LIHU'E, Kaua'i — A Kaua'i landowner's decision to proceed with building a house on top of ancient Native Hawaiian burials calls into question the authority of the state to assure appropriate handling of such burials.

Not since the Honokahua cemetery was unearthed on Maui in 1987 has there been such concern about the legal protection of iwi kupuna, or ancestral bones, Native Hawaiian rights advocates say.

More than 1,000 human remains were dug up at the proposed site of the Ritz-Carlton hotel at Honokahua before public protest and government action led to the hotel moving inland and remains being reburied where they had been found. Soon after, the current burial law was enacted.

It is that law that Native Hawaiian rights advocates say is being tested by the Kaua'i case, in which California developer Joseph Brescia is building a home on top of six of the 30 identified Native Hawaiian burials on a 15,667-square-foot lot in Naue.

At issue is whether a key element of that law — the decisions of island burial councils — has any real power.

"I think it is accurate to say that Naue is the first case of an attempt to reverse a burial council determination by interpreting preservation to include building on top of iwi kupuna previously identified," said Alan Murakami, the Native Hawaii Legal Corp. lawyer representing two Kaua'i residents who seek to stop construction. "It is a historic first — a distortion of the intended result and process outlined in the statute and regulations."

Brescia, who has built and sold a number of houses on Kaua'i, would not comment for this article, but previously has said that he's done all in his power to comply with county and state law and has a right to build on his land. He also has argued through his archaeological consultants that his treatment plan — covering the affected burials with cement caps and building the house on piers above ground — provides sufficient protection.

The Kaua'i situation led to two protests on Brescia's land last summer, followed by Brescia suing the protesters for trespassing, and then some Kaua'i residents countersuing the state for allegedly not following its own burial law.

That lawsuit, filed by Native Hawaiians Jeff Chandler and Puanani Rogers, led to Fifth Circuit Judge Kathleen Watanabe ordering Nancy McMahon, chief archaeologist for the state Historic Preservation Division, to consult with Native Hawaiian organizations and descendants of the remains about proper treatment of the burials.

Chandler and Rogers say they are not satisfied with that consultation and will ask again that the judge stop construction at a hearing in Watanabe's court on July 21.

STATE'S BURIAL LAW

The state burial law crafted in response to the Honokahua incident set up a bifurcated system of dealing with burials.

Those that were identified before any construction on the land are termed "previously identified" and island burial councils are given authority to decide — in consultation with the landowner, the state Historic Preservation Division, interested Native Hawaiian organizations, and lineal and cultural descendants — whether the burials are preserved in place or relocated.

Rules governing burial sites and human remains are specified in the Hawai'i Administrative Rules (Title 13, Chapter 300). A subsection detailing the responsibilities of burial councils states: "The council shall have jurisdiction over all requests to preserve or relocate previously identified Native Hawaiian burial sites."

Burials not known about before construction begins are known as "inadvertent" discoveries. The state Historic Preservation Division (a branch of the Department of Land and Natural Resources) has direct authority to decide what happens in these situations and in the case of non-Hawaiian remains, although it may confer with a burial council member from the geographic area.

Recent high-profile cases of inadvertent discovery include the Whole Foods Market and Wal-Mart sites in urban Honolulu, in which dozens of sets of remains were unearthed after construction began.

Construction on the grounds of Kawaiaha'o Church was halted in March after workers found 69 burials, most in coffins. The church hadn't conducted an archaeological survey before construction, despite a consultant's recommendation to do so, and the state hadn't required it.

The different responses to previously identified and inadvertently discovered burials under the law is significant, said Dana Naone Hall, former chairwoman of the Maui-Lana'i Island Burial Council and active in iwi kupuna protection since Honokahua.

Construction has been allowed to continue on top of inadvertently discovered burials in many cases, advocates and state officials agree.

But there have been only a handful of cases statewide in which previously identified remains have been built over, advocates say, and those were agreed to in negotiations between the burial council with jurisdiction and the property owner.

The state Historic Preservation Division hasn't kept statistics as to how many instances there have been, said administrator Pua Aiu.

"The vast majority of cases where burial councils or the state Historic Preservation Division have determined to preserve burials in place have resulted in construction being moved to avoid those burials," Kehaunani Abad, a former O'ahu Burial Council member and doctor of archaeology, wrote in testimony opposing Brescia's construction over burials.

"The entire foundation of this law is being turned on its head if a landowner is allowed to build over burials, where the appropriate burial council, Hawaiian families and community organizations deem such an action to be culturally inappropriate," Murakami said.

2007 FINDINGS

The conflict is unfolding at Naue, a sandy point on Kaua'i's north shore that a number of Native Hawaiians believe to be a leina-a-ke-akua, or "jumping off place" for souls of the dead returning to Po, the realm of the gods.

The identified burials are dated between 1150 and 1820. Archaeological studies estimate the area probably was inhabited from the earliest human settlements on Kaua'i.

Brescia previously said through attorneys that he has the right to use of his property, which he bought in 2000. Burials were found there in 2007, during an archaeological survey that was required because of the area's history.

Before that, Brescia spent several years appealing how close to the shoreline he could build and ultimately moved the house mauka to comply with that outcome. To further reduce the buildable portion of the lot would amount to a constitutional "taking" of Brescia's property, entitling him to compensation, his attorneys have said.

In April 2008, the Kaua'i burial council rejected Brescia's original proposal that he move seven burials from underneath his proposed house. The panel voted that Brescia should instead "preserve in place" the burials because so many in so small a space clearly represented a cemetery. Brescia was required to bring the council a plan to show how he would preserve the burials in place and seek the council's approval for his plan.

As of its most recent meeting June 4, the Kaua'i burial council still had not approved Brescia's plan. The council will not have a July meeting because Gov. Linda Lingle hasn't appointed two new members to fill vacancies that arose on June 30, a division staffer said.

Some members of the burial council have said they never intended for a building to go over the burials.

Murakami, the lawyer for the Native Hawaiian group, says he reads the law as empowering a burial council to take action to preserve concentrated or important burials, including state acquisition of the land if needed. He also points to a December 2008 Kaua'i County Planning Commission list of conditions for Brescia to receive a building permit — one of which is approval by the burial council.

REDO ORDERED

Rather than redesign the house or appeal the burial council decision, Brescia has argued through his archaeological consultants that covering the seven affected burials (six under the house and one under the driveway) with poured-cement caps and building the house on piers about 9 feet above ground provides acceptable "buffers" for the graves. Brescia's proposed protection of the other 23 known burials is to be rock markers and naupaka bush.

McMahon, the state archaeologist, accepted Brescia's plan — but without consulting with the burial council or native Hawaiian organizations, as required under the law. It's on that point that judge Watanabe ordered a redo.

At the June 4 burial council meeting, McMahon said that court-ordered consultation — as required in the burial law — would be done via testimony at that meeting and from written testimony. McMahon said she had not consulted directly with any Hawaiian organizations and that plaintiffs Chandler and Rogers both rejected Draft 6 of Brescia's burial plan in November 2008. The plan provided to the burial council a week before its meeting and posted on the SHPD Web site a day before the meeting was labeled Draft 11.

Naone Hall said she believes a consultation should be a meaningful discussion, not a three-minute time slot at a meeting.

All of the submitted oral and written testimony that day asked the council to reject Brescia's plans to build over the bones. The state received 47 written comments by a June 15 deadline, but hasn't provided a breakdown of the opinions expressed.

"Hui Malama finds the latest version of the Burial Treatment Plan to be so inappropriate as to border on the offensive," wrote Edward Halealoha Ayau, executive director of Malama I Na Kupuna O Hawai'i Nei, a nonprofit that cares for iwi kupuna, and a co-author of the state burial law. The plan "serves to violate the Hawaiian values of aloha, kuleana, 'ohana and pono."

Among those commenting are some long-time advocates for Native Hawaiian burial rights, including Ayau; Kahu Charles Maxwell Sr., chairman of the Maui-Lana'i Island Burial Council; Office of Hawaiian Affairs Administrator Clyde Namu'o; and Naone Hall.

They call for construction to stop, more archaeological work to be done and the site to be preserved.

Naone Hall also made a detailed critique of Brescia's archaeological inventory survey, which predates the burial treatment plan, saying it contains significant inaccuracies and omissions and should be redone.

"It's really quite simple," Naone Hall said. If burials were there first and known about, every effort should be made to work around them, she said.

Two Kaua'i organizations, Malama Kaua'i and the Kaua'i Trust for Public Land, have said they would help broker purchases of Brescia's lot for preservation.

Brescia's attorneys wouldn't confirm whether any discussions about a purchase have taken place, or what his asking price would be. Brescia had said last year he would be willing to sell the land.

"Naue could be the refresher course to remind everybody of what the state laws are and what the rules mean," Naone Hall said.