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NAGPRA Issues in Hawaii, 2009


(c) Copyright 2009, Kenneth R. Conklin, Ph.D. All rights reserved

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:
http://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:
http://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:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html

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

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

For year 2008, another new webpage was created, following the same general format. See:
http://www.angelfire.com/planet/big60/nagprahawaii2008.html

NOW BEGINS 2009


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LIST OF TOPICS FOR 2009: Full coverage of each topic follows the list; the list is in roughly chronological order, created as events unfold during 2009.

(1) When alleged descendants of Hawaiian bones make lots of noise about disturbing the bones during construction, will those alleged descendants then take care of maintaining a burial mound for the bones constructed at great public expense on condition that the descendants will take care of keeping the mound clean? Do the descendants really care about the bones, or not?

(2) On Kaua'i, in an area known as Naue near Ha'ena 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. Things got progressively "hotter" during 2008 as protesters insisted the place is a cemetery and no house should be built. See 2008 item #1 for details. Now the story continues.

(3) Is it proper for ethnic Hawaiians to post signs and discourage non-ethnic-Hawaiians from walking on land that is open to the public but has burials or is otherwise considered "sacred"? Is it proper for non-ethnic Hawaiians to walk on such land? The old case of the Ritz-Carlton Hotel at Honokahua is revived.

(4) 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
http://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 made public objections to newly approved plans. See item # (2) in the webpage for NAGPRA 2008.
On Friday, March 13, 2009 the redesign of the highway again came to public attention in the Kona newspaper, when the 20th survey was completed. On May 24 it was reported there are serious discrepancies between the newest plan and previous plans, raising the likelihood of more delays extending into the distant future.

For item #(4), see also item #(6) concerning a different but related project, the mid-level corridor.

(5) On Sunday April 19, 2009 the Honolulu Advertiser reported that a large number of burials were uncovered on the grounds of Kawaiaha'o Church during construction to build a large activity center to replace the recently demolished Likeke Hall. Many of the burials date from the 1820s. Most were Christian burials in caskets, some of which had been buried stacked on top of each other in the 1820s. Some were Caucasian, some Hawaiian.

(6) Plans for a mid-level corridor connector road, associated with the long-delayed Ali'i Highway project, have run into problems because ancient burials and cultural artifacts have been discovered along the planned route.

(7) NAGPRA-like issues in other nations, reported in American media. (a) France will return to New Zealand more than a dozen tattooed mummified Maori heads held in French museums for more than a century. (b) Sweden's antiquities museum is returning (to Hui Malama) 5 native Hawaiian skulls held by itself plus 17 others held by the medical university, in a ceremonial handoff hosted by Sweden's indigenous Sami tribe. The skulls had been collected by a Swedish scientific expedition in the 1880s. 8 more skulls were then repatriated from Harvard University's anatomical collection as the group went to Boston on its way from Sweden back to Hawaii.

(8) Should every place that has ethnic Hawaiian burials (regardless whether they are remembered or forgotten) be subjected to the same laws and regulations that govern modern cemeteries?

(9) On the mainland, it is normal that old forgotten cemeteries are excavated and the bones are moved elsewhere in order to make way for new development. Inadvertent discovery of such cemeteries temporarily halts development until plans can be made; but then the bones are moved.

(10) The Oahu Island Burial Council has decided not to join other parties — including the National Parks Service and the Advisory Council on Historic Preservation — in signing an agreement on mitigating the rail project's impacts on historical, cultural and archaeological resources.

(11) Kaua'i mayor must choose whether to build a multi-use path along Wailua Beach or farther inland. OHA previously objected to the inland route on accound of "sacred" and cultural places, but now objects to the coastal route for the same reasons and now recommends the inland route. State Department of Historic Preservation recommends the coastal route and cites numerous specific sacred and cultural places that would be impacted by inland route. Interesting dispute over which place is more "sacred" and who should decide and whether religion should dictate public policy.


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(1) When alleged descendants of Hawaiian bones make lots of noise about disturbing the bones during construction, will those alleged descendants then take care of maintaining a burial mound for the bones constructed at great public expense on condition that the descendants will take care of keeping the mound clean? Do the descendants really care about the bones, or not?

http://www.starbulletin.com/news/20090111_Monumental_Task.html
Honolulu Star-Bulletin, Sunday January 11, 2009

Monumental Task
The city says families of those whose remains are in a burial mound ought to tend the site

By June Watanabe

Question: Please tell me who is in charge of taking care of the burial mound, Kahi Hali'a Aloha, on the edge of Kapiolani Park.

I walk by every day, and there are two bags of opala (garbage) inside the mound, one on a bench, one on the ground. They might belong to a homeless person, but they have been there stewing for months.

Whoever is in charge is demonstrating an incredible lack of respect - I guess it must be the City and County of Honolulu?

Answer: The burial monument containing about 200 iwi kupuna (skeletal ancestral remains) sits on city property, fronting the Honolulu Zoo.

But, the families of some of those whose remains were unearthed during various Waikiki construction projects and reburied within the monument are responsible for maintaining it, according to city officials.

Because of recent complaints like yours, the city is reviewing the agreements that set up the maintenance responsibilities.

The area surrounding the burial mound is owned by the zoo.

"We don't maintain anything inside the fence line" of the monument, except when there are problems with such things as irrigation, said Tommy Higashino, assistant zoo director. "Everything within the fence line is maintained by the families (of the deceased). We don't have a key to get in."

The families used to come regularly to tend to the mound, he said, and, in a cooperative effort, "we would haul the rubbish bags placed outside the fence line for them."

But they apparently haven't been coming recently.

Michael Pang, executive director of the Mayor's Office on Culture and the Arts, explained that the previous city administration reached agreements with family members to maintain the monument, which was dedicated in 2002.

Because it was recently brought to the administration's attention that the burial mound was not being maintained "100 percent," Pang said, "we are working with both the zoo and the parks (department) to resolidify these types of agreements again."

Officials are continuing to review the situation to see whether the city needs to put together more policies regarding these types of agreements.

The review had not yet reached the stage of contacting the families involved, Pang said.

According to a Jan. 14, 2002, Star-Bulletin article, 50 sets of skeletal remains, said to be more than 100 years old, were discovered during a Board of Water Supply project along Kalakaua Avenue.

That spurred the families to become involved in the reburial.

Working with the descendants, the city provided $250,000 to create the burial monument, which also holds 150 skeletal remains unearthed during earlier Waikiki projects.

Currently, the remains fill only the west-facing side of the eight-sided memorial, called Kahi Hali'a Aloha, or "the place of cherished memories," by the families.

The plan was to leave room for more remains that could be unearthed in future projects.

At the time of the blessing, A. Van Horn Diamond, speaking on behalf of the families, said, "This is the affirmation of what happens when families assume their responsibility and the community provides support for it to take place."

Our calls to Diamond were not returned, and we were not able to contact any other representative of the families.

Write to "Kokua Line" at Honolulu Star-Bulletin, 7 Waterfront Plaza, Suite 210, 500 Ala Moana Blvd., Honolulu 96813; call 529-4773; fax 529-4750; or e-mail
kokualine@starbulletin.com.


** Note by website editor Ken Conklin: A somewhat similar situation exists regarding the bones of ethnic Hawaiian cultural/military hero Robert Wilcox. There's a bronze statue of Wilcox in Fort Street Mall in Honolulu. Yet the Wilcox grave in a small Catholic cemetery on King Street, across from Straub Hospital, is run-down and nearly forgotten and abandoned, despite the ironic sentence carved into a small piece of marble there: "Gone but not forgotten." For photos, scroll down to the bottom of this webpage about Robert Wilcox:
http://www.angelfire.com/planet/bigfiles40/wilcoxandrade.html


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(2) On Kaua'i, in an area known as Naue near Ha'ena 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. Things got progressively "hotter" during 2008 as protesters insisted the place is a cemetery and no house should be built. See item #1 in 2008 for details. Now the story continues.

http://www.starbulletin.com/news/20090116_Charges_dropped_against_burial-site_protesters.html
Honolulu Star-Bulletin, January 16, 2009

Charges dropped against burial-site protesters

By Tom Finnegan

LIHUE » Trespassing charges were dismissed yesterday against five of the eight people who chained themselves together in August to protest the building of a home on top of an ancient Hawaiian graveyard.

After lengthy discussions, prosecutors and defense attorneys agreed that the six men had no choice but to block construction "due to the failure of the administrative process," according to court papers.

The five men - Palikapu Dedman, Andre Perez, James Huiff, Andrew Cabebe and Hanalei Fergerstrom - were part of a group that blocked construction of a North Shore home in August after trying to get the homeowner to stop building the home atop at least 30 graves.

But another Kauai judge decided in September that the state Historic Preservation Division did not follow its procedures when granting homeowner Joseph Brescia his burial treatment plan in 2007.

Because the administrative process failed and the men were acting to "prevent an imminent harm to the iwi kupuna at the property," the protesters "acted reasonably to prevent further harm by peacefully placing themselves between construction and" the bones, according to a stipulation of facts agreed upon by defense attorneys and prosecutors.

District Judge Trudy Senda warned, however, that this case was not precedent-setting because it was only confined to their actions on that August day.

However, after the dismissal, the protesters said they will do it again if Brescia continues building.

"Everyone knows building a house on 40 burials is just wrong," Perez said. "Anyone with a sense of humanity can understand our actions."

A new burial treatment plan has yet to be completed for the home since one was rejected in November by the Kauai Burial Council.

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

http://www.kauaiworld.com/articles/2009/05/07/news/kauai_news/doc4a028f5a4a482934215515.txt
The Garden Island (Kaua'i), May 7, 2009

Kauaians could be liable for $362K in damages
Ha'ena landowner sues residents guarding burials

By Paul C. Curtis

* Photo caption
Ka'iulani Edens-Huff looks over Hawaiian burials found on the home site of landowner Joseph Brescia in this 2008 file photo. She and others looked after the site for several months from a camp in Ha'ena, allegedly causing construction delays in the process and other 'damages' for which Brescia now wants to be compensated. Dennis Fujimoto/ The Garden Island

LIHU'E — After motions were heard Friday in the trespassing, conspiracy and slander of title case involving a Ha'ena property that includes dozens of Native Hawaiian remains, the case has been scheduled for trial in October 2010.

Some of the defendants in the case may be on the hook for upwards of $350,000 in damages due to construction delays the trespassing caused, said attorneys on both sides of the heated dispute.

The case, Joseph Brescia vs. Ka'iulani Edens-Huff et al (and others), involves Brescia's North Shore coastal property, where Hawaiian remains, or iwi, were discovered.

Although Brescia redesigned plans for the home in order to avoid the remains, protesters have camped near his property and, in at least one case, have been arrested for trespassing on the property where he has been trying to build a home for seven years.

Among the motions granted last week by 5th Circuit Judge Kathleen Watanabe were Brescia's ones to name certain Kauaians in the trespassing suit by default, and to order them not to trespass or obstruct construction.

The motions also affirmed that many of those named in the case, including Edens-Huff, have no title to Brescia's property, as they had argued. Motions to set aside the charges by attorneys for Edens-Huff, Hale Mawae, Dane Gonsalves and Andrew Cabebe were denied, meaning they could be found liable at trial for some or all of the damages resulting in their roles in hindering construction at the site, said Camille Kalama of the Native Hawaiian Legal Corporation, representing another defendant, Jeff Chandler.

Edens-Huff and many of the other named defendants can't challenge any of the accusations made against them at next year's trial, and will be allowed only to contest the amount of damages owed, as a result of Watanabe's Friday rulings on the various motions, Kalama said.

Defendants including Chandler and Puanani Rogers have filed third-party claims against various state agencies, claiming the state entities failed to follow historic burial procedures, Kalama continued.

Watanabe also granted a motion by Brescia's attorneys to make defendants pay around $1,600 as the cost of Brescia's attorneys' transportation fees to come to Kaua'i from O'ahu for one scheduled court appearance, Kalama said.

"The case is not over as far as money damages," said Philip Leas, an O'ahu-based attorney for Brescia. "The damages flow from interrupting construction," said Leas, who added that construction has already begun, and the property is not currently on the market as for sale.

Efforts to reach Edens-Huff and Daniel Hempey, her attorney, were unsuccessful by press time.

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http://www.kauaiworld.com/articles/2009/05/16/news/kauai_news/doc4a0e7128a4fa8748019447.txt
The Garden Island (Kaua'i), Saturday May 16, 2009

Naue burial fight continues

By Lιo Azambuja – Special to The Garden Island

HA'ENA — With construction of a controversial home above dozens of ancient Hawaiian burials picking up steam on the North Shore, bickering between the landowner, a state agency and angry cultural practitioners has heated up in recent weeks.

"Where can you dig a burial and move it?" asks Robert Pa, almost in disbelief. "Where else but in Hawai'i can you do that?" Pa and several other Hawaiians have been involved in a long-standing fight to stop construction of a house that will sit atop a burial site with at least 44 remains of ancient Hawaiians, known as iwi. "How could you do that?" he asks, his eyes red with astonishment.

Joseph Brescia, the owner of the property located in Naue on Kaua'i's North Shore, has been planning a single-family residence since 2001. He is currently suing some Kauaians for trespassing, conspiracy and slander. The case is scheduled to go on trial in October 2010, and some of the defendants could face fines exceeding $350,000 for causing construction delays.

Pa and other Hawaiians set up camp on the beach by Brescia's property, where they have been watching construction gain momentum. "They're bringing people and driving heavy trucks across the bridge," said Pa, adding that construction has never stopped. "They've been working in between." "What is it going to take for them to leave these burial sites alone?" Pa accused the State Historic Preservation Division of not doing anything to protect the burials. "The Burial Council is there to remove burials," Pa said. "They are separating us from the iwi." "Where is the law?" Pa questioned several times throughout an interview in his Hanalei home this week.

However, SHPD Archaeology and Preservation Manager Nancy McMahon said no such law prohibiting construction over burial sites exists. In fact, McMahon said the practice existed before Captain Cook ever set foot in Hawai'i. "The Hawaiians did it all the time," said McMahon, explaining that Hawaiians used to bury their family members and then build their homes over the burials. McMahon said it is common practice in today's Hawai'i to build over cultural and burial sites. "We do that with (cultural) deposits all time." "We did that in Kapa'a," she said. "There's a huge cultural deposit, and you drive on top of it all the time." McMahon said the area goes all the way through Kapa'a, and has burials in it, also.

According to McMahon, there's a distinct difference between a cemetery and a burial ground. A cemetery is a western term, "very modern, very clear," easily distinguished, with holes and headstones. "They're saying a concentration of burials is a cemetery," McMahon said. "In Hawaiian terms it was called a burial ground." She said a cemetery would fall under the Department of Health jurisdiction. "Anything outside the cemeteries is ours."

Despite the distinction, not even cemeteries are immune to development. McMahon said O'ahu's Kawaiaha'o Church has asked to close its adjacent cemetery so they can build on it. "So they're going to close and disinter."

Pa still remembers when a burial ground was found in a lot close to Brescia's property. "They dug out the bones, mixed them all up, heads and bones and bodies, all inside one trunk," he said. "All together inside a trunk," repeated Pa, shaking his head. "They wrapped chains around it and put a dead ti leaf on top, left it there for two weeks."

Brescia's attorney, Calvert Chipchase, said his client has all the necessary permits, and despite still waiting for the approval of a burial treatment plan, construction is unimpeded.

The controversial issue has sparked many disagreements.

McMahon said Brescia did not have permission from the Kaua'i-Ni'ihau Island Burial Council to cap the burials, explaining that construction workers have placed large circular cement slabs over the burials, a few feet below the surface, and then covered them with dirt. "He wasn't supposed to do that, they never got that approval," McMahon said. "They did that on their own, without consulting the burial treatment plan."

"We'll let her lie," Chipchase fired back, explaining that the plan under review by the SHPD says that the burials must be preserved in place. "Capping is one part of that." Chipchase said the only caps that were placed are within the house's blueprint. The house will sit on stills above the ground. "Nothing actually rests on the burials themselves."

McMahon's reasoning for the caps was that they would protect the burials from being driven over by workers, which would not make much sense if the only caps placed are within the house's blueprint. The archaeologist said despite the house's deep footings not hitting any burials, they probably have burials underneath them.

Meanwhile, construction goes on without an approved burial treatment plan.

"How come they continue to build when they had an order to present a burial council treatment plan for the lot?" asked Pa. Pa, who is part Hawaiian, and prefers to be called a Polynesian, said it's his duty to protect the iwi. According to him, the burial council has saved "not even one handful" of graves, while more than 3,000 have been taken out.

McMahon rebutted that. "He doesn't work in this office, so he wouldn't know that." But she also added that after 20 years working for the state, there were so many cases that she is unable to come up with a statewide percentage.

Local culture says the first Hawaiian, a stillborn, was reborn on the land as a taro, and taken care of by his younger brother. This relationship would ensure the continuation of the Hawaiian people. "We all have ties to the land," Pa said. "We are all related together." Today, the very land where they return to is a place of unrest. Pa and others are taking a stance to change that. He still hopes that Brescia leaves the burials and walks away from it. He suggested that the house is taken down and a monument is built on top of the cement already poured.

"Every time I hear a pin, it's like someone is poking my back, it hurts," Pa said. "That pin is going through bodies." Throughout the neighborhood at Naue, those pins are still being heard.

• Lιo Azambuja, freelancer, can be reached via news editor Nathan Eagle at 245-3681 (ext. 227) or via e-mail at neagle@kauaipubco.com

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http://www.kauaiworld.com/articles/2009/06/05/news/kauai_news/doc4a28c9b31e77e521631005.txt
The Garden Island (Kaua'i), Friday June 5, 2009

Emotions unleashed
Burial Council defers action on Brescia's proposed plan

By Paul Curtis

LIHU'E — Members of the Kaua'i-Ni'ihau Islands Burial Council on Thursday unanimously voted to defer action on a controversial burial treatment plan for Joseph Brescia's Ha'ena property.

This was after deadlocking 3-3 on a motion to reject the 11th version of the plan.

The council heard several hours of emotional testimony on why they should reject the most recent burial treatment plan, the only item on its agenda at its meeting at the Queen Lili'uokalani Children's Center.

Cal Chipchase, Brescia's attorney, declined to comment on the deferral.

Brescia has an under-construction home near the YMCA Camp Naue area in Ha'ena, the subject parcel of the burial treatment plan.

On the motion to reject the plan, Council members Keith Yap, Barbara Say and Dee Crowell voted for it. New Chair Clisson Kunane Aipoalani and members Michael Loo and John Kruse voted against. Members Leiana Robinson, Sandra Quinsaat and Presley Wann were excused and absent.

Aipoalani said he voted against the rejection because the most recent plan, and other information about the plan, came to light just last week, so there was not enough time for members of the public to form opinions about the plan.

Further, he said he wants all nine board members to be present when a decision is made, and to allow more time for the public to submit comments on the revised plan.

The public has until June 15 to make comments on the plan, either in writing or via e-mail. The e-mail address for comments is dlnr@hawaii.gov, and the regular mailing address is State Historic Preservation Division, 601 Kamokila Blvd., Suite 555, Kapolei, HI 96707.

The 11th draft of the plan is available at the state Department of Land and Natural Resources State Historic Preservation Division Web site at
www.hawaii.gov/dlnr/hpd.

Aipoalani, who has been involved with the burial treatment plan for the Brescia property since 2007, said the council earlier decided to preserve in place the Native Hawaiian remains (iwi) found on the property.

Say said she is concerned about the iwi, not the house under construction on the property.

Several members of the public expressed concern that burial council meeting minutes are not posted on the DLNR Web site. Around 30 people were in attendance at the meeting.

"This is an unusual case. There's a lot of interest in this case," said Randy Ishikawa, state deputy attorney general.

There have been numerous re-designs of the Brescia house, due to shoreline-setback issues and other concerns, and every time the house is re-designed, a new survey of confirmed or suspected burial sites had to be done, said Nancy McMahon, state archaeologist.

Louise Sausen, of the North Shore, said she saw workers on the property removing stakes marking remains sites while removing weeds, and asked them, "How are you going to know where my kupunas are? It is sickening. It is hurtful."

Wilma Holi, speaking for Edward Halealoha Ayau of Hui Malama I Na Kupuna 'O Hawai'i Nei, said the most recent burial treatment plan is "so inappropriate as to border on offensive," and violates Native Hawaiian values of malama, aloha and pono. It is inappropriate to allow buildings and a driveway over in-place graves, she said, a sentiment echoed by nearly every other speaker to follow her. Apparently, the property owner, builder and consultants have no problem with the heavy burden (kaumaha) this is placing on the Native Hawaiian community, she said. "Having a house over iwi is culturally inappropriate." Whenever a decision is made whether or not to build over a burial site, the decision should be made by the 'ohana of those buried, not by a non-relative, she said. The landowner is not showing proper stewardship of his land, she said. "Simply put, it lacks aloha. Proper treatment does not mean building over iwi." Reading from a letter written by Ayau, Holi concluded by saying he hopes and prays that a resolution is reached so that the iwi, families of the iwi, and those who will own and occupy the house will find peace.

Kruse called the current state of affairs regarding the Brescia property "irresponsible stupidity" on many parts, including the council. "We are all responsible for the mess we're in. "We have a hard position. We have a hard time doing this," said Kruse, adding that, sometimes, western law and Native Hawaiian traditions don't mesh. There are no winners and no losers.

"Bones is what we take care of," said James Alalem of Wailua.

Nani Rogers, reading a letter from Ku Kahakalau, voiced "strong opposition" to approval of the burial treatment plan, saying preservation in place is "desecration in place" and "absolutely unacceptable." The space above and below the iwi belongs to the iwi, not the landowner, she said. "Preserve in place means no disturbance" for 20 feet in all directions around each identified burial site, she said.

"You don't build on our iwi kupuna, period," said James Huff in a letter read by Louie Cabebe. You can't build on any cemetery, so why can you build on a Hawaiian cemetery? Huff asked in his letter. "Listen to the people," he said. Testifying for himself, Cabebe asked how a landowner could subject his family and friends to something so many people are against.

"We're going to find iwis all along the coastline," said Noelani Josselin. "We're looking for harmony." When someone like Brescia can push people around, "it's going to keep happening," Josselin said. "We're just trying to take care of what's left, what's there, the iwi," said Say, saying the situation is the county Planning Department's fault for issuing permits.

There are many problems with the burial treatment plan on a number of levels, said Dana Naone Hall of Maui, who was given additional time to speak by other registered speakers who wanted to give her their three minutes. There are problems with recorded depths of the locations of the remains, failure to follow state rules to stop construction and hand-excavate when remains are found, and more, she said. "The burials have their own inherent sovereignty. It's the burials first," she said. "They belong there," and the council has an obligation to protect the burials first. "We're not proposing to take the property away," just move structures away from the bones, she said. "They reside there. They belong there."

The council has an obligation to take care of the iwi, and the council's recommendation is important, said Camille Kalama of the Native Hawaiian Legal Corporation.

Mahealani Silva said a complete chronological documentation of the property should be compiled before the council even considers the latest version of the burial treatment plan. She said the county Planning Commission's approval of permits necessary to build on Brescia's property contains a condition agreed to by Brescia that he wouldn't seek a building permit until a burial treatment plan is approved.

"Why is there 11 revised burial treatment (plans)?" asked Sausen, who said she has been fighting against the Ha'ena subdivision development for 13 years. "This is not his (Brescia's) first" development. All are in this predicament "because government failed us," she said.

"It is not culturally appropriate in any way," Rogers said of the burial treatment plan. "You gotta move the driveway. You gotta uncover that iwi," she said.

"You guys are here today to help the people," said Robert Pa. "The house shouldn't be permitted above the burial sites."

There were also concerns about a planned septic tank and leech field on the property, which an archaeological consultant for Brescia said has been surveyed and trenched without any discovery of further remains.

Deborah Ward, DLNR spokesperson, said she has gotten several e-mails from Native Hawaiian scholars across the country, also objecting to the current burial treatment plan and offering suggestions for changes.

Another meeting of the burial council on the Brescia burial treatment plan will likely be scheduled for Kaua'i next month, Yap said.

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http://www.honoluluadvertiser.com/article/20090701/BREAKING01/307010003/ACLU+takes+case+of+filmmaker+subpoenaed+in+suit+over+Kauai+iwi++building+of+home
Honolulu Advertiser, Tuesday June 30, 2009
BREAKING NEWS/UPDATES Posted at 11:29 p.m.

ACLU takes case of filmmaker subpoenaed in suit over Kauai iwi, building of home

The American Civil Liberties Union said yesterday it is taking the case of an independent filmmaker working on a documentary about Native Hawaiian burial practices who has been subpoenaed by lawyers for a man who wants to build a house on land in Kauai where a burial site was found.

The ACLU and Honolulu lawyer James Bickerton are invoking Hawaii's "media shield law" in contesting the subpoena on behalf of Keoni Kealoha Alvarez.

Nearly all of Alvarez's unpublished interviews and raw video footage — obtained during interviews with kupuna, college professors, Kamehameha Schools trustees, Office of Hawaiian Affairs officials, experts from Bishop Museum and other community leaders — have been subpoenaed by lawyers for Joseph A. Brescia.

Brescia, a California developer, discovered 30 graves on his property on Naue Point on Kauai and has been involved in an eight-year legal battle over construction of a home on the site.

He is pursuing a civil suit against individuals he claims have delayed that construction.

In a statement, Alvarez said that because Hawaiian burial practices are considered kapu by some, he promised confidentiality to everyone he interviewed "and that the film and the interviews will not be released publicly until everyone in it has had a chance to review, comment or object. Material that doesn't make it into the final ... film is intended to remain confidential."

Bickerton said Hawaii's media shield law restricts lawyers from using subpoenas to compel protected information from journalists.

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http://www.starbulletin.com/news/hawaiinews/20090701_Big_Isle_filmmaker_resists_demand_to_turn_over_video.html
Honolulu Star-Bulletin, July 1, 2009

Big Isle filmmaker resists demand to turn over video
Keoni Alvarez invokes the state's media-shield law and gets some help from the ACLU

By Star-Bulletin Staff and News Services

A documentary filmmaker from the Big Island is the first person to invoke Hawaii's media-shield law, which took effect last year.

The law protects journalists from being forced to reveal news sources and unpublished material and information.

The filmmaker is Keoni Kealoha Alvarez.

In Kauai Circuit Court, California businessman Joseph Brescia is suing 17 people he claims trespassed and protested on his property on Kauai's North Shore, delaying the construction of his home at Naue Point. His lawyer, Philip Leas, said the delays cost Brescia hundreds of thousand of dollars.

Brescia issued subpoenas for video Alvarez recorded of the protests. Leas says he knows the video exists because Alvarez provided some to one of the defendants to use in her defense. "That's selective use," Leas said, "We should be allowed to use all of it."

The American Civil Liberties Union and attorney James Bickerton are representing Alvarez. Bickerton said Alvarez recorded the video for an upcoming documentary and offered to give Brescia the same video he provided the defendant. But he will not turn over the rest. He said Brescia wants all video depicting the property, the protests on the property, Brescia's agents, the lawsuit and burials on the property. "Brescia has no right to these materials," Bickerton said.

Alvarez said the documentary deals with Hawaiian belief systems, burial practices and issues that many people consider kapu. He said if he's forced to turn over the video, he will never be able to do a similar project again.

Leas said if Alvarez doesn't want to turn over the video, he has to establish that he qualifies for protection under the shield law. "We're not aware that he's a journalist," he said.

Bickerton said Alvarez qualifies because he regularly participates in the publishing of news. Alvarez is president of Hawaiian Island Productions and has produced at least one other documentary.

Brescia has been in and out of court and has gone back and forth between state and county agencies for approval to construct his home since his contractor found at least 30 Hawaiian burials on the property.

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http://www.honoluluadvertiser.com/article/20090709/NEWS0102/907090337/Plan+to+build+Kauai+home+over+native+burials+raises+legal+issues
Honolulu Advertiser, July 9, 2009

Plan to build Kauai home over native burials raises legal issues

By Diana Leone
Advertiser Kaua'i Bureau

LIHU'E, Kaua'i — A Kaua'i landowner's decision to proceed with building a house on top of ancient Native Hawaiian burials calls into question the authority of the state to assure appropriate handling of such burials.

Not since the Honokahua cemetery was unearthed on Maui in 1987 has there been such concern about the legal protection of iwi kupuna, or ancestral bones, Native Hawaiian rights advocates say.

More than 1,000 human remains were dug up at the proposed site of the Ritz-Carlton hotel at Honokahua before public protest and government action led to the hotel moving inland and remains being reburied where they had been found. Soon after, the current burial law was enacted.

It is that law that Native Hawaiian rights advocates say is being tested by the Kaua'i case, in which California developer Joseph Brescia is building a home on top of six of the 30 identified Native Hawaiian burials on a 15,667-square-foot lot in Naue.

At issue is whether a key element of that law — the decisions of island burial councils — has any real power.

"I think it is accurate to say that Naue is the first case of an attempt to reverse a burial council determination by interpreting preservation to include building on top of iwi kupuna previously identified," said Alan Murakami, the Native Hawaii Legal Corp. lawyer representing two Kaua'i residents who seek to stop construction. "It is a historic first — a distortion of the intended result and process outlined in the statute and regulations."

Brescia, who has built and sold a number of houses on Kaua'i, would not comment for this article, but previously has said that he's done all in his power to comply with county and state law and has a right to build on his land. He also has argued through his archaeological consultants that his treatment plan — covering the affected burials with cement caps and building the house on piers above ground — provides sufficient protection.

The Kaua'i situation led to two protests on Brescia's land last summer, followed by Brescia suing the protesters for trespassing, and then some Kaua'i residents countersuing the state for allegedly not following its own burial law.

That lawsuit, filed by Native Hawaiians Jeff Chandler and Puanani Rogers, led to Fifth Circuit Judge Kathleen Watanabe ordering Nancy McMahon, chief archaeologist for the state Historic Preservation Division, to consult with Native Hawaiian organizations and descendants of the remains about proper treatment of the burials.

Chandler and Rogers say they are not satisfied with that consultation and will ask again that the judge stop construction at a hearing in Watanabe's court on July 21.

STATE'S BURIAL LAW

The state burial law crafted in response to the Honokahua incident set up a bifurcated system of dealing with burials.

Those that were identified before any construction on the land are termed "previously identified" and island burial councils are given authority to decide — in consultation with the landowner, the state Historic Preservation Division, interested Native Hawaiian organizations, and lineal and cultural descendants — whether the burials are preserved in place or relocated.

Rules governing burial sites and human remains are specified in the Hawai'i Administrative Rules (Title 13, Chapter 300). A subsection detailing the responsibilities of burial councils states: "The council shall have jurisdiction over all requests to preserve or relocate previously identified Native Hawaiian burial sites."

Burials not known about before construction begins are known as "inadvertent" discoveries. The state Historic Preservation Division (a branch of the Department of Land and Natural Resources) has direct authority to decide what happens in these situations and in the case of non-Hawaiian remains, although it may confer with a burial council member from the geographic area.

Recent high-profile cases of inadvertent discovery include the Whole Foods Market and Wal-Mart sites in urban Honolulu, in which dozens of sets of remains were unearthed after construction began.

Construction on the grounds of Kawaiaha'o Church was halted in March after workers found 69 burials, most in coffins. The church hadn't conducted an archaeological survey before construction, despite a consultant's recommendation to do so, and the state hadn't required it.

The different responses to previously identified and inadvertently discovered burials under the law is significant, said Dana Naone Hall, former chairwoman of the Maui-Lana'i Island Burial Council and active in iwi kupuna protection since Honokahua.

Construction has been allowed to continue on top of inadvertently discovered burials in many cases, advocates and state officials agree.

But there have been only a handful of cases statewide in which previously identified remains have been built over, advocates say, and those were agreed to in negotiations between the burial council with jurisdiction and the property owner.

The state Historic Preservation Division hasn't kept statistics as to how many instances there have been, said administrator Pua Aiu.

"The vast majority of cases where burial councils or the state Historic Preservation Division have determined to preserve burials in place have resulted in construction being moved to avoid those burials," Kehaunani Abad, a former O'ahu Burial Council member and doctor of archaeology, wrote in testimony opposing Brescia's construction over burials.

"The entire foundation of this law is being turned on its head if a landowner is allowed to build over burials, where the appropriate burial council, Hawaiian families and community organizations deem such an action to be culturally inappropriate," Murakami said.

2007 FINDINGS

The conflict is unfolding at Naue, a sandy point on Kaua'i's north shore that a number of Native Hawaiians believe to be a leina-a-ke-akua, or "jumping off place" for souls of the dead returning to Po, the realm of the gods.

The identified burials are dated between 1150 and 1820. Archaeological studies estimate the area probably was inhabited from the earliest human settlements on Kaua'i.

Brescia previously said through attorneys that he has the right to use of his property, which he bought in 2000. Burials were found there in 2007, during an archaeological survey that was required because of the area's history.

Before that, Brescia spent several years appealing how close to the shoreline he could build and ultimately moved the house mauka to comply with that outcome. To further reduce the buildable portion of the lot would amount to a constitutional "taking" of Brescia's property, entitling him to compensation, his attorneys have said.

In April 2008, the Kaua'i burial council rejected Brescia's original proposal that he move seven burials from underneath his proposed house. The panel voted that Brescia should instead "preserve in place" the burials because so many in so small a space clearly represented a cemetery. Brescia was required to bring the council a plan to show how he would preserve the burials in place and seek the council's approval for his plan.

As of its most recent meeting June 4, the Kaua'i burial council still had not approved Brescia's plan. The council will not have a July meeting because Gov. Linda Lingle hasn't appointed two new members to fill vacancies that arose on June 30, a division staffer said.

Some members of the burial council have said they never intended for a building to go over the burials.

Murakami, the lawyer for the Native Hawaiian group, says he reads the law as empowering a burial council to take action to preserve concentrated or important burials, including state acquisition of the land if needed. He also points to a December 2008 Kaua'i County Planning Commission list of conditions for Brescia to receive a building permit — one of which is approval by the burial council.

REDO ORDERED

Rather than redesign the house or appeal the burial council decision, Brescia has argued through his archaeological consultants that covering the seven affected burials (six under the house and one under the driveway) with poured-cement caps and building the house on piers about 9 feet above ground provides acceptable "buffers" for the graves. Brescia's proposed protection of the other 23 known burials is to be rock markers and naupaka bush.

McMahon, the state archaeologist, accepted Brescia's plan — but without consulting with the burial council or native Hawaiian organizations, as required under the law. It's on that point that judge Watanabe ordered a redo.

At the June 4 burial council meeting, McMahon said that court-ordered consultation — as required in the burial law — would be done via testimony at that meeting and from written testimony. McMahon said she had not consulted directly with any Hawaiian organizations and that plaintiffs Chandler and Rogers both rejected Draft 6 of Brescia's burial plan in November 2008. The plan provided to the burial council a week before its meeting and posted on the SHPD Web site a day before the meeting was labeled Draft 11.

Naone Hall said she believes a consultation should be a meaningful discussion, not a three-minute time slot at a meeting.

All of the submitted oral and written testimony that day asked the council to reject Brescia's plans to build over the bones. The state received 47 written comments by a June 15 deadline, but hasn't provided a breakdown of the opinions expressed.

"Hui Malama finds the latest version of the Burial Treatment Plan to be so inappropriate as to border on the offensive," wrote Edward Halealoha Ayau, executive director of Malama I Na Kupuna O Hawai'i Nei, a nonprofit that cares for iwi kupuna, and a co-author of the state burial law. The plan "serves to violate the Hawaiian values of aloha, kuleana, 'ohana and pono."

Among those commenting are some long-time advocates for Native Hawaiian burial rights, including Ayau; Kahu Charles Maxwell Sr., chairman of the Maui-Lana'i Island Burial Council; Office of Hawaiian Affairs Administrator Clyde Namu'o; and Naone Hall.

They call for construction to stop, more archaeological work to be done and the site to be preserved.

Naone Hall also made a detailed critique of Brescia's archaeological inventory survey, which predates the burial treatment plan, saying it contains significant inaccuracies and omissions and should be redone.

"It's really quite simple," Naone Hall said. If burials were there first and known about, every effort should be made to work around them, she said.

Two Kaua'i organizations, Malama Kaua'i and the Kaua'i Trust for Public Land, have said they would help broker purchases of Brescia's lot for preservation.

Brescia's attorneys wouldn't confirm whether any discussions about a purchase have taken place, or what his asking price would be. Brescia had said last year he would be willing to sell the land.

"Naue could be the refresher course to remind everybody of what the state laws are and what the rules mean," Naone Hall said.

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http://www.kauaiworld.com/articles/2009/07/10/news/kauai_news/doc4a5701fd5daad173790607.txt
The Garden Island (Kaua'i), July 10, 2009

Burial Council vacancies cancel meeting

By Paul Curtis

LIHU'E — Help Wanted: Volunteers sought for thankless job, subject to harsh criticism, questioning of ethnicity and placement in countless no-win situations. Even in these hard economic times, one can imagine there wouldn't be a ton of applicants for positions like these.

Such is the case of the Kaua'i/Ni'ihau Island Burial Council, a state board formed to "address concerns relating to Native Hawaiian burial sites," according to the state Department of Land and Natural Resources Web site.

The various island burial councils are administratively attached to the DLNR Historic Preservation Division.

The nine-member Kaua'i/Ni'ihau Island Burial Council is down to seven members after the terms of John Kruse and Presley Wann ended June 30. Kruse said last week that without himself and Wann on the board, they would not have enough members to conduct meetings.

The scheduled July 2 meeting was canceled due to lack of a quorum, said Deborah Ward, DLNR spokesperson. The July meeting was to include an agenda item, possibly the only item, on council action on a controversial burial treatment plan for Joseph Brescia's oceanfront property in Ha'ena, near the YMCA Camp Naue.

The council at its June meeting in Lihu'e voted unanimously (6-0) to defer action on the plan.

Two applications for Kaua'i vacancies have recently been received and must be reviewed by the State Boards and Commissions manager for qualifications, Ward said. "We hope these appointments will be done within the month so the KNIBC can reconvene next month," Ward said.

While SHPD staff tells the State Boards and Commissions staff when DLNR supports an applicant, the final decision to appoint comes from the governor, Ward said. "SHPD has e-mailed OHA (state Office of Hawaiian Affairs) to continue to recruit so we can have a list of interested folks," she said.

OHA will be running an ad in the Ka Wai Ola O OHA newspaper, too. "We will issue a news release seeking interested parties statewide to go on a list. However, there presently are vacancies only on Kaua'i/Ni'ihau and Moloka'i," she said.

Information about qualifications and the process to submit applications can be found on the SHPD Web site at hawaii.gov/dlnr/hpd/councils.htm, which is the site where the Hawai'i Administrative Rules regarding the councils can be found, or by calling SHPD at 1-808-692-8015.

"A quorum is half plus one of 'seated' membership," with a ratio of at least 2:1 in favor of public board members versus landowner/developer members also having to be seated, she said.

KNIBC fulfills the ratio criteria when two more members are seated, for a total of nine (nine is the council minimum, 15 the maximum), Ward said.

Therefore, when the minimum of nine KNIBC members are in place, five members are needed present in order to convene a meeting, she said.

The current members of the KNIBC include (their term-ending dates are in parenthesis): Chair Clisson Kunane Aipoalani (06/30/10); Vice Chair Keith Yap (06/30/12); Dee M. Crowell (06/30/10); Michael Loo (06/30/12); Sandra P. Quinsaat (06/30/12); Leiana P. Robinson (06/30/11); Barbara J. Say (06/30/11).

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http://www.kauaiworld.com/articles/2009/07/10/news/kauai_news/doc4a5702307588a228999611.txt
The Garden island (Kaua'i), July 10, 2009

Hawaiians, landowners make up councils

By The Garden Island

There are supposed to be people from all over Kaua'i and Ni'ihau on the Kaua'i/Ni'ihau Island Burial Council, as well as representatives of developers and large landowners.

That is according to Hawai'i Administrative Rules establishing the councils for all the inhabited Hawaiian Islands.

For the KNIBC, regional representatives are supposed to be members of the Hawaiian community hailing from Waimea, Koloa, Lihu'e, Kawaihau (Kapa'a area), Hanalei, Na Pali and Ni'ihau, and possess an understanding of Hawaiian culture, history, customs, practices, and especially beliefs and practices relating to the care and protection of Native Hawaiian burial sites.

Members are expected to assist the state Department of Land and Natural Resources in the inventory and identification of Native Hawaiian burial sites by providing information obtained from families and other sources.

At least 20 percent of the regional representatives are appointed from a list of at least nine candidates provided by the state Office of Hawaiian Affairs.

Additionally, there shall be representatives of developers and large property owners on the council, though the ratio of regional representatives to large property owners on the council shall be no greater than 3:1, and no less than 2:1.

The primary responsibility of the council is to determine preservation or relocation of previously identified Native Hawaiian burial sites, with another responsibility to make recommendations to DLNR regarding appropriate management, treatment and protection of Native Hawaiian burial sites, and on any matters related to Native Hawaiian burial sites.

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http://www.kauaiworld.com/articles/2009/07/17/opinion/letters_to_the_editor/doc4a603564af4e7386688889.txt
The Garden Island (Kaua'i), Friday, July 17, 2009

Construction tests burial treatment law

I am outraged, as a human being and citizen, that the intolerable conditions continue to exist as described in your excellent coverage on Kaua'i ("Emotions unleashed," The Garden Island, June 5), leaving me with unanswered haunting questions.

How is it possible, that the burial law is so weak, that an individual — in this case, Joseph Brescia — can make a decision, to proceed with building a house on top of ancient Native Hawaiian burials?

How is it possible that Nancy McMahon, chief Archaeologist for the State Historic Preservation Division, has the power to accept the developer's plan without consulting with the burial council or Native Hawaiian organizations, as required under law?

And if it is "required under law," has she been fired, arrested or at the very least a citation and/or disciplinary action?

You do not have to be Hawaiian to be horrified at the total disregard and disrespect, lack of consciousness and offensive decisions; we all need to be concerned.

James Baldwin, American author, said it best, back in the '70s, "...we must fight for your life as though it were our very own — which it is — and render with our bodies the corridor to the gas chamber, for, if they take you in the morning, they will be coming for us that night."

How would we haoles feel if someone built a house on our parents' grave?

I don't have the answers as to what we should do, but I know in my heart that we should do something, if nothing more than a phone call or write a letter.

Roselyn Locke, Honolulu

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http://www.kauaiworld.com/articles/2009/10/14/news/kauai_news/doc4ad57908e235e086269985.txt
The Garden Island, Wednesday, October 14, 2009

Planning Commission to review Brescia's permit
Hawaiian activists hope new precedent will be set

By Michael Levine

LIHU'E — Almost two years after originally granting approval for Joseph Brescia to construct a controversial single-family home at Naue, the Kaua'i Planning Commission on Tuesday set a January hearing date to determine if the terms of that permit have been followed.

The approval was granted on the condition that Brescia "shall excavate the soil at the foundation locations and observe for any archaeological findings with a qualified archaeologist prior to actual construction of the proposed residence."

"If any archaeological findings are discovered, the applicant shall cease construction immediately and contact the State Historic Preservation Division-DLNR and the County Planning Department to determine mitigative measures," the permit's Condition No. 5 states. "No building permit shall be issued until requirements of the State Historic Preservation Division and the Burial Council have been met."

That condition was upheld last year when 5th Circuit Judge Kathleen Watanabe ruled that Brescia could continue with construction, provided that doing so caused no irreparable damage to the burials and did not prevent access to them.

Watanabe also said the State Historic Preservation Division needed to go back to the start of its burial treatment plan process with the Kaua'i-Ni'ihau Island Burial Council. The first time around, she said, SHPD did not properly follow the rules and laws pertaining to burials.

In April 2008, the burial council said Brescia should preserve the burials in place and not move them. They have since been capped in concrete, much to the chagrin of the Native Hawaiian community and even some burial council members.

To date, the burial council has not yet approved a burial treatment plan. It is scheduled to hold its first meeting in months next week, and it could discuss the 12th version of the plan. No agenda has yet been published.

Watanabe's admonition to Brescia and the state could supply what attorneys refer to as the "law of the case," where a trial court's unappealed ruling stands as the law for a particular case unless different evidence is raised, a different view of the law is decided or the decision is clearly erroneous.

In August, Native Hawaiian Legal Corporation Litigation Director Alan Murakami and attorney Camille Kalama filed, on behalf of self-described cultural practitioners Puanani Rogers and Jeffrey Chandler, a petition seeking a declaratory order announcing the commission's official position that Brescia's home is in non-compliance.

"There is good cause to modify the conditions of approval given the ongoing construction of a house on top of burial sites, the lack of an approved burial treatment plan, and the vote of the KNIBC to preserve the burial sites in place," the 12-page petition concludes.

Despite objections from Walton Hong and Calvert Chipchase, two attorneys representing Brescia, that they had not been properly served documents and that the Planning Commission does not have the authority or jurisdiction to hear the case due to "procedural deficiencies," the commission set the contested case hearing for Jan. 12, 2010.

Rogers said after the decision that she was "very relieved" because opponents of the construction have seemingly always lost in the past.

The declaratory order could be issued pursuant to Chapter 10 of the commission's Rules of Practice and Procedure, but the petition also requests the revocation or modification of the approved permit, procedures that fall under Chapter 12 and were not discussed Tuesday.

Too little, too late?

Both the declaratory order and the potential revocation of the permit could prove to be too little, too late, at least for the Brescia property. Proponents and opponents of the development said Tuesday that considerable construction has already occurred.

Hong said he has not visited the property recently but it is his understanding that the exterior walls are built, the roof is up, and many of the windows have been installed. He said the focus is currently on the interior walls.

In July, Murakami said he expected the construction to be finished before the end of 2009.

"The house is already complete, the burials are desecrated," Rogers said. However, she added that the case, no longer isolated, can set an important precedent because "the world is watching."

Kalama said Monday that even if the house is allowed to stand, one of Native Hawaiian Legal Corporation's main goals is that the procedure of approving permits before the burial treatment plan is in place or cultural issues are addressed will not happen again.

"Even having a declaration from the county would prevent this from happening in the next round," Kalama said.

"The Planning Commission is under a magnifying glass," Rogers said. "We hope that they will do what is most fair to the iwi kupuna, to the kanaka maoli people and to our cultural rights and beliefs."

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http://www.kauaiworld.com/articles/2009/10/14/news/kauai_news/doc4ad57e26f1bb6187900875.txt
The Garden Island. Wednesday, October 14, 2009

Island Burial Council members, meeting set

By Michael Levine

LIHU'E — After months of inaction due to its inability to sustain a quorum, the Kaua'i-Ni'ihau Island Burial Council is scheduled to meet next week with a full roster of nine members, according to a government Web site.

The most recent meeting, June 4, included as its only business item discussion of an amended burial treatment plan submitted by landowner Joseph Brescia for a single-family home at Naue on the North Shore on a lot containing 30 recognized burials.

Members unanimously voted to defer action for the Ha'ena property after deadlocking 3-3 on a motion to reject the 11th version of the plan.

The council heard several hours of emotional testimony on why it should reject the most recent burial treatment plan, written because of numerous re-designs of the Brescia house due to shoreline-setback issues and other concerns. Every time the house is re-designed, a new survey of confirmed or suspected burial sites had to be done, state archaeologist Nancy McMahon said at the June meeting.

Following that meeting, the three-year terms of Burial Council members John Kruse and Presley Wann ended June 30. In recent weeks, James W. Fujita and Debra U. Ruiz were appointed to interim terms to expire in June 2010.

Once confirmed, the new members' terms are expected to expire June 30, 2013.

In the months since action on the 11th version of Brescia's burial plan was deferred, the state Department of Land and Natural Resources Historic Preservation Division has made available the 12th draft of the plan.

Discussion of that plan could be on the agenda for the Oct. 22 meeting, but no agenda has yet been published. The state Sunshine Law requires that agendas for government meetings be made public no less than six calendar days before the meeting — this Friday.

For more information on the plan and the burial council, visit hawaii.gov/dlnr/hpd.

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http://www.kauaiworld.com/articles/2009/10/30/news/kauai_news/doc4aeaa431c4a5d531115524.txt#at
The Garden Island (Kaua'i), October 30, 2009

New home planned for Naue

By Michael Levine - The Garden Island

LIHU'E — Two weeks after setting a hearing date to review the plans for Joseph Brescia's controversial single-family home in Wainiha, the Kaua'i Planning Commission on Tuesday started the process for a similar application made by a Naue neighbor.

However, this time, the commission granted only preliminary approval to a building, location, material and design plan for landowner Craig Dobbin and will require him to return — after satisfying all of the permit's conditions, including measures in place to mitigate potential burial issues — before considering final approval.

"We learn as we go," said self-described lineal descendant Andrew Cabebe, a cultural practitioner who was arrested on suspicion of trespassing on Brescia's property in protest of the planned development there. "We don't want to see that happen again. ... Don't let it happen again."

Attorney Walton Hong, who represents both Dobbin and Brescia, said an archaeological inventory survey ha already been conducted by Scientific Consultant Services. He said 13 test diggings were conducted where the proposed foundation would be, as well as potential locations for the septic system and leach field.

While no burials were uncovered, four sites "merited mention," Hong said. Three of those were so-called "post holes" that looked like there had been previous groundwork, while one test digging uncovered a "cultural strata."

Later Tuesday, Hong explained that the cultural layer had a depth of 50 centimeters (less than two feet) and included food remains, charcoal-infused sand, remnants of native tree snails and marine shells — evidence that somebody lived there, but not human remains.

Radiocarbon analysis showed that the buried cultural layer dates back between 500 and 600 years and is significant but not enough to warrant special conservation status. SCS recommended that full-time monitoring continue for the site.

Should any iwi be uncovered at any point during studies or construction, the state Historic Preservation Division would be notified and the Kaua'i-Ni'ihau Island Burial Council would be consulted. Conditions of the preliminary approval, recommended by the Planning Department and adopted by the Planning Commission, require compliance with those agencies prior to full-scale construction can commence.

"We understand the rationale behind it, we can appreciate what the planning department is trying to do," Hong said, adding that his hope at this stage is that the new process does not "unreasonably impede" Dobbin from proceeding in a timely manner.

The lot is less than a half-acre in size and located on Alealea Road in Wainiha, just a few lots down from Brescia's property according to documents on file with the Kaua'i Planning Department. Dobbin's proposed home would encompass nearly 3,400 square feet under its roof and another 500-plus square feet in lanai space.

Dobbins, a Newfoundland, Canada, resident who was on Kaua'i for just a few days to attend the Planning Commission meeting, said he hoped to move the island with his wife after visiting for the first time two decades ago.

Trees and plants

In addition to the burial concerns, also at issue is Dobbin's landscaping plan and the proximity of plantings to the shoreline.

The plan currently calls for 15 coconut palms, 43 areka palms, two banana plants, 34 ti plants, three seco palms, 10 hala trees and naupaka, Planning Department documents state.

University of Hawai'i Sea Grant Coastal Geologist Jim O'Connell said the shoreline in the area is eroding at the rate of roughly one foot per year, and warned that the state Department of Land and Natural Resources' certified shoreline process is "an art as much as it is a science" because it relies largely on a visible line of debris and is currently only designed to measure the highest wash of the waves in the year it is requested.

Coastal advocate Caren Diamond said a group called North Shore 'Ohana is currently appealing Dobbins' certified shoreline, and warned that a heavily armoring a sand dune with vegetation — she called the naupaka there a "vegetative seawall" — could be used to privatize a beach and cut off public access.

"When you plant things too close to the ocean, the ocean takes them out and it creates hazards and danger for the public," she said.

Hong said he was "amazed" by Diamond's remarks and said there has been no intentional irrigation or fertilization of the beachfront sandy area.

He said he got the message "loud and clear" that the commission expects Dobbins to resubmit a new landscape plan.


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(3) Is it proper for ethnic Hawaiians to post signs and discourage non-ethnic-Hawaiians from walking on land that is open to the public but has burials or is otherwise considered "sacred"? Is it proper for non-ethnic Hawaiians to walk on such land? The old case of the Ritz-Carlton Hotel at Honokahua is revived.

http://www.mauinews.com/page/content.detail/id/514686.html?nav=10
Maui News, February 10, 2009

Effort to offset adverse effects of a travel book

By KEKOA ENOMOTO Staff Writer

KAPALUA - A group installed signs last week at Makaluapuna Point to ward off tourists tramping through a sacred area considered an important historical site at Kapalua.

Also known as "Dragon's Teeth," the point is a very sharp finger of land. Its outline on a map could be construed as fanglike.

The point sits adjacent to a 13.6-acre cultural preserve that was the focus of a three-year battle to honor ancient burial grounds containing thousands of iwi, or bones, of Native Hawaiians. The controversy resulted in Native Hawaiians rewrapping and having reinterred 1,200 articulated iwi, some dating to A.D. 610, with more than a thousand iwi still remaining in the ground; and The Ritz-Carlton, Kapalua resort project being redesigned and built farther back from the shore. Controversy over the Kapalua burial grounds unfolded from 1986 to 1989, before the 1990 federal Native American Graves Protection and Repatriation Act was enacted to safeguard indigenous burial sites.

"As one of the people who preserved the burials at Honokahua, I believe this area is connected to the preservation site," Charles Kauluwehi Maxwell Sr., chairman of the Maui/Lanai Islands Burial Council, said of Makaluapuna.

"We have wanted this signage for a long time, and we are very appreciative for the care that is being shown for the cultural and spiritual traditions of Hawaii," he said.

A seven-person cultural hui, or group, responsible for the signs wants to offset the effects of "Maui Revealed: The Ultimate Guidebook" by best-selling author Andrew Doughty. The Maui News previously cited "Maui Revealed" as a "controversial guidebook . . . adored by visitors, but despised by many residents."

The book's readers traipse through the area, often oblivious to the site's significance to Native Hawaiians, according to Teri Freitas Gorman, corporate communications vice president for Maui Land & Pineapple Co.

The "new signage at Makaluapuna at Kapalua Resort (is) to discourage 'Maui Revealed' readers from walking onto the point in search of 'Dragon's Teeth,' " she said. Makaluapuna "is a leina, so therefore sacred ground. Also, it is potentially dangerous during the north swells," she said. "We would like the community to understand that this is our primary intent, so local people don't think this is an attempt to keep them from their traditional activities out there, such as fishing," diving or honoring area kupuna.

The sign reads: "Makaluapuna is a wahi pana (sacred site) to na kanaka maoli (Native Hawaiians). Entry is discouraged except for Hawaiian protocol or cultural practices. Your cooperation and respect are appreciated. Mahalo - Thank you."

Freitas Gorman said the hui is "a group of concerned Hawaiians" who are also Kapalua Resort employees. Members include Caroline Belsom, Doug Chang, Silla Kaina, Clifford Nae'ole, 'Iokepa Nae'ole, Crystal Poe Cabatbat and herself. Kahu Lyons Naone serves as the group's kupuna adviser.

Group members have been researching in order to authentically "reveal" the place names and historical information of this part of the island.

Thus, the new sign highlights Makaluapuna Point, in hopes of discouraging anyone seeking Dragon's Teeth.

"This sign will provide an awareness and an opportunity for the visitor to make the right choice," said Nae'ole, Hawaiian cultural adviser to The Ritz-Carlton. "We hope that they will honor this request and allow the place names of Honoapiilani to be heard and respected."


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

(4) 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
http://www.angelfire.com/planet/big60/HawaiianBonesRitesRights.html

For item #(4), see also item #(6) concerning a different but related project, the mid-level corridor.

On February 13, 2008 the project once again came to public attention in the Kona newspaper, as OHA made public objections to newly approved plans. See item # (2) in the webpage for NAGPRA 2008.
On Friday, March 13, 2009 the redesign of the highway again came to public attention in the Kona newspaper, when the 20th survey was completed.

http://www.westhawaiitoday.com/articles/2009/03/13/local/local05.txt
West Hawaii Today, Friday March 13, 2009

20th survey done for Alii Highway
More archaeology, still no road

by Erin Miller
West Hawaii Today

Maybe 20 will be West Hawaii motorists' lucky number.

Nineteen previous archaeological studies weren't on the winning ticket to get the Alii Highway from plan to pavement. But Hawaii County officials got their first look at the most recent survey this week, at a cost of about $30,000.

Taxpayers can add that to the $6.3 million spent in federal and county money over the last 40 years or so, figure in the expected $70 million construction price tag, and the expected 4.5-mile road that is apparently the longest, and most intensively studied stretch of pavement in the county, will also become one of the most expensive.

Public Works Director Warren Lee refused to return phone messages for the third consecutive day.

Mayor Billy Kenoi said he is committed to an "aggressive timeline" for the project, which has already been designed, but would not give a specific time frame. He said the county will seek to get the project on the State Transportation Improvement Program list after its environmental impact statement is updated and another Kona road project, the midlevel road, makes it to the STIP list.

The midlevel road was selected over Alii Highway, even though designs have not been completed, as a project that could be eligible for federal stimulus funding for several reasons, Kenoi said.

"It was identified that it was a good candidate," he said. "It will alleviate traffic in Kona."

The county still needs to acquire a piece of land at the northern end of what will be also known as the Kahului to Keauhou Parkway, Kenoi said, before the county can seek federal funding. Contention over the extension of Lako Street, which will connect into the parkway, must also be resolved. Once those issues are resolved, the county will seek money for grading and grubbing of the corridor.

Cultural Surveys Hawaii archaeologists surveyed the land for the parkway corridor from April 7 to 25, looking for previously identified burial and cultural sites and checking for sites any of the previous surveys might have missed.

They found 14 previously undocumented sites, with 19 new features, and evidence of construction and new excavation that obscured or hid previous sites. The archaeologists recommended avoiding altogether or subsurface testing at nine of those new features, which included rock outcroppings, paved areas, enclosures and a possibly closed-off lava tube.

More information on those sites would be available after the completion of a data recovery project, the survey report said.

The Hawaii Island Burial Council voted in June 2007 against allowing the county to proceed with a design that would have built a bridge over a cave in which the remains were buried, but reversed its decision three months later, accepting a plan recommended by the county. The burial council in 2004 shot down a recommendation that remains be relocated, and the resulting delays cost the county millions in federal funding that would have covered 80 percent of construction costs.

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

http://www.westhawaiitoday.com/articles/2009/05/24/local/local03.txt
West Hawaii Today (Kona), Sunday May 24, 2009

Rough road ahead for Alii parkway
Residents question latest survey of potential route

by Erin Miller

Changing maps, missing historical sites, possibly bulldozed burials and perceived lack of cultural input and federally required consultation might stop the county from ever building a long-promised Alii parkway.

The county has established the parkway as a priority, and Mayor Billy Kenoi said in January construction could begin by the end of 2009.

Consultants working on the most recent cultural survey and a state archaeologist say there are likely legitimate reasons for the apparently disappearing sites.

Curtis Tyler, a former Hawaii County Council member, and Ron Cawthon, a long-time West Hawaii resident who has actively followed burial and development issues in the region for decades, said they were concerned about the most recent road alignment map, which was released in March. Both noted sites present in previous reports were not listed on either map or accompanying report. They also raised questions about problematic sites listed in the Cultural Surveys Hawaii report.

"Time and again, where it was believed there were no roadblocks, there were," Tyler said. "One would hope that with each succeeding study, we would come closer and closer to determining what's really on the ground." That doesn't appear to be the case, however, he said.

In January, the mayor said he asked state Department of Transportation Director Brennon Morioka to give the parkway a priority position on the state's road project list. "Optimistically, we hope to begin construction by the end of 2009," Kenoi said in January. Kenoi could not be reached Friday, despite several messages left seeking comment.

Plans for a road in the general corridor running from the proposed Lako Street extension to Keauhou date back to 1958; cultural surveys date to the early 1970s, with as many as 19 or 20 various surveys completed in the 36 years since. The county did begin construction on the highway in 2004, but the discovery of human remains stopped the project. Since then, the county has spent years discussing potential burial treatment plans with the Hawaii Island Burial Council and cultural and lineal descendants. The council reached an agreement in 2007, conditional upon a county offer to send surveyors to the site again to re-examine the entire right-of-way.

The most recent survey, completed by Cultural Surveys Hawaii for RM Towill, was handed over to the county earlier this year.

Concerns about the burials, the map's accuracy and consideration of cultural context aren't Hawaiian-only issues, Tyler said. "This is the law," he said. "If unresolved issues remain, those need to be dealt with before you go and spend more taxpayers' money. Frankly, given the results of the latest study, it actually raises more questions than it answers."

Tyler has studied many of the maps created by consultants for the various parkway corridor alignment and noted that sites listed on earlier maps are no longer included. Also missing from the latest map are street and place names, as well as traditional cultural properties like trails and royal centers. That's important, he said, because those items provide context for the sites archaeologists discover.

For example, a surveyor who discovers a single burial site might give that discovery a lower significance if he is unaware of the historical events that happened around the location. Significance and context can affect the recommended treatment and mean the difference between being moved and being preserved in place.

Previously unrecorded sites included more than nine potential new burial sites, while surveyors were unable to locate other recorded burials. A big problem, Tyler said, was the potentially missed artifacts in previously recorded sites like a cave that surveyors did not enter because it was covered by a large bougainvillea.

What if construction begins, the cave collapses and significant artifacts are discovered in the cave, Tyler asked. Going into the cave, even if it meant removing the plant, would answer that question before work begins.

"Because this was the last, most thorough, most encompassing study, do we not answer the questions raised," he said. "What if it leads to a situation where the road gets started and can't be completed?"

One explanation for not including at least half a dozen sites listed in the 2002 Alii Highway Phased Mitigation Plan on the most recent map and cultural survey report is the changing corridor size, consultant RM Towill's Chester Koga said. "There could be a basketful of sites that were previously identified that we never looked for, because they were out of our area of concern," he said.

In all, surveyors have identified about 1,500 sites and features in various proposed corridors and road alignments. As the alignment shifted, or, in the most recent case, shrank from about 300 feet wide to about 120 feet wide, sites were excluded, Koga said.

Some sites physically disappeared, were bulldozed or can no longer be located, he added. The county does not yet have a right of way to access all of the properties, and private landowners may have destroyed some of the now missing sites. Bulldozing to create firebreaks also could have been the cause of some of the destroyed sites, he added.

Contributing to the situation, State Historic Preservation Division Archaeologist Theresa Donham said, is the number of surveys completed since 1973. The office doesn't have a comprehensive database that has been regularly updated as more burials are discovered -- or found to be destroyed. Some of the updated reports do note how many sites and features were destroyed in the intervening years, she said.

The project also predates administrative rules determining how the preservation division and the burial council system operate, she said. The project is instead bound by a 1987 agreement; if the county were to move forward on the road project without trying to use federal funding, Donham said it was possible the newer rules regarding burials and preservation would apply. With data recovery about to begin, and with that, her office's involvement, Donham said one of her next steps is checking with the Federal Highways Administration regarding whether certain federal regulations are still in effect for the project.

The county has accepted federal funding for some of the previous studies, a Department of Public Works spokeswoman said.

Federal regulations, under the Native American Graves Protection and Repatriation Act, are specific about who must be consulted prior to construction in an area in which native graves are located, Cawthon said. Any use of federal funding triggers those regulations.

Tyler and Cawthon also noted the potential similarities between the Alii parkway project and another, nearby development about which rumors of bulldozed burials and mistreated human remains are still circulated.

Tyler said he was at the Hokulia site with an archaeologist several years ago when bits of white fragments caught their attention. He said he couldn't say for certain the bits were human remains, because he is not an archaeologist, but the discovery did lead to an investigation.

Oceanside 1250 Chief Executive Officer John DeFries was quick to point out that a subsequent judicial investigation found "no evidence of desecration or intent of desecration." References to "bones in the push piles" resurface still, DeFries said. Once the idea has been raised, it impacts every other discovery. "In the absence of trust, even the most honest mistake is going to be seen as a deceitful tactic," he said.

The projects may be different, but they share some fundamental similarities. At Hokulia, the proposed bypass road was realigned more than 30 times, as company officials attempted to go around discovered burial sites. Both roads traverse populated areas, with significant cultural sites nearby.

It would be appropriate, Tyler said, to wonder if the county would face the same outcomes as the Oceanside developers if work restarted on the Alii parkway corridor.

Cawthon also sees potential similarities to other developments. "Even if they're marked as preservation, nothing is going to happen," Cawthon said. "We have preservation and burial treatment plans at Laaloa. Nothing has been done with them. That's the pattern and practice."


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

(5) On Sunday April 19, 2009 the Honolulu Advertiser reported that a large number of burials were uncovered on the grounds of Kawaiaha'o Church during construction to build a large activity center to replace the recently demolished Likeke Hall. Many of the burials date from the 1820s. Most were Christian burials in caskets, some of which had been buried stacked on top of each other in the 1820s. Some were Caucasian, some Hawaiian.

http://www.honoluluadvertiser.com/article/20090419/NEWS01/904190385
Honolulu Advertiser, Sunday, April 19, 2009

Oldest Hawaii church halts project after digging up coffins
69 old burials were dug up during construction for Kawaiaha'o's $17.5M center

By Rick Daysog

Kawaiaha'o Church has halted construction of its $17.5 million multipurpose center after workers dug up 69 human remains, most of which were intact and in coffins when they were excavated.

A consultant hired by the church has told state officials that another 83 bodies may be buried at the construction site, making it one of the largest graveyard intrusions on O'ahu.

Many of the burials date back to the 1800s, when Kawaiaha'o, known as "the Westminster Abbey of Hawai'i," operated a cemetery where the new center is being built.

The number of remains exceeds those found at Wal-Mart's Ke'eaumoku location and the Ward Village Shops in Kaka'ako, where building plans were delayed for months after scores of iwi, or Hawaiian bones, were discovered.

It's not clear how many of those found at Kawaiaha'o are of Hawaiian ancestry but there are concerns that the construction work may have encroached onto the burial plots of Hawaiian ali'i, including those of Queen Kapi'olani's family.

Abigail Kawananakoa, Kapi'olani's great-grandniece and an heiress to the Campbell Estate fortune, said her attorneys plan to seek an injunction against the church and called on Kawaiaha'o's leadership to step down.

"This is a desecration and a grievous wound. The people of Kawaiaha'o preserve the best of Hawaiian traditions and they, too, are victims," Kawananakoa said. "Responsibility for this rests with the church leaders and paid experts that misled and abused the trust of the congregation and community. They should immediately resign and fulfill their financial and moral obligations to make this pono no Hawai'i pono'i."

Frank Pestana, chairman of Kawaiaha'o's board of trustees, said Kawananakoa's family plot was not affected by the construction activities. "The congregation will be saddened that, while Ms. Kawananakoa is not a member of the church, she is placing her personal agenda above the church and the wishes of the congregation, including other members of her family," Pestana said. "The church has gone to extraordinary lengths to contact families with loved ones in the cemetery. They have all been supportive of the project and the church's approach to dealing with any burials that may be discovered during the construction process."

MONTHS OF DELAY

Nancy McMahon, deputy state historic preservation officer, said the discovery of the burials could delay construction for months. McMahon said the two state agencies that oversee cemeteries and burial finds — the Department of Land and Natural Resources and the Department of Health — are trying to sort out which has jurisdiction in the case. She added that the controversy has attracted the attention of the governor's office.

Kawaiaha'o representatives met with Gov. Linda Lingle's chief of staff, Barry Fukunaga, on April 3 to discuss the project, Lingle spokesman Russell Pang said. Pang said Fukunaga also met with DLNR chairwoman Laura Thielen on Tuesday to discuss the matter.

The Rev. Charles Maxwell, chairman of the Maui/Lana'i burial council, called the construction activity "an insult" to those buried on the site and said that church leaders need to find a new location for the center, given the large number of bones found there. He said the church should have known that it would discover remains during construction, since the Kaka'ako area is well-known for having old graveyards.

REBURIALS IN 1940

In 1940, Kawaiaha'o officials disinterred 117 bodies at a construction site to make way for Likeke Hall. The remains were reburied in Mo'ili'ili and then returned to the southwest side of the Kawaiaha'o property in 1968.

Old bones also have been discovered across the street at the former Honolulu Brewery building and Honuakaha senior housing project in Kaka'ako.

"It's a sacrilege to disturb them further," Maxwell said. "The people were placed there with the purpose that nobody would disturb them forever."

With a history that dates back to 1820, Kawaiaha'o is the oldest and one of the most recognized churches in Hawai'i. It's on the national and state registers of historic places and is the final resting place of King William Charles Lunalilo.

The new, two-story construction project, dubbed the "multipurpose center," replaces Likeke Hall, which was torn down last year. The 30,000-square-foot building will include classrooms, conference rooms, a $1 million kitchen, state-of-the-art solar panels and a space that can be used for wedding receptions. Church officials previously said they expected to complete construction by June 2010.

MORE GRAVES LIKELY

But that was before they starting to dig up coffins at the site.

At a Feb. 11 meeting of the O'ahu Burial Council, church consultant David Shideler reported that construction workers dug up 21 coffins while doing excavation work to connect sewer and utility lines to the street. Shideler also told the council that burial plots of Kapi'olani's 'ohana as well as those of the Metcalf and Kuhiaopio families had been affected by trenching work. A chart by the firm Shideler is with, Cultural Surveys Hawaii Inc., said that construction workers dug up two remains in Kapi'olani's parcel and two in the Metcalf plot.

Dawn Chang, a consultant for the church, said a more recent study using global satellite positioning equipment found that the excavated remains were not in the Kapi'olani and Metcalf burial parcels but were in nearby plots. "We do have a map that shows that none of the burials involve the Kapi'olani plot," she said.

McMahon, the DLNR official, said that Shideler's supervisor, Hallett Hammatt, told her that an additional 83 bodies might be found under the former Likeke Hall. She said Hammatt's estimate is based on surveys using ground penetrating radar. McMahon added that she believes that the count could be much higher, since many of the remains already excavated were found stacked on top of each other. "We think it could be more," she said.

Pestana, the chairman of church's board, said the church is now redesigning the building in a way that allows minimal disturbance to the property.

IWI NOW IN CHURCH

Chang said Kawaiaha'o officials have taken great care in their handling of remains that they have discovered and have made great effort to contact descendants. She said each set of bones has been wrapped and placed in a lauhala basket. They're currently stored in an air-conditioned room in the church's basement but will eventually be reinterred permanently on Kawaiaha'o's grounds, Chang said. "We will continue to do our utmost to treat all discovered iwi with proper respect, sensitivity and care, in accordance with acceptable Hawaiian cultural traditions and practices, contacting and consulting with the 'ohana wherever possible," Pestana and project director Don Caindec said in a letter to church members.

KAWAIAHA'O HISTORY

1820: The Rev. Hiram Bingham established Kawaiaha'o Church in a two-room, thatched cottage.

1842: The current Kawaiaha'o Church was built.

1940: Kawaiaha'o built Likeke Hall. The 117 remains removed during construction were relocated to Nuuanu Cemetery or Kamo'ili'ili Cemetery in Mo'ili'ili.

1968: To make way for construction of the Contessa apartments in Mo'ili'ili, Kawaiaha'o Church disinterred the remains of 466 people at Kamo'ili'ili Cemetery and reburied them at other O'ahu cemeteries, including Kawaiaha'o's cemetery.

1971: Descendants of people buried at Kamo'ili'ili Cemetery sued Kawaiaha'o Church for mental distress caused by the disinterment. A Circuit Court judge awarded them $10,000 later that year.

2008: Likeke Hall and an administrative building were demolished to make way for the $17.5 million multipurpose center.

February 2009: Ground was broken for the new center.

March 2009: Construction was halted after 69 remains were found at the site.

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http://www.starbulletin.com/news/hawaiinews/20090420_Remains_found_on_church_site.html
Honolulu Star-Bulletin, April 20, 2009

Remains found on church site

By Rob Shikina

Construction crews have unearthed 68 undated sets of remains at Kawaiahao Church and could run into more before a multipurpose center is finished in 2010, officials said yesterday.

"We don't know with any certainty how many more burials are subsurface," said Dawn Chang, a cultural consultant for the church.

About a month ago, church officials halted construction of the $18 million center after the remains were disturbed, most beneath a service road on the property. The remains were fragments, secondary burials, or in coffins, Chang said.

Church officials plan to delay the construction for another 30 days until plans are redesigned to avoid running into more bones, or iwi.

The changes included widening the multipurpose center's foundation to reduce its depth to 2 1/2 feet from 6 feet and placing underground wiring closer to sewer lines.

Kawaiahao Church, the oldest Christian church on Oahu, broke ground on its center in February.

The church has one of the oldest Western-style cemeteries in Hawaii, with most of the graves dating to the late 1800s and early 1900s.

Before construction began, leaders expected there would be bones in the area and made plans to avoid them. They confined designs for the new building to within the footprint of Likeke Hall, torn down about 1 1/2 years ago to make room for the center.

They also eliminated plans for an underground parking garage, and church volunteers formed a Na Iwi Committee to establish procedures if undocumented burials were found.

Chang said leaders had consulted with families and checked maps before construction began. A 1912 cemetery map didn't show the burials under the current roadway, which was removed to install sewer and electrical utility lines.

During construction, crews found bones stacked up.

Since then, church leaders have met with families with plots nearby. The families helped wrap the iwi and place them into lauhala baskets to be stored in the church sanctuary until they are reburied.

Church leaders have received state permission to relocate the bones, Chang said.

The congregation continues to support the construction as long as the iwi are dealt with respectfully, said Chang and Frank Pestana, chairman of the church board of trustees.

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http://www.honoluluadvertiser.com/article/20090424/OPINION02/904240324/1108
Honolulu Advertiser, April 24, 2009, letters to editor

KAWAIAHA'O
BUILDING ESSENTIAL TO CHURCH'S FUTURE

My very close friend and fellow Christian sister Juliette Kauhi Galuteria and I have been attending Kawaiaha'o Church for more than 70 years. We personally knew the families who have their kupuna resting in our cemetery. We have personally attended to many of our members who have passed on. We remember the days when the old Likeke Hall was being built. Many at that time talked about fears of haunting and ghosts.

Likeke was built and we had a great celebration and much joy. The fears of the haunting and ghosts were forgotten and no unfortunate incidents occurred. Everyone loved the new building. Kawaiaha'o Church needs this building so we can continue to be a church that is alive and giving to the community. We believe our 'ohana who are buried here would want this to happen too. The church will continue to be respectful of our na iwi kupuna.

Carinthia Pua'a Harbottle
Vice president, Kupuna Ministry at Kawaiaha'o

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http://www.starbulletin.com/editorials/letters/20090428_Letters_to_the_Editor.html
Honolulu Star-Bulletin, April 28, 2009, letter to editor

Protocols followed in handling of iwi

Three generations of my kupuna are interred at Kawaiahao Church, circa 1880 through 1926. I feel strongly the responsibility for family vigilance regarding the respectful treatment of their iwi.

I attended a meeting at Kawaiahao Church on April 11 where the Na Iwi Committee brought us up to date on construction activities related to the replacement building for Likeke Hall, and its treatment of new grave remains discovered under this old construction site.

This is the sixth meeting that I've attended over the past several years, and I remain convinced that the committee has been candid and forthright in its presentations, diligent and extremely cautious in its efforts to leave iwi at rest and undisturbed, but very respectful and rigid in its adherence to Hawaiian protocols in their treatment of those remains, both iwi and the intimate collected lepo that are unearthed.

I have gained enormous respect for those who have assumed the soul-touching task of collecting and shielding these remains. This burden has become their labor of love, and their priceless gift to us.

I think it both unfortunate and unfair that those who have not attended these meetings, either by reason of uninvolvement or disinterest, find it necessary to bark from the sidelines to judge those matters that do not arise from their first-hand knowledge.

To those who are concerned, please take comfort from my observations.

Puakinamu Puaa (Kamainalulu Namaielua Pung Ohana)
Pearl City

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http://www.honoluluadvertiser.com/article/20090503/NEWS01/905030379/1001
Honolulu Advertiser, Sunday, May 3, 2009

Consultant warned Hawaii church its new construction would encounter old burials

By Rick Daysog

An archaeological consultant warned Kawaiaha'o Church more than four years ago that construction on the church's $17.5 million multipurpose center could unearth human remains.

Kawaiaha'o, one of the state's oldest and most recognized churches, halted work on the two-story center in March after unearthing 69 remains, most of which were intact coffin burials.

In an April 2005 report obtained by The Advertiser, the church's consultant, Cultural Surveys Hawai'i Inc., urged Kawaiaha'o officials to conduct a subsurface archaeological study for iwi, or bones, and other cultural artifacts before building the two-story complex.

The church opted not to conduct the study and began construction of a 30,000-square-foot building this year on the makai side of the church. The building was to replace the 67-year-old Likeke Hall, which was demolished in 2007.

The consultant's 58-page report documents century-old burials on the Kawaiaha'o Church property, including many in the area of the new multipurpose center. It included a 1912 and 1920 land survey for the church that showed the boundaries of all burial plots.

"Cultural Surveys Hawai'i Inc. ... has proposed excavating five test trenches around Likeke Hall before construction begins, so that the presence or absence of cultural deposits and/or human burials can be determined," the report said.

One of the co-authors of the report, David Shideler, issued a follow-up warning about two years later just as the church was demolishing its old Likeke Hall complex to make way for the new center, according to internal church e-mails obtained by The Advertiser. "Of course I hope I am wrong, but I do however believe there is a significant probability that iwi will be encountered by the end of demolition of the Likeke Hall foundations," Shideler said in a Dec. 6, 2007, e-mail to church consultants.

Several days later, bone fragments were found at the demolition site, according to a Dec. 11, 2007, e-mail from Shideler to church officials and consultants. The discovery of more bones would follow.

The Kawaiaha'o iwi discovery is one of the largest on O'ahu, exceeding those found at Wal-Mart's Ke'eau-moku location and the Ward Village Shops in Kaka'ako whose building plans were delayed for months.

A second church consultant recently told state officials that another 83 remains — in addition to the 69 already found — may still be beneath the site of the new building, making the site one of the largest graveyard intrusions on O'ahu.

MORE THAN EXPECTED

Dawn Chang, a cultural consultant for the church, said the 2005 study isn't applicable today because it was for a previous construction plan that called for a large underground parking lot. The project has been scaled back significantly since and does not include the parking lot, she said.

Chang said the church anticipated unearthing remains but not in such great numbers. "I don't think anybody today is going to say we didn't expect to find bones," Chang said. "We just didn't expect to find this many." Chang said that many of the bones were discovered after construction workers dug utility and foundation trenches.

Church officials said that the church has gone through extraordinary lengths to contact the families of those buried in the cemetery and have taken great care in the handling of the iwi.

Several Hawaiian cultural leaders said the church should have expected to find a large number of remains during construction since the Kaka'ako area is well-known for having old graveyards.

Mel Kalahiki, a Native Hawaiian kupuna, recalled seeing a lot of graves unearthed at Kawaiaha'o in the 1940s when the church was building Likeke Hall. He said it didn't surprise him that iwi were found during the recent construction. In 1940, Kawaiaha'o officials disinterred 117 bodies at a construction site to make way for Likeke Hall. The remains were later reburied in Mo'ili'ili and then returned to the southwest side of the Kawaiaha'o property in 1968. "They were going to find plenty graves," Kalahiki said.

LEGAL THREAT

Established in 1820, Kawaiaha'o Church is on the national and state registers of historic places and is the final resting place of King William Charles Lunalilo.

The new multipurpose center will include classrooms, conference rooms, a $1 million kitchen, state-of-the-art solar panels and a space that can be used for wedding receptions. Church officials, who said they expected to complete construction by June 2010, have said the center is necessary to expand its membership, which has declined to about 500 — or about a quarter of its congregation during the 1950s and 1960s.

The unearthed remains have attracted the attention of Campbell Estate heiress Abigail Kawananakoa, who has threatened Kawaiaha'o's leadership with legal action. An archaeological consultant hired by Kawananakoa recently concluded that the church's construction work has encroached on the burial plot of Kawananakoa's ancestor, Queen Kapi'olani.

Tom Dye believes the church's building plans made it inevitable that bones would be unearthed. In an 11-page report, Dye concluded that the church's contractors dug five foot-deep trenches within the boundary lines of Kapi'olani's burial plot. Dye, a past president of the Society for Hawaiian Archaeology, said his report is based on the 1912 and 1920 surveys by the church that details the locations of burial remains, his own examination of the church property, grading and trenching permits submitted to the city Building Department and other church documents.

He noted that Chang told the O'ahu Burial Council in February that trenches had been dug and remains had been removed from Kapi'olani's plot. But Chang said that a more recent study using global positioning satellite technology shows that the Kapi'olani parcel had not been disturbed. Chang would not provide a copy of the GPS study. A church spokesman said the GPS study would reveal information about families and their relatives who are in the cemetery, which the church cannot make public.

However, Dye said he reviewed the GPS map and compared it to the actual excavations. He said the location of the burial finds on the church's GPS map were off by as much as 30 feet, which is 50 to 100 times the acceptable margin of error in archeological studies. Dye said that one of the unearthed burial locations identified in the church's GPS map was actually "in an area covered by grass lawn and a few grave headstones today, with no signs of recent excavation." "It's clear to me that they planned to dig trenches straight across the Kapi'olani plot," Dye said.

FAMILY SUPPORTIVE

Dye added that the church's city permit applications also called for the construction of an industrial grease interceptor just makai of the planned multipurpose center.

According to the church's plans, the grease trap would be located on two burial mounds between the new center and Kapi'olani's burial plot. A 1912 survey of old burials shows that the plot where the grease trap is to go is owned by the Pilali family.

Don Caindec, the church's project director, acknowledged plans to build a grease trap next to the new center. But he said the area to be used for the trap had been paved over and used as a parking lot for many years, and the church hadn't expected to find any remains below the paved portion.

Caindec and Chang, the cultural consultant, said the church has contacted the Pilali family, who have been supportive of Kawaiaha'o's efforts. They said that the family has asked the church to relocate the remains should any be found.

Caindec added that the church has no plans to relocate the grease trap. "We did not plan to build over their burials," Chang said.

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http://www.honoluluadvertiser.com/article/20090520/OPINION02/905200336/1108
Honolulu Advertiser, May 20, 2009. Letter to editor

KAWAIAHA'O CHURCH PONO IN RELOCATING REMAINS

I want to register my confidence in the leadership of Kawaiaha'o Church in their capital improvement program now in progress on their campus. I hope the Department of Health will quickly approve their actions and allow the project to proceed with the building of that much-needed community service facility.

Your recent article did not mention the painstaking efforts the leaders — Frank Pestana and Don Caindec and others — have taken over several years now to contact each and every family that might have had kupuna buried in this church's cemetery. With the exacting accuracy of their consultant, Dawn Naomi Chang of Ku'iwalu, and her use of modern technology to locate and record many of the burials, the chance of unearthing unknown remains was greatly reduced.

The church has demonstrated care, respect and compassion for the relocation of interned remains and that gives me the confidence that they can do it right. The leaders have the na'au pono and the guidance of the 'Uhane Hemolele to accomplish the task. They can act as good models for other Hawaiian churches that have plans to improve their cemetery facilities in the future.

Jack Keppeler
Honolulu

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http://www.honoluluadvertiser.com/article/20090524/OPINION01/905240338
Honolulu Advertiser, Sunday, May 24, 2009, EDITORIAL

State must set rigorous burial protections

There couldn't be a more glaring example of the state's failure to oversee the respectful treatment of remains than the uproar over a development on the grounds of Kawaiaha'o Church, one of Hawai'i's pre-eminent historic and religious landmarks.

This failure must be corrected. The state now must steer the project back on course, ensuring that legal burial protections are followed. That means requiring surveys to avoid unearthing burials wherever possible and ensuring consultation with family descendants.

And for future projects, a clearer set of policies needs to be in place and enforced consistently, so that developers are held to the same rules.

Advertiser Staff writer Rick Daysog has covered the troubled plans to erect a multipurpose center to replace Likeke Hall, demolished in 2007.

The essence of what's happened since: The church, with the state's acquiescence, opted against conducting a subsurface archaeological study for remains. Church leaders asserted that building within the footprint of Likeke would likely avoid remains that would have been relocated 70 years ago.

This decision was made despite the recommendation of an archaeological consultant to do the survey. The church argues that the risk of disturbing remains was lowered when planners decided against excavating for an underground garage.

The error of their ways became apparent: A total of 63 sets of iwi (bones) have been unearthed, and a second consultant estimated that another 83 burials may remain beneath the site.

First, this seemed more clearly to be the bailiwick of the Department of Health, which oversees cemetery disinterments. But officials said the church lacked names for the deceased; DOH policy is to require identities in a permit application.

That's a policy that may not be realistic where some church graveyards are concerned. Kawaiaha'o, like other historic Hawaiian churches, has incomplete records, and the state ought to have rules in place to deal with these cases.

The Department of Land and Natural Resources, which ordinarily deals with Hawaiian remains not in marked cemeteries, then took over the proposal. That part was fine: The Kawaiaha'o area is known to have included ancient burials as well, so DLNR shares some jurisdiction over the case.

The grievous mistake was to waive the survey amid such a concentration of burials, when the law so clearly supports a more cautious approach.

DLNR officials have been meeting with church leaders to devise a course correction, a welcome, albeit late intervention. A plan is due to be issued this week, a blueprint that needs to ensure the oversight of the O'ahu Island Burial Council in the project completion, which will cast a wider net to find descendants to consult about treatment of remains.

Beyond that, DOH and DLNR need to confer on a clearer policy going forward. It does no good to have burial protections on the books if they're applied as unevenly as they were here.

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http://www.honoluluadvertiser.com/article/20090609/NEWS23/906090322/localnewsfront/OHA+asks+for+study+of+burials
Honolulu Advertiser, Tuesday, June 9, 2009

OHA asks for study of burials

By Rick Daysog

The state Office of Hawaiian Affairs has raised concerns about recent discoveries of human remains at the site of Kawaiaha'o Church's planned $17.5 million multipurpose center.

In a May 27 letter to the head of the state Historic Preservation Division, OHA Administrator Clyde Namu'o recommended that the church conduct an archaeological inventory survey to identify and document iwi, or bones, and contact family descendants before going ahead with the project.

Kawaiaha'o officials did not conduct such a study before starting work on the 30,000-square-foot building this year on the makai side of the church. Construction came to a halt in March after workers unearthed 69 human remains, most of which were intact coffin burials.

"In light of these recent findings, OHA would like to express serious concerns regarding the ongoing discoveries and treatment of unmarked burial sites on the Kawaiaha'o Church property," Namu'o wrote. "The most recent developments at Kawaiaha'o need to be addressed in a pono way," he wrote.

OHA provided a $1 million grant to Kawaiaha'o in 2006 for the new building. It also provided technical assistance to the church on the handling of iwi during the early planning stages of the building.

OHA's concerns come as the state historic preservation division and the state Department of Land and Natural Resources are crafting new guidelines for the project. Those guidelines, which include additional studies to identify whether more remains exist at the construction site, will be made public as early as this week.

When asked about OHA's letter, Kawaiaha'o officials e-mailed the following response: "While the church is aware of the letter, it was written to the administrator of the State Historic Preservation Division (SHPD). The church has received no requests from OHA or SHPD for comment. We are therefore awaiting a response from SHPD or a request from the agency for our comments."

Called "the Westminster Abbey of Hawai'i," Kawaiaha'o is one of the state's oldest and best known churches. It is listed on the national and state registers of historic places and is the final resting place of King William Charles Lunalilo.

The new multipurpose center — which will include classrooms, a $1 million kitchen, a nursery and office facilities — replaces the church's old Likeke Hall, which was built on a former cemetery.

The Kawaiaha'o iwi discovery is one of the largest on O'ahu, exceeding those found at Wal-Mart's Ke'eaumoku location and the Ward Village Shops in Kaka'ako whose building plans were delayed for months.

In his letter, Namu'o said OHA has learned that DLNR and the state Department of Health also are considering decertifying a portion of the cemetery beneath the new building. That would allow the church to disinter the bodies and resume construction, pending approval from the Health Department.

Namu'o said OHA "would strongly advise against this course of action."

"Given the utmost respect for iwi kupuna within the Native Hawaiian community, our 'most cherished possession,' according to reknown Hawaiian scholar Mary Kawena Pukui, the sanctity of the Kawaiaha'o Church cemetery must remain intact and revered," Namu'o wrote.

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http://www.honoluluadvertiser.com/article/20090613/NEWS03/906130320/Church+project+in+need+of+disinterment+permit
Honolulu Advertiser, Saturday, June 13, 2009

Church project in need of disinterment permit

By Rick Daysog

The state is requiring Kawaiaha'o Church to obtain a disinterment permit before it can resume construction on its $17.5 million multipurpose center, in what could further delay the troubled project.

Construction on the two-story, commercial center was halted in March after workers dug up and removed 69 human burials, even though the church did not have a permit to disinter those remains.

In a letter to the church yesterday, Department of Land and Natural Resources Chairwoman Laura H. Thielen said the church needs to examine the property for additional burials using ground-penetrating radar before getting a disinterment permit.

The church also must supply the state with documentation on past burials, conduct hand excavations of newly discovered remains and develop a detailed reburial plan for bodies that they unearth.

"This letter provides guidelines on how to proceed with your project and provide a respectful disinterment and final resting place for the iwi kupuna in your care," Thielen wrote.

In an e-mail, the church said it was pleased with Thielen's letter, which "allows construction to proceed."

"We look forward to working with both the state Historic Preservation Division and the state Department of Health to obtain the necessary approvals to proceed with the project," the church said. "We hope to resume construction as soon as possible."

A disinterment permit, which is issued by the state Health Department, would require Kawaiaha'o to identify and justify the removal of the remains. The church would have to demonstrate that it has the consent of lineal descendants of the deceased to remove the burials, which can be difficult.

Kawaiaha'o has said that it has the support of many of the families but it also has said that it cannot identify many of the remains.

Called "the Westminster Abbey of Hawai'i," Kawaiaha'o is one of the state's oldest and best-known churches. It is listed on the national and state registers of historic places and is the final resting place of King William Charles Lunalilo.

The new multipurpose center — which will include classrooms, a $1 million kitchen, a nursery and office facilities — replaces the church's Likeke Hall, which was built on a former cemetery.

The Kawaiaha'o iwi discovery is one of the largest on O'ahu, exceeding those found at Wal-Mart's Ke'eaumoku location and the Ward Village Shops in Kaka'ako, whose building plans were delayed for months.

In addition to the 69 remains that were dug up, an archaeological consultant hired by the church using ground penetrating radar previously estimated that another 83 bodies may be buried beneath the construction site.

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

http://www.honoluluadvertiser.com/article/20090625/OPINION03/906250309/Kawaiaha+o+shows+respect+for+iwi
Honolulu Advertiser, Thursday, June 25, 2009
COMMENTARY

Kawaiaha'o shows respect for iwi

By Frank Pestana

In the recent coverage of Kawaiaha'o Church and the issues related to construction of a new multi-purpose facility there, some reports have inferred the church did not exhibit appropriate sensitivity to burials and began construction without taking sufficient precautions.

It has also been alleged Kawaiaha'o ignored the advice of its archaeological consultants. Although these claims are not accurate, they have been given wide distribution in news coverage. The record needs to be set straight.

Kawaiaha'o is a cemetery where people bury their loved ones. There is a long history of moving burials, an acceptable practice in a variety of circumstances for Christian burials. In the case of Kawaiaha'o, it goes back to the establishment of the church in the summer of 1838, when Governor Kekuanaoa gave the order for workers to begin digging the foundation and basement of the existing sanctuary.

At the time, Quartermaster Levi Chamberlain noted, "The remains of several church members were removed to another place by their friends. It was a very impressive transaction ... and filled my mind with very solemn emotions."

Again, in 1940, when the congregation decided the church needed a meeting facility and kitchen, 117 sets of remains were moved and now rest in the main Kawaiaha'o Cemetery. This enabled the church to build Likeke Hall, the nearly 70-year-old building being replaced by the new facility.

While it was anticipated that burials would be discovered on the new project, since we were constructing within a cemetery, it was not known with certainty how many burials would be found. Accordingly, the Kawaiaha'o Church Board of Trustees established a Na Iwi Committee, which included native Hawaiian community leaders and burial experts, to develop protocols in the event that burial remains were discovered.

Notifications were published and anyone with a connection to or information about the cemetery was invited to meet and discuss the possible impacts on burials. Seven kahea, or calls to the community, were made and seven meetings held. Much of the excavation on the project has been done by hand, and discovered bones and fragments are carefully cleaned, wrapped and prepared for reburial using the burial protocols established by the NIC.

As for the project history, the congregation of Kawaiaha'o intended the new facility to address several needs, including parking, a long-standing problem for the church. The original design of the center, therefore, featured an underground parking garage, beneath the site of an existing parking lot and the old administration building.

The State Historic Preservation Division determined that the amount of excavation required for the parking garage was extensive enough to necessitate an archaeological inventory survey, which would have required the project archaeologist to dig test trenches to determine if any burials were in the proposed parking area.

After learning that the proposed design would be too tall in relationship to the sanctuary and would also require excavation to the water table, which could impact the sanctuary's structural integrity, it was decided the design should be more modest, limited basically to the footprint of Likeke Hall. Based on the new design, the Historic Preservation Division determined that an archaeological monitoring plan could be used, instead of an archaeological inventory.

At no time did the church lobby the division to avoid conducting an inventory or fail to follow the advice of its consultants in this matter. In fact, the church has complied strictly with the monitoring plan and cooperated closely with the division and its own archaeological and cultural consultants.

With regard to treatment of the remains discovered, Kawaiaha'o Church has a long tradition of caring for iwi kupuna. The church welcomed back the native Hawaiian remains returned to Hawai'i from museums and universities through the Native American Graves Protection and Repatriation Act and made Kawaiaha'o Cemetery their final resting place.

Likewise, when the Department of Transportation widened Queen Street and discovered more than 100 burial remains, congregation members cleaned the bones, wrapped them in kapa and placed them in lauhala baskets. The church built a vault in the cemetery for the iwi, which is marked by a commemorative plaque.

Kawaiaha'o is committed to continuing to care for all burial remains within its cemetery as we resume work under the recently announced guidelines provided by the Historic Preservation Division and the Department of Health.

Frank Pestana is chairman of the Kawaiaha'o Church Board of Trustees. He wrote this commentary for The Advertiser.

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http://www.honoluluadvertiser.com/article/20090717/NEWS01/907170376/Lawsuit+accuses+church+of+digging+into+Hawaiian+graves
Honolulu Advertiser, Friday, July 17, 2009

Lawsuit accuses church of digging into Hawaiian graves

By Rick Daysog

A descendant to Hawaiian royalty has sued Kawaiaha'o Church and state officials over the discovery of 69 human remains during construction of the church's planned $17.5 million multipurpose center.

In a suit filed in state Circuit Court on Wednesday, Abigail Kawananakoa alleged that church officials and construction workers conducted trenching work within the burial plot of her ancestor Queen Kapi'olani and those of other Hawaiian families.

Kawananakoa, Kapi'olani's great-grandniece and an heiress to the Campbell Estate fortune, also alleged that the church, with the aid of officials with the state Department of Land and Natural Resources, circumvented state burial laws to fast-track the development of the new center.

"This project is about greed, not God," Kawananakoa said in an e-mail to The Advertiser. "I must take this to court because I cannot allow the desecration of Hawaiian graves to continue."

The church said it disputes many of the allegations in Kawananakoa's lawsuit and said it "scrupulously followed" requirements set by the DLNR and other state regulatory agencies. It added that it made no attempt to circumvent a review of the project by the O'ahu Burial Council and is complying with additional guidelines set up last month by the DLNR.

In an e-mailed response to The Advertiser yesterday, the church said it has tried to meet repeatedly with Kawananakoa to address her concerns but was rebuffed. The e-mail did not address Kawananakoa's allegation that trenching work encroached on the Kapi'olani family's burial plot.

In April, church officials denied that the Kapi'olani plot had been impacted, saying Kawananakoa was "placing her personal agenda above the church and the wishes of the congregation." But a month later, they said they were unsure whether construction work had dug into the Kapi'olani plot.

"At this time, in an abundance of caution, we would rather state that it is uncertain whether the Kapi'olani plot has been impacted," the church said in a May e-mail to The Advertiser.

Called "the Westminster Abbey of Hawai'i," Kawaiaha'o is one of the state's oldest and best known churches. It is listed on the national and state registers of historic places and is the final resting place of King William Charles Lunalilo.

LARGE DISCOVERY

The new multipurpose center — next to the church sanctuary — aims to expand the church's membership, which has declined in recent years. The center — which will include classrooms, a $1 million kitchen and office space — replaces the church's old Likeke Hall, which was also built on a former cemetery.

The Kawaiaha'o iwi discovery is one of the largest on O'ahu, exceeding those found at Wal-Mart's Ke'eaumoku location and the Ward Village Shops in Kaka'ako, whose building plans were delayed for months due to the discovery.

George Van Buren, an attorney for Kawananakoa, alleged in the lawsuit that the church and DLNR officials should have known it would unearth human remains because the property had once been a cemetery.

Van Buren added that Kawaiaha'o officials and the DLNR disregarded the advice of the church's archaeological consultants, who recommended a subsurface archaeological study for iwi, or bones, and other cultural artifacts before building.

"Kawaiaha'o Church was concerned that any archaeological inventory survey would discover a concentration of human burial remains in the graveyard that could hinder and/or perhaps halt construction of the multipurpose center," Van Buren said.

DLNR officials would not comment, saying they have not yet reviewed Kawananakoa's lawsuit.

ANOTHER LAWSUIT

Dana Naone Hall, former chairwoman of the Maui-Lana'i Island Burial Council, said she also plans to sue DLNR and church officials over their handling of the matter.

Naone Hall, whose relatives are buried at the church's cemetery ground, noted that state laws require Kawaiaha'o officials to conduct an environmental assessment of the property since the church is a designated historic site.

"Your illegal determinations constitute a concerted effort by the DLNR, entered in cooperation with the representatives of Kawaiaha'o Church, to circumvent the plain requirements of our state's burial law," Naone Hall said.

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http://www.hawaiireporter.com/story.aspx?cb9c1f01-3208-48cb-a696-97a01c470c58
Hawaii Reporter, July 17, 2009

Kawaiaha'o Church Responds to Kawananakoa Complaint

By John Williamson

HONOLULU, HAWAII—Kawaiaha'o Church leaders have reviewed the complaint dated July 15, 2009, which was also filed against various government officials, regarding construction done at the Kawaiaha'o Church Cemetery to build the church's Multi-purpose Center.

While we disagree with many of the allegations in her complaint, the church agrees with Ms. Kawananakoa that Kawaiaha'o Cemetery is a cemetery. Moreover, it is an active cemetery. Urn burials and burial reinternments are still taking place. The cemetery is constantly visited by family members who care for the graves of their relatives. Kawaiaha'o personnel continue to maintain the entire cemetery property. In fact, the entire property, which includes the church, is determined to be a cemetery.

Aside from our agreement that Kawaiaha'o is a cemetery, the church disputes many of the allegations made in her complaint, which contains numerous errors of fact and law, apparently based on misinformation.

For example, regarding determination made on how to proceed with work on the renovated facility, those determinations are not ours to make but are made by the appropriate regulatory agency.

The church has complied with the regulatory conditions on this project made by the appropriate agencies and has scrupulously followed required procedures approved by Hawai'i Community Development Authority, State Historic Preservation Division (SHPD), the State Department of Health (DOH), and the City and County of Honolulu with respect to the Multi-purpose Center. We are now following the conditions set forth in the June 11, 2009, letter from SHPD and the forthcoming DOH permit.

Contrary to claims made in her complaint, at no time has the church intentionally tried to circumvent the Oahu Island Burial Council (OIBC). Church representatives went to OIBC in January 2008 and made a presentation on the Multi-purpose Center.

Since then, numerous presentations have been made to OIBC about the project both before and during construction, and since construction was voluntarily stopped. We will continue to keep OIBC apprised at their request.

All the burials that have been discovered in the Kawaiaha'o Church Cemetery during the MPC construction project to date are consistent with post-contact Christian burials, as evidenced by wood fragments of coffin burials. Similarly, no burials discovered to date are consistent with pre-contact native Hawaiian burials.

As to the contention that the church sought to avoid public awareness, nothing could be farther from the truth. In 2006, the church published burial notices on every island about the project, inviting those with family in the cemetery, and anyone else with an interest, to participate in informational meetings.

These meetings have been the subject of articles in the Honolulu Star-Bulletin and elsewhere. Since 2006, the church has held seven meetings to provide families, congregation members, and interested persons information about the project, before and during construction, and after construction stopped. Information provided at these meetings included addressing questions related to the discovery of human burials during construction.

The church also undertook several events, which it publicized and which were covered by local news media, announcing the project, including a ceremony in October of 2007 to say goodbye to Likeke Hall in preparation for the new facility that will replace it. Kawaiaha'o Church has, in fact, gone to great lengths to create awareness about the project in the community. We have also met frequently in public meetings with OIBC and SHPD.

With regard to Ms. Kawananakoa, since we first became aware of her concerns, we have tried to meet with her repeatedly, using every channel of communication available, including her attorneys. We stated from the outset that we wanted to do whatever we could to address her concerns and determine what she wanted the church to do. All of our efforts have been rebuffed, much to our regret. However, we continue to be willing to meet with her to address her concerns and resolve this in a Hawaiian way outside of the Western courtroom.

Kahu Curtis Kekuna noted, "Our decision to replace our old facility, Likeke Hall, with the Multi-purpose Center is a statement of our mission as a church. We are building the MPC to ensure that the church can continue to grow and meet the needs of our youth ministry, the congregation and future members of the church and the general community well into the future. We must ensure the church is a living resource which honors those who have passed and will serve as a gathering place for future generations."

John Williamson wrote this for Kawaiaha'o Church

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http://www.honoluluadvertiser.com/article/20090808/NEWS23/908080340/Lawsuit+seeks+protection+for+Kawaiaha+o+Church+iwi
Honolulu Advertiser, Saturday, August 8, 2009

Lawsuit seeks protection for Kawaiaha'o Church iwi

By Rick Daysog

A former chairwoman of the Maui/Lana'i Burial Council has sued the state Department of Land and Natural Resources and Kawaiaha'o Church over the discovery of 69 human remains unearthed during construction of the church's $17.5 million multipurpose center.

Dana Naone Hall, a Hawaiian cultural specialist whose relatives are buried at Kawaiaha'o's cemetery, is asking a state judge to halt construction and further disinterments until appropriate archaeological studies are done.

Hall's suit said the DLNR incorrectly determined that burials were "inadvertent discoveries," allowing the church to circumvent a more rigorous review by the O'ahu Burial Council.

"The purpose of this complaint is to prevent further harm to native Hawaiian remains disturbed or threatened to be disturbed by construction of defendant Kawaiaha'o Church's proposed multipurpose center and associated improvements," the suit said.

Hall's lawsuit, which was filed by the Native Hawaiian Legal Corp. and Maui attorney Isaac Hall, follows a similar suit filed last month by Campbell Estate heiress Abigail Kawananakoa. Kawananakoa alleged that the church, with the aid of DLNR officials, circumvented state burial laws to fast-track the development of the new center.

Kawaiaha'o officials and a spokeswoman for the DLNR had declined comment on Hall's suit yesterday. In court documents filed earlier this month, church officials said the project is not subject to state laws on Native Hawaiian burials since the church site is an active cemetery.

"As a cemetery, Kawaiaha'o may disinter all human burial remains within the project area," church attorney Crystal Rose wrote.

Called "the Westminster Abbey of Hawai'i," Kawaiaha'o is one of the state's oldest and best-known churches.

The new multipurpose center — next to the church sanctuary — aims to expand the church's membership, which has declined in recent years. The center — which will include classrooms, a $1 million kitchen and office space — replaces the church's Likeke Hall, which was also built on a former cemetery.

The Kawaiaha'o iwi discovery is one of the largest on O'ahu, exceeding those found at WalMart's Ke'eaumoku location and the Ward Village Shops in Kaka'ako, whose building plans were delayed for months due to the discovery.

Hall said the discovery of the remains can't be considered "inadvertent" since the church grounds had been a burial site for native Hawaiians during pre-contact and post-contact period. She added that the church's own archaeological consultants noted that historic burials and historic artifacts may exist on church property.

"This is a major desecration that is being planned," said Hall.

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http://www.starbulletin.com/business/20090808_Kawaiahao_Church_asks_that_lawsuit_be_dropped.html
Honolulu Star-Bulletin, August 8, 2009

Kawaiaha'o Church asks that lawsuit be dropped
Abigail Kawananakoa alleges that building on the site is disturbing the iwi of her ancestors

By Nina Wu

An attorney for Kawaiaha'o Church has filed a motion to dismiss a lawsuit filed by Abigail Kawananakoa for disturbing the remains of her ancestors, the family of Queen Kapiolani.

Kawananakoa, 83, filed suit against the church in state Circuit Court last month alleging that it invaded the queen's burial plot, disturbing the human remains during construction at the start of this year.

The suit seeks to prevent further harm to remains at the cemetery.

The church is building a new, $17.5 million multipurpose center next door to its sanctuary at the site of the former Likeke Hall. It is one of the largest undertakings for the historic church since 1940, when Likeke Hall was built, but one that the congregation voted to move forward on after years of deliberation.

Church officials have said they believed that the area under Likeke Hall was clear of human remains, or iwi, since 117 were found and removed when it was built, but later they discovered two sets. Sixty-nine sets have since been reported to the state.

Construction came to a halt in March.

The state Department of Health must issue a disinterment permit before any more work can be done, but even more important is a resolution to the lawsuit.

Leaders of the church said they would prefer to settle the matter, Hawaiian style, outside of the courts.

Kahu Curt Kekuna expressed sadness at Kawananakoa's lawsuit. "It's unfortunate that we have to file this motion," said Kekuna. "Since we first became aware of (Abigail) Kekaulike Kawananakoa's concerns, we have tried to meet with her repeatedly, using every channel of communication, including her attorneys. ... All of our efforts thus far have been rebuffed, much to our regret."

While admitting that the number of iwi was more than expected, Dawn Chang, a consultant for the church, said it has held eight meetings since 2006 to reach out to descendants of the burials. To date, she said, 150 families have been supportive of the church's redevelopment plans.

The church's motion says the lawsuit should be dismissed in part because the church is already used as a cemetery and is not subject to burial laws relating specifically to prehistoric and historic burial sites. Also, it says that Kawananakoa has not legally established herself as a lineal descendant of the remains.

Kawananakoa is popularly recognized as the great-grandniece of Queen Kapiolani and King Kalakaua, as well as an heiress to the James Campbell estate.

Frank Pestana, chair of Kawaiaha'o's board of trustees, said the multipurpose center is a step forward in reviving the church's membership, which is at about 300. It is designed to connect the sanctuary to new offices, classrooms, a kitchen and a gathering space for the youth ministry. It also would help in growing the church. "We have taken care of the past," said Pestana. "The multipurpose center is to create a place for future generations and to continue ministry of the church."

Originally, the church had envisioned a three-story center with underground parking. But that was pared to two stories without the parking.

The 1820s church, built of coral and designated as a national historic landmark, sits on about seven acres and includes a small wedding center, two schools, a lawn cemetery and the tomb of King Lunalilo.

In her suit, Kawananakoa alleges that the church knew or should have known it would disturb human remains in the cemetery.

The state agencies in charge also should have required an archaeological inventory survey -- a complete study of all possible burials and their location -- before starting construction, says the suit. But they did not do so, allegedly to avoid the scrutiny of the Oahu Island Burial Council. An environmental assessment also should have been completed, says the suit.

The church says since its redesign, the state Historic Preservation Division (SHPD) informed it that a survey was not necessary and that a monitoring plan was enough. SHPD provided Kawaiaha'o with a five-phase process, and the church complied, according to Chang. "Whatever they required us to do, we complied, and that's what we will continue to do," she said.

The church even had its own Na Iwi committee that established protocols on how the remains should be handled. Since January the church has been providing the council with updates.

Kekuna said while the church is open to meeting with Kawananakoa, it is also committed to fulfilling its mission by finishing the center.

BUILDING BLOCKS

Kawaiaha'o Church construction time line

» 2002: Planning for the center begins.

» September 2006: State says monitoring plan is OK.

» November 2007: Demolition of Likeke Hall/office building.

» January 2009: Construction begins.

» March 2009: Construction halted after 69 sets of iwi found.

» July 15, 2009: Abigail Kawananakoa files suit.

» Aug. 4, 2009: Kawaiaha'o Church files motion to dismiss Kawananakoa's suit.

» Spring 2010: Target completion date for the center.

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http://www.starbulletin.com/news/hawaiinews/20090828_Church_project_hit_with_second_suit.html
Honolulu Star-Bulletin, August 28, 2009

Church project hit with second suit

By Nina Wu

A second lawsuit has been filed against Kawaiaha'o Church and the state to block the disinterment or relocation of iwi -- native Hawaiian remains -- at the construction site of its multipurpose center.

The Native Hawaiian Legal Corp. filed suit in Circuit Court on behalf of plaintiff Dana Naone Hall of Maui earlier this month.

Naone Hall, who has family members who attended the church and are buried on the grounds, says in the suit that the church should have completed an archaeological inventory survey and gone before the Oahu Island Burial Council before starting work on the center.

The suit further alleges that the church, as well as the state Department of Land and Natural Resources, ignored a 2005 archaeological report recommending that a survey be done. Instead, the church and state worked together to expedite the project and circumvent the purview of the burial council.

The suit also says the church discovered 24 burials at an on-site construction staging area -- prior to the discovery of 69 others, as reported to the state -- and should have informed the burial council but did not.

Naone Hall's suit follows in the steps of another one filed in July by Abigail Kawananakoa, who is also seeking to stop the church from any further work at the burial plot of her ancestors, Queen Kapiolani and King Kalakaua.

The Department of Land and Natural Resources said it could not comment on pending litigation.

"We are disappointed in the allegations against Kawaiaha'o Church made by Ms. Hall," said the church in a written statement. "However, we look forward to resolving this matter and resuming work on the new facility, which will allow the church to carry out its mission and better serve the congregation and the community."

The church is waiting for a disinterment permit from the state Department of Health so it can continue construction.

The law was changed in 1990, she said, to put a process in place to protect native Hawaiian burials. This process requires any burials classified as "previously identified," which she says should be the case for these iwi, to fall under the jurisdiction of the burial council.

Given that construction has not yet started on new sewer, water and electrical lines, Naone Hall says the church has enough time to complete an archaeological inventory survey and have the burial council consider the matter.


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

(6) Plans for a mid-level corridor connector road, associated with the long-delayed Ali'i Highway project, have run into problems because ancient burials and cultural artifacts have been discovered along the planned route.

** This news report was posted in item # (4) but also marks the beginning of news about item # (6), and so it is repeated here.

http://www.westhawaiitoday.com/articles/2009/03/13/local/local05.txt
West Hawaii Today, Friday March 13, 2009

20th survey done for Alii Highway
More archaeology, still no road

by Erin Miller
West Hawaii Today

Maybe 20 will be West Hawaii motorists' lucky number.

Nineteen previous archaeological studies weren't on the winning ticket to get the Alii Highway from plan to pavement. But Hawaii County officials got their first look at the most recent survey this week, at a cost of about $30,000.

Taxpayers can add that to the $6.3 million spent in federal and county money over the last 40 years or so, figure in the expected $70 million construction price tag, and the expected 4.5-mile road that is apparently the longest, and most intensively studied stretch of pavement in the county, will also become one of the most expensive.

Public Works Director Warren Lee refused to return phone messages for the third consecutive day.

Mayor Billy Kenoi said he is committed to an "aggressive timeline" for the project, which has already been designed, but would not give a specific time frame. He said the county will seek to get the project on the State Transportation Improvement Program list after its environmental impact statement is updated and another Kona road project, the midlevel road, makes it to the STIP list.

The midlevel road was selected over Alii Highway, even though designs have not been completed, as a project that could be eligible for federal stimulus funding for several reasons, Kenoi said.

"It was identified that it was a good candidate," he said. "It will alleviate traffic in Kona."

The county still needs to acquire a piece of land at the northern end of what will be also known as the Kahului to Keauhou Parkway, Kenoi said, before the county can seek federal funding. Contention over the extension of Lako Street, which will connect into the parkway, must also be resolved. Once those issues are resolved, the county will seek money for grading and grubbing of the corridor.

Cultural Surveys Hawaii archaeologists surveyed the land for the parkway corridor from April 7 to 25, looking for previously identified burial and cultural sites and checking for sites any of the previous surveys might have missed.

They found 14 previously undocumented sites, with 19 new features, and evidence of construction and new excavation that obscured or hid previous sites. The archaeologists recommended avoiding altogether or subsurface testing at nine of those new features, which included rock outcroppings, paved areas, enclosures and a possibly closed-off lava tube.

More information on those sites would be available after the completion of a data recovery project, the survey report said.

The Hawaii Island Burial Council voted in June 2007 against allowing the county to proceed with a design that would have built a bridge over a cave in which the remains were buried, but reversed its decision three months later, accepting a plan recommended by the county. The burial council in 2004 shot down a recommendation that remains be relocated, and the resulting delays cost the county millions in federal funding that would have covered 80 percent of construction costs.

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

http://www.westhawaiitoday.com/articles/2009/06/09/local/local01.txt
West Hawaii Today (Kona), June 9, 2009

Remains Found In Road Corridor Won't Stop Project

by Erin Miller

A discovery of skeletal human remains in the proposed midlevel road corridor likely won't stop the project from proceeding, a county official says.

Cultural Surveys Hawaii, which is conducting the archaeological survey for the Ane Keohokaole project, issued notice Friday about the discovery of three sets of remains. The survey company is looking for information about possible lineal descendants.

A fourth set of remains was also located, Public Works Director Warren Lee said, but he anticipated being able to preserve that set of remains in place. The county needs a treatment plan to address the other sets of skeletal remains.

The Hawaii Island Burial Council is aware of the discovery, member Gene "Bucky" Leslie said. He expected the council would hear an update on any remains discovered by August, though a report could be on the agenda as soon as the June 18 meeting. The agenda for that meeting will be finalized Thursday, a burial council representative said.

Hawaii County officials are hoping to receive a bulk of the funding for the first phase of the road, which is to run mauka of Queen Kaahumanu Highway between Henry Street and Hina-Lani Street, from the federal government in the form of stimulus funding. To do so, they must have a contract ready for advertising by October, a deadline set by the state Department of Transportation, which must place the project on the improvement program list and obligate the funding by March.

State officials were also required to submit documentation to the Federal Highways Administration showing the functional classification of the road. The classifications reflect the amount of traffic and the function of the roadway; the DOT was likely to recommend the road project because it would relieve congestion on Queen Kaahumanu Highway and Palani Road, as well as create an alternative route in an area with no midlevel connections.

The archaeological survey is part of a broader environmental review that Lee said was being completed at the same time as the design. The parallel track approach is intended to help the county meet the state and federal deadlines for stimulus funding.

Human remains aren't the only historical and cultural artifacts in the proposed road corridor; Lee said archaeologists are creating a preservation plan for the structures also being located.

The environmental review may be ready for a notice of publication by the end of this month, he added. The work is continuing under the hope that they will meet the deadlines for the $35 million project.

"There's a lot of work that would take a lot of time," Lee said. "We're doing it right."

Community members can get more information about the road, as well as provide feedback on the proposal, at a hearing set for 6 p.m. June 23 at Kealakehe High School's cafeteria.

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http://www.westhawaiitoday.com/articles/2009/06/18/local/local01.txt
West Hawaii Today (Kona), Thursday, June 18, 2009

Midlevel road draft EIS released
Two-lane route follows original plan

by Erin Miller

The draft environmental assessment for the proposed midlevel Kona road is out, charting a route from Henry Street to Hina Lani Street, skirting a burial site and shifting makai near the northern end to avoid bisecting a dryland forest.

The assessment was posted on the state's Office of Environmental Quality Control Web site late Tuesday.

Though county officials have often described the midlevel road, which was supposed to extend from the Henry Street terminus at Palani Road through to at least Hina Lani Street, as a four-lane highway, the draft assessment outlines construction phases for only two lanes and does not address when a final build-out would take place.

Expansion to four lanes is dependent upon several things, Public Works Director Warren Lee said. "The primary factors are, what is the traffic going to be later," Lee said.

The growth of the Villages of Lai Opua, a Hawaii Housing Finance and Development Corporation subdivision, will impact traffic, as will potential development on nearby Queen Liliuokalani Trust land.

Future funding is another factor, he added. "The purpose of the stimulus package was to put people back to work," Lee said. "We asked, 'Where can we get the best bang for our buck?' Building this road would help the subdivisions and put people back to work. All things seem to fall into place."

The county is attempting to ready the project in time to qualify for federal-stimulus funding to cover the project's estimated $35 million cost. In addition to completing the environmental assessment process, county officials must receive at least six permits or approvals from state and federal agencies.

Lee was not aware of any changes in plans by the state Legislature to give the county $15 million for the project.

A contractor working for the county issued a notice earlier this month that at least four human burials were located in the proposed road corridor.

The Hawaii Island Burial Council has yet to hear an official report about the discovery. At the southern end, researchers discovered a cave in which they say are poorly preserved human skeletal remains, according to information provided in their survey. Other potentially significant discoveries included a post-contact boundary wall, a pre-contact modified lava blister, and pre-contact terraces, habitation caves and trail.

An alternative southern alignment that would put a bridge over the burial site near the Henry Street terminus was rejected because the grade would be too steep.

Belt Collins created the draft environmental assessment, which anticipated findings of no significant impact on cultural or historical artifacts, plants, animals, air and water quality or any other area in which impacts are measured.

"Traffic congestion has been fueled by rapid growth, poor connectivity, dependence on automobiles and road improvements that have not kept pace with development," the assessment said in describing the reason for proposing and constructing the road. "New developments mauka and makai of the arterial and collector roadways have occurred without local road connectivity. In the absence of local roads, all traffic from these developments funnels to the arterial (e.g., Queen Kaahumanu Highway and Mamalohoa Highway) and collector roadways (e.g., Palani Road and Henry Street), resulting in congested traffic conditions that negatively impact residents' quality of life, visitors' experience and overall public safety."

Construction phases, the order of which have yet to be determined, include building two vehicle lanes and a shared use path for bicycles and pedestrians between Palani Road and Kealakehe Parkway, widening Palani Road and its underground utility corridor and construction of two vehicle lanes and the shared use path between Kealakehe Parkway and Hina Lani Street.

Community members can learn more about the project at 6 p.m. Tuesday during a meeting at the Kealakehe High School cafeteria.

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http://www.westhawaiitoday.com/articles/2009/08/21/local/local04.txt
West Hawaii Today (Kona), August 21, 2009

Burial plan undergoes review

by Erin Miller

The Hawaii Island Burial Council took a look Thursday at the draft proposed burial treatment plan for four burials found near the planned path of the midlevel connector road in North Kona.

The draft plan for the Ane Keahokalole Highway, consultants from Belt Collins and Cultural Surveys Hawaii said, recommended preserving all burials in place. Council members considered the plan only for discussion purposes; Leslie Matsumoto, of Belt Collins, said she hopes to bring a final plan to the council for approval next month.

Analu Josephides, with the State Historic Preservation Division, said the consultants working for Hawaii County on the project had followed the division's recommendations regarding the draft treatment plan. Council members then went nearly page-by-page with questions and clarifications about definitions, locations and treatment plan recommendations.

Several community members testified, including Nicole Kealohaokalani Lui, who council members voted to recognize as a cultural descendent of the ahupuaa, or mauka-to-makai land demarcation, in which the burial sites along the road right-of-way had been located. Community members asked the council to keep the public apprised of additional developments as the road plans progress.

Hawaii County officials hope to complete the archaeological, environmental and cultural assessments in time to qualify the road project for $35 million in federal stimulus funding.


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

(7) NAGPRA-like issues in other nations, reported in American media. (a) France will return to New Zealand more than a dozen tattooed mummified Maori heads held in French museums for more than a century. (b) Sweden's antiquities museum is returning (to Hui Malama) 5 native Hawaiian skulls held by itself plus 17 others held by the medical university, in a ceremonial handoff hosted by Sweden's indigenous Sami tribe. The skulls had been collected by a Swedish scientific expedition in the 1880s. 8 more skulls were then repatriated from Harvard University's anatomical collection as the group went to Boston on its way from Sweden back to Hawaii.

http://pidp.eastwestcenter.org/pireport/2009/June/06-29-02.htm

FRANCE TO RETURN MAORI HEADS TO NEW ZEALAND Mummified heads displayed in museums for decades

SUVA, Fiji (Fijilive, June 29, 2009) – France is set to approve on Monday a new bill to return to New Zealand more than a dozen mummified Maori heads in what supporters say is a belated move to right the wrongs of European colonialism.

"The Maori heads that are still dispersed in European and US museums have a history that reminds us of the worst hours of colonialism," read the summary of the draft bill, which is due to be debated by the Senate in Paris.

The bill is due to get the go-ahead from French senators despite reservations within the government, a source inside the UMP ruling party of French President Nicolas Sarkozy told AFP ahead of the debate.

France's culture ministry blocked the return of a Maori chief's head from a museum in Rouen to New Zealand's national Te Papa Tongarewa museum in 2008 saying the move could mean that France would have to return mummies to Egypt.

The culture ministry has said however that it favours the current proposal.

Museums in Australia, Europe and the United States have already returned hundreds of the heads for burial according to Maori tradition in recent years.

"During the colonisation of New Zealand, Europeans became interested in these tattooed human heads, a Maori tradition, and private collectors began a real hunt for heads that became the object of a barbaric trade," the bill said.

"In order to satisfy demand, the tattoos on the heads that were initially reserved for warrior chieftains were also put on slaves who were then decapitated so their heads could be sold off," it added.

The British government in 1831 passed a law forbidding the export of the heads to Australia, which served as a hub for the Maori head trade.

The city of Rouen in October 2007 decided to return a Maori chief's head to New Zealand that had been kept in its museum since 1875.

The move was blocked in 2008 by then culture minister Christine Albanel amid fears of repercussions for France's rich collection of mummies.

"We don't want to open a Pandora's box," said Catherine Morin-Desailly, a centrist senator who is one of around 40 senators backing the bill.

But "there is a legal void concerning human remains," she said.

Returning the heads is "an expression of respect that we owe to the beliefs of a population that has been calling for the return of these heads in order to bury them in a dignified way that is respectful of Maori traditions," she said.

"Human remains cannot be considered like other cultural artifacts, belonging to the public domain and therefore untouchable," she added.

The bill's backers say numerous US, Australian and European museums have "already responded favourably to New Zealand's legitimate demand," criticising the fact that "France should be an exception to this general movement."

France is no stranger to this type of cultural controversy after initially refusing to return the remains of Saartjie Baartman, a slave dubbed the Hottentot Venus, to South Africa but eventually agreeing to do so in 2002.

Morin-Dessailly said 300 out of some 500 Maori heads held in museums around the world have been returned to New Zealand. France has around 15 of the heads including eight at the Quai Branly museum in Paris, which opened in 2006.

Fijilive: http://www.fijilive.com

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http://www.starbulletin.com/news/20091115_Sweden_returns_22_skulls_to_delegates_from_Hawaii.html
Honolulu Star-Bulletin, Sunday November 15, 2009

Sweden returns 22 skulls to delegates from Hawaii

By Louise Nordstrom / Associated Press

STOCKHOLM » With a solemn ceremony in Stockholm's antiquities museum, Sweden marked the return of 22 skulls looted from a native Hawaiian community mainly in the 17th century.

The symbolic ceremony -- attended by guests from Hawaii and the Nordic countries' own indigenous Sami population -- was part of Sweden's increased efforts to return indigenous remains collected by scientists across the world in the 17th and 18th centuries.

The Swedish government in 2005 ordered its museums to search through their collections, and has since returned more than 20 human remains, mainly to Australia.

The Hawaiian skulls had been returned privately earlier yesterday so that the Hawaiian delegates could perform a ritual according to traditional customs.

Museum director Lars Amreus said he hoped yesterday's return would help "fulfill the spiritual circle" of those whose graves had been violated by the Swedish scientists.

"We know that they were collected, although by today's standards they were looted," Amreus said.

Greeting Amreus at the ceremony with the traditional nose-to-nose -- or breath-of-life -- greeting "Ha," Hawaiian delegation head William Aila thanked the Nordic country for helping to recover the remains of ancestors.

"I cannot adequately express the thankfulness ... for a very, very worthy endeavor, and that is to greet our ancestors and accompany them home," Aila said in a speech during the ceremony in the museum's round-walled "Gold Room."

Five of the skulls were returned by the museum itself, while 17 came from Stockholm's medical university Karolinska Institutet. They were not on display during the ceremony.

Aila said the skulls would "be reburied in the soil of their birth" back in Hawaii.

Of the 22 skulls, at least 15 had been taken from the Pacific islands by Swedish scientists in the 1880s during an expedition around the world. The museum received five of them through a donation in 1997, while it was unclear when Karolinska received its collection.

On Wednesday, Sweden will return to New Zealand a near-complete skeleton, a skull and three skeleton parts all believed to have been from the indigenous Maori population. A similar ceremony involving representatives from the Museum of New Zealand, Te Papa Tongarewa, is planned.

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http://www.honoluluadvertiser.com/article/20091116/NEWS01/911160329/Hawaiian+skulls+to+be+repatriated
Honolulu Advertiser, Monday, November 16, 2009

Hawaiian skulls to be repatriated

By Will Hoover
Advertiser Staff Writer

Having retrieved 22 iwi po'o, or Hawaiian skulls, from Stockholm's antiquities museum over the weekend, a Native Hawaiian delegation arrived in Boston yesterday to take possession of eight more from Harvard University's anatomical collection, William Aila, the group's spokesman said last night.

"We'll be repatriating eight more of what we call iwi kupuna," Aila said from Boston. "So, we'll have 22 from Sweden and eight from Harvard, for a total of 30 Hawaiians that we're rescuing and returning home."

The repatriation of indigenous remains is part of an increased worldwide effort among institutions to return human remains collected by scientists during previous centuries.

Like the Stockholm remains looted from Native Hawaiian burials, the Harvard po'o will be prayed over in a symbolic ritual before being returned to Hawai'i tomorrow, Aila said.

"Once we get home, we're going to finish ceremoniously rewrapping them, and then we will take the additional task of reburying them," he said.

That ceremony will include wrapping the bones in kapa cloth made from tree bark and placing them in what's known as a hνna'i, or lauhala basket. Some will be reburied on the Big Island, while others will be reburied on other Neighbor Islands, Aila said. "We know where most of them came from," he said. "There are several we do not have enough information about to make that determination."

Aila praised Swedish officials for their handling of the sensitive matter of handing over the Hawaiian remains, and said he believed the people at Harvard would do likewise.

"The people in Sweden were absolutely marvelous," he said. "The government used the words we use at home: 'These kupuna (or ancestors) were looted from their graves.' "


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(8) Should every place that has ethnic Hawaiian burials (regardless whether they are remembered or forgotten) be subjected to the same laws and regulations that govern modern cemeteries?

http://www.kauaiworld.com/articles/2009/07/17/news/kauai_news/doc4a5ff424df9a6611360786.txt
The Garden Island (Kaua'i), July 17, 2009

OHA trustee pushes for new iwi protection

By Paul C. Curtis

LIHU'E — When nearly 80 Native Hawaiians met in Po'ipu late last year, their focus was singular: protect the iwi.

There were no impassioned pleas for sovereignty, no debate over the merits of the controversial Akaka bill proposing to establish a Native Hawaiian governing entity, no arguing at all, recalled Donald Cataluna of Koloa, the state Office of Hawaiian Affairs trustee representing Kaua'i and Ni'ihau.

Participants were concentrating on "one thing: protect the iwi," or bones of Native Hawaiians buried in grave sites known and unknown across the state.

From that post-election gathering at the Grand Hyatt Kaua'i Resort and Spa came proposed legislation to consider all burial sites as cemeteries, with protections against building on them.

Also discussed were changes to the way the state Department of Land and Natural Resources State Historical Preservation Division approves of projects proposed over burial sites before said projects reach county planning approval processes, Cataluna said.

Both bills died in committee during the state legislative session completed earlier this year, he said after an OHA board meeting at the Queen Lili'uokalani Children's Center here Thursday.

"I'm going to bring it up again," Cataluna said of the legislation.

Cataluna wanted members of the various island burial councils to participate in November's gathering, but received a negative response from state officials, he said. The various island burial councils make recommendations about disposition of Native Hawaiian burials discovered on parcels of land large and small.

OHA helped put the conference together, with funds for some air and ground transportation and meals for participants, said Cataluna.

Instead of zeroing in on the controversial Ha'ena lot owned by Joseph Brescia, Cataluna said he prefers to consider all Hawaiian burial sites for the proposed legislation.


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(9) On the mainland, it is normal that old forgotten cemeteries are excavated and the bones are moved elsewhere in order to make way for new development. Inadvertent discovery of such cemeteries temporarily halts development until plans can be made; but then the bones are moved.

http://www.nytimes.com/aponline/2009/09/21/us/AP-US-Surprise-Cemetery.html?_r=2
New York Times, September 21, 2009

Forgotten Iowa Graveyard Stops Condo Development

By THE ASSOCIATED PRESS

DES MOINES, Iowa (AP) -- A man stumbling upon a human jaw while out walking his dog was the first sign something was amiss. Then officials uncovered something more: More than 600 sets of remains, long ago buried and forgotten, on the site where luxury condos were supposed to be built.

The remains, found on a site overlooking the Mississippi River in Dubuque, have left the nearly $60 million condo plan in limbo, and the developer has sued the nuns who sold him the property. No one is exactly sure why -- or how -- no one knew the pre-Civil War remains were still there.

Whether the graves were lost because wooden markers deteriorated, stone tablets were reused or the sites were never marked in the first place, the excavation by the state's archaeologist's office has put the project on hold for two years with no start date in sight.

''We were told they have been cleaned out and that's what we believed,'' said developer A.J. Spiegel. ''It was a true shock, a moment of, 'What do we do now?'''

Spiegel and his company, Peosta, Iowa-based River Pointe Development LLC, have filed a lawsuit against the Sinsinawa Dominicans Inc., an order of nuns now based in southwest Wisconsin. Their attorney claims the religious order didn't know there were any remains remaining. The diocese, which owned the land before the nuns, says it sincerely believed they had all been moved long ago.

The lawsuit, filed in Dubuque County District Court in May, claims the nuns did not disclose that bodies were still buried in the old Third Street Cemetery, also called Kelly's Bluff Cemetery, when he bought the property in 2002 for $1.5 million.

Iowa law requires property owners to pay for excavating a site for human remains, and Spiegel is seeking compensation for those costs, the relocation of the remains and the lost use of the site. No dollar amount was listed in the lawsuit, which is scheduled for trial next August.

He said there are no immediate plans to develop the land, where he had hoped to build two 12-story towers.

''It's very unmarketable because who would want that responsibility?'' he asked. ''So we will proceed to clean up the entire area for remains.''

The graveyard was the first Catholic cemetery in Dubuque and possibly the state, with burials from 1839 until it closed in 1856. Ownership was transferred from the Archdiocese of Dubuque to Sinsinawa Dominicans Inc. shortly after World War II.

Attorney Glenn Johnson, who represents Sinsinawa Dominicans, said the nuns did not know the site still contained human remains. As part of the land's transfer, he said, the diocese was supposed to move the remains to another cemetery.

''There must have been some remains they could not locate,'' Johnson said.

The Rev. Loras Otting, the diocese's archivist, said church officials sincerely believed that the remains had been moved long ago. Otting, who has the original burial registry dating back to Aug. 4, 1839, said many of those laid to rest there were poor, and no marker or stone was erected.

''Or they put up a wooden marker and those deteriorated, and if there were stone markers, they were taken years later for sidewalks,'' he said.

The registry contains the names and ages of 819 people buried in the cemetery, but no map has been found showing where the graves were. Otting said the registry indicates the remains were moved in the late 1860s and buried in a common grave at Mount Olivet Cemetery in Key West, Iowa.

''Everyone thought at the time they got as many as they could,'' he said.

River Pointe had begun moving soil and doing initial grading work on the property when a local attorney walking his golden retriever found a human jaw in June 2007.

''I was shocked the bones were that visible,'' said Francis Henkels. ''It was pretty clear. It wasn't just a couple of bones, there were quite a few bones.

''I tend to look down a lot -- I'm a fossil hunter and I tend to gaze down -- and I saw something that just appeared to be out of place and it turned out to be human bones,'' he said.

That led to an excavation by the state archaeologist's office. Shirley Shermer, director of the state archaeologist's burials program, said there were remains of at least 600 bodies at the site, mostly in unmarked graves.

''In these old, historic cemeteries, if it is closed and no longer used, some of the graves are moved,'' she said. ''Sometimes, if the local belief is all the graves have been moved, more than likely only some of them have been moved.''

She said her office is about three-quarters of the way through its analysis of the remains. But unless other documentation surfaces, such as a map identifying the graves, it's unlikely the remains will ever be identified, Shermer said.

The remains, mostly fragments, will be reburied in a common burial vault at Mount Olivet Cemetery.


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

(10) The Oahu Island Burial Council has decided not to join other parties — including the National Parks Service and the Advisory Council on Historic Preservation — in signing an agreement on mitigating the rail project's impacts on historical, cultural and archaeological resources.

http://www.honoluluadvertiser.com/article/20091020/NEWS01/910200360/Burial+council+won't+sign+rail+pact
Honolulu Advertiser, Tuesday, October 20, 2009

Burial council won't sign rail pact

By Sean Hao

A government panel charged with protecting Native Hawaiian burials is opposing plans to run Honolulu's $5.5 billion rail line through Kakaako via Halekauwila Street.

The Oahu Island Burial Council has decided not to join other parties — including the National Parks Service and the Advisory Council on Historic Preservation — in signing an agreement on mitigating the rail project's impacts on historical, cultural and archaeological resources. The organizations are scheduled to sign the agreement tomorrow.

The burial council decision is largely symbolic and isn't expected to stop or delay the 20-mile elevated commuter train project, scheduled to break ground in December. But it does indicate the concern Native Hawaiians and others have that the rail project's current route will encounter problems with old burial sites.

"When it comes to the issue that we're concerned with, you picked one of the worst possible alignments," burial council member Kehau Abad told transit officials during a meeting last week.

Honolulu Mayor Mufi Hannemann wrote to the burial council on Oct. 13 urging the group to concur with the agreement. The city worked with the council for months to address concerns about the project's potential impact on traditional Hawaiian burials, which are generally unmarked graves.

However, the administration was unwilling to alter the route from going through an area that sits on a band of sandy deposits that's expected to contain high concentrations of burials, according to the council. That route was chosen by the Honolulu City Council in early 2007 based on a study of various transit alternatives conducted a year earlier.

Some federal officials also have opposed a Halekauwila Street route, which passes the Prince Kuhio Federal Building, because of security concerns.

Burial council members said they should have been consulted and an archaeological inventory survey should have been conducted before selection of a route through Kakaako. The current route will almost certainly encounter buried human remains, which could delay the project and drive up costs, Abad said during last Wednesday's meeting.

"What we're concerned about is the public is going to turn around and point to us as the cause of those increases in costs (and) as the cause of delays," she said. "Beyond just us, they're going to turn to the whole Hawaiian community and say it's those Hawaiians who are increasing the costs of this project for everyone. It is the Hawaiians who are holding up progress .

"We're going to get blamed for something that we knew well in advance would have been coming, but nobody asked us," Abad said.

MAUKA ROUTE URGED

The burial council is appointed by the governor and works to protect Hawaiian burial sites. The council maintains that a more mauka route for the rail line, along King or Beretania streets, would avoid subsurface sandy deposits likely to contain burials.

City officials said they considered but discounted alternatives because other routes wouldn't generate enough ridership or would have greater impacts on adjoining properties.

The issue of how to deal with the discovery of iwi, or burial remains, arose at the Kakaako Walmart and Ward Villages projects and likely could recur if the city proceeds with plans to build a 20-mile rapid transit system linking East Kapolei to Ala Moana.

According to the city's 2006 study, there is a high potential of encountering Native Hawaiian burials and other archaeological artifacts once construction enters urban Honolulu. Other portions of the route along Farrington and Kamehameha highways and the airport have a medium potential of encountering such sites.

In an effort to alleviate council concerns, the city agreed to conduct an archaeological inventory survey in the Kakaako area about two years earlier than planned, said Lawrence Spurgeon, supervising environmental engineer for New York-based project manager Parsons Brinckerhoff.

Such a survey is currently being conducted at the ewa side of the route, which will be built first, and includes tests at about 80 sites. So far no burials have been found.

SURVEY SET NEXT YEAR

The current plan is to conduct an archaeological survey for the Middle Street to Ala Moana Center segment next year, Spurgeon told the burial council last week. That will be before a final design is completed for that portion of the route, he said.

"If we have any substantial finds that will really require a redesign or anything of that type, we'll have a fair amount of time to look at what those options are," he said.

The city would consider moving train guideway footings and altering utility relocation plans to avoid iwi. However, it's unlikely that the discovery of human remains in Kakaako will cause the city to alter the route, Spurgeon said.

"From our point of view it's going to be a fairly high threshold to the point where the proposed alternative is essentially abandoned in favor of coming up with another alternative," he said. "The city would go through every design option first to be able to avoid those resources.

"Changing the entire project alignment in some area is a last resort."

The city also maintains that an elevated train will have less impact on human burials than an at-grade train.

"To the extent there are specific locations where you are likely to run into iwi, hopefully you can in fact engineer around it to avoid the situation" with an elevated train, said City Council Chairman Todd Apo.

INADVERTENT DISCOVERIES

According to a study commissioned by Kamehameha Schools and released earlier this year, at-grade and elevated train alternatives affect burials in different ways.

"Although at-grade construction results in a continuous disturbance to the ground beneath, throughout the length of the guideway, fortunately disruption can be limited to the first few feet of ground," according to the report by IBI Group in Irvine, Calif. "The aerial guideway design option will avoid constant disturbance along the transit alignment, limiting the disruption to the column foundation areas only."

The city said it is committed to working with the burial council even though the group won't sign the agreement.

"We need to ensure that any of those disturbances are eliminated or at a minium minimized," Apo said.

Despite those reassurances , several burial council members said it would be better for the city to avoid an area that's likely to encounter burials. Recent inadvertent discoveries of human remains in Kakaako include:

• About 42 sets of remains were found at the Keeaumoku Walmart site after construction began in late 2002.

• Separately, about 60 sets of remains were discovered at the site of General Growth's Ward Villages development, mauka of Ward Centre.

• Workers dug up 69 human remains at Kawaiahao Church during construction of a multipurpose center.

In each case building plans were delayed and human burials were removed.

"The council is absolutely right that you should expect to find burials on Halekauwila Street," said Thomas Dye, president for T.S. Dye & Colleagues Archaeologists. "There are burials all over Kakaako. If you go further mauka, you get off the sand, which is a good thing if you're trying to miss burials."

'SOMETHING'S GOT TO GIVE'

If the transit project encounters additional burials, there will be considerable pressure to move human remains rather than alter the train's route, burial council member Abad said.

"There's a critical difference between avoidance and mitigation," Abad said. "It's hard for me to wrap my mind around the solution that's going to allow for us to have our kupuna handled in a way that maintains the integrity of their sacred burial spots and for this project to go forward — all in that same corridor.

"Something's got to give. What we all know is ... that which gives is our concerns, our values (and) what we hold dear. That's what everybody asks us to give," Abad said.

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http://www.honoluluadvertiser.com/article/20091021/OPINION01/910210311/1104/OPINION/Iwi-present-a-challenge-for-rail-project
Honolulu Advertiser, Wednesday, October 21, 2009
EDITORIAL

Iwi present a challenge for rail project

Like other large construction projects in Hawaii, the city's rail-transit system is expected to uncover ancestral iwi, or Native Hawaiian remains, in the course of building the track pillars and supporting infrastructure.

Proper handling of iwi — respecting the cultural sensitivities of Hawaiians — has been a point of dispute that has caused costly delays in building projects statewide, including the Ward Villages development.

This calls for advance planning for the city's rail transit project to ensure that iwi uncovered are handled appropriately and with sensitivity to avoid such costly delays. The city is planning on conducting archaeological surveys prior to construction. Those surveys should be as thorough as possible, and proper protocols should be followed upon the discovery of iwi, whether identified prior to construction or inadvertently.

This will be especially important in the project's Downtown and Kakaako segments, where the sandy substrates are expected to contain higher than normal numbers of burial remains.

It's encouraging to see that the city has already taken important steps to plan ahead. It has included recommendations of key stakeholders, such as the Oahu Island Burial Council, in developing a federally mandated agreement to mitigate the impacts on iwi and other historical, cultural and archaeological resources.

The city will also invite the council and other stakeholders to help lay the groundwork for its archaeological surveys, to be done two years ahead of breaking ground in sensitive areas.

Even so, the issue remains contentious. The burial council refused to sign the agreement, saying the city should have surveyed the area before deciding on the Downtown/Kakaako segments of the route; the council prefers to push the route further mauka along either Beretania or King streets.

That's a bad idea. While the possibility of encountering iwi may be higher along the Halekauwila Street route, the city's route selection was based on careful planning and engineering studies.

Those studies underscore the existing route will not only yield the preferred ridership but also create less impact on adjoining properties, resulting in lower land acquisition costs and traffic delays. These are critical factors in planning the $5.5 billion public works project.

All stakeholders must work together to ensure that iwi are treated with respect — and that protocols are followed to avoid costly, unwarranted delays. Having a sensible game plan in place early on will help make that happen.


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(11) Kaua'i mayor must choose whether to build a multi-use path along Wailua Beach or farther inland. OHA previously objected to the inland route on accound of "sacred" and cultural places, but now objects to the coastal route for the same reasons and now recommends the inland route. State Department of Historic Preservation recommends the coastal route and cites numerous specific sacred and cultural places that would be impacted by inland route. Interesting dispute over which place is more "sacred" and who should decide and whether religion should dictate public policy.

http://www.kauaiworld.com/articles/2009/11/24/news/kauai_news/doc4b0b8f517e2a0062534853.txt
The Garden Island (Kaua'i), Tuesday November 24, 2009

Mayor bucks OHA recommendation

** Photo caption
Hawaiian cultural practitioners and kumu hula prepare for the protocol ceremony during the 'Aha Ho'ano held Nov. 13 in Wailua. Dennis Fujimoto/The Garden Island

Path should go along Wailua Beach, Carvalho says

By Michael Levine and Nathan Eagle - The Garden Island

LIHU'E — Kaua'i Mayor Bernard Carvalho Jr. on Monday announced his recommendation that Phase III of the multi-use coastal path along the island's Eastside continue on Wailua Beach as previously planned rather than be diverted to a mauka route to assuage cultural concerns.

"After gathering all of the information, I still feel that the potential impact to iwi and cultural resources is less significant along the makai route," Carvalho said in a Monday evening press release. "As with other portions of this project, all measures will be taken to ensure that any cultural issues that arise will be dealt with appropriately."

The announcement came following a meeting with representatives of several community groups, including the Kaua'i Group of the Sierra Club, Kaua'i Path and Hui Na Makaiwa o Wailuanuiahoano, according to the release.

In addition, representatives of federal, state and county agencies, along with private consultants who worked on the planning process for the multi-use path attended the meeting or were available via telephone to answer questions and address concerns.

"I feel that the information gathered from June 17 to today has been thorough, and has addressed the questions that were raised. Today I am recommending that the project continue along Wailua beach, based on all the information that's been brought to the table," Carvalho told the groups at the meeting, according to the release.

The meeting was a follow-up to a series of meetings that began in June where the groups came to the mayor and expressed their concerns and/or support for the makai alignment of the Lydgate to Kapa'a segment of the multi-use path.

"Kaua'i Path endorses the alignment of Ke Ala Hele Makalae in Wailua Beach Park as specified in the environmental assessment that was completed in 2007," Kaua'i Path Secretary Thomas Noyes and Vice President Randy Blake said in a prepared statement Monday evening. "Our board members expressed appreciation for the mayor's diligence in bringing all concerned parties to the table, and moving forward with respect on this sensitive matter."

A number of citizens assembled with signs outside of the Mo'ikeha Building when the meeting was taking place Monday morning, Kapa'a resident Fred Dente said in an e-mail. Resident Ken Taylor said he was among those standing outside the meeting in Lihu'e.

In a letter signed by OHA Administrator Clyde Namu'o and sent to representatives of the county, state and federal governments on Sept. 8, the agency tasked with speaking on behalf of Native Hawaiians recommended that the proposed path "stay off of and away from the sacred sands of Wailua."

The new position, which advocates for a mauka route near the existing cane haul road and behind the currently derelict Coco Palms resort, is a reversal of OHA's 2004 stance upon which planners had relied when devising the path's future.

On Nov. 13, Hawaiians gathered for a 24-hour vigil — called 'aha ho'ano — at Pu'uhonua O Hauola and the Hikinaakala Heiau at the north end of Lydgate Park near the mouth of the Wailua River.

"We feel that government people should be paying more attention to other spiritual forces that are out there... the powers beyond their laws... not the kind of stuff that you take to a courtroom," Kealia resident Nani Rogers said Monday evening.

Kanaka maoli said at the vigil that the path should be redirected off of Wailua Beach out of respect for the iwi kupuna and the sacredness of the beach. Carvalho, Parks and Recreation Director Lenny Rapozo and Kaua'i County Councilman Tim Bynum made appearances at the vigil to talk story with event organizers.

Rogers voiced concern over the "invite-only" meeting Monday morning, saying some key members of the Native Hawaiian community were not in attendance.

A representative of Hui Na Makaiwa o Wailuanuiahoano reached Monday evening declined to comment for this story. Messages left Monday evening for the Office of Hawaiian Affairs and Native Hawaiian Legal Corporation were not returned as of press time.

"It's not over yet," Rogers said, noting a meeting with kanaka maoli and OHA the week after Thanksgiving.

The Sierra Club's Kaua'i Group released a statement Monday evening in response to the mayor's recommendation.

"We believe that desecrating the sacred sands of Wailua by constructing a recreational path on Wailua Beach would be wrong environmentally and procedurally," the statement says. "The Sierra Club has always advocated for preserving beaches in their natural state. But here there is an even greater overarching concern: that the Office of Hawaiian Affairs and most Native Hawaiian practitioners are strongly opposed to locating this project on the beach. We stand with them."

A full presentation on the county's findings and intentions will be provided at a public meeting on Dec. 7 at 6:30 p.m. at the Kaua'i War Memorial Convention Hall, the release states.

For more information about the public meeting, contact Roxanne MacDougall via e-mail at macd@hawaiiantel.net or by calling 822-5798.

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http://www.kauaiworld.com/articles/2009/11/25/news/kauai_news/doc4b0cd4bd52983461461262.txt
The Garden Island (Kaua'i), Wednesday November 25, 2009

Mayor weighed SHPD letter in path decision

Carvalho supported makai route, OHA request 'unclear'

By Michael Levine - The Garden Island

LIHU'E — An October letter from the state Historic Preservation Division to the county in support of the makai route for the multi-use path factored into Mayor Bernard Carvalho Jr.'s decision Monday recommending the multi-use path on Wailua Beach, a county spokeswoman said Tuesday.

"The State Historic Preservation Division reviewed and commented on the recent OHA communication and recommended that the path proceed on the makai route," the mayor's executive assistant, Beth Tokioka, said in a Tuesday afternoon e-mail. "That was one thing that factored into the mayor's decision."

The letter, sent on Oct. 19 from SHPD Administrator Pua Aiu to Doug Haigh, chief of the county Department of Public Works Building Division, undercut the "unclear" Sept. 8 letter from the Office of Hawaiian Affairs that recommended the path plan be changed from the makai route through Wailua Beach Park to a more mauka alignment.

"The SHPD prefers an alignment that avoids going mauka of Kuhio Highway in the area of Wailua Beach. Numerous archaeological studies have been done in this area and there are known, significant sites mauka of Kuhio Highway, including the Kalaiokamanu birthstone, the piko stone, Holoholoku Heiau, known burial sites and a cultural deposit. The Weuweu-Kawai-iki fishponds at Coco Palms are also on the State Register of Historic Sites," the letter states.

"With due respect to OHA's concerns, SHPD believes that a mauka alignment has greater potential to disturb historic sites than the currently proposed alignment makai of Kuhio Highway along Wailua Beach," it concludes.

OHA Administrator Clyde Namu'o said Tuesday that it was "regrettable" that OHA's original position in 2004 — that the path should go on the beach and not the mauka route due to cultural concerns — was different than the one stated in September.

"SHPD can say whatever they choose to, but the position we're taking is the sands of Wailua are in fact sacred, so we would encourage the county to move the path to a more mauka position," Namu'o said. "I don't see anything unclear about our position.

"We're not trying to be combative here," he said. "We strive to keep as much information on sacred sites as we can. It's an evolution."

SHPD is a division of the state Department of Land and Natural Resources. OHA is the state agency that has as its mission "the perpetuation of the culture, the enhancement of lifestyle and the protection of entitlements of Native Hawaiians."

The full two-page SHPD letter, as well as OHA's earlier communications, can be viewed at www.kauaiinfo.org, a Web site built by Kaua'i County Councilmembers Tim Bynum and Lani Kawahara earlier this year "to facilitate ready access to information including topical resources and government documents."

• Michael Levine, assistant news editor, can be reached at 245-3681 (ext. 252) or mlevine@kauaipubco.com.

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http://www.kauaiworld.com/articles/2009/11/25/opinion/letters_to_the_editor/doc4b0ccd64e99ec440885077.txt
The Garden Island (Jaua'i), November 25, 2009 LETTER TO EDITOR

Keep path off beach

Bike paths may be fine on the Mainland and in Europe, but on small islands, such as Kaua'i, they are not fine.

Kaua'i is a small island with limited space which needs to be preserved in its remaining natural state and as a place where the Hawaiian culture can thrive, dominated so long by the western influence of its occupiers who have failed to give proper respect to the Hawaiian way of life, the heart and soul of Kaua'i.

Most recently, plans are moving forward to build bike paths in the Wailua area, a vicinity which is the base of Hawaiian culture with its important history, burial sites, the home of royalty and traditions passed down from ancestors to their living descendants. A bike path winding through these areas is the ultimate sign of disrespect.

Viewed as especially profane are plans to place a plastic, collapsible bike path on the "sacred sands of Wailua," which our mayor has just recommended, a very serious mistake.

Further, since the gigantic recent storm, the Wailua Beach area is a total mess with large trees and branches strewn over the entire area, especially at the mouth of the river. Common sense tells anyone that these projectiles swept into a plastic bike path, will cause it to snap apart, slamming into endangered monk seals and turtles. According to the Office of Hawaiian Affairs, "The Wailua beach area along with its sacred designation truly warrants the preservation of the open space there, now unencumbered by manmade structures, no matter how seemingly ephemeral." Strangely, in the rush to build bike paths, an archeological inventory of sacred sites requiring protection has been precluded.

Historical records show that Wailua Beach and neighboring areas contain a multitude of ancient graves and other sacred archeological places. If these revered areas are swallowed up by bike path construction, Kaua'i will have lost forever its rich base of cultural and religious practices amounting to another genocidal dagger in the heart of Hawaiian culture.

There is hope that this unjust situation can be turned around. The bike path has been designated a corridor for alternative transportation. It is, however, exclusively used for exercise and recreation. Federal funds have been designated for use of the bike path as a means for alternative transportation. Therefore, the use of such funds would be fraudulent because no legitimate alternative transportation is happening on the bike bath. Further, federal law mandates that any indigenous cultural practices negatively impacted by federally funded projects is illegal.

With the many millions of dollars earmarked for the bike path, an expanded bus system could be funded to operate seven days per week with frequent bus stops and passenger pick-up throughout the island and increased hours of operation from morning into the night. With drastic fare reductions or even initial free fares, this is an offer that cannot be refused as a truly legitimate form of alternative transportation. In these challenging economic times, this would mean a huge savings on fuel and auto maintenance as well as effectively improving traffic congestion.

Janet Ashkenazy, Kilauea

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http://www.kauaiworld.com/articles/2009/12/06/opinion/letters_to_the_editor/doc4b1b56acabc7c198964467.txt
The Garden Island (Kaua'i), Sunday, December 6, 2009
2 letters to editor

Beach alignment is pono

I am a practitioner of hula and student of Hawaiian language with a 50-year history of use of Wailua beach. My 30-year career in public health focused on Kaua'i's rising rates of physical inactivity and traffic-related injury, which cause sickness and death among our people.

For health and safety, and for the benefit of all people, alignment of the multi-use path along Wailua beach is the least intrusive, most efficient and the safest and most pono (appropriate) route.

The Wailua river valley and surrounding ridges constitute one of the most significant cultural sites in Hawai'i and has consistently supported large populations. Commerce, agriculture and recreation, along with associated political and religious practice have occurred here for more than 800 years.

Over these years, political leaders built various heiau, cultivated and distributed food, fished, surfed, traveled and went about daily activities while making full use of all aspects of the coast. The large valley floor and abundant water supply provided food for thousands, which was distributed via canoe and on foot.

Maka'ainana (common people) from districts outside Wailua crossed the river and the rest of the ahupua'a on foot along the beach. 'Ohana from Hanama'ulu traveled to Kapa'a to visit and trade. There has been a transportation route along this beach for hundreds of years. Now there's one huge difference. Today everyone travels by motor vehicle, not by foot.

Commerce in Wailua today is as vibrant as in the past. Agriculture has been replaced by tourism. Instead of growing taro and/or rice and fishing, today Wailua residents pilot Smith's Boats, serve at Marina Restaurant or maintain Aloha Beach Resort. They all drive to work.

Hanama'ulu people drive to Kapa'a. Until recent years, risk of injury and death while traveling the Wailua makai route was minimal, even though there was a large population going about their daily activities in and through the ahupua'a. Just because you don't see the existing route doesn't mean it is not there!

Not only is it pono, it is imperative that the existing transportation route along the beach be made safe for walking. Now is the time to provide a safe route so keiki from the new rental units near Kintaro can ride bikes to sports fields at Lydgate.

Most importantly, today we can plan for the future residents of the proposed Hawaiian Homes development adjacent to Malae Heiau to safely walk to Wailua Beach and beyond. Here is the opportunity to enable visitors from Aloha Beach Resort to leave their cars at the hotel and walk to Brick Oven Pizza for dinner.

Wailua is indeed sacred. The beach sands are no more or less sacred than the rest of the valley. Presently, water sports, tour boating, volleyball, vacationing, eating, toileting, a pala wale aku are occurring.

How is walking on a safe, dedicated pathway different from what is already happening? The difference is that the path is for everyone. Support this established path alignment now or lose the opportunity to re-establish the ancestral use of safe travel through Wailua.

Sally Jo Manea, Kapa'a

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Why are we not listening?

As we stand on the sands and bank of the Wailua River, we hear the tumbling sounds of the waves. We watch the calming sense of an eternal ongoing motion that the rolling waves provide. We stand in awe of nature's wonder knowing that man or woman cannot build a more powerful mechanism.

Yet, we all are only visitors, fleeting guests that are privileged to share what those who have experienced before us. We do not own the sand and sand dunes that embrace our oceans. We have been told that the sands and sand dunes of the Wailua River were sacred. How are they less sacred today? Why are we ignoring the incredible history and presence of revered Hawaiian cultural resources?

As a teacher, I teach future teachers to be skillful, knowledgeable, caring and above all to listen: to listen to our students, our parents, our leaders, ourselves. To effectively teach, we must listen, be respectful, and not be so arrogant as to ignore what has come before us. There are others who have come before us here in Hawai'i, which have provided us with the Hawaiian culture we hold dear. Why are we not acknowledging this history?

Kupuna and kumu are speaking loudly today. They stand and chant and receive power from the thunder and lightning around them. They plead for us to listen. Could an alternative bike path be planned so as to allow the sacredness of the burial sites of iwi kupuna ancestors to be honored? Where is our respect? Why are we so arrogant? Why are we not listening?

Ka'ani Blackwell, Kapa'a

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http://www.kauaiworld.com/articles/2009/12/09/news/kauai_news/doc4b1f41de32430260286748.txt
The Garden Island (Kaua'i), December 9, 2009

Carvalho, Hawaiians seek path forward

By Michael Levine - The Garden Island

LIHU'E — Kaua'i residents, some in favor of a makai alignment for the Wailua segment of the multi-use path and some strongly opposed, piled into the War Memorial Convention Hall Monday night to tell Mayor Bernard Carvalho Jr. their thoughts on his recent announcement to keep the boardwalk on the sand.

With more than 200 signed-in attendees stuffing the space to standing-room-only capacity until the back wall was opened up to accommodate more seating, Carvalho opened his remarks in Hawaiian, speaking directly to those in the audience who have most vocally criticized his position.

He said in an e-mail Tuesday that the opening oli was "an expression of love and respect for our Hawaiian heritage and especially honors our departed chiefs."

"I am aware that there are a number of people in our community who do not agree," he said Monday night, adding he is sensitive to concerns about cultural issues, specifically iwi kupuna. "If anything is found, we, me, I will call the Kaua'i Burial Council" to ensure it is handled properly, the mayor promised.

For inadvertent burial discoveries, the law requires only that the state Historic Preservation Division be notified.

Carvalho also committed to the county undertaking a much-requested Archaeological Inventory Survey that was not required as part of the Environmental Assessment that returned a Finding of No Significant Impact years ago but could go a long way toward appeasing his critics.

The county will manually pre-test anchor locations to assess the presence or absence of cultural materials and burials before installing 13-foot-deep anchors.

"I'm not going to promise you that the decision (on the path's route) is going to change," Carvalho said, but he is "gathering information" from the community nonetheless.

Nearly five hours later, just before 11:30 p.m., about three hours after the meeting was scheduled to have concluded, an emotional and tired Carvalho told the few remaining attendees, "I am Hawaiian too."

"I understand it's sacred," he said in a brief interview afterward. "My Hawaiian side is trying to be mindful and respectful."

In between Carvalho's opening and closing statements, a handful of consultants presented information about how the decision was reached and more than 50 members of the public took to the microphone to voice their support or concerns.

A Kaua'i woman warned Carvalho that the path decision will be a "black mark on your political career," and another threatened that by ignoring proper process, Carvalho was breaking the law and would be indicted, convicted and punished.

The tone of the meeting became somewhat heated when Deputy County Attorney Mauna Kea Trask, answering a submitted question from the public, said there have been many documented iwi on the Coco Palms grounds and mauka of the highway, but no bones have been found on the beach so the county is going to proceed there and "hope for the best."

Cultural practitioner Jeff Chandler stood up and loudly criticized Trask for not being of royal blood but speaking about royalty, yelling "Kapu" before Planning Director Ian Costa, Deputy Planning Director Imai Aiu and Trask himself confronted him and another interjecting audience member, gesturing and pointing outside.

Approximately a half dozen Kaua'i Police Department officers were in attendance, but the confrontation did not turn violent and there were no other reported incidents.

Many of the comments, even those who criticized the path's current proposed route, were less accusatory and more civil in tone.

Kumu hula Kehau Kekua, one of the main organizers of a vigil last month that aimed to raise awareness about Wailua's sacredness, introduced herself by reciting the lineage of 700 years of ancestry and said, "I am grateful to my kupuna because without them I would not know who I am."

"Please do not stuff this down our throat," she told Carvalho. "The sands is out of the question."

Her testimony and similar statements from Aikane Alapai of her halau seemed to impact some erstwhile path supporters.

Kaua'i Path Board member Mark Olson, who spoke immediately after Alapai and said he was honored by the testimony, said if he thought there were bones on the beach, he would not support it. Later, Kaua'i Path Board Member Bev Brody said while she was "sold" on having the path on the beach at the start of the meeting, "Now, I want to learn more."

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http://www.kauaiworld.com/articles/2009/12/09/news/kauai_news/doc4b1f4253ac385980920517.txt
The Garden Island (Kaua'i), December 9, 2009

Petition rejected
Brescia in compliance with permits, Planning Commission says

By Michael Levine - The Garden Island

LIHU'E — Despite pleas from Hawaiian cultural practitioners, the county Planning Commission said Tuesday that North Shore landowner Joseph Brescia has complied with permit conditions for his controversial single-family home at Naue.

The commission voted 5-1 to accept Planning Director Ian Costa's report and reject a petition from the Native Hawaiian Legal Corporation on behalf of Puanani Rogers and Jeff Chandler to revoke Brescia's permit on the grounds that no burial treatment plan has yet been approved.

Condition No. 5 of the building location, material and design review, approved in December 2007, states, "No building permit shall be issued until requirements of the State Historic Preservation Division and the Burial Council have been met," and Condition No. 8 expressly gives the Planning Commission the authority to revoke the permits should the applicant fail to comply with the conditions for approval.

In his report, Costa recommended against that course of action.

Deputy County Attorney Mauna Kea Trask's argument Tuesday relied heavily on the October 2008 ruling by 5th Circuit Judge Kathleen Watanabe. The judge wrote that the State Historic Preservation Division had violated its own procedures and had "no proper authority" to illegally approve a burial treatment plan, but said Brescia had "all necessary discretionary and ministerial approvals" and had "complied with all of the Planning Commission's ... permit conditions."

"The planning director specifically finds that Brescia continues to construct a home on his property pursuant to court order ... (and) the Planning Commission should not revoke or amend Brescia's permit," Costa wrote.

Trask said the Planning Commission is the wrong venue to decide on compliance with the permit because a judge has already ruled on the matter, warning that a decision to revoke the permit would inevitably be appealed to Circuit Court, would likely amount to a taking, and could require the county to purchase the nearly completed house — already painted green with white trim, he said — for millions of dollars.

That stance put the county in alignment with Brescia attorneys Walton Hong and Cal Chipchase, who argued Brescia was acting in good faith when he began construction in summer 2008 and has spent considerable money in planning and construction and now has "vested interests" — language that could be a thinly veiled allusion to a potential lawsuit.

On the other side of the hearing Tuesday were Alan Murakami and Camille Kalama, attorneys for the Native Hawaiian Legal Corporation, and Harold Bronstein, representing North Shore 'Ohana from an earlier action.

Murakami urged the commission to not be afraid of potential lawsuits and told commissioners they have the power to ensure compliance with their own conditions.

"Approvals are not unconditional and neither are vested rights," he said, adding that permits are not a "one-way street."

In granting in part a preliminary injunction, Watanabe wrote Brescia could continue with construction of his residence "provided that the construction does not in any way further demolish, alter or prevent access" to the seven burials in the footprint of the house plans and cautioned "he should not take any action that might foreclose implementing potential options for burial treatment plans."

In the 14 months since then, the Kaua'i-Ni'ihau Island Burial Council has rejected a number of proposed plans; the one most recently posted to the SHPD Web site is identified as No. 12. After months of failing to convene a meeting due to the lack of a quroum, the KNIBC did not address Brescia's latest BTP in November, and its December meeting has been canceled. See sidebar for more details.

When it came time to vote, Commissioner Herman Texeira cast the lone "no," saying the commission should not "abdicate" its responsibilities and that Brescia came into the process aware of the burials with his "eyes wide open" and has tried to "circumvent" the process.

Camilla Matsumoto, technically counted among the five ayes, registered her dissent with silence when her name was called. She declined to comment further afterwards. Chair Jimmy Nishida, Caven Raco, Paula Morikami and Jan Kimura carried the day. Hartwell Blake was absent.

"They don't get it," Rogers said after confronting commissioners — but thanking an emotional Texeira — following the vote. "They just don't get it."

While the decision on the Chapter 12 petition is a setback for opponents of the development, it is not the end of the line. A contested case hearing for a Chapter 10 request for a declaratory order is scheduled for Jan. 12, the next scheduled Planning Commission meeting due to upcoming holidays.

That declaratory order, if approved, would state that the commission's position is that Brescia has not complied with his permit conditions. Such a statement would seemingly contradict Tuesday's decision and would not automatically trigger any legal action, but could help Murakami build a record to sway Watanabe when she rules on the final merits of the lawsuit next fall, presumably long after construction on the house is complete.

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http://www.kauaiworld.com/articles/2009/12/11/opinion/letters_to_the_editor/doc4b21e4b1a8069812209470.txt
The Garden Island (Kaua'i), December 11. 2009, Letters

Keep the path on the beach

I work part-time for a Native Hawaiian Health Care organization. My primary objective is to increase the number of Native Hawaiians who are exercising.

We have tried group classes, nutrition classes and incentive programs and have found that the Ke Ala Hele Makalae was the best tool we had because it is good for everyone and easy and safe to use.

Families don't have to worry that their child will run out in the road or that some car will wipe them out from behind. The path on the beach route is a safe path.

Crossing the main highway at Wailua is dangerous. A path that has a safe route like Wailua Beach is most useful to our work to help prevent chronic diseases.

I grew up on that beach. Every weekend and every day in the summer we would go straight to Wailua Beach. Many winters the waves would come in and eat up the entire beach and often the road too along with everything buried there.

I respect the findings of La France Kapaka-Arboleda and all who have participated in the process. I don't want to throw what they worked for away. She felt the least impact would be via the beach area and that iwi kupuna would be buried further mauka from this open ocean area.

I also feel that as Hawaiians we may have different opinions but we should not divide ourselves into categories like royalty and maka'ainana.

We should not go up mauka.

Nalani Brun, Kapa'a

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http://www.kauaiworld.com/articles/2009/12/13/opinion/kauai/doc4b246aae1822c074620858.txt
The Garden Island, Sunday, December 13, 2009, EDITORIAL

In Our Opinion: Time to move on

Two paths diverged on an Eastside shore,

And sorry we could not travel both

And be one traveler...

The county has heard enough over the years to move forward with the next phase of Ke Ala Hele Makalae. The public process has provided ample opportunity for all sides of the debate to be heard and their points considered.

Mayor Bernard Carvalho Jr., seconding an environmental assessment and the first letter of recommendation from the state Office of Hawaiian Affairs, has decided that the portion of the multi-use path to connect the completed segments in Lydgate and Kapa‘a should follow the makai route along Wailua Beach.

We tend to agree.

The mauka route, which the second OHA letter recently recommended, would infringe on the same cultural concerns the agency was worried about in its first letter, though possibly to a lesser extent.

This can not be turned into a test about measuring degrees of impact.

Those who argue that the path should divert behind Coco Palms because less iwi will be disturbed there than on the beach are simply trying to stall the process. Recognize this tactic for what it is and handle it accordingly.

We have spent far too much time and effort on this project already and there are miles still to do. Concerns for this phase have been raised and heard. Now is the time for decisive action.

If the goal is to protect the Hawaiian remains buried in the sands and valley of Wailua, we should have heard a stronger argument for the under-spoken third option — no path at all through this sacred area. Instead, this has been framed as an either-or debate.

This third option doesn’t jive with the late Mayor Bryan Baptiste’s vision of a path this is like a lei around the island, preserving coastal access in perpetuity.

It would likely protect the iwi better, but to forego the Wailua segment would set a precedent that could call into question future and completed phases of the path.

The proposed boardwalk across Wailua Beach can be constructed in a way that respects the cultural concerns while fulfilling these other objectives. If the posts to anchor the path down are only every 60 feet or so, steps can be taken to ensure each does not impact burials in the area.

The boardwalk itself over the sand would seemingly fail to disturb remains any more than the multitude of people who walk across the beach on a daily basis.

Either move forward with the makai route or not at all. Pursuing the mauka route would only bring us back in a few years to where we are now.

Let’s stop squandering resources by allowing this debate to run in circles. Ultimately, there are much bigger projects that the county needs to focus its attention on and we’d like to see them choose that path.


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Send comments or questions to:
Ken_Conklin@yahoo.com

LINKS

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:
http://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:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagpraforbesafterreview.html

This present webpage covers only the year 2009.

For coverage of events in 2005 (about 250 pages), see:

http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2005.html

For year 2006 (about 150 pages), see:
http://www.angelfire.com/hi2/hawaiiansovereignty/nagprahawaii2006.html

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

For year 2008, another new webpage was created, following the same general format. See:
http://www.angelfire.com/planet/big60/nagprahawaii2008.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

OR

GO BACK TO OTHER TOPICS ON THIS WEBSITE