Iwi decision expected today

A decision is expected today on a request for a preliminary injunction to halt construction at a Wainiha homesite known to contain at least 30 iwi, or graves.

Fifth Circuit Judge Kathleen Watanabe said yesterday, the hearing’s second full day of testimony, that attorneys could continue to present witnesses, but that a decision would be rendered.

Native Hawaiian Legal Corp., representing Jeff Chandler, who claims ancestral ties to the land, put four witnesses on the stand yesterday, many of whom presented emotional testimony on the importance of iwi to Hawaiian culture as well as the cultural impact of building near or around the graves.

Watanabe has allowed construction to continue at the property, owned by California businessman Joseph Brescia, as the hearing plays out.

Brescia has been trying to build a home on the 18,000-square-foot North Shore lot for the past seven years. His attorneys argue 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.

In April the Kaua‘i/Ni‘ihau Island Burial Council in a split decision determined that the roughly 30 burials should be preserved in place.

The seven-member group, an arm of the state Historic Preservation Division, only has authority over whether the bones are relocated or remain in place; it lacks the power to stop construction on the site.

The subsequent Burial Treatment Plan, approved by state archaeologist Nancy McMahon, called for cement jackets to encase the seven burials expected to be impacted by the house footings, as well as a vertical buffer to prevent the home from sitting directly on top of the sites.

Throughout the preliminary injunction hearing, Native Hawaiian Legal Corp. attorney Alan Murakami has argued that McMahon, at the Historic Preservation Division, did not do her job to protect the burial sites or to notify possible descendants.

“We’re saying the state was responsible for the major conflict because of the minimalist attitude toward Hawaiian burial laws,” Murakami said.

The state, represented by Deputy Attorney General Vince Kanemoto, counters that it followed the rules and is not responsible for the Kaua‘i County Planning Department’s decision to approve building permits before thoroughly vetting the issue of iwi at the site.

Burial Council members Barbara Say and Presley Wann testified yesterday that when they voted to preserve the iwi in their current location, they assumed that construction above and around them would not take place.

“The whole place should be preserved,” Say said, adding that it was a “surprise” to hear later that footings had been poured at the property.

However, both council members said they declined to make recommendations to McMahon or to the Planning Department as to what protection measures should be taken in light of their ruling.

“All we take care of is the iwi; that is all we do,” Say said.

Kai Markell, director of the Office of Hawaiian Affairs’ Native Rights, Land and Culture Division, testified that iwi at the Brescia property constitute a cemetery, and that the surrounding Naue area is culturally significant as a place of healing and a “leaping off point for people who have passed on.”

Holding back tears, Markell said iwi are Hawaiians’ most “cherished possession.” Once a burial site is identified, there’s a great responsibility to care for the kupuna who reside there, he continued.

Markell said he doesn’t think vertical buffers or cement jackets are sufficient protection in this case, though he admitted they were better than no mitigation measures if the construction could not be stopped.

Under cross-examination by Kanemoto, Markell went as far as to say the seven directly impacted iwi might have been better off relocated.

“You don’t know who’s there (in the graves), but you’re allowing someone to look down on them without having any relationship in the Hawaiian sense,” he said.

Chandler, who began his testimony on his connection to the iwi yesterday, and will continue today, said the worst threat to the burials is construction.

“The damage is we lose one significant cultural site for future generations,” he said, quietly crying in between answers.

Brescia’s attorney is expected to present two witnesses today to conclude testimony.

Watanabe has twice declined requests for temporary restraining orders because the foundation for the home in question is already completed and no further disruption to the ground is anticipated.

Should Watanabe deny a preliminary injunction today, Chandler can proceed with his counterclaim against Brescia — but there might not be any timely legal recourse to preventing the home from going up.

“This is the case right here,” Murakami said.