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

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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

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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.

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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.

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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

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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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