Garden Island article Iwi Decision Expected Today / Nancy McMahon - running for Kauai County Council
Posted: Wednesday, Sep 03, 2008 - 11:59:54 pm HST
Iwi decision expected today
By Blake Jones - The Garden Island
A decision is expected today on a request for a preliminary injunction to halt construction at a Wainiha homesite known to contain at least 30 iwi, or graves.
Fifth Circuit Judge Kathleen Watanabe said yesterday, the hearing’s second full day of testimony, that attorneys could continue to present witnesses, but that a decision would be rendered.
Native Hawaiian Legal Corp., representing Jeff Chandler, who claims ancestral ties to the land, put four witnesses on the stand yesterday, many of whom presented emotional testimony on the importance of iwi to Hawaiian culture as well as the cultural impact of building near or around the graves.
Watanabe has allowed construction to continue at the property, owned by California businessman Joseph Brescia, as the hearing plays out.
Brescia has been trying to build a home on the 18,000-square-foot North Shore lot for the past seven years. His attorneys argue that state and county requirements have been met, and Brescia should be allowed to proceed with his plans for a single-family residence.
Late last year, building permits were approved by the county Planning Department with the knowledge that remains had been discovered during excavation work.
In April the Kaua‘i/Ni‘ihau Island Burial Council in a split decision determined that the roughly 30 burials should be preserved in place.
The seven-member group, an arm of the state Historic Preservation Division, only has authority over whether the bones are relocated or remain in place; it lacks the power to stop construction on the site.
The subsequent Burial Treatment Plan, approved by state archaeologist Nancy McMahon,called for cement jackets to encase the seven burials expected to be impacted by the house footings, as well as a vertical buffer to prevent the home from sitting directly on top of the sites.
Throughout the preliminary injunction hearing, Native Hawaiian Legal Corp. attorney Alan Murakami has argued that McMahon, at the Historic Preservation Division, did not do her job to protect the burial sites or to notify possible descendants.
“We’re saying the state was responsible for the major conflict because of the minimalist attitude toward Hawaiian burial laws,” Murakami said.
The state, represented by Deputy Attorney General Vince Kanemoto, counters that it followed the rules and is not responsible for the Kaua‘i County Planning Department’s decision to approve building permits before thoroughly vetting the issue of iwi at the site.
Burial Council members Barbara Say and Presley Wann testified yesterday that when they voted to preserve the iwi in their current location, they assumed that construction above and around them would not take place.
“The whole place should be preserved,” Say said, adding that it was a “surprise” to hear later that footings had been poured at the property.
However, both council members said they declined to make recommendations to McMahon or to the Planning Department as to what protection measures should be taken in light of their ruling.
“All we take care of is the iwi; that is all we do,” Say said.
Kai Markell, director of the Office of Hawaiian Affairs’ Native Rights, Land and Culture Division, testified that iwi at the Brescia property constitute a cemetery, and that the surrounding Naue area is culturally significant as a place of healing and a “leaping off point for people who have passed on.”
Holding back tears, Markell said iwi are Hawaiians’ most “cherished possession.” Once a burial site is identified, there’s a great responsibility to care for the kupuna who reside there, he continued.
Markell said he doesn’t think vertical buffers or cement jackets are sufficient protection in this case, though he admitted they were better than no mitigation measures if the construction could not be stopped.
Under cross-examination by Kanemoto, Markell went as far as to say the seven directly impacted iwi might have been better off relocated.
“You don’t know who’s there (in the graves), but you’re allowing someone to look down on them without having any relationship in the Hawaiian sense,” he said.
Chandler, who began his testimony on his connection to the iwi yesterday, and will continue today, said the worst threat to the burials is construction.
“The damage is we lose one significant cultural site for future generations,” he said, quietly crying in between answers.
Brescia’s attorney is expected to present two witnesses today to conclude testimony.
Watanabe has twice declined requests for temporary restraining orders because the foundation for the home in question is already completed and no further disruption to the ground is anticipated.
Should Watanabe deny a preliminary injunction today, Chandler can proceed with his counterclaim against Brescia — but there might not be any timely legal recourse to preventing the home from going up.
“This is the case right here,” Murakami said.
The Garden Island
Copyright © 2008, Lee Enterprises, Inc.
NEXT ARTICLE ABOUT NANCY MCMAHON
http://www.kauaiworld.com/articles/2008/09/04/news/news02.txt
KAUAI News
County Council candidates answer, part 2
• Nancy McMahon
• Bob Cariffe
Editor’s note: The following seven questions were posed to the 23 candidates for Kauai County Council. Beginning today, two candidates a day will have their answers reprinted in their entirety until all candidates’ answers have appeared.
1)Define what future development on Kaua‘i means to you. Please use specifics.
2) What is your vision of the island in 10 years?
3) What specific credentials do you have for being a county council member? Why are you the best for our county? Again, let’s get specific. What positions of power have you held in the past? What connections do you have that will benefit the county?
4) How will you work with the other six members of the County Council if elected? Would like some specific tactics and strategies you would use to act on the county’s behalf within the larger group.
5) What is your history? Born and raised here? Mainlander? Family? Residence? Career? Education?
6) What does open government mean to you?
7) What is the single, most important issue to you?
----------------------------------------------------------
Nancy McMahon
1) It means new housing, new opportunities for new jobs, new business opportunities, use of renewable and alternative energy sources. Better health care for all.
2) Keep Kaua‘i a rural county laced with small towns across the landscape, less dependent on tourism, more truck farmers and hopefully smart development and more sustainable environment to live in. There will be a larger elderly population which we need to prepare for.
3) I am a good listener. I have 20 years of working in government at state, county and federal levels. I know how to write policies and get people to reach consensus. I know all the current heads of the various departments in the state government and the county department heads, as they have to deal with me in my professional job. I think this is a great advantage for me. I think I present a fresh honest choice for the citizens of Kaua‘i to vote for. I am one of the heads of a state agency that preserves a sense of place and preserves Hawaiiana for future generations. I work for the Department of Land and Natural Resources.
4) Working with people, understanding their needs and empowering them is one of my strong points, along with being able to negotiate a win-win situation as one of my best assets. Understanding where folks are coming from and their direction is how I think I can work together to resolve issues that come to us.
5) I came to Hawai‘i to play volleyball at University of Hawai‘i. I started the women’s softball program there, finished my undergraduate and three graduate degrees at the University of Hawai‘i. I have worked for the City and County of Honolulu, county of Kaua‘i as a planner, the U.S. Army Corps of Engineers in Honolulu and currently work for the State Historic Preservation Division for 20 years as the Historic Preservation Specialist for Kaua‘i. Relocated to Kaua‘i by the state after Hurricane ‘Iniki. I currently am the deputy administrator for the division and the state archaeologist. I raised my son who is now 26, a college graduate and fireman. I was born in Denver, Colo., and moved here after high school graduation to attend University of Hawai‘i, Manoa.
I live in Koloa and have for the past 12 years.
6) Empowering people to take major roles in directing our future. Being honest with folks on how decisions and directions for government are made.
7) Trying to have our community deal with the current economic situation of the U.S. High costs of fuels, need to train the work force to deal with an expanding older population, increasing health care, trying to create more affordable housing, keep new business opportunities here and meet transportation needs.
on behalf of Terri Kekoolani
Comments
It is logical to ascertain that when you have a series of burials in close proximity, especially ranging from a period of six hundred years, that it can be assumed thatt it is a burial ground area otherwise known as a cemetary. In contrast to one or five isolated burials of which would suggest it was family burials on family lands. If it was one or two burials together or close to each other, one can suspect that it is a random burial.
The other factor is taking into consideration the lineal descendants and the cultural descendants who are knowledgeable of their customary practices of their area. I am certain that neither McMahon nor Dega had consulted with those directly. Those living in the 1800s were my Great-great-great grandparents Mahi Pu'ulei and Kalaukehau) and their parents. My Great-grandparents ( Mihilani and Kameha'iku) also was alive in the 1800s and I knew her personally because she was alive when I was born. They all lived in Ha'ena and Wainiha.
Judge Watanabe should step down as judge just for her biased and incompetence and supercious remarks. She couldn't see what further harm it could cause our 'ohana Jeff Chandler and us if Brescia is allowed to construct his house on those burials. Is she serious? Just on the letter of the law itself would deem this a controversial issue that would demand estoppel, cease and desist any further construction on the property in question until at some time it can be resolved satisfactorily.
There is enough reasoning to halt the construction on top of those burials. It was rash and irresponsible for McMahon to give the go ahead for Brecias to build on top of them when she didn't have the moral authority to do so. There are 42 burials discovered and I'm sure there will be more found there. Kaka'ako, O'ahu has 64 burials tossed aside and probably more not discovered. They stated that wasn't a cemetary. Walmart still have dozens of bones stored in a container without proper reinterment and they deemed that property not a cemetary.
The message is that if it is a Hawaiian burial ground; it isn't a cemetary because developers need that land more than the Hawaiians need their burial sites. It tells us that we don't count in our land and country and that the U.S. can do what it wants because it isn't their ancestors' bones. Perish the thought if we dug up Arlington Cemetary or Punchbowl Cemetary; but if it's a Hawaiian cemetary, it's okay. Shame on them! What racist bigots they are!
Does this mean that all the old graveyards on O'ahu are up for grabs since the burials are 200+ years old? When and where do you draw the line?
Tane
A Commentary on "The State" of things to come
By Hale Mawae
While reading the article from Friday's Garden Island article, "The Fight for the Iwi Continues," I couldn't help but imagine Steven Weinstein and the rest of the planning commission politically bound and gagged by Joe Brescia and his surmounting legal issues surrounding the burial site at Naue.
All of these state officials running around with out a clue as to what to do, screaming "Our hands are tied! Our hands are tied! We can't make any good decisions, only continue to approve bad ones after we've made all of the mistakes."
Imagine an S&M Dungeon chamber with an eerie basement collection of ancient bones and artifacts with a seat of county officials all bound and tied up in leather and chains willing and ready to fulfill Joe Brescia's every fantasy and desire.
Joe Brescia's every fantasy and desire; a modest 5 bedroom cottage tucked away on a secluded Kaua'i north shore beach, overlooking freshly grown Naupaka of an extended shoreline property once known as Naue.
"Do you want to fulfill my every fantasy and desire?" He snaps his whip, and Steven Weinstein bends over like a good obedient dog.
"Yes, sir." They reply.
The bones of his house of torment hang above their heads like a skeletal chandelier in a horrifying portrait of endless enduring pain of a people, who wanted nothing but humane treatment fore their beloved ancestors. Yet it has turned into another reminder of a good, hard, insatiable lust that only Joe himself will ever, truly, understand and get off on when he has his housewarming party on the beach and invites Anthony Kiedis over for coffee.
Well Joe, and about a handful of other Joe Blows who have too much money for their own good. Joe Blows, who wouldn't stop to build over their own Grandmother's grave located on a rare endemic bird's nest that only lays eggs once every 5 years with a mountain view that would kill on the real estate market.
A similar issue, which has manifested into a legal court charade that honors revised statutes that were built upon corrupted foundations of lies and propaganda. Which transposed into an unwinding political disaster that leaves most state officials with their pants around their ankles and their mouths propped open, in shock, not knowing the "right" thing to say.
Skeletons shaking from beneath a house out of fear. Decided upon by a community of meek cowards as the spirits of those iwi wander endlessly and aimlessly to avenge those who are chiefly responsibly for disturbing their supposed eternal sleep. An awakening to avenge those who stood by and did nothing while blocks of cement were laid upon their final resting place as a foundation for a Californian's paradise get away.
I can't stop asking myself, where is the humanity in all of these hopeless endeavors of aforementioned grief of a diverse community who has lobbied before councils, politicians, and judges who express similar grief for the parties seeking restitution and in the same breath disagree with the community's outcry for help in making restitution.
Councils, politicians, and judges who agree with one person because he has played "the state's" game in doing what they say is "right." And because he's got a lot of money to throw around at lawyer's and the state to make sure they keep their wild, heathen natives in check.
Hypocrites, I tell you, all of them!
My second question for you all: What actually constitutes a cemetery by law, and who the hell is Nancy McMahon to define what is and isn't a cemetery?
Well, if you were misinformed Nancy, here is the definition from a few different sources. The first being from Bouvier's Law Dictionary:
CEMETERY.
A place set apart for the burial of the dead.
A place for burying the dead; a graveyard.
A consecrated enclosure for burial of the dead.
I think 30 burials or more "set apart for the burial of the dead" within a consecrated enclosure within the same place clearly defines Naue as such a place. A graveyard. It goes on in Bouvier's Law stating cases concerning cemeteries, which many fall case in point here:
An abandoned cemetery, from which all the bodies had not been removed, cannot be sold; Ritter v. Couch (W. Va.) 76 S. E. 428 42 L. R. A. (N. S.) 1216.
A cemetery association holds the fee of lands purchased for the purposes of the association(of a cemetery). The persons to whom lots are conveyed for burial purposes take only an easement- the right to use their lots for such purposes; Buffalo City Cemetery v. Buffalo, 46 N. Y. 503; People v. Trustees of St Patrick's Cathedral, 21 Hun (N. Y.) 184;
Here's an interesting tid bit of information for those of you who were wondering "who is really trespassing on the land at Naue?"
Joe Brescia, who holds quiet title and a land guarantee, or the presiding ohana of M. Kekauonohi and friends, who has never ceased to hold clear title by the Land Commission Award given to them at such time, which holdd weight no matter what.
Well, here is what Bouvier's Law says in accordance with the law in concerning trespassers on cemetaries and other issues:
A lot owner may maintain an action of trespass against one who wrongfully trespasses upon it Smith v. Thompson, 55 Md. 5, 39 Am. Rep. 409; Gowen v. Bessey, 94 Me. 114, 46 Atl. 792;
It has been held that he may even sue the owner of the fee for such wrongful act; He may enjoin the cemetery association from preventing a member of his family from being buried in the family plot; or from removing the ashes of the dead; or may obtain an order to compel the association to keep the grounds in good order and maintain the whole as a cemetery.
I guess, what Nancy McMahon means by her statement is that kanaka maoli just unconsciously, and with pure, raw, animal instinct buried people in the ground without thought, understanding, or resignation of the importance and respect for our dead. Maybe she thinks each kanaka maoli somehow fell dead and was mysteriously swallowed by the sand dunes of Naue without any trace or cause or purpose thereby excluding it from the definition of what she constitutes as a cemetery.
Is that what she means by that statement?
Or maybe she's saying that kanaka maoli lack basic understanding for what the rest of humanity views as honoring their dead on the basis of what she has defined from her standpoint as "30 ancient burials not constituting a burial ground, cemetery," in essence calling our ancestors and kanaka maoli inhumane and animal in nature.
It's a savvy way to label us as heathens, pagans, or savages, I guess. It all depends on the verbose nature of the exalted insinuator. Nancy McMahon being the insinuator in question, who has become like a pawn in a game of the "state" relocating iwi kupuna in the name of fast tracked development schemes to get projects on the roll.
Either way, her statement is clearly misinformed as defined by the terms of Bouvier's Law.
It's also insulting to have officials sitting with their crazy, ignorant "hat's" on their heads(that they "don't wear") and be allowed to inconspicuously make bad decisions and( I am going to assume) horribly misinformed comments on legal matters that have been stated on public record by their forked tongues.
Forked tongues licking the devil's bloody pitchfork with Joe Brescia's price tags attached to each presumptuous sitting, talking, ignorant head.
"Do you want to fulfill MY every desire?"
I have a question for you to answer Nancy, and maybe the rest of those who have made misinformed comments can answer it with the same insinuating repose that you did with the cemetery question, and yes it is my every desire:
What is humane?
I suggest Nancy McMahon and the burial council, the current Kauai Planning Commission, Joe Brescia, the DLNR, Governor Lingle of "The State," the SHPD, Kathleen Watanabe, Walton Hong, Mark Bennett, and those few others who have yet to come to light on this case.
I want you all take a real good look in the mirror before you go to bed tonight.
So you can really ask yourselves the question "what is humane?"
Then maybe, just maybe, if you look hard enough, you'll see what isn't.
Fight for Iwi Continues
by Nathan Eagle - THE GARDEN ISLAND
Posted: Friday, Aug 29, 2008 - 09:00:30 am HST
The county Planning Commission on Tuesday entertained a motion that would have sent “a signal” to Wainiha landowner Joseph Brescia regarding the home he has started building on a small coastal lot known to contain at least 30 ancient Hawaiian burials. Commissioners James Nishida and Herman Texeira backed a motion to have the county Planning Department send a letter to the California businessman asking him to consider giving community members more time to come up with money to purchase his property in exchange for an extension on his building permit.
Although the motion was ultimately defeated in a 5-2 vote, it allowed a group of residents advocating for greater protection of Native Hawaiian rights and “respect for our iwi” to publicly renew their concerns over the project.
“Isn’t there something you can do to condemn that land because it is a cemetery?” Kapa‘a resident Puanani Rogers told the commission. “It is a land use issue ... an issue that is your responsibility.”
Chair Steven Weinstein said the commission’s hands are tied. “If they’re following the conditions, that’s all we can ask them to do,” he said, pointing at a recent Planning Department status report confirming that Brescia has met the conditions of his permit approval. “It’s not a designated cemetery,” he said, noting the landowner was unaware of any burials on the property when he bought it.
Rogers disputed the claim that the remains are being preserved in place as the Kaua‘i Burial Council directed. “It’s not being preserved if you’re building around them and in between them,” she said. “The bones have a spiritual essence. It extends throughout … up, down, sideways. We need people who understand our cultural practices to be making decisions on this.”
The burial council is a seven-member appointed arm of the state Historic Preservation Division whose authority is mostly limited to deciding whether remains should be preserved in place or reinterred.
When Brescia learned the house foundation would affect seven of the 30 marked burials, he asked the burial council to have them be relocated, according to his attorney, Walton Hong.
The council in a split vote in April decided the remains should be left in place. “Mr. Brescia did not want to do this,” Hong said, so the burial treatment plan was revised and house redesigned so the footings would not be on top of the burials.
James Huff, a long-time builder, told the commission Aug. 12 that his independent GPS research shows the burials identified in the burial treatment plan fail to align on the ground with the burials marked in the building plans, in some cases falling directly under the footings. The Planning Department, directed by the commission to investigate the claim, reported its findings on Tuesday.
Planner Dale Cua said the department, under the guidance of a state archaeologist, concluded with its equipment, which has a tolerance level of four to five meters, that the plans were accurate. “Understand it’s not an exact science,” he said. “It’s going to be within the general vicinity.”
Brescia has been trying to build a home on his 18,000-square-foot North Shore property for the past seven years, but has been delayed mostly due to legal challenges, including a shoreline setback case environmentalists won in 2005 at the state Supreme Court.
The remains, or iwi, were discovered during excavation work last year. After the commission approved Brescia’s permits on Dec. 12, there have been protests at the site and a group of residents camped on the beach at Ha‘ena Point adjacent to the property for months.
Brescia in a June 24 news release announced his openness to selling the lot at a fair price, but community members said they needed more time to find the funding. Since then, the footings to the home have been poured and some critics say the damage has already been done.
The Kaua‘i Police Department halted construction in June, but two weeks later Police Chief Darryl Perry said, after seeking clarification from the county attorney and state attorney general, that Brescia had not violated any law.
Fifth Circuit Judge Kathleen Watanabe on Aug. 14 affirmed that construction may continue at the homesite while attorneys for the property owner, state and protesters named in a related lawsuit debate a preliminary injunction.
State archaeologist Nancy McMahon testified then that the 30 burials do not constitute a cemetery.
Hong said construction must continue because permit conditions require it to be built within a certain time frame and because of the amount of money the landowner has already had to absorb. “We can’t wait around one, two years hoping this offer is going to come,” he said, referring to the community’s effort to purchase the property.
“I’d like to buy some more time,” Texeira said, adding later that the letter from the Planning Department would “send a signal” to Brescia that the commission is concerned about what is happening at the site. But a majority of commissioners, while noting their sympathy for the concerned residents, disagreed.
“I think as planning commissioners ... that’s not a hat that we wear,” Commissioner Cavin Raco said. “It’s Mr. Brescia’s legal right to make that decision (on whether to delay construction while the community searches for funding to buy it) ... I’m not here for that.”
Commissioner Kurt Akamine said that although he agreed with the premise, it would be premature.
“It’s really painful to have a house being built on a cemetery,” North Shore resident Caren Diamond said. “I feel very sick and sad.”
http://kauaieclectic.blogspot.com/2008/09/musings-naue-nuggets.html
Friday, September 5, 2008
Musings: Naue Nuggets
The action has been in the evening sky lately, with Venus, a crescent moon and Jupiter forming a gentle arch from the horizon at sunset, and the Milky Way so clear and dense with stars last night that I couldn’t tear my gaze away, even as Koko pulled at the leash.
By morning, when Koko and I went walking, it was all thick clouds, with the faintest lavender hue in the southwest and a light rain that turned heavy just as we got home. And at the bend in the road, an unexpected burst of lovely fragrance emanating from an unseen source, blossoms hidden deep within the dense vegetation.
I keep hoping for a similar sweet surprise in the Naue burials case, but it doesn’t seem promising. Judge Kathleen Watanabe is expected to rule on the matter by Sept. 15, but in the meantime, construction of Joe Bresica’s house on top of iwi will be allowed to continue.
Besides building his house, Brescia's minions have been busy adding another 11 defendants to the six already named in a civil suit filed against those who have attempted to stop construction. All the new defendants were identified by newspaper articles, television reports and this blog as allegedly having been involved in the Aug. 7 protest.
I’ll spare you all the details of the most recent court proceedings, as they are well covered in articles that Blake Jones wrote for The Garden Island yesterday and today.
Instead, I’ll share of the juiciest tidbits that I picked up in the courtroom yesterday.
For starters, it cost Brescia $15,0000 to $17,000 when Police Chief Darryl Perry halted construction at the site in June, saying the work could violate a law prohibiting desecration of burial sites, according to testimony by Brescia's project manager, Ted Burkhart.
Brescia has also spent a whopping $80,000 to date on security for the project, Burkhart testified, and continues to shell out $13,000 per week to have the site guarded 24/7. That’s $77 an hour, and you can bet the guards aren’t making more than $15.
He’s also had to spend some $150,000 more than he expected on the foundation, which included putting concrete jackets over the seven burials that are now stuck beneath his house.
Oh, and btw, Burkhart also revealed that they finished the house foundation just four days before they knew they had to stop work for a court hearing. How convenient, to go to court with the burials already covered in concrete. It may be legal, but it’s seriously smarmy.
And construction costs for the 2,400-square-foot house — originally estimated at $1.8 million — continue to rise, Burkhart said, because “the subs [contractors] have escalated their costs for that project. We’ve had some difficult in finding some people.”
Yeah, because who really does want to work on a burial project?
Philip Leas, one of Brescia’s attorneys, asked plaintiff Jeff Chandler, a Wainiha resident who claims he is a lineal descendant of the burials, if blessing the site would make him feel better about the desecration.
“I don’t think blessing that place will resolve your problems as far as the iwi,” Jeff said.
“Would it help?” pressed the attorney.
“How many blessings have you had already?” Chandler shot back. “Did it help? My experience with iwi spirits is if it’s not done properly then it will never help.”
It also became clear that the Burial Council, in voting to preserve the 31 burials in place, had no thought that Brescia’s house would be built on top of iwi, a view shared by Chandler.
“Preserving in place is taking care of them,” Chandler said. “Capping them [in concrete] is not preservation in any form I’ve been taught.”
Chandler’s testimony also underscored the ongoing squeeze that Native Hawaiians are feeling on the North Shore with the influx of luxury homes, many of them used for vacation rentals.
He said his family was forced to sell land in Haena because they couldn’t pay the skyrocketing property taxes. Chandler, a fisherman, said he’s had to start fishing at night because the beaches are too crowded in the day and the beach accesses are blocked with cars. And as access to the beach is diminished, he has to walk farther than ever to reach traditional fishing spots.
“You don’t like these vacation rentals, do you?” asked Leas.
“It’s not that I don’t like them,” Chandler said. “It has changed our community and lifestyle.”
And that, in a nutshell, is what this is really all about.