On October 2, 2008, a Kauai judge issued an order ("2008 Order") which allows a developer, Joseph Brescia, to continue building a house over six Hawaiian burial sites. Brescia was granted the required land use entitlements and permits by the County of Kauai to build a 2,300 square foot residence. The structure was to be built eight feet above the ground atop concrete footings.
The case primarily deals with a failure to follow Hawaii's historic preservation laws under HAR Chapter 13-300 and HRS Chapter 6E. The facts are that as part of the planning process, Brescia procured an archaeological inventory survey which uncovered thirty prehistoric Native Hawaiian burials. A burial treatment plan was prepared and submitted to the State Historic Preservation Division ("SHPD"). The plan included moving seven grave sites. The burial treatment plan was presented to the Kauai Burial Council, who recommended preservation in place for all thirty burials. The plan was subsequently revised accordingly. However, the subsequent revised plan was not again presented to the Burial Council by SHPD.
Based on SHPD's failure to consult with the appropriate parties prior to approving the plan, the Court issued a partial injunction until SHPD consults with the burial council, appropriate Hawaiian organizations, and any recognized lineal descendants on the revised burial plan. These parties will assist in fashioning appropriate burial treatment measures that are "culturally appropriate", including determining the need for buffers, landscaping, and site restoration. However, the court allowed Brescia to proceed with construction so long as it does not "further demolish, alter, or prevent access" to the burials under his house.
In a July 21, 2009 decision, the Court denied a motion to enforce the 2008 Order, because Brescia's activity on the property has not further demolished, altered, or prevented access to the burials.
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