2008 09 10 Chandler PFOF
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Transcript of 2008 09 10 Chandler PFOF
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER
Defendant/Third Party Plaintiff Jeff Chandler’s (“Chandler”) Motion for Preliminary
Injunction (“MPI”) filed July 25, 2008 against Plaintiff Joseph A. Brescia and third-party
Defendants Pua Aiu, in her official capacity as Administrator of the State Historic Preservation
Division (SHPD) of the Department of Land and Natural Resources (DLNR); LAURA
THIELEN, in her official capacity as the Director of the DLNR, and doe defendants (“State
Defendants”) came on for hearing on August 14, 2008 before the Honorable Judge Kathleen N.
A. Watanabe. Alan T. Murakami, Camille K. Kalama, and David K. Frankel appeared on behalf
of Chandler; Vince S. Kanemoto appeared on behalf of State Defendants; and Philip J. Leas and
Calvert C. Chipchase III, appeared on behalf of Plaintiff. The Court, having reviewed the
memoranda, declarations and exhibits submitted by the parties, having considered the parties’
exhibits received into evidence during the hearing, having heard the testimony of the witnesses
during the hearing, and having reviewed the records and files herein, makes the following
Findings of Fact and Conclusions of Law, and Order.
SUMMARY
The gravamen of the central claim of Defendant/Third Party Plaintiff JEFFEREY
CHANDLER is that the State Historic Preservation Division staff (“McMahon”) ignored and
violated crucial statutory protections that would have left undisturbed an ancient Hawaiian
cemetery on Plaintiff Brescia’s property at Naue, Wainiha, Kaua`i. In effect, Ms. McMahon
unilaterally and improperly reversed the determination of the Kaua`i Ni`ihau Island Burial
Council, contrary to HRS § 6E-43 and implementing regulations. The effect of her unauthorized
action was to nullify the central statutory role the council plays under the legislative scheme to
protect ancient burials. Moreover, she mistakenly interpreted the conditional County approval of
Plaintiff Brescia’s building permit, which had to first conform to the requirements of the KNIBC,
as authorizing construction to proceed irrespective of the KNIBC’s vote to preserve the 30
burials in place. Finally, McMahon completely ignored the explicit statutory requirement to
consult in advance with the KNIBC before she could approve the revised burial treatment plan
(April 2008). These crucial missteps improvidently denied its members the unique and core role
it plays in shaping protective measures to implement their determination.
In response, McMahon urges this Court to interpret the applicable requirements
governing her actions in a minimalist fashion, completely at odds with the trust duties with
which she is bound to uphold to protect ancient Hawaiian burial sites. She urges this Court to
approve her actions irrespective of the clear legal duties governing her actions.
The collective result of these violations of statute and rules governing the protection of
ancient Hawaiian burials is the extreme affront to the core of the cultural beliefs of Chandler and
those Hawaiians like him, including burial cultural practice expert Kai Markell. The irreparable
harm they suffer from the construction of a foreign building on top of the iwi kūpuna in the
ancient Hawaiian cemetery, to be inhabited by strangers to the spirit (uhane) within those
remains, would continue beyond the pouring of concrete for the laying of the foundation.
The Court concludes that Chandler has adequately demonstrated the probability of
success on the merits of his claims of these serious violations of law and established the resulting
continuing irreparable harm that would occur in the absence of an injunction against the
Plaintiff’s future construction.
Accordingly, this Court determines that it should immediately enjoin the construction of
the Brescia residence until trial on the claims raised is held and the issues raised resolved.
The public interest in protecting the affected iwi kūpuna requires no less than to impose
preliminary relief at this time so no irreparable harm is inflicted on Chandler pending the
outcome of trial. For the same reason, the Court determines that no bond shall be required
FINDINGS OF FACT
I. PROCEDURAL BACKGROUND
1. This lawsuit concerns an approximately 15,677 square foot parcel of land known
as Lot 6 of the Wainiha Subdivision II, situated in the Wainiha ahupua`a, Halele`a District,
Island and County of Kaua`i, State of Hawai`i, identified as Tax Map Key (4) 5-8-009-045,
which was purchased by Joseph A. Brescia by Warranty Deed from Sylvester Stallone on
February 11, 2000 (hereafter, “Brescia parcel”). Exhibit S-1 at 1; See First Am. Verified Compl.
Filed June 12, 2008 ¶ 7, 11.
2. On June 12, 2008, Plaintiff Joseph A. Brescia filed a First Amended Verified
Complaint For Temporary Restraining Order, Injunction, and Damages against Defendants
Ka`iulani Edens-Huff, Puanani Rogers, Dayne Gonsavles, Louise Listman, also known as Louise
2
Sausen, Jeff Chandler, Hale Mawae, and doe defendants. See First Amend. Verified Compl.
filed June 12, 2008.
3. Plaintiff served Defendant Jeff Chandler with a copy of Plaintiff’s Complaint on
or about June 20, 2008.
4. Chandler filed his Answer to Plaintiff’s Complaint on July 7, 2008. See
Defendant Jeff Chandler’s Answer to Complaint Filed June 12, 2008.
5. Chandler amended his Answer and, on July 18, 2008, filed his First Amended
Answer, Counterclaim, and Third-Party Complaint against Laura Thielen, in her official capacity
as Chairperson of the Department of Land and Natural Resources, Pua Aiu, in her official
capacity as Administrator of the State Historic Preservation Division, and Doe Government
Defendants 1-20.
6. On July 23, 2008, Chandler filed a Motion for Temporary Restraining Order and
an Ex Parte Motion to Shorten Time for hearing on the Motion. This Court denied Chandler’s
Ex Parte Motion to Shorten Time and set a hearing date on his Motion for TRO on September
13, 2008.
7. On July 25, 2008, Chandler filed an Ex Parte Motion for Temporary Restraining
Order, a Motion for Preliminary Injunction, and an Ex Parte Motion to Shorten Time for Hearing
on the Motion for Preliminary Injunction.
8. This Court denied Chandler’s Ex Parte Motion for TRO on July 28, 2008 and his
Ex Parte Motion to Shorten Time for Hearing on the Motion for PI was granted. A hearing on
the Motion for PI was set for August 12, 2008.
9. By Stipulation of the parties, the hearing on the Motion for PI was continued to
August 14, 2008 with the agreement that the Plaintiff would not conduct any construction
activities on his property from August 12-14, 2008.
10. A hearing on the Motion for Preliminary Injunction took place on August 14,
2008.
11. At the conclusion of the hearing, Chandler made an oral request for a temporary
restraining order to issue until the next hearing date.
12. In addition, the State Defendants requested that the case be dismissed for lack of
jurisdiction.
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13. The Court denied both oral requests and scheduled further hearing to take place
on the Motion for Preliminary Injunction for September 3 and 4, 2008.
14. The Court heard evidence on both dates, and the hearing concluded on September
4, 2008, affording the parties time for closing arguments before adjourning the hearing.
15. At the conclusion of the September 4 hearing, Chandler again made an oral
request for a temporary restraining order to issue until the Court decided on the Motion for
Preliminary Injunction.
16. The Court denied the oral motion and set a deadline for submission of proposed
findings of fact and conclusions of law by the parties for September 11, 2008.
II. The Brescia Property
Plaintiff Joseph A. Brescia asserts that he owns the Brescia property that is the subject of
this action. First Amended Complaint
1. The area of Wainiha ahupua`a where Brescia’s property is located is known as
Naue.
The unmarked native Hawaiian cemetery at Naue, on the Brescia parcel, is part of a
special spiritual complex associated with a Leina-a-ke-akua and Leina-a-ka-‘uhane, or leaping
off place for the souls or spirits (‘uhane) of the deceased (iwi kūpuna) to the spiritual realm.
Markell Testimony.
1. There is evidence of only one other site on Kaua`i that is considered a Leina-a-ke-
akua in Kekaha. Id.; Chandler testimony.
2. The Brescia property is culturally very sacred to Hawaiians because of its
significance in Hawaiian burial practices and beliefs. Markell Testimony.
3. A “lele” or “leina” was a common site for burials to be located in traditional
Hawaiian burial practices. Id.
4. Naue is known for its hala (pandanus) groves, a symbol of passing, or death
because of the meaning of “hala,” “to pass or die” and its use in burial materials, as evidenced by
references in traditional song (mele) and tradition. Id.
5. The Brescia Property is encompassed by State identified archaeological site 1878,
the extent of which is unknown. Testimony of Dega; Testimony of McMahon.
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6. State Site 1878 is known to contain burials in addition to other cultural and
historical artifacts. Testimony of Dega, Exhibit S-1 at 1.
7. The Archaeological Inventory Survey included two phases of testing, including
three subphases under phase II, which uncovered thirty burials on the Brescia property. Id. at 9.
8. The thirty burials are functionally related to one another because of their
relationship to the lele or leina. Testimony of Markell.
9. Although the burials are located at different depths and not physically touching,
culturally they would be considered one burial site or graveyard. Id.
10. The absence of intrusion by one burial on another suggests that the burials were
done at the same time or that the individual grave sites were well marked. Id.
11. Dr. Michael Dega admitted that he has never performed archaeological work on
an ancient Hawaiian cemetery, and that he does not know how to identify one by terminology he
considers uncertain for such a designation. Dega Testimony.
12. Dega did not consider the Naue site to be part of a leina a ke akua and does not
fully understand the concept in Hawaiian belief and tradition or its significance to Hawaiians
culturally. Id.
13. Dega admits that consultation with Hawaiians is critical in making any
assessment of cultural significance of any historic property. Id.
14. Dega admits that the Brescia property contains burials which are significant to
Hawaiians. Id.
15. Dega did not consult with any Hawaiians or Hawaiian groups to ascertain the
cultural significance attached to the Brescia property. Id.
III. Desecration through alteration of the surface of a burial site
16. The connection between Chandler and the iwi kūpuna on the Brescia property is a
deeply and personally emotional and spiritual, because he feels a profound obligation (kuleana)
to protect (malama) ancient Hawaiian burial remains (iwi kūpuna), which is of intense cultural
importance to Hawaiians, like Chandler, who feel closely connected to their ancestry. Chandler
Testimony; Markell Testimony.
17. Any disturbance of a traditional Hawaiian gravesite or cemetery by constructing
building not to be occupied by the descendants of the affected burials (iwi kūpuna) on its surface
5
is considered desecration (hewa) because the disturbance disrupts the spiritual connection
between the living descendants and their ancestral legacy contained in the spirit (`uhane) lying
within and inextricably attached to the iwi kūpuna. Id.
18. The building of a house over even a single burial is considered desecration (hewa)
unless it is by a family member with the intent to care for and protect the burial. Id.; Chandler
Testimony; Say Testimony; Wann Testimony.
19. To construct a home or any other substantive structure on this cemetery is a
profound desecration of a sacred place, a wahi kapu, of the Hawaiian people and its future
construction will lead to further irreparable harm caused by the severance of the solemn
traditional and customary spiritual connection between descendants and the iwi kūpuna. Markell
Testimony; Chandler Testimony.
20. The concrete pouring to lay the foundation for the planned Brescia residence does
not end the irreparable harm to Hawaiians like Chandler, which will continue should the house
construction proceed to completion. Id.; Markell Testimony.
21. The building of a house on a lele or leina is a desecration of the entire site.
Chandler Testimony; Markell Testimony.
22. Desecration through the alteration of the surface of a burial site can cause harm to
Native Hawaiians who are related culturally or lineally to the burials. Id.
23. The presence of an inhabited residence will constitute further desecration or
alteration of the burial site because it will allow a stranger to the iwi kūpuna to live on a higher
plane than those burials, an affront to the respect for and cultural integrity of the `uhane
contained in the iwi. Markell Testimony.
24. Accordingly, there is further irreparable harm that an injunction would prevent by
stopping further construction of the planned Brescia residence. Id.; Chandler Testimony; Say
Testimony; Wann Testimony.
III. ADMINISTRATIVE PROCESS
25. On March 7, 2007, Kaua`i Planning Commission first approved Plaintiff’s design
of his proposed residence.
26. Thereafter, Brescia began archaeological testing on his Property to determine the
existence of burials. Exhibit S-1 at 7.
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27. In March 2007, Plaintiff’s conducted the first phase of archeological testing on his
property following design approval by the Kauai County Planning Commission during which
one burial and several cultural components were discovered. Exhibit S-1 at 8.
28. After the discovery of the single burial remains, in April 2007, Plaintiff published
a notice in the Honolulu Advertiser and The Garden Isle newspapers, indicating that human
burials had been discovered on Plaintiff’s property, originally granted to Makahela Kekauonohi
in January 1848 under Royal Patent number 7165. Exhibit C-6-B.
29. Brescia published this notice when he knew of only 1 set of burial remains on his
parcel and before three more phases of his archaeological inventory survey disclosed the
presence of 29 more sets of human remains. Dega Testimony; Exhibit C-6A.
30. In June and July 2007, Brescia’s contracted archaeological firm, Scientific
Consulting Services (SCS), conducted a second phase of archaeological work during which
thirty eight subsurface features were discovered, twenty seven of which were burials. Exhibit S-
1 at 8.
31. This additional survey work was necessary due to changing orientation of the
proposed residence based on revised set-back rules and boundaries triggered by independent
litigation which forced the relocation of the proposed residence farther away from the certified
shoreline. Id. at 7.
32. In October 2007, SCS conducted a third phase of testing, which uncovered eight
additional subsurface features, including two burials. Id. at 8.
33. On December 11, 2007, the Planning Commission met to approve the redesign of
Plaintiff’s dwelling. Exhibit B-1.
34. Then-acting SHPD Administrator Nancy McMahon submitted written testimony
and testified orally at the December 11, 2007 meeting. McMahon Testimony.
35. McMahon requested that the Commission approve Plaintiff’s redesigned house
plans in order for her to specify locations of the archaeological testing phase to be completed
based on the approved location of the house on the property, instead of attempting to seek a
deferral of approval in order to determine the geographic extent of the burial site or to give the
KNIBC the opportunity to weigh in on the disposition of the burials. Id.
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36. On the urging of McMahon, the Commission approved the design and issued its
letter of approval to Plaintiff’s Attorney Walton D. Hong on December 12, 2008. McMahon
Testimony; Exhibit B-1.
37. The design approval contained a number of conditions, including Condition #5,
which stated in part that, “No building permit shall be issued until requirements of the State
Historic Preservation Division and the Burial Council have been met.” Id. at 2.
38. Condition #6 also required the Plaintiff to apply for the necessary building permit
within four months from the date of approval by the Burial Council and State Historic
Preservation Division – DLNR. Id.
39. Plaintiff then conducted a fourth phase of testing on December 26, 2007 based on
the conditional house design approval and no burials were discovered. Exhibit S-1 at 9.
40. Brescia’s archaeologist determined that all burials were of Hawaiian ancestry
associated with the ancient times prior to Western contact. Exhibit S-1 at 9-11.
41. After the last Hawai`i Supreme Court decision that ultimately precluded Brescia
from locating his planned residence closer to the certified shoreline, Brescia produced plans to
relocate his planned residence to conform to that determination. Dega Testimony.
42. Dr. Dega had previously encountered more than half of the 30 known ancient
Hawaiian burials on the Brescia property at depths close to a meter below the surface of the
ground, the remainder being at shallower depths. Id.
43. Of the 30 sets of burial remains identified in the archaeological inventory survey
Dega conducted, 8 (over 25%) remains were damaged by the mechanical blade attached to the
backhoe Dega utilized to excavate trenches related to the survey. Id.
44. Brescia’s archaeologist acknowledged the likelihood of more burials being
present on the Brescia property than what has been already identified and located. Exhibit S-1 at
8; Dega Testimony.
Based on his years of experience working with iwi kūpuna throughout the state in dozens of
other contexts, Markell believed that there was double or triple the number of known burials on
the Brescia property. Markell Testimony.
1. McMahon acknowledged “the high probability of finding additional burials” on
the Brescia property at the same time she approved the archaeological inventory survey which
served as the basis for the initial burial treatment plan. Exhibit C-8.
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2. Nevertheless, she approved the preparation of the initial burial treatment plan for
submission to the KNIBC, without assuring that Brescia’s archaeologist determine through
further subsurface testing the extent of additional burials present on the Brescia property. Id.;
Testimony of McMahon.
3. In designing the latest siting of the Brescia planned residence, and relying on his
experience with the depth at which he had earlier encountered burials at the Brescia property, Dr.
Dega worked with Brescia’s architects and engineers to redesign the residence foundations,
which required shallower trenching to avoid burials at that shallower level of trenching. Dega
Testimony.
4. By accepting the adequacy of the archaeological inventory survey, and urging the
preparation of a burial treatment plan for submission to the KNIBC, McMahon implicitly
approved the “shallow trenching” strategy adopted by Dr. Dega as a way of avoiding the
discovery of additional burial remains on the Brescia property she conceded was likely to be
present on the Brescia property. Id..
5. Contrary to McMahon’s characterization that the Brescia property contained 30
individual burial sites, Dega initially admitted that the 30 known burials on the Brescia property
were “features,” rather than individual archaeological “sites,” which were part of a larger
cultural site, Historic Site 1878. Id.
6. When initially queried, Dega could point to no designation, whether individually
or collectively, of a single burial site or 30 individual burial sites in his own burial treatment
plan. Exhibit S-1; Dega Testimony.
7. Nevertheless, Dega considers the 30 known burials at Naue to be archaeologically
unrelated and randomly positioned. Id.
8. During later leading examination by the state deputy attorney general, Dega
suddenly and unexplainably contradicted himself by referring to the 30 burial features as 30
burials “sites”, despite the absence of any such prior documentation or mention in his own burial
treatment plan. Id.
9. This contradiction erodes Dr. Dega’s credibility on whether he adequately
portrayed the extent of the burial site(s) in his burial treatment plan. Id.
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10. Dega admitted that he does not know the outer boundaries of the burials on the
Brescia property because it could exceed the physical boundaries of that parcel and he had not
sought to determine those boundaries. Id.
11. Dega admitted that neither his February 2008 burial treatment plan (BTP), nor his
April 2008 revised BTP contained a map to scale of a burial site, or 30 burial sites, as required
under HAR § 13-300-33(b)(4). Id.
12. Dega admitted that neither his February 2008 burial treatment plan (BTP), nor his
April 2008 revised BTP contained a map to scale of burial # 30 site as required under HAR § 13-
300-33(b)(4). Id.
13. Accordingly, Brescia never provided the KNIBC with any information of the
extent of the burial site it was charged with determining whether to preserve in place.
14. Furthermore, McMahon, in submitting the February 2008 BTP, Exhibit C-9, to
the KNIBC, and approving the April 2008 BTP, Exhibit S-1, failed to assure that the burial site
was properly identified before the council could act on whether to preserve it in place.
15. Mr. Markell, worked for 10 years administering the burial protection statutes and
program of the SHPD between 1994 – 2004. Exhibit C-17; Testimony of Markell.
16. He co-authored HAR subchapter 13-300, the rules governing the burial protection
program enacted by the Legislature in 1990. Id.
17. He has overseen the identification and assessment of hundreds of burial sites
across the state during those years of service. Id.
18. Markell decried the failure of the SHPD to insist on determining the outer extent,
as well as the density, of burials on the Brescia property, so the island burial council would have
a full appreciation of the cultural significance of the Hawaiian cemetery on the Brescia property.
Id.
19. He criticized the failure of the SHPD to assure that this information be provided
the KNIBC for the Brescia property so its members could truly determine and protect the burial
site or sites on that property. Id.
A. Proceedings Before KNIBC
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20. On February 7, 2008, with SHPD approval, Plaintiff presented his Burial
Treatment Plan to the Kaua`i/Ni`ihau Island Burial Council with a request to relocate 6 of the
thirty burial remains found during archaeological testing. Exhibit S-2.
21. Plaintiff’s Burial Treatment Plan called for the relocation of burials numbered 4,
5, 6, 7, 8, and 9, which were located directly below the proposed house foundation. Exhibit S-2;
Exhibit C-9 at 58-63.
22. During the February 7, 2008 meeting, KNIBC Chair Mark S. Hubbard
commented that the legal notice was posted in April 2007 due to the previous identification of
one burial and no other notices to the public with subsequent identifications of additional burials
on the parcel were made. Exhibit S-2.
23. Dega confirmed that there were no advertisements for the subsequent burials to
the public but worked with the Burial Council and Nancy McMahon after the first finding.
Exhibit S-2.
24. KNIBC member Barbara Say expressed that she did not feel a house should be
built on the property because of the finding of thirty iwi and that she considered it to be a
cemetery. Exhibit S-2; Testimony of Say.
25. Say suggested that the landowner should give the property back to the State, to
the County, or to the Hawaiians to take care of and did not feel she could approve Plaintiff’s
request. Id.; Exhibit S-2.
26. Jeff Chandler testified during the February 7, 2008 meeting that he is a direct
lineal descendant to the iwi kupuna on the property and that he believes it is a
gravesite/cemetery. Id.; Testimony of Chandler.
27. While he was advised at the time that he could apply for recognition as a
descendant, no SHPD staff explained the process in detail to him nor even provided him a
written application form until August 2008. Id.
28. Moreover, months before, Chandler remembered that the KNIBC requested that
he assist in serving as a recognized descendant of Hawaiians from the Haena-Wainiha area to
resolve an unrelated dispute over the recognition of a minor as a cultural descendant from that
area. Id.
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29. Accordingly, he believed in good faith that his descendant status, as recognized
by the KNIBC at that time, was already established, so he questioned the February 7, 2008
attempts by the SHPD deputy attorney general urging him to apply for recognition. Id.
30. Puanani Rogers objected to building a house on burials and stated she felt the
Council should stop construction. Exhibit S-2.
31. Referring to the objections to building the house, Dega commented in error that it
was not within the Council’s purview to object to building the house but only to determine
whether to approve or reject the BTP itself and the preservation or relocation of the iwi. Exhibit
S-2 at .
32. While she recognized that the job of whether the Brescia house could be built
belonged to the County Planning Commission, McMahon also erroneously informed the Council
during the meeting that it had no role in determining whether Plaintiff could build his house,
ignoring condition (#5) imposed by the Commission when it approved Brescia’s house plans.
Exhibit S-2 at 5; See, also, Exhibit B-1 at 2.
33. McMahon also erred by advising the KNIBC that deciding to preserve all the
burials in place did not mean Brescia could not build his house. Id.; Exhibit S-2 at 5.
34. At the request of the public present at the meeting, the KNIBC deferred the matter
to its next meeting in order for the information in the Burial Treatment Plan to be made available
to the public. Exhibit S-2 at 6.
35. On April 3, 2008, the KNIBC reviewed a revised Burial Treatment Plan which
called for the relocation of the six original burials and additionally requested relocation of Burial
30 which was determined to be too close to one of the footings. Exhibit S-4 at .
36. Chandler testified during the meeting that he is a lineal descendant and is against
removal and relocation of the burials. Exhibit S-4 at 2.
37. During the April 3, 2008 meeting, the KNIBC passed a motion to preserve all
thirty burials that were found to remain in place. Exhibit S-4 at 5.
38. Because the McMahon did not provide the appropriate information in the relevant
proposed burial treatment plan, as required by applicable regulation, the KNIBC did not
determine what was the burial site(s) to be preserved in place, nor did they determine its extent
or geographic boundary. Exhibit S-1; Testimony of Presley Wann, Barbara Say; Testimony of
McMahon.
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39. The Plaintiff’s Burial Treatment Plan did not depict any maps of burial site(s) to
scale, regardless of whether one site encompassed all thirty known burials or 30 individual burial
sites existed. Exhibit S-1; Testimony of Dega.
40. Four of the six Council Members present approved the motion. Exhibit S-4 at 5.
41. The same four Council Members voted to recommend to the SHPD that any
future iwi which might be discovered be left in place. Id.
42. Chandler urged the KNIBC members to send a communication to the Kaua`i
Planning Commission to inform it that the house construction on the Naue Hawaiian cemetery
should stop because the KNIBC voted to preserve those affected burials in place. Testimony of
Chandler.
43. Deputy Attorney General Vince Kanemoto advised the KNIBC members that they
were not empowered to do anything more than to either vote to preserve the 30 burials in place
or to relocate them, as requested by Brescia. Id.
44. After the Council’s determination, the members discussed asking the DLNR to let
the Planning Commission know of their concerns. Exhibit S-4 at 5.
45. However, the Council determined that the matter was already taken through the
Planning Department process and, based on the erroneous advice of Kanemoto and McMahon,
erroneously believed it could not affect the issuance of a building permit for the Brescia
residence. Id.
46. Nevertheless, despite the prior advice of deputy attorney general Kanemoto, the
KNIBC voted additionally to preserve in place any burials which are discovered on the Brescia
property in the future. Id.
47. Following the KNIBC’s determination, the Plaintiff submitted his Preservation
Component of a Burial Treatment Plan which outlined his proposed treatment of the thirty
burials to be preserved in place. Exhibit S-1.
48. The KNIBC neither received nor reviewed the revised burial treatment plan prior
to its approval. Testimony of Wann, Say; Testimony of McMahon; Testimony of Dega; Exhibit
S-1.
49. Prior to her approval, McMahon did not discuss the specific treatment of the iwi
with the KNIBC, including the specifics of the proposed vertical buffers or the use of concrete
jackets. Testimony of Nancy McMahon; Testimony of Say, Wann.
13
50. The revised plan included no provisions for access to the subject burials in favor
of future recognized cultural or lineal descendants. Exhibit S-1; McMahon Testimony; Dega
Testimony.
51. On April 24, 2008, without consulting the KNIBC following the preparation of
the revised burial treatment plan, McMahon sent a letter to Plaintiff’s archaeologist Dega,
approving the revised burial treatment plan. Exhibit S-5.
52. Following the issuance of the building permit after the SHPD approval of the
revised burial treatment plan, the construction contractor inadvertently discovered 2 burial
remains while installing a shade cloth barrier around the perimeter of the Brescia parcel.
Testimony of McMahon.
53. The SHPD reported the two inadvertent discoveries to Markell. Testimony of
Markell.
54. Dega reported the inadvertent discovery of only one burial to SHPD. Testimony
of Dega.
B. Notice to Descendants
55. The Archaeological Inventory Survey and subsequent Burial Treatment Plans
submitted by the Plaintiff to the State Historic Preservation Division included notice of the
L.C.A. granted to Kekauonohi. Exhibit C-6A.
56. On the basis of his testimony of his experience and professional background, the
Court qualified Mr. Lenneth Lorenzo, paralegal for the Native Hawaiian Legal Corporation, as
an expert in land title research and genealogy. Lorenzo Testimony.
57. Lorenzo indicated that in one day of research, he found evidence of seventy one
individuals who formed a part of the Wainiha Hui, aka Wainiha Company, which obtained
ownership of the Wainiha ahupua`a in 1877. Id.
58. Lorenzo identified the names of several families that resided in Wainiha during
that time and obtained ownership of specific parcels of land in Wainiha, including the Chandler
and the related Mahuiki families (ohana). Id.
59. Jeff Chandler’s ancestors come from Wainiha and were part of the original
Wainiha Hui. Id.
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60. Chandler and many of his relatives continue to reside in Wainiha today. Id.;
Chandler Testimony.
61. Nancy McMahon, Kaua`i Archaeologist for SHPD, has known Chandler and his
family for at least 14 years, while he worked for the SHPD maintaining cultural sites, including a
burial site, in Haena State Park. Id.; Testimony of McMahon.
62. McMahon relied upon Chandler’s mother for her cultural knowledge. Id.;
Chandler Testimony.
63. McMahon has called upon Chandler to respond to burial issues in the
Wainiha/Ha`ena ahupua`a’s. Id.
64. McMahon did not notify Chandler or any other families in the Wainiha area of the
burials found on the Brescia property. Id.; McMahon Testimony.
65. Chandler did not learn of the burials discovered on the Brescia property until just
prior to Plaintiff’s submission of his initial Burial Treatment Plan to the KNIBC in February
2007, after being informed of them by a third party, Caren Diamond. Chandler Testimony.
66. Because of the absence of any timely information, Chandler has not formally
applied in writing for recognition as a lineal or cultural descendant and did not receive a formal
application until August 2008. Id.
CONCLUSIONS OF LAW
1. Granting injunctive relief allows for the preservation of a state of affairs until a
court can render a meaningful decision on the merits.
2. The standard for granting a preliminary injunction is a flexible one that requires a
determination of whether (1) the plaintiffs are likely to prevail on the merits, (2) the balance of
irreparable damage favors the issuance of a temporary injunction, and (3) the public interest
supports granting the injunction. Life of the Land v. Ariyoshi, 59 Haw. 156, 159 (1978). The
Hawai`i Intermediate Court of Appeals held that:
[T]he more the balance of irreparable damage favors issuance of the injunction, the less the party seeking the injunction has to show the likelihood of his success on the merits. Likewise, the greater the probability the party seeking the injunction is likely to prevail on the merits, the less he has to show that the balance of irreparable damage favors issuance of the injunction.
15
Penn v. Transportation Lease Hawaii, Ltd., 2 Haw. App. 272, 276 (1981) (emphasis added;
internal citations omitted).
3. This Court, as “the trial court having jurisdiction where the alleged violation
occurred or is likely to occur” may issue injunctive relief against the Plaintiff, to protect a Native
Hawaiian burial site, considered part of the State’s public trust resources, “upon a showing of
irreparable injury,” from “unauthorized or improper demolition, alteration, or transfer of the
property or burial site” pursuant to HRS § 6E-13.
4. This Court also has jurisdiction to issue declaratory relief against the State
pursuant to HRS § 632-1, since (a) this action involves “[c]ontroversies involving the
interpretation of … statutes … and other governmental regulations; and (b) HRS § 6E-13(b)
provides “a general common law remedy, a remedy equitable in nature, or an extraordinary legal
remedy,” which does not bar a party from “the privilege of obtaining a declaratory judgment in
any case where the other essentials to such relief are present.”
Success on the Merits
5. HAR §13-300-33 specifies the requirements for a complete burial treatment plan
prior to any burial council determination and requires under:
(b)(1) “Evidence of a good faith search for lineal and cultural descendants.”
a. (b)(2) “Names of any known lineal or cultural descendants recommended by the
department and recognized by the council, and their respective positions
regarding burial site treatment;”
b. (b)(3) “A description of proposed treatment of all burial sites including a
statement of preservation in place or relocation:
(A) In the event preservation in place is proposed, statements describing:
(i) Short term measures to immediately protect all burial sites including,
but not limited to, fencing, buffers, and site restoration; and
(ii) Long term measures to properly manage and protect all burial sites
including, but not limited to, buffers, landscaping, and access by known
lineal or cultural descendants; …
c. (b)(4) “Maps clearly indicating the location of all identified Native Hawaiian
burial sites located at the property, including where applicable, the spatial
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relationship between Native Hawaiian burial sites and any proposed construction
activities, drawn to scale.
2. Under HRS § 6E-2, a “burial site” is defined as “any specific unmarked location
where prehistoric or historic human skeletal remains and their associated burial goods are
interred, and its immediate surrounding archaeological context, deemed a unique class of historic
property and not otherwise included in section 6E-41.”
3. HRS § 6E-43(a) provides in relevant part, “[t]he appropriate island burial council
shall determine whether preservation in place or relocation of previously identified native
Hawaiian burial sites is warranted… .”
Defective Burial Treatment Plan
1. Although the KNIBC determined that preservation in place was appropriate,
McMahon failed to include statements describing the “[l]ong term measures to properly manage
and protect all burial sites including, but not limited to … access by known lineal or cultural
descendants; …” contrary to HAR § 13-300-33(b)(3).
2. Dega also failed to include, and McMahon also failed to assure that the
appropriate maps “clearly indicating the location of all identified Native Hawaiian burial sites
located at the property … drawn to scale.” HAR § 13-300-33(b)(4).
3. Furthermore, SHPD McMahon improvidently failed to require the proper
identification of the geographic extent of the burial site that Markell and others believed was an
ancient Hawaiian cemetery connected with a leina-a-ke-akua, a highly sacred place Hawaiians
revered as a jumping off point for the deceased to the next world.
4. As such, SHPD failed to assure that the KNIBC had the proper identification of
the subject burial site or sites for which the council could determine whether to preserve in place
or relocate the subject burial site(s).
5. These inexcusable omissions leave critical gaps in the required information in an
adequate burial treatment plan, depriving the KNIBC and any future cultural descendant of
crucial facts that comprise the total package required to memorialize adequate preservation
measures to protect the 30 burials and the cemetery site in which they are located.
4. Erroneous Advice
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1. HAR § 13-300-38(a)(1) and (a)(4), respectively, requires the burial council, when
determining appropriate treatment of a previously identified Native Hawaiian burial site, to fully
consider: (1) all provisions of the burial treatment plan developed according to section 13-300-
33; and (2) any other relevant factors concerning appropriate treatment including those stated in
section 13-300-36(b);
HAR §13-300-36(b) requires the councils and the SHPD to give due consideration to the
following factors:
(1) the cultural appropriateness of the proposal to preserve in place or relocate;
(2) Any possible harm to the Native Hawaiian skeletal remains if the burial site is
left in place; … and
(4) Any reason presented by the applicant to relocate.
2. McMahon’s, Dega’s and Kanemoto’s statements regarding its inability to prevent
a house from being constructed atop the burials were legally and logically wrong, and misled the
KNIBC into believing that the house design approval was unconditional and final.
3. In fact, the Kaua`i Planning Commission specifically imposed a condition on any
future issuance of a building permit for Brescia’s planned residence upon the Plaintiff meeting
the requirements of the SHPD and the KNIBC.
4. McMahon’s advice to the Council came after she testified before the Planning
Commission requesting their approval of the final house design prior to any review by the
KNIBC.
5. When the Council considered the determination request, they made no further
recommendations to the Planning Commission based on the erroneous belief that the Planning
Commission process was complete.
6. Accordingly, McMahon’s misinterpretation and/or misunderstanding of the
Kaua`i Planning Commission’s conditional approval of Brescia’s house plans seriously
prejudiced the KNIBC, whose members’ intended action was directly thwarted by McMahon’s
unilateral action to approve a completely contrary revised burial treatment plan.
7. Her related advice to the KNIBC compromised its ability to alert the Kaua`i
Planning Commission that the latter’s condition #5 had not been met.
8. Moreover, McMahon’s approval of the April 2008 revised burial treatment plan
without notice to or direct consultation with the KNIBC deprived its members of the ability to
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even consider any crucial preservation provisions of the burial treatment plan as required under
HAR § 13-300-38(a)(1); or “appropriate treatment” including (a) “the cultural appropriateness of
the proposal to preserve in place;” (b) “[a]ny possible harm to the Native Hawaiian skeletal
remains,” as required under HAR § 13-300-38(a)(4) and 13-300-36(b).
Lack Of Consultation
9. HAR §13-300-38(e) specifies that, once a council determination is accepted as
final:
a. The applicant develops the burial site component of the preservation plan
consisting of the requirements of section 13-300-(b)(3)(A) and any accepted
recommendations relating to burial site treatment.
b. The SHPD approves the plan within ninety days following consultation with the
applicant, any known lineal descendants, the appropriate council, and any
appropriate Hawaiian organizations.
10. These provisions implement the statutory requirement that “[w]ithin ninety days
following the final determination [of an island burial council], a preservation or mitigation plan
shall be approved by the department in consultation with … the respective council, other
appropriate Hawaiian organizations, and any affected property owner.” HRS § 6E-43(d). Thus,
the SHPD may only approve a revised burial treatment plan following a determination by the
island burial council after first consulting with the council about the appropriate preservation
measures to implement the determination made, as reflected in a revised burial treatment plan.
11. McMahon’s approval of Plaintiff’s April 2008 Revised Burial Treatment Plan was
improper because she failed to first consult with the KNIBC after its preservation in place
determination and prior tobefore her unilateral approval of it, and without even so much as
notification to the KNIBC of the written contents of the revised plan of the specific treatment of
the burials. The request of the KNIBC chair for recommendations of protective measures from
its members at the end of the April 3, 2008 KNIBC meeting was legally insufficient to constitute
the required “consultation” with the KNIBC under HRS § 6E-43(d) and HAR § 13-300-38(e).
The council members had no specific written burial treatment plan to review at that time and had
not even discussed the viability of concrete jackets or specific vertical buffers to preserve the 30
burials, or any burial site, at issue.
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12. Soliciting recommendations at the end of the April 3, 2008 meeting only
conformed to the separate requirement to seek such recommendations pursuant to the separate
and independent requireme so under HAR § 13-300-38(a)(5). This arate requirement to seek
recommendations must be interpreted in pari materia with the consult The SHPD may not
combine these two requirements and treat them as the same procedural step because to do so
would be illogical under these two independent provisions.
Failure To Implement Preservation Determination
1. The intention of the KNIBC to preserve in place the 30 burials at the Brescia
property appears to be undisputed.
2. The vote of the KNIBC to preserve in place appeared clearly to be guided by a
sense of leaving the surface of any burials undisturbed, without any building on top of them.
3. SHPD staff McMahon unilaterally reversed this requirement without legal
authority and disregarded her own advice to the council that it was not SHPD’s or the burial
council’s role to directly prohibit the building of the Brescia residence.
4. While she correctly identified the Kaua`i Planning Commission as the entity with
the authorized role to directly prohibit construction, she arbitrarily and unilaterally assumed the
role of presuming that the commission’s approval of house plan was not conditioned on the
determination of the KNIBC and approved the revised burial treatment plan that presumed that
the commission’s condition was met when it was not.
5. As such, she should have acted consistently with the vote and intention of the
KNIBC and merely communicated the action taken to the commission for its decision on
whether to allow the issuance of the building permit.
6. Her contrary approval of the revised burial treatment plan, with provisions for
building on top of the 30 burials was unauthorized and illegal.
Notice To Potential Descendants
5. Plaintiff’s February and April burial treatment plans failed to include evidence of
a good faith search for lineal and cultural descendants pursuant to HAR § 13-300-33(b)(2)
because it failed to list conveyance documents that would reveal the family names of ancestors to
current Wainiha residents who could potentially make cultural descendant claims to the iwi
kūpuna at issue and be timely recognized as lineal or cultural descendants to the subject burial
remains.
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6. Plaintiff’s February and April burial treatment plans failed to include evidence of
names of cultural descendants who were reasonably known to SHPD staff, like Ms. McMahon,
including Jefferey Chandler, who for 14 years worked for the same division which employed her.
7. SHPD staff failed to assure that Brescia conducted a good faith search for
descendants with appropriate research of relevant conveyance documents or provide them actual
notice of the potential interests of their ohana prior to the submission of the initial burial
treatment plan.
8. These omissions minimized the chances of any cultural descendants being
identified and recognized by the KNIBC and allowing consideration of their positions on burial
treatment, contrary to the carefully crafted design of the governing statutes and regulations.
9. As it turned out, the KNIBC failed to recognize a single lineal or cultural
descendant who could officially consult with and participate in the formulation of protective
measures for the burial site on the Brescia property.
10. The Court concludes that the failure to follow this crucial procedural step
deprived potential descendants, like Chandler, the important opportunity to participate in the
proceedings of the KNIBC in a timely fashion and be consulted in the outcome of the design of
preservation measures ultimately imposed.
11. In any case, Chandler has clearly demonstrated a high likelihood of success on the
merits of his claims. Accordingly, under the Penn standard for preliminary injunctive relief, he
need show less evidence “that the balance of irreparable damage favors issuance of the
injunction.” Penn, 2 Haw. App. at 276.
Desecration/Irreparable Harm
1. Irreparable injury will occur where construction of a proposed building over
ancient Hawaiian burial remains threatens the cultural integrity of those remains. Such
construction will directly alter the surface of at least the 7 known burials found on the Brescia
property which will be directly impacted by the planned house construction. That potential harm
is enhanced where there is evidence, as provided in this instance, of potential harm to an entire
Hawaiian cemetery located on one of the most sacred grounds for Hawaiian burials, a leina-a-ke-
akua.
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On the other hand, while Ted Burkhart provided some evidence of the cost of delay to
Plaintiff Brescia, such economic harm must take a back seat to the irreparable harm that his
construction poses to the cultural interests of Chandler. Brescia’s only demonstrated harm,
should an injunction issue, while not insubstantial, is purely economic or financial.
Accordingly, since financial harm cannot equate to the degree of non-monetary
irreparable harm that favors the issuance of an injunction, under the Penn sliding scale, “the less
the party seeking the injunction has to show the likelihood of his success on the merits.” Penn, 2
Haw. App. at 276. Likewise, the greater the probability the party seeking the injunction is likely
to prevail on the merits, the less he has to show that the balance of irreparable damage favors
issuance of the injunction.
On the balance, it is clear that Chandler has demonstrated both the likelihood of success
on the merits and that irreparable harm favors the issuance of an injunction. Therefore, under the
Penn sliding scale test, it is clear that an injunction should be granted.
Public Interest Favors Injunction
As part of implementing Art. XII, Sec. 7, Hawai`i State Constitution, the legislature
enacted HRS chapter 6E, which protects Hawaiian burial sites as well as other cultural property.
In so doing, the legislature declared that the “historic and cultural heritage of the State is among
its important assets and that the rapid social and economic developments of contemporary
society threaten to destroy the remaining vestiges of this heritage.” HRS § 6E-1.
In fact, burial sites and remains are a part of this state's public trust. The Legislature
declared that
… it shall be the public policy of this State to provide leadership in preserving, restoring, and maintaining historic and cultural property, to ensure the administration of such historic and cultural property in a spirit of stewardship and trusteeship for future generations, and to conduct activities, plans, and programs in a manner consistent with the preservation and enhancement of historic and cultural property.”
Id. (emphasis added). In amending HRS Chapter 6E to protect burials, the legislature observed:
… native Hawaiian traditional prehistoric and unmarked burials are especially vulnerable and often not afforded the protection of law which assures dignity and freedom from unnecessary disturbance. . . . The public has a vital interest in the proper disposition of the bodies of its deceased persons, which is in the nature of a sacred trust for the benefit of all, and therefore the legislature reaffirms the common law rule that a land owner knowingly in possession of human skeletal remains cannot own the remains, but
22
merely holds the same in trust for cultural descendants, who have the right to possession for purposes of proper cultural preservation or reinterment.
Act 306 1990 Sess Laws of Haw (emphasis added).
As a part of this state's public trust, native Hawaiian burial sites are entitled to significant
respect and protection. In order to protect historic and cultural property, the state legislature,
through the enactment of HRS Chapter 6E, provided a structured means to ensure that the
integrity and importance of native Hawaiian burial sites would not get trumped by development
pressures. Unless that process is followed, the State breaches its public trust duties and the
public trust resource is irreparably harmed.
The judiciary has long-recognized the public importance in protecting burials. Beatty v.
Kurtz, 27 U.S. 566, 584-585, 7 L.Ed. 521, 528 (1829). “In recognition of the universal sentiment
of mankind, the right to decent burial is well guarded by the law, and relatives of the deceased
may insist upon legal protection to the burial place from unnecessary disturbance or wanton
violation.” Anderson v. Acheson, 110 N.W. 335, 336 (Iowa 1907). The ground once given for
the interment of a body is appropriated forever to that body. It is not only the domus ultima, but
the domus aeterna, so far as the eternal can be applied to man or terrestrial things. Nothing but
the most pressing public necessity should ever cause the rest of the dead to be disturbed. Id. at
339-340. In Neighbors v. Neighbors, 65 S.W. 607, 607-08 (Ky. Ct. App. 1901), the Kentucky
court held that under "current authority in this country ... the courts of law will recognize and
protect [a burial].”
Respect for burials has long been recognized in Hawai`i. In Sylva v. Wailuku Sugar Co.,
19 Haw. 602, 609 (1909), the Hawai‘i Supreme Court held that a jury could award punitive
damages for the desecration of graves. The Court also has held that a decent burial of the dead is
dictated by considerations of public health, sentiment and respect for the dead. Lum v. Fullaway,
42 Haw. 500, 516 (Haw. 1958). See also, Guth v. Freeland, 96 Haw. 147, 154 (Haw. 2001)
( duty to exercise reasonable care in dealing with a burial).
It is beyond question that protection of burials is in the public interest. The Court
concludes that the KNIBC’s intended action and intent behind it have been clearly established.
The SHPD, through Ms. McMahon, clearly acted in a fashion inimical to that action. Such a
clear breach of duty is contrary to the express public interest in protecting burials where so
intended.
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There is no other public interest at issue in determining whether to grant injunctive relief.
ORDER
Based on the evidence presented, and applicable law cited above, this Court hereby
grants Chandler’s Motion for Preliminary Injunction.
IT IS HEREBY ORDERED that Plaintiff Joseph A. Brescia is preliminarily enjoined
from causing any further construction activity to occur on what is commonly identified as Lot 6
of the Wainiha Subdivision II, situated at Wainiha, Island and County of Kaua`i, State of
Hawai`i, and identified as Tax Map Key (4) 5-8-009-045 until further order of this court.
DATED: Lihue, Hawai`i, _________________________________.
____________________________________Judge of the Above-Entitled Court
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