U.S. District Judge David Ezra has taken the unusual step of issuing a "supplement" to his ruling in the case involving artifacts at Kawaihae Cave, essentially criticizing the Native Hawaiian organization Hui Malama I Na Kupuna 'O Hawai'i Nei for not raising concerns earlier that the disturbance of the funereal objects could cause destruction of the caves and the objects, also called moepu.

Hui Malama attorneys first raised those concerns in affidavits filed while seeking an appeal to Ezra's original order, which directed the group to retrieve the 83 priceless moepu from the sealed cave. On Sept. 20, the 9th U.S. Circuit Court of Appeals lifted Ezra's order, pending a decision on Hui Malama's appeal.

Two Native Hawaiian organizations filed a lawsuit against Hui Malama and the Bishop Museum, claiming that Hui Malama illegally kept possession of the artifacts after initially borrowing them from the museum. Na Lei Alii Kawananakoa and the Royal Hawaiian Academy of Traditional Arts wants the artifacts returned to the museum, pending a final decision by the items' different claimants on their final resting place, a decision that to date has proven elusive. Hui Malama wants the moepu to stay where they are.

Ezra, in his supplemental order dated Thursday, said that if he had been informed about the potential collapse, he still would not have changed his ruling.

Instead, he said, the court "could fashion a remedy which would require, once the exact location of the cave has been disclosed, an appropriate structural engineering review and survey to determine whether in fact damage will occur to the cave in the event the cave is opened, and remedial measures if any could be taken to ameliorate the potential collapse."

Hui Malama, Ezra said, had "refused to specifically identify the location of the cave or if in fact all of the objects that were loaned to them are in fact in the cave."

Hui Malama attorney Alan Murakami said he was puzzled by Ezra's filing and he questioned whether the judge had the jurisdiction to make it. "I'm not sure what he's trying to do," Murakami said. "It sounds like he's reaffirming his order. I don't know what the purpose of that is, especially since we're currently on appeal. I've never seen anything like this while on appeal."

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.