfront lot (No. 6) from Sylvester “Rambo” Stallone. Brescia is a California contractor who regularly buys land, builds homes on it, and resells it to buyers for a profit. See, Map at right showing Lot 6.

        All archaeologists familiar with the area, including Brescia’s hired contract archaeologist, Michael Dega, admit and agree that many iwi kupuna are likely buried there. 

 
         Indeed, even before Brescia secured tentative county approval to build a residence on this lot, his archaeologist discovered over two dozen iwi kupuna on this small house lot. The established legal process requires the Kaua`i Ni`ihau Island Burial Council (KNIBC) to determine the scope of the burial site and determine whether or not to preserve it in place.  Following that determination, the SHPD must approve a consistent burial treatment plan (BTP) to guide any use of the site, including the imposition of buffer areas, landscaping, fencing, and access rights.

 
        Instead of following this process, SHPD deputy administrator Nancy McMahon improperly urged the Kaua`i Planning Commission to first approve the house plans for the Brescia residence during the Design Review process, so she could determine where to direct Brescia’s archaeologist to excavate based on the location of footings for the structure.  By then, BRESCIA’s archaeologist had encountered 30 burial remains on the small house lot (depicted in site map at left), refusing to excavate a depths which would likely identify countless more burials.  This premature approval of the house plan distorted the intended process for protecting previously identified iwi kūpuna, because it created the mistaken impression that construction was a forgone conclusion, instead of following the generation of information on how to protect them.  Accordingly, in December 2007, the Kaua`i Planning Commission (KPC) approved of the construction.  However, troubled by the lack of information, the KPC granted approval on the explicit condition that no building permit issue until the requirements of the SHPD and the KNIBC are met.

 
        Four months later, when confronted with the fact that 310 known iwi kupuna had been documented, and the high likelihood that many more were present on the lot, on April 3, 2008, the KNIBC voted to “preserve in place” all burials, known and yet to be discovered. Ignoring the prior KPC condition, the SHPD staff advised the KNIBC that its decision would not stop the construction of Brescia’s house. Nevertheless, some KNIBC members expressed that they did not believe a house should be built on the property at all.

        Despite the unequivocal KNIBC determination to preserve the burial site in place, as authorized under the statutes governing protection of burial sites, the SHPD deputy administrator Nancy McMahon, improperly approved a revised burial treatment plan that allowed a house to be built over a portion of the cemetery, without consulting with the KNIBC and Hawaiian organizations on what protective measures to include in the plan, as the law requires. She and the deputy attorney general advising her apparently labored under a mistaken notion that the council could not affect the KPC decision to proceed with house construction. In effect, she ignored the Planning Commission’s earlier condition of approval, the common sense interpretation of the burial council’s preservation determination, and the effect of imposing burial treatment measures that can limit building activity, like buffers, access rights, and landscaping requirements. Instead, she authorized

· the building of a house directly over 7 known iwi kupuna separated only by an 8-foot “vertical buffer”
· the use of “concrete jackets” over each of those remains to “preserve” them; and
· no provision for future access to the iwi kupuna for descendants.

        In doing so on April 24, 2008, only three weeks after the KNIBC determination, she shocked most of the Hawaiian community members following the proceedings who thought the site was preserved. Most important, she ignored the clear requirement that any such an approval follow consultation with burial council members and “appropriate Hawaiian organizations” which may have an interest in protecting iwi kupuna. Her actions were unprecedented for previously identified burials. She argued that these measures constitute “preservation” consistent with the KNIBC determination. In fact, both she and the Brescia archaeologist Michael Dega, without any consultation with Hawaiian organizations, refuse to call the concentration of iwi kupuna on less than half an acre a “cemetery.” She even refused to acknowledge or respect the cultural significance attached to the site. Dr. Dega even went so far as to testify he cannot ever determine what a Hawaiian cemetery is because he is unaware of any definition for it.

        Based on McMahon’s faulty approval, Brescia immediately began to construct his planned building over the burial site, directly on and around the seven iwi kūpuna under the footprint of the house site, in June 2008. See, photo on left. Hawaiians troubled by this distorted processing began to occupy the site in protest, confused by the SHPD actions to thwart the KNIBC’s determination to preserve the cemetery
in place.

        However, for several weeks, Brescia failed to convince the Kaua`i Police Department that its officers should arrest the protestors because Police Chief Darrell Perez believed Brescia would be desecrating burials in violation of state law. Within days, the State Attorney General reversed his decision, falsely claiming Brescia had acquired all necessary permits and should be allowed to proceed. Brescia then filed a trespass lawsuit against those Hawaiians protesting the construction. He also succeeded in getting several protestors arrested for criminal trespass.

 
        In July 2008, Brescia quietly and prematurely poured concrete to build the foundations for his planned residence, without meeting the requirements of the KNIBC, as his permit required. In reaction to this new activity, Hawaiians from across the state united and began to picket the site, sparking weeks of confrontation. See, photo on right.

   
        In response, in August 2008, Brescia countered by adding more names to its trespass complaint and began serving them a complaint based on the June occupation, in which many of them never participated. After several new defendants failed to answer his complaint timely, he is now poised to ask the court to order default judgments in his favor against these individuals for hundreds of thousands of dollars he claims he spent to beef up security and take precautions against vandalism and theft because of the protestors.

 
       Outraged by this improper reversal of the KNIBC decision, Jeff Chandler, one of the original named defendants, countersued Brescia and simultaneously joined the SHPD for failing to comply with the KNIBC preservation determination. He sought a court order to stop construction immediately. His suit claimed that: (1) both Brescia and the SHPD failed to determine the extent of the burial site, which is a cemetery, over which the KNIBC had jurisdiction to protect and (2) the SHPD failed to follow various important procedures in approving of a plan that effectively reversed the KNIBC determination.

 
        With the help of NHLC attorneys, he moved for a preliminary injunction to stop construction and compliance with the KNIBC determination. Aunty Puanani Rogers joined him in this effort to hold the SHPD and Brescia accountable. Judge Kathleen Watanabe of the 5th Circuit Court on Kaua`i held hearings in August and September 2008 to hear this motion.

 
        On September 15, 2008, the judge ultimately agreed with Chandler and Aunty Nani on a crucial procedural violation, while also refusing to stop construction with the issuance of an injunction. The judge ruled that the State Historic Preservation Division failed to follow the statute and its own rules requiring consultation with the island burial council and “appropriate Hawaiian organizations” before approving the burial treatment plan prepared by Brescia on April 24, 2008, forcing SHPD to perform that consultation and nullifying the prior unauthorized approval.

        In doing so, Judge Watanabe reinvigorated the implementation of a burial sites protection law too often overlooked by state government and developers. That law gives the burial council and appropriate Hawaiian organizations a central and key role in fashioning burial treatment measures to “preserve” iwi kupuna from destruction, damage or alteration. In unilaterally fashioning burial treatment measures with Brescia’s archaeologists, McMahon gave no credence to this crucial procedural step to timely consult with the KNIBC on appropriate preservation measures to implement any of its determinations to preserve burial sites in place.

 
        However, the ruling, following 4 days of hearings on Jeff Chandler’s Motion for Preliminary Injunction, unfortunately did not stop construction of the planned home on the ancient Hawaiian cemetery. Nevertheless, it signaled the court’s willingness to give meaning to the carefully crafted process that is due any burial site threatened with construction and reasserted the prominence of the Hawaiian-dominated burial council in determining what should happen to burials over which it has jurisdiction. She warned:

            33.       While the Court concludes that no injunction should issue against Plaintiff BRESCIA, the Court cautions that, he should not take any action that might foreclose implementing potential options for burial treatment plans that may result from the consultation between the SHPD and the KNIBC.

            .  .  .This preliminary injunction does not enjoin Plaintiff BRESCIA, from continuing with construction of this residence, provided that the construction does not in any way further demolish, alter, or prevent access, for whatever purposes in the event it is so required by SHPD, after proper consultation, to the seven(7) burials that fall within the footprint of the house plans.

 
        Order Granting in Part and Denying in Part Defgendant Jeffery T. Chandler’s Motion for Preliminary Injunction, filed Oct. 2, 2008.

        At the KNIBC’s November 2, 2008 meeting, following Judge Watanabe’s ruling, scores of Hawaiians from across the country and their supporters, all watching the events around this issue, testified in writing and personally to universally condemn what McMahon had done earlier. Instead, they demanded that the cemetery be protected as the KNIBC intended.

· Not one witness urged the support for vertical buffers and concrete jackets, as McMahon had fashioned earlier as “preservation” measures for the iwi kupuna.

· Instead, they urged the common sense application of the preservation determination, calling for a halt to construction. Some called for removal of the foundations that had been so hastily poured following McMahon’s improvident approval of the burial treatment plan.

· NHLC attorney Alan T. Murakami urged the council to reassert its proper role and reject the approval of any measures that did not result in stopping the building of any structure over the cemetery. He also urged the KNIBC to inform the KPC that Brescia had failed to meet the precondition of its approval of his house construction by not meeting the requirements of the KNIBC.

        On November 6, 2008, the KNIBC formally rejected the new version of the Brescia’s revised burial treatment plan, which still called for building a house on the cemetery. However, confused by advice from its own attorney and SHPD staff, it did not send any formal written communication to the KPC to inform it that Brescia has failed to meet the KNIBC’s requirements for preservation of the burial site, as required under the KPC approval of Brescia’s house plans in December 2007.

        On February 4, 2009, the SHPD wrote Dr. Dega, Brescia’s archaeologist to inform him it could not accept the latest revised burial treatment plan, which is still based on building on top of the cemetery. It called for greater detail of proposed long term preservation measures, greater detail of its planned mitigation measures, and a specification of why the measures are considered “appropriate.” While not a rejection of the plan, the SHPD appears to be nervously evaluating this latest (sixth) version of the proposed burial treatment plan, after receiving unanimous comment from Hawaiian organizations urging it to reject the plan.

        At a February 2009 hearing on the arrests of several Hawaiian protestors accused of trespassing on Brescia’s property, the judge threw out all criminal counts. These dismissals were based on the failure of the SHPD to properly process the burial treatment plan, leading to the protests in the first place.

 
       After a day-long hearing held on March 2009, on Kaiulani Edens-Huff’s motion to quash service of the civil complaint upon her, Judge Watanabe rejected her request and continued a series of other motions for a hearing to be held on May 1, 2009 to resolve other issues involving the service of the complaint on various defendants. She then ruled that Edens-Huff was in default for not answering the complaint served upon her and ordered her not to enter the BRESCIA property in the future.

         Since the February letter from the SHPD BRESCIA has submitted 9 more draft burial treatment plans to the SHPD for approval.  The SHPD has not approved any of these drafts, and explicitly rejected the 11th draft. At this writing, the SHPD has still posted the outdated 12th draft plan on its web site. See, front cover at left.  All of these drafts refuse to recognize any option for burial treatment measures that suggest true preservation of the Naue burial site.

 
            Despite the absence of any approved burial treatment plan in over 15 months since Judge Watanabe’s order, BRESCIA began erecting his house in May 2009.  Chander and Rogers filed a motion to enforce the October 2, 2008 order, arguing that BRESCIA was foreclosing options for burial treatment measures that could be imposed in any finally approved burial treatment plan.  The Court rejected that motion, allowing BRESCIA to continue building. 

 
            Chandler and Rogers then filed a petition to declare that BRESCIA was not in compliance with the KPC’s condition requiring compliance with SHPD and KNIBC requirements, and sought revocation or modification of the house plan approval it had granted BRESCIA.  Their NHLC attorneys argued that there could not be compliance with the KPC condition before BRESCIA finished building his house, which is nearing completion.  See, photo on right. 

        Inexplicably, on January 12, 2009, the KPC rejected that petition on a vote of 5-2, without explanation, rendering its condition meaningless. During that hearing, BRESCIA’s attorney conceded that his client was proceeding with construction at his own risk, given the court’s warning not to foreclose burial treatment measures that a subsequently approved burial treatment plan might impose. 

 
        In short, the KPC in essence disavowed any notion of its seriousness in imposing and enforcing its own condition of approving the Brescia house design, without saying why.  If you are concerned about this result, all Naue supporters urge you to write both the Commission and the Garden Isle to express your outrage, to keep this issue alive in the mind of the larger public.  Government officials are responsive to public pressure and being held publicly accountable for their actions.