(Protect the Shoreline)
Keep Kealakekua Wild!
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(Protect the Shoreline) Keep Kealakekua Wild! |
ëOhana strives to Protect Ancient Ala Loa.
The trial in the long-running Hokulia case began on Tuesday, April 16 at Third Circuit Court in Kona.
The battle between the billion dollar developer 1250 Oceanside Partners and local community members began in October 2000 when four plaintiffs asked Judge Ibarra for a TRO against the project after the developer allowed a massive spill of soil into the pristine Kona waters.
A Permanent Injunction, which is monitored under a court-ordered plan, is in effect prohibiting any further pollution of the ocean.
Charges of desecration of Native Hawaiian graves, destruction of archeological sites including an ancient trail, and violation of state land use law, have resulted in several injunctions and a recent ruling that the project does indeed violate provisions designed to protect the agricultural district.
The jury-waived trial began Tuesday with the issue of the ownership of an ancient Ala Loa trail that traverses the property. Ý1250 Oceanside Partners, developers of Hokulia, contend that the ancient trail is on private property and therefore is owned by them.
The plaintiffs the four Kona residents, and cultural preservation group Protect Keopuka Ohana contend that the state owns the trail and it deserves to be preserved. Ý
The state Department of Land and Natural Resources has joined with the plaintiffís position, while the County of Hawaii has taken no position.
Preliminary hearings were held last year stemming from charges that Oceanside destroyed portions of the trail in violation of rules established by State Historic Preservation Division. Judge Ibarra ruled on August 1, 2001, that the trail be reconstructed in its original form and place. He gave the defendants 90 days to perform the work.
In December 2001 the plaintiffs filed a motion for contempt with the court charging that Oceanside failed to implement the order.
Lengthy hearings were held and as yet Judge Ibarra has not yet ruled on the Contempt Motion. In fact, in court this week, the Judge stated that he purposely held off on his ruling until this phase of the trial is over.
Attorney for plaintiffs Protect Keopuka Ohana, Alan Murakami of Native Hawaiian Legal Corporation, presented the issues in his opening statement. "We will prove that the state owns the Ala Loa, that public trails were never surrendered by the Kingdom of Hawaii through the land awards, and use of the trail has been conducted uninterrupted since it was constructed," stated Murakami.
Noted cultural historian and ethnographer, Kepa Maley was the plaintiffís
first witness.
Mr. Maley has recently completed an extensive three-volume study of
land use and customs in the Kona area including one encompassing the Keauhou
to Kealakekua region where the Hokulia development is located.
The studies were commissioned by Na Ala Hele, a division of DLNR that specializes in the preservation of ancient trails and trail alignments. Mr. Maleyís study contained extensive information as to the use of trails and roads in the area.
The Highways Act of 1892 vested ownership of all roads and trails to the state if they were mapped and used at the time. However, the ancient Ala Loa stepping stone trail does not appear on government maps of the time.
Part of the plaintiffís case is to prove that the trail, estimated by Mr. Maley to have been constructed in the 1500ís under the direction of the great king Umi, was in use in 1892 even if it had not been mapped.
Mr. Maley testified that many Hawaiians once lived in the area where Hokulia is being developed. "Travel was extensive along the Ala Loa," stated Maley. "Clear descriptions of travel along the Ala Loa in this area are contained in historical accounts by Ellis in 1823, Bingham in 1830 and Lyman in 1846," stated Maley.
The ëKona Field Systemí of agriculture flourished on these lands between the royal centers of Keauhou and Kaëawaloa at Kealakekua Bay. It is estimated that between 60,000 and 100,000 individuals lived in this area at the time of Captain Cookís arrival. The Ala Loa was the prime method of travel between ahupuaëa.
The Ala Loa was constructed of water worn stones from the ocean placed in the ground to form a smooth pavement of stones that could be walked over comfortably with barefeet. Thousands of individuals participated in its construction as the stones were passed from one to the next.
"Every rock was sacred," stated kaëamaaina witness Mona Kahele, an 80 year old resident of Napoopoo who testified that she regularly walked the trail as a child. "Every rock was set with a prayer just like when they built a temple," she stated. "Ala Loa means trail without end. At one time it went all the way around the island."
After European contact disease decimated the local population, a factor in the abundance of gravesites on the Hokulia property.
The introduction of cattle to the area by Kamehameha began to change the landscape and other types of roads were needed. With the arrival of missionaries, horses and cows in the early and mid 1800ís many of the ancient footpaths were widened into cart paths and then to what are known as Old Government Roads. ÝOceanside claims that the Ala Loa trail fell out of use at that time, had been abandoned, and therefore reverted to private property. Ý
The Great Mahele of the 1848 brought about the concept of fee simple land and eventually westerners ended up with many of the land grants.
However, the Kuleana Act of 1850 vested certain rights in the native tenants of the lands, including the right to a house-site, the land needed to grow food to sustain your family, the right to gather wood and resources for the mountain to the sea in the ahupuaëa which oneís family resided in.
The people were given the rights of access and the ability to move around the ahupuaëa and necessarily also given the rights to travel between ahupuaëa on the public trails available.
Therefore, the plaintiffs claim, trails such as the Ala Loa were claimed for use by the public by the government at that time and have remained public ever since whether or not the present government has claimed them or not.
A Hawaiian phrase appears in every land grant document and Royal patent
of the time.
It states, "Koe nae na kuleana na Kanaka O maloko" translated to mean
"withholding the rights of the people". Murakami presented numerous documents
bearing the phrase.
Moana Rowland, an employee of Na Ala Hele who conducts research into the ownership of trails testified that Na Ala Hele has yet to finally determine ownership of the trail.
Absence of any maps showing the alignment has clouded the issue.
Under questioning by Murakami, Ms. Rowland stated that a map was not the only way to determine ownership. "Other relevant documents may be used," she said. "Is kamaëaina testimony usable?" asked Murakami. "Yes, that would be relevant evidence," she said. "What about evidence of the trail on the ground?" "We would take that into consideration," said Ms. Rowland.
Mona Kahele related that as well as her own use of the trail, she was told by her parents and grandparents of their use of the trail.
"We used to walk the trail from Kealakekua to Honalo (4 miles to the north) every week with our cousins groceries that we would pick up for m the freighter that came to Kealakekua," stated Kahele. "The rocks were all there, smooth and intact. Then one day we came and there was a fence and the cowboys told us we could not use the trail anymore. We tried to go down by the beach but they turned us back. We could see that they had broken the trail on their side."
Previous testimony has related that Protect Keopuka ëOhana president, Jim Medeiros and his sister Leihulu had uncovered several long intact portions of the trail which had been buried underground. Medeiros relates, "I saw it in a dream and we went to where I thought it would be and began to dig. There it was."
Also at issue in the case is whether Oceanside violated state law when it destroyed portions of the trail despite a preservation plan that had been prepared for the linear feature. At the time of the Medeirosís discovery Oceanside committed to its preservation but then subsequently removed it in order to flatten the grade on the 16th fairway of the golf course under construction.
Marc Smith, archeologist employed by DLNR, also testified.
He related that some confusion arose relative to various preservation plans that have been developed overtime.
An Integrated Archeological Mitigation Plan had been submitted by the developer in 1999 that called for partial preservation of the trail and partial data recovery. However, when the new portions were discovered in the summer of 2000 the site became more highly significant. Subsequent communications related that the trail alignment should be preserved and a fifty-foot buffer on each side of the alignment was established.
"Did SHPD approve removal of the Ala Loa at the 16th fairway? Asked Murakami. "No," answered Smith. Although several breeches of the trail were approved for the installation of utilities and water lines, no work should have been performed until a final preservation Plan had been submitted, related Smith. "The Ala Loa is a culturally significant feature," stated Smith, " an excellent example of this type of site."
Dr. Ross Cordy, Branch Chief of Archeology for SHPD also testified about
the trail.
When asked by attorney Bob Kim if it was possible to restore the trail
in its original condition Dr. Cordy stated, "If the people, ëin massí wanted
the Ala Loa to be preserved to the standards of HRS 6E throughout its alignment
it could happen."
HRS 6E provides for the preservation of historical properties on state lands and on private lands with the permission of the landowner.
This is the central issue in the case.
If the Ala Loa is found to be a state-owned right of way, provisions of 6E will allow it to be preserved but if it is found not to be a public right of way and owned by 1250 Oceanside partners it can be legally destroyed by the landowner. "There is no law at this time that can prevent a landowner from destroying culturally significant sites, other than native Hawaiian burials, on their own lands," said attorney Bob Kim.
The trial commences again on Tuesday, April 23, at 9:00 A.M. in Kona.
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CONTACT: Jack Kelly
Contempt hearings in the Hokulia case continued on Tuesday and Wednesday
of this week in the Third Circuit Court in Kona.
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Plaintiffs Protect Keopuka 'Ohana contend that defendants 1250 Oceanside
Partners, developers of Hokulia, failed to implement the courtís August
1, 2001 Preliminary Injunction Order.
That Order stipulated that 1250 Oceanside Partners return all burials that had been removed to their original locations. It also ordered the developers to restore the ancient Ala Loa Trail that was breached in several areas despite a State Historic Preservation Division determination that the trail be preserved.
The plaintiffs contend that the developer failed to implement the order on both counts. Hearings on the burials portion began on December 16, 2001.
Tuesday wrapped up that hearing with a site visit to the Hokulia property.
The court convened at the Hokulia project, at state site #21822 where multiple burials had been exposed by machinery in the summer of 2000. Plaintiff Jim Medeiros, a former Hokulia employee, demonstrated for the court exactly where the burials had been discovered. The burial plots were not in the same positions that Medeiros demonstrated.
Medeiros was one of the first people to witness the burial disturbance that was one of the factors in his demanding that greater care be taken in the construction process. He eventually left his employment with Hokulia because of disputes over the handling of historical sites, including burials on the property.
The plaintiffs claim that the individuals were not reintered in their original locations, that an inventory of individuals was not provided to the descendents and that not all the individuals that were discovered were reintered.
The site was originally disturbed when a bulldozer that was demolishing an ancient c-shaped enclosure discovered bone fragments in the pile he had pushed across the area. Subsequent investigation of the site by archeologists employed by Scientific Consulting Services unveiled five complete individuals in situ at the site. Ý
"When I first saw the site I observed the fairly intact remains of five individuals," says Medeiros, "but on the first weekend of the reinternment process, when we were given the boxes said to contain those five individuals, there were only bone fragments. I spoke up at that time that something was wrong. At the end of that first weekend a kapu was put on the Hale Iwi, where we had been working, to make sure that no one would enter the building
"Then on the second weekend, we discovered that a new box containing some long bones had appeared in the Hale. Gordon Leslie later admitted he had broken the kapu but did not take credit for bringing in the new box. Still, these were not all the bones that were originally discovered. There is some monkey business going on here."
After the site visit the entourage, which included over a dozen vehicles, returned to the Kealakekua courthouse.
There has been some controversy over exactly what remedy the plaintiffs are seeking.
"In my complaint I stated that my clients might wish to have the reburial process conducted again, but as you know Mr. Medeiros said on the stand that he felt that the families had already been through enough pain," said Alan Murakami, attorney for the plaintiffs. "Therefore we are not seeking to have the iwi kupuna dug up again and replaced properly. What we do want is sanctions against Hokulia for its failure to implement the Order and we want a public apology from them."
Attorney for Hokulia, Bud Quitiquit, claimed that "the plaintiffs have just been wasting the courtís time" if they are not demanding a remedy which includes disinterring and reburying the individuals. Judge Ibarra took all the testimony under advisement and will rule at a later date.
The hearing on the contempt charge relative to the Ala Loa trail immediately began with testimony from Violet Leihulu Mamac. That hearing will continue on February 26, in Kealakekua.
CONTACT: Jack Kelly
Hearings in the Hokulia case continued in Kona this week in Third Circuit Court. 1250 Oceanside Partners, developers of Hokulia, have now been in court over various issues since October 2000. The trial on charges of desecration of burials and the destruction of an ancient trail is scheduled to begin in April.
Several motions were heard this week concerning the possible role of the Land Use Commission in the proceedings.
The plaintiffs in the case, Protect Keopuka Ohana and four individuals ? Jack Kelly, Michelle Wilkins, Patrick Cunningham and Charles Flaherty ? contend that the Hokulia project is a impermissible use of agricultural lands and that the developer should have petitioned the LUC for a Boundary Amendment before beginning construction. They claim that Oceanside deliberately parceled the project in obtaining approvals so as to avoid review by the LUC. Subsequently Hawaii County processed a multitude of rezoning requests and special permits to allow for the development that lies in the midst of rural Kealakekua agricultural lands. Seven new ordinances, four special permits and a lengthy Development Agreement between the county and the developer were necessary to initiate the project.
Judge Ibarra asked John Dellera, deputy Attorney General representing the LUC, if the LUC should have intervened, knowing the land use law was being circumvented. Dellera responded that there is no precedent for the LUC to take such action. He contended that the LUC has no powers to force compliance with HRS Chapter 205 and that power lies with the county. Normally the public or an agency petitions the LUC to make a Declaratory Judgment but the LUC hasnít ever issued an order on its own. "Itís possible," said Dellera, "but would be an expansive interpretation of the rule and meaning of 205." He claimed that the Third Circuit Court has primary jurisdiction to rule on whether Chapter. 205 had been violated and that the LUC was not a necessary party to the proceedings.
The plaintiffs claim that there is a hole in the enforcement of the
state law.
"The loophole is that if the developer bypasses
the LUC and then enters into an agreement with the county the LUC will
remain silent," said Alan Murakami, attorney for plaintiffs Protect Keopuka
Ohana. "The county, which is supposed to be the primary enforcing body,
entered into a Development Agreement with the developer it is supposed
to be policing. The Agreement creates a conflict of interest and provisions
in the agreement create a situation where the county cannot enforce its
permits without being in violation of the agreement. The public is left
out in the cold. The public has a right to expect the county and the LUC
to enforce the provisions of Chapter 205."
Chapter 205 allows for single family residences to be built in the agricultural district if the are directly associated with the act of farming the land. The homes must be classified as farm dwellings.
Oceanside claims that the project that includes 700 residential lots of one to three acres, an eighteen-hole golf course, memberís lodge, clubhouse, pavilion, tennis courts and other amenities is agricultural in nature. Lots at Hokulia are priced from one million dollars and up.
The plaintiffs claim that the developerís characterization of the project as agricultural is a "sham" and expressly violates the intent of the law. Attorney Bud Quitiquit, representing Hokulia, stated that if the judge rule against the development it "will be the end of the Hokulia project". "There will be no Mamalahoa By-pass highway, no shoreline park, it will cost hundreds of jobs," claimed Quitiquit.
"Intrusion into the Agricultural district with these kinds of projects subverts the intent of land use planning," said plaintiff Jack Kelly. "If allowed to continue, the increase in land value will have the effect of driving agriculture out of the picture. The survival of the Kona coffee industry and the livelihoods of hundreds of farmers are at stake here."
Judge Ibarra took all motions under advisement. No date was set for a ruling. Hearings will continue on February 12 with a site visit to Hokulia to inspect the site of multiple inadvertent burial discoveries.
CONTACT: Jack Kelly
The State of Hawaii continued to present its case at the Preliminary Hearing in the Hokulia case on Wednesday. The Department of Land and Natural Resources are co-defendants in the case along with the County of Hawaii and 1250 Oceanside Partners. A Temporary Restraining Order enjoining Oceanside from disturbing burials is in effect while the hearing moves into its third month.
Ross Kapeliela, Cultural Specialist for State Historic Preservation Division, was on the stand for most of the day. Mr. Kapeliela is an expert in Hawaiian Genealogy and is the person who makes the determinations about who is recognized as cultural and lineal descendants of a particular property. He related to the court how ancient Hawaiians took great care to hide the burials of their kupuna so that they could not be found by other Hawaiians. Anyone not related to the deceased would not know where the burials were. The mana of the individual is carried in the bones and it was feared that others might wish to capture pieces of bone to take that mana, or use remains to put a curse on the family. Kapeliela explained that these were reasons why Hawaiians maintain a high level of secrecy about their family burials.
Mr. Kapeliela related how he had recommended Wayne Leslie, Jim Medeiros
and siblings, and Gordon Leslie as lineal descendants of the Hokulia property.
Questions that had arisen earlier prompted Judge Ibarra to question Kapeliela
extensively about how lineage is determined when a party has been hanaiíd
or adopted into a family. Gordon Leslie is an adopted member of the Leslie
family.
When making his recommendation concerning Gordon Leslieís claim he
used the genealogy of the Leslie family. He was unaware that Gordon was
hanai to the family. Gordon Leslie made no representation to him that he
was adopted and Kapeliela assumed he came from the blood line. In hand
written documents presented to Kapeliela, Gordon listed himself as a blood
line Leslie along with his brothers and sisters.
Mr. Kapeliela said that he would have come to the same determination
if he had known about Gordonís relationship to the family.
In most Hawaiian families an adopted individual is fully considered
to have all the rights as the other children. Under State law, however,
hanai relationships are not considered legal adoptions. Kapeliela
said that he would have put the information in his report had he known.
He said he wasnít sure how the Burial Council might have decided on the
case had they known. He just assumed Gordon was a natural born sibling
and was given no information otherwise until later when the issue was brought
to him by Kalaëau Wahilani. Kapeliela couldnít remember why the issue came
up. "This is not a typical situation, is it?" asked Judge Ibarra. "No,
it isnít," said Kapeliela.
Previously Identified burials on the Hokulia property are to remain in place, according to a determination by the Hawaii Island Burial Council. The fate of inadvertently found burials is up to State Historic Preservation. All burials found since the archeology survey was completed in 1997 are considered inadvertent. Over 100 individuals have been found in this way. Mr. Kapeliela was asked if he would recommend removal and reinternment elsewhere for any of these inadvertent finds. He said he would have to take it on a case by case basis. "We must weigh imminent harm," he said.
Several remains have been removed from the property and stored in an archeology field house nearby. Plaintiffs are demanding that all burials remain in place. Kapeliela said an example of imminent harm might be construction activities nearby that could damage the iwi. In a case like that he might recommend removal. "Why wouldnít imminent harm be foreseen and not allowed to happen?" asked Ibarra. "Why not move the construction?" he asked.
The hearing continues on Thursday at 9:00 A.M.
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CONTACT: Jack Kelly
The Preliminary Hearing concerning desecration of Hawaiian graves and the destruction of an ancient trail at the Hokulia project in Kona continued Tuesday.
Ross Kordy, Branch Chief of Archeology for State Historic Preservation
Division of DLNR, continued to testify.
Judge Ibarra began the day posing questions to Dr. Kordy. Attorneys
were then allowed to question Kordy on the substance of Ibarraís questions.
The fact that the department has been operating since 1987 without any
formally adopted rules continued to be an underlying theme to the proceedings.
Ibarra asked whether the Department had ever requested an opinion from
the Attorney Generalís office about the force and effect of the proposed
rules. Kordy answered they had not. Ibarra asked if anyone had challenged
the requirements of the review process or any cease and desist order that
the department might have issued. Kordy responded that no one had challenged
the department.
Ibarra also questioned Kordy about professional standards for archeologists; whether an ethical code for archeologists exists. Dr. Kordy said he was not sure. The Register of Professional Archeologists does have a Code of Ethics but few Hawaii archeologists belong to that organization. There is no formal regulation of archeologists in the State of Hawaii, he said.
Dr. Kordy claimed during his testimony that there may not be as many
new sites discovered at the Hokulia project as has been assumed because
of variations in procedures in identifying sites. Three different archeology
firms have been employed on the Hokulia project. Judge Ibarra stated that,
"the numbers could be deceptive". There is no standard for identifying
sites, said Kordy.
"Have any citations against activities at Hokulia come forward from
your division?" asked Ibarra. No punitive action has been taken although
violations of the Preservation Plan have been acknowledged. "What is to
stop the developer from accomplishing his purpose?" asked Ibarra.
The plaintiffsí claim is that the original archeology survey conducted by Cultural Surveys Hawaii was inadequate and has resulted in a doubling of burials found on the property through the construction process. The processes of determining treatment of ëPreviously Identifiedí burials and ëInadvertently Foundí burials are quite different. The Hawaii Island Burial Council determines treatment for Previously Identified burials while the Division determines the status of Inadvertent finds. The Council would have public hearings to help make their determinations while the Division would not.
Dr. Kordy was asked what determinations had been made concerning inadvertent finds on the property that had been removed and stored in the archeological field house. He answered that he wasnít aware that any final determinations had been made. Dr. Kordy testified that in a couple of cases his office had conducted Archeological Surveys on contract with Hawaiian Homelands. This work creates a situation where the department would then oversee its own work. Attorney Robert Kim asked Dr. Kordy, "What authority exists that allows the agency to conduct surveys for landowners?" Dr. Kordy said he was not sure.
The hearing continues Wednesday in Third Circuit Court in Kealakekua.
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CONTACT: Jack Kelly
The Temporary Restraining Order in effect against the Hokulia project in Kona was extended for another thirty days Monday in Third Circuit Court. The developer has been enjoined from disturbing any burials on the property and required to perform specific protocols for reporting any findings of bone on the property. Two more findings of human remains have occurred during the last week. The order will remain in place for thirty days or the end of the Preliminary Hearing, whichever come first.
Testimony continued on Monday with Ross Kordy, Branch Chief in Archeology for the State Historic Preservation Division of DLNR the dayís only witness.
Dr. Kordyís testimony made it apparent that the State Historic Preservation Division has been operating since 1987 under rules that have never been adopted by law. The proposed rules outline all the preservation procedures used by the division. The fact that the rules have never been adopted brings into question the legality and force of law of any departmental decisions the division has made. Dr. Kordy stated that State and County agencies had been informed that the procedures and minimum standards that the division was operating under were outlined in the proposed rules that had yet to be adopted. Attorney Robert Kim, representing plaintiffs Kelly et. al., made it clear that he was going to file a motion claiming violation of HRS 91 by the division. HRS 91 defines the procedures for implementation of rules under state law.
Doctor Kordy testified that the division would not have allowed removal of portions of the ancient Ala Loa trail that runs through the Hokulia property. The developer removed portions of the trail to allow for golf course construction and the building of roads on the property. A pristine section of the trail runs through the middle of the proposed 16th fairway. Dr. Kordy stated that removal of the stones constituted a destruction of the trail and a possible violation of the law. The Interim Preservation Plan written for the project stated that no grubbing or grading should occur in the vicinity of holes 15,16,17 of the golf course until the trail issues were resolved. A County grubbing permit signed off on by Mark Smith, State Archeologist, specifically named those same conditions as provisions of the permit. Kordy said an investigation is ongoing.
Dr. Kordy discussed a new amended monitoring plan that he developed for the project. He stated that he has asked the developer to cease all new construction until the plan is implemented. The plan involves breaking up the project into more manageable sections, performing archeological sweeps of those sections, re-mapping of the sections and making new determinations as to the number and types of sites in those areas before any new construction is allowed.
Dr. Kordy said he first brought his plan forward in October 1999 and thought it had been implemented on the project but found out recently it hadnít. When asked if the amendment was a result of the lawsuit Dr. Kordy answered yes.
Defendants Oceanside 1250 Partners have continually made reference to chain dragging that had been done on the property by the previous owners. Their contention is that repeated chain dragging destroyed many of the historical sites on the property and made it more difficult for archeologists to find the sites.
Under questioning by Robert Kim, Kordy stated that actually only portions at the north end of the property, mauka of the Kuakini Wall, had been previously chain dragged. According to Kordy none of the southern makai sections where most of the construction has occurred has been chained dragged.
The hearing will continue Tuesday at 9:00 A.M. and will run throughout the week.
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CONTACT: Jack Kelly
The preliminary hearing in the Hokulia case resumed in Third Circuit Court in Kona on Wednesday after a week off. Defendant Department of Land And Natural Resources continued to present their case.
First item on the days agenda was a motion by Oceanside partners to Amend the current Temporary Restraining Order that has been placed on the property. Attorney Bud Quitiquit argued in his memo that terms of the TRO were too burdensome for his client. He argued that the requirement to report any uncovering of bones within two hours and have them immediately inspected by DLNR personnel to determine whether or not they are human has excessively restricted the developer from conducting his business. Terms of the TRO require DLNR to provide an expert to determine whether bones found are animal or human before they are moved. Human remains are supposed to be preserved in place but previous finds on the property have resulted in remains being removed and stored in an archeology field house off property. Bones are being uncovered daily by construction activities delaying progress of the development.
Judge Ibarra was noticeably upset with Oceansideís memo. Oceanside, also known as Hokulia, has been reporting all finds to the police for the past two weeks. The police have become upset at being called to the property to inspect what are obvious cow bones, like the skull of a cow. The police are supposed to be notified when human remain have been found. "I get the feeling that the defendants are making a mockery of the courts order," said Ibarra. "I hope the police havenít been told that the court ordered the reporting of cow bones," he said.
The developer has been erecting buffers around every find, even before any determination has been made and closed the Yamagata construction entrance to the property for a week, because of a find, forcing heavy equipment to travel on Hale Kii Street. Residents of Hale Kii street have been complaining about the traffic.
"Is it your argument that your client is required to report animal bones to the police and to put up buffers?" asked Ibarra .Nothing in the TRO states those requirements. "If the employees respect these sites there will be no problem whether or not there is a buffer," said Ibarra. "This is a sensitive area. If this has been a public relations ploy to show the public that the court is making unreasonable demands of the developer. . .Donít forget that the public is watching this case and the process is being scrutinized by the public," he said. "Iíll accept responsibility for my orders. I donít want my orders to be misrepresented."
The judge denied the motion to amend his order except for making further provisions to allow DLNR to hire an expert to help determine bone origin through an escrow account paid into by the developer.
Kai Markell, Director of the Burial Sites Program of State Historic Preservation Division of DLNR continued testimony under redirect examination of attorney Dawn Chang.
The hearing will continue Thursday at 9:00 A.M. Noted archeologist,
Ross Kordy, will take the stand as a witness for State Historic Preservation.
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CONTACT: Jack Kelly
Testimony in the Hokulia preliminary hearing in Kona continued last week as Judge Ibarra scheduled the proceedings during both day and night hours. The Third Circuit Court calendar has become extremely backed up due to the length of this hearing and Ibarra instituted the double time schedule in an attempt to relieve the backlog.
The plaintiffs rested their case, but not before producing twenty-five new documents into evidence. The documents were part of twenty-three boxes of documents the defendants were forced to produce by plaintiffs Motion to Compel. Among these were missing pages from the field notebooks of staff archeologists. Judge Ibarra limited the amount of new evidence to be allowed, due to the fact that this was just a preliminary hearing and the plaintiffís case has already taken two months.
Each of the twenty-five documents was argued extensively by defendants Oceanside 1250 and State of Hawaii. Among them were notes about burial remains being strewn about the property after the heavy flooding that occurred on the property in September, the removal of burials in violation of the stated Burial Treatment Plan, a plan to reduce the size of sites because there were "too many" taking up "too much of the land", and numerous other possible violations of the developerís permits as well as State law. No direct testimony was allowed concerning the documents at this time but may be used by the plaintiffs in their cross examinations of defendants witnesses.
As the plaintiffs rested, the State and Hokulia attorneys initiated arguments for a Motion to Dismiss the case, alleging the plaintiffs had failed to meet their burden of proof to obtain a Preliminary Injunction. Judge Ibarra denied all motions except for the motion to dismiss charges against Kalaíau Wahilani in his personal capacity, which he granted.
Dawn Chang, Deputy Attorney General representing Department of Land
and Natural Resources began to present their case.
DLNRís first witness was Kai Markell, Director of the Burial Treatment
Program, a part of the State Historical Preservation Division. Mr.
Markell is responsible for the protection of all burials throughout the
state. Implementation of proper Burial Treatment Plans for individuals
disturbed by construction activities is a major component of his job.
A Burial Treatment Plan and Preservation Plan for historical sites in general
is supposed to be prepared and approved by all parties before construction
is initiated on a new project, as delineated in chapter 6E of Hawaii Revised
Statutes. The Burial Plan is prepared in consultation with island Burial
Councils and lineal and cultural descendants from the subject area.
In the Hokulia case, County grubbing and grading permits were signed off by Don Hibbard, Director of State Historical Preservation, before any of the process had even been initiated. No Burial Plan had been initiated and not even one descendent notified before grading approvals were given on January 8, 1999 by Hibbard and State archeologist Mark Smith. Under questioning it became apparent that Mr. Markell wasnít even aware at the time that his superiors had signed off on the permits or that construction had begun at Hokulia. The first he heard of it was at a Hawaii Island Burial Council meeting in February 1999 when complaints were raised by Heather Cole, a council member.
Mr. Markell said he did not agree with the permit approvals but "was just busy trying to do my job." He said representatives of Hokulia, Rick Humpherys and Dick Frye phoned him in early March 1999 about the possible approvals of subsequent permits. Mr. Markell stated that he made it clear he would not approve anything until the Burial Treatment Plan was adopted. He never received any more direct communications from Hokulia after that time.
Official minutes of the Hawaii Island Burial Council show that in March 1999 Kalaíau Wahilani, an employee of Markellís, voiced concern that if subsequent permits for the project were held up that "people will run out of work . . . it will be a detriment to the project". Records show that the State and developer Hokulia signed off on an Interim Preservation Plan that allowed construction to move forward while archeology work was still being conducted and no final determination on a burial plan had been made. Mr. Markell stated that he knew nothing about the Interim Plan and that he had not been approached for input into the Interim Plan. It is the contention of the plaintiffs that there is no law or administrative rule that allows the adoption of an "Interim Preservation Plan" and that the whole process subverts the intent of chapter 6E of the Hawaii Revised Statutes, intended to protect burials from destruction.
Questions arose as to how burials are classified for treatment.
Previously Identified Burials are ones that were known at the time
construction began. Inadvertent Burials are ones discovered in the construction
process. They are treated differently. The Hawaii Island Burial Council
has the final say in the treatment of previously identified individuals,
whereas State Historic Preservation has the last word concerning inadvertent
finds. When asked if he would ever treat Previously Identified Burials
as inadvertent ones to facilitate the construction process, Mr. Markell
said "never". When asked if he was aware that his employee, Kalaíau Wahilani,
had stated at a Hawaii Island Burial Council meeting on September 16, 1999
that he would do so, Markell answered, "I would agree that Wahilani doesnít
know what he is talking about."
Plaintiffs claim that the original archeology survey was woefully incomplete.
Over 900 archeological sites have been identified to date although the
original survey identified only 450. Twice as many burials have been discovered
since the original survey, some found after being crushed by machinery.
All discoveries subsequent to the original survey are classified as inadvertent
finds.
"The fact that construction was under way for six months before a Burial
Plan was even introduced to the Burial Council put all these iwi at risk,"
said Jim Medeiros, President of Protect Keopuka Ohana. "An inferior survey,
coupled with the subversion of the process, spelled disaster for the kupuna
buried on these lands."
Many of the individuals found on the property have been removed from their graves and stored in boxes at an archeology field house near the property. DLNR has yet to make a final determination as to whether the remains will be preserved in place or taken somewhere else. "By what authority can these iwi be moved?" asked Alan Murakami, of Native Hawaiian Legal Corp. "The only justification is imminent harm," said Markell. "Could drainage from rain be considered imminent harm?" asked Murakami. "Yes", responded Markell.
The developer was cited in November for two violations of the Clean Water Act. The developer grubbed and graded the property far in excess of Best Management practices resulting in tons of soil being washed out from the property into the ocean. Many grave sites were inundated by water from the events. Murakami asked if other methods of protecting the burials besides removing them were available. Markell responded that alternative responses were available. Markell testified that the Burial program is conducting several investigations into burial removals and other possible violations at the Hokulia site. To date none of those investigations have been completed.
The preliminary hearing will take the week off so that the court may clear its calendar. The next hearing time is scheduled for Wednesday, April 25, 9:00 A.M. at Third Circuit Court in Kealakekua.
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CONTACT: Jack Kelly
The preliminary hearing concerning desecration of graves and the destruction of an ancient trail at the Hokulia project in Kona continued on Wednesday. The hearing in Judge Ronald Ibarraís court is now two months old.
Judge Ibarra informed the parties that a night court would be held next week to move the hearing along. The hearing is scheduled for Monday night from 6:00 to 10:00 p.m., and Tuesday and Wednesday from 9:00 a.m. to 4:30 p.m. and 6:00 -10:00 P.M.
On Wednesday, Protect Keopuka Ohana president Jim Medeiros continued
on the stand. Under questioningby Alan Murakami, Medeiros stated that at
a Hawaii Island Burial Council meeting in November 1999 an agreement was
made between the developer, Oceanside 1250, and the Council that a rock
wall would be constructed around the base of Puíu Ohau to protect the burials
entombed inside the Puíu. No wall has ever been built and photos presented
in court show that the developer has placed two sand traps and part of
a fairway on the northeast side of the Puíu.
Murakami offered to the court that new evidence of improprieties by
the developer concerning the handling of burials has been discovered.
On Monday and Tuesday of this week Hokulia management made available
23 boxes of documents that had been previously withheld. Hokulia presented
the documents after a Motion to Compel was filed by the plaintiffs. It
had become apparent earlier that many pages were missing from the archeology
field notes previously given to the plaintiffs, causing the plaintiffs
to bring forward the motion. Plaintiffs spent all day Monday and Tuesday
inspecting the materials.
Murakami claimed that evidence had been obtained that showed multiple violations by the developer. Evidence that human bones from site # 21834 were strewn about the property after heavy rains, that the 10th fairway had been built over a known burial tube, that bone fragments had been found on Lot 249 and not reported, and numerous other allegations were brought forward.
Defendant attorneys rushed to protest the new information being allowed.
Judge Ibarra stated, "We are here to seek justice and I want to hear
it now." However the documents from which the information was obtained
were still in the process of being copied. The judge ruled that when the
documents become available the evidence will be heard. That could be as
early as Thursdayís hearing.
Protect Keopuka Ohanaís Wayne Leslie also testified on Wednesday.
He was asked if he thought that Kalaaíu Wahilani was objective in his
decision making concerning burials at Hokulia. Wahilani is a burials specialist
for the State Historic Preservation Division of DLNR assigned to the Hokulia
project.
Leslie stated that several incidents made him think that Wahilani was
not objective. Wahilani made statements to Leslie that he "had the discretion
to pull the permits from Oceanside for improprieties on the project but
didnít want to cause a hardship to all the locals working there". He also
told Leslie of a conversation he had with Lyle Anderson, principle owner
of Hokulia. "Wahilani told Anderson that he worked for Anderson as well
as the State".
Charges have also been made that Wahilani accepted gifts of cash from the developer and gifts of fish and moi from a business at NELH where he had written a burial plan.
Another time, during a site visit, Wahilani told Leslie that a deal had been struck between the State and Hokulia that if any individual burials were found they would be moved but if more than one body was found at a site it would be preserved in place. While inspecting a single burial Wahilani said, "These guys are going to make me move it."
The Preservation Plan for the development calls for all uncovered burials to be preserved in place. Over 100 inadvertent finds of burials have occurred on the project since the beginning of construction.
The TRO on the property is still in effect prohibiting Hokulia from
disturbing or moving any burials. On Tuesday bones were unearthed by construction
activities for the Mamalahoa by-pass highway but were north of the subject
property and not covered by the TRO. On Wednesday two incidents of bone
finds occurred at Hokulia, on Lots 3, 11, and 12. Archeologist on site
believe them to be non-human, however buffers were placed around the finds
as required by the TRO and the finds will be inspected by DLNR staff. A
report must be filed by DLNR within four days.
The hearing continues Thursday at 9:00 A.M.
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