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Thehouse, now nearing completion, has become a powerful symbol of thebitter battlebetween development and cultural preservation in Hawaii. It’s alsoexposedserious shortcomings in the State Historic Preservation Division (SHPD)and cometo represent what some see as a deliberate attempt by Gov. Linda Lingleand heradministration to undermine and circumvent the Island Burial Councils inorderto facilitate development.

Theseissues came to the forefront on March 8, when SHPD Administrator Pua Aiuoverruled a unanimous vote of the Kauai-Niihau Island Burial Council andapproved a Burial Treatment Plan for the iwi on Brescia’slot.

In making the Feb. 11 motion to reject the plan, Council Vice ChairmanKeith Yapsaid that the concrete caps placed over seven of the burials “are notappropriate, and we’re still very much against any kind of building overthegraves.”

TheCouncil also expressed reservations about the concept of “verticalbuffers,”which references the amount of space between Brescia’s house and the iwibeneathit, and requested details about how his septic system, leachfield andlandscaping could impact other burials on the site. Additionally, theCouncilasked Brescia to disclose his plans for providing access to the iwi bylinealdescendants.

Whenasked why she had approved the Burial Treatment Plan after the Councilspecifically asked for more information and changes, Aiu replied, “Itdidn’tneed any more revisions.”

NativeHawaiians and members of the preservation community wereoutraged.

“WhatSHPD has done is undercut the authority of the Council to protect theburialswhen they’ve made a decision to preserve in place,” said Dana NaoneHall, formerchairwoman of the Maui-Lanai Island Burial Council.

Aiu’sapproval marks the first time SHPD has overridden a Burial Council andpermittedconstruction on a previously identified burial site, said Alan MurakamiofNative Hawaiian Legal Corp., which is litigating the Brescia case: “Theyjustabsolutely caved in response to development pressure. What is the pointofhaving a Burial Council if they can only determine how high or how widethebuffers can be? That’s a huge constriction on the power the BurialCouncilspreviously had.”

Aiudefended her decision, saying that since SHPD is “not allowed to do ataking” ofprivate property, the agency had “very little wiggle room” in attemptingto sitethe house Brescia wanted on a relatively small lot widely dispersed withnumerous iwi.

Murakamidisputed that contention, saying the state statute does includeprovisions foracquiring such properties. “It’s an option that nobody wants toexplore,” hesaid.

Aiusaid Brescia’s oceanfront parcel was too pricey. “If the state was tospend $2.2million on that lot, what do we give up? … Other people talked aboutpurchasingthe land and weren’t able to find the money.”

Aiusays financial constraints during a period of economic downturn willlikelycontinue to affect the way sites like Brescia’s arehandled.

“I unfortunately think this might be a harbinger of things to come becauseof morepressure on the land, especially to build along the shoreline,” saidAiu. “Wewill find more burials. There’s a strong sense in the Hawaiian communitynot tomove iwi, but if we can’t prevent construction, that doesn’t leave uswith a lotof options.”

“Seriousdeficiencies”

Iwiadvocates agree that pressure is mounting. “We’ve got developers whowant theview, the ocean, but they have no respect for the culture and now theyeven wantto disregard the burials,” said Charlie Maxwell, chairman of theMaui-LanaiBurial Council.

Butwhat is the purpose of preservation laws, advocates ask, if the state isunwilling or unable to stop construction on lands with highconcentrations ofiwi, and the governor’s appointee can overrule the Burial Councils infavor ofdevelopers?

“It’svery frustrating to be involved with the burials this long and to havefoughtfor the law and these problems are still continuing,” said Maxwell, wholobbiedfor state burial protection legislation after some 1,000 iwi wereunearthed in1989 to make way for the Ritz-Carlton resort at Honokahua,Maui.

“AfterHonokahua, people certainly believed the law that was put in place wouldactually prevent the kind of thing that is happening now on Kauai, whichisessentially building a house on top of a burial ground,” said WilliamAila, amember of Hui Malama I Na Kupuna ‘O Hawaii Nei, which formed after theHonokahuaincident.

NativeHawaiians and members of the historic preservation community say thecurrenttroubles are rooted not so much in the law, but in how it’s implementedbySHPD.

Thatassessment was affirmed by a devastating new report from the NationalParkService, which assigned SHPD a “high risk” status that could jeopardizethefederal aid that provides half of its funding.

“Thisaction is not taken lightly, and comes only after multiple attempts tohelp theSHPD correct serious deficiencies identified in audits going back as faras2002,” wrote National Park Service Director Jonathan Jarvis in a March19 letterto Laura Thielen, director of the state Division of Land and NaturalResources,which oversees SHPD.

Whilethe report addressed SHPD’s performance under the federal historicpreservationlaw, it also highlighted systemic failings and a number of “majorproblems”identified during a July 2009 visit to SHPD offices, includinginadequate,untimely and inaccurate reviews of development plans that often confusedStateand federal historic preservation regulations and indicated “a lack ofqualitycontrol and management oversight.”

Thereport found that SHPD’s inventory of surveyed archaeological sites isincomplete, outdated and disorganized, which “could lead to decisionsbeingbased on partial information, with detrimental effects to Hawaii’sculturalresources.”

Thereport further noted that a project to digitize files in order toimprove theirorganization and accessibility “has not been supported by SHPDmanagement andnumerous efforts to train current HI SHPD staff have beenpostponed.”

SHPDalso was ordered to develop better procedural standards for conductingsurveysof archaeological and historic sites. SHPD critics said this could helpstymieagency actions apparently aimed at minimizing the likelihood of findingburialsprior to construction, such as directing archaeologists not to dig toodeeplyand either failing to require archaeological surveys or restrictingtheirscope.

Afailure of the state

As aresult of taking such a narrow approach, the full extent of burials on asite isoften unknown, such as on Brescia’s lot, or discovered afterconstructionbegins, as was the case with the General Growth/Whole Foods andKawaiahao Churchprojects on Oahu. Under state law, when burials are found“inadvertently,”Burial Council review is not required. Instead, SHPD determines what todo withthe iwi, and the Councils have no power to challenge thedecisions.

“Appropriatesurvey and inventory affects mitigation,” Hall said. “Everything isdependent onthe backbone of inventory and survey.”

Thereport frequently referenced problems stemming from insufficient andunqualifiedstaff. While it did not identify Aiu–a former analyst with the Office ofHawaiian Affairs and public relations consultant–by name, critics saythat bothshe and her successor, Melanie Chinen, a former policy adviser toLingle, lackthe professional qualifications to lead SHPD.

Thereport also underscored deficiencies in the areas of public outreach andconsultations, agency shortcomings that figured prominently in theBresciacontroversy. Following the Burial Council’s April 2008 decision topreserve inplace all the iwi on Brescia’s lot, Nancy McMahon, then the statearchaeologiston Kauai, approved a treatment plan that sanctioned the use of concretejacketson seven burials and house construction atop them. The Native HawaiianLegalCorp. sued, and in a September 2008, Kauai Circuit Court Judge KathleenWatanabefound that McMahon had failed to properly consult with the Council andotherinterested parties prior to approving “preservation measures” for theproject.

“Theheart of this case is the failure of the state to follow procedures putin placeto protect cultural practitioners, the general public and the rights oflandowners,” Watanabe said in ordering McMahon to conduct the requiredconsultations and return to the Council with a revised Burial TreatmentPlan. OnOct. 2 and Nov. 6, 2008, McMahon returned to the Council withessentially thesame plan she’d approved earlier. The Council rejected it.

Meanwhile,Brescia’s archaeological team, Scientific Consultant Services, hadalreadyplaced concrete caps on the seven burials, without SHPD’s permission,and thehouse was being built over them. Watanabe refused to stop the project,butwarned Brescia that he was proceeding at his own risk because theCouncil couldapprove any number of actions that might affect construction, includingremovingthe concrete burial coverings.

Monthswent by, McMahon made minor revisions, and on June 4, 2009, draft 11 oftheBurial Treatment Plan went to the Council, which deadlocked on a vote torejectit. Shortly thereafter, the Burial Council lost its quorum, and manymore monthselapsed before Gov. Lingle appointed two new members. All the while,work on thehouse continued.

At eachof the Burial Council meetings, numerous members of the public denouncedthe BTPand complained that McMahon still had not engaged in the properconsultations.The public similarly opposed the 16th draft that the Council mostrecentlyrejected.

In herletter approving that plan, Aiu noted that McMahon had conducted thejudge’srequired consultations by meeting with three individuals, listening totestimonyat Burial Council hearings and reviewing written public comments on theplan.

Halldisagreed that McMahon had gone far enough.

“Whenyou have every individual and organization writing in against it, howcan youturn around and approve it? We all know it was political.”

Achange in philosophy?

In response to Aiu’s approval of the Burial Treatment Plan, Murakami saidhe plansto amend one of the claims–that SHPD failed to properly carry out thelaws–thathas been before Judge Watanabe since the start of litigation two yearsago. “Theapproval could be reversed, but without any practical effect on thebuilding ofthe house,” he said. “We need to have a ruling. Otherwise I’m sure adeveloperwill make sure it happens again. They will point to Brescia and say,‘Why can’tyou do that for me?’ That’s the danger that I think all the BurialCouncils nowfear.”

Maxwellconcurred. “Whatever happens on Kauai affects us throughout theIslands,” hesaid, which is why the Maui-Lanai Burial Council voted unanimously lastweek towrite a letter of protest to the governor stating it had “no confidence”in theability of SHPD, Aiu and McMahon, who is now Aiu’s deputy, “to preserveandprotect the cultural heritage of Hawaii, especially the iwi.” OtherCouncilsaround the state are expected to take similar stances.

PresleyWann, who served two, four-year terms on the Kauai Burial Council, saidheemerged from his tenure convinced that state laws need to be radicallyaltered.The Burial Councils, he said, should be consulted at the beginning ofthedevelopment review process, rather than the end, “when everybody’s allfrustrated. That’s why we took a lot of the heat. We need to be involvedwayahead of time. As Hawaiians, we know where our burialsare.”

Lawsgoverning real estate transactions in the Islands also need to berevamped toinclude the caveat that “nobody’s guaranteeing you the right to build,”Wannsaid. Some places, like Brescia’s lot, simply aren’t suited todevelopment.

Aiusaid SHPD “would like to be more proactive and do [archaeological]inventoriesup front in the planning process. But that will take money, time andchanges inphilosophy.”

Preservationadvocates are hopeful that federal pressure on SHPD, and Lingle’sdeparture fromthe governor’s office, will usher in positive changes. In the meantime,Hall andMaxwell said it’s important to remember that progress has been made inthe 20years since the state adopted legislation governing the treatment ofHawaiianburials.

“Wewere happy with the law because before that, in the ’50s, developerswould justplow them under, crushing them and take it to the dump,” Maxwell said.“It’svery painful. I’ve cried many times at burial sites, especially when thebonesare all crushed. If only people would take care.”