I haven't heard anyone wonder this out loud yet, so I will: I wonder whether Mayor Baptiste's untimely death created enough of a vacuum to give the Chief confidence that he could make a legal determination that it seems ought to involve the input of at least the County Attorney. Or, was the County Attorney consulted and did that office sign off on the theory?
It appears from a search of Hawaii cases that the statute the Chief relies on has never been used to challenge construction on gravesites (or, more accurately, it has never been used and challenged in court and appealed).
In 1988, thousands of remains were disturbed during the construction of a resort at Honokahua, Maui. In that case, after vigils and protests that dwarf those occurring at the Brescia property, the state paid the company $6 million to re-bury the remains in their original location and redesign the resort to leave the burials intact. That incident also led the legislature to enact the burial sites law that governs the issue today.
One would imagine that had the legislature intended an outright ban on construction over burials, it would have simply said so. Instead, the lege crafted legislation, according to the legislative record -
[T]o provide comprehensive statutory protection to the unmarked burial sites of Native Hawaiians through the establishment of procedures that would address Hawaiian cultural and religious beliefs as well as the legal rights, interests, and needs of private landowners.In this case, Brescia has already been through the process required under the burial sites law. I've read descriptions in the press of the mitigation efforts that will involve encasing remains to protect them from being disturbed by construction activities.
He has also apparently been through the processes and fulfilled the requirements required to get his zoning permits in place. I would imagine, if something is not worked out between the parties or someone doesn't persuade the Chief to "stand down," we can expect to see a due process claim filed in federal court against the county for the Chief's actions.
17 comments:
Chief Perry is going to need a new paddle.
Wonder if Mr. Brescia's patience has run out enough to just take this to Federal Court like the Koloa Developers have done?
This won't end well for the Chief unless his plan is elected office instead of Chief of Police.
Oh, Boy! They're going to take his golf cart away!
hmmm. sounds kinda like another possible scenario- a large coastal vehicle pulls into a harbor full of protesters ringed by police and the police chase the vehicle away without letting it make landfall.
???
vehicle=vessel
This is a classic case illustrating that no good deed shall go unpunished.
Joe Brescia was under no obligation to commission an archaeological study of his Haena lot. However, being a standup man, he did so thinking that he was doing the right thing.
When there were bones discovered he brought his findings to the Hawaiian Burial Commission for their decision, which was to leave them undisturbed by elevating the foundation of the house. One would think that the commission, acting as an agent of the State & rendering a decision here would assure Brescia that the desecration statute was not being violated.
What Brescia could have, and should have done is to commence construction as soon as the building permit was issued. When or if bones were uncovered in the foundation excavations he would then have notified the State archaeologist and subsequently employed a private firm to monitor the rest of the excavations.
Any remains found would have been turned over to the Burial Commission and reintered on the property when the project was completed. This is the proceedure that has been followed here for many years and one that I have had personal experience with over the course of 32 years.
Doing this would have avoided the entire nasty mess--including most likely the confrontation with Huff, et al. Moreover, Brescia's house like virtually every house in Haena, many in Hanalei, Anini, Kapaa, Wailua and Mahaeulepu would be just another placed over buried remains.
But all his good intentions have brought him nothing but grief from those whose agenda lies much deeper than buried bones.
RS Weir
For once I'll agree with you.
The agenda is far deeper than just bones.
Of course it is. Bones are just a vehicle for anti-development.
These islands have more bones than the Tony Roma rib chain.
I'm gonna contact them...see if they happen to have "GOT BONES?" bumper stickers. If so, I'm going to get a few hundred to distribute.
How is the county going to explain that all the other houses built on bones were not desecration but this one is?
The State and County have laws and processes in effect and place that address this exact issue - and have used these laws in exactly the same situation as here on hundred or perhaps thousands of occasions
the owner here has been thru all of these processes and has received ever approval required by law
the police are responsible for enforcing the law, not allowing themselves to be manipulated by extremists with a last minute "hail mary" effort
this is not even remotely close to exercise of discretion in their duties, the owner had every permit and approval including a determination according to teh laws that he was allowed to build on the site
if the police Chief felt the protesters had some legitimate claim he should have directed them to file a lawsuit against the owner and ask for an injunction rather than issuing a defacto injunction without due process as he has done here
the owner will have a substantial claim, added to the long lit of others who have been similarly mistreated, against the County for damages
Maybe Mel and Shay can lose their water over the cost of these suits instead of panicking over future liability from dogs being walked. Yeah, right.
the liability exposure to the County is potentially significant with all the due process and equal protection issues and claims being created
instead of simply treating parties fairly and following the law and regulations the County seems to have a mindset, evidenced yet again here with police chiefs actions, that they do not have to play by the laws and rules
Not to mention that the county will be hiring outside counsel to defend it.
Is this a civil rights violation in that Brescia did not receive equal treatment under the law? I'd love to see this thing in Federal court. But I don't want to wish any additional trauma on Brescia who is clearly a victim in this case.
Duh, of course it's about development. But when you have a legal system that is inherently pro-development, there is no other recourse than fringe actions for those who oppose it. For example, an outright ban on construction over burials is a straw man. Charley makes it sound like it would be possible, and it would be enacted if a majority wanted it. But the state would get sued for due process by hundreds of wealthy land-owners, so the leg is scared away of doing something like that.
And you all say that the developer is a victim here, but sorry, when you're perceived by the community as taking too much, there's a chance it's true.
Charley shows that state intervention _after_ protests can lead to a settlement. This could be the same thing on a smaller scale, if the developer were open to it.
Police interpret law every day in applying it. Nothing unusual there. This apparently is over and will not go to court because the construction crew did not try to continue and get arrested. You can’t sue for wrongful arrest unless you get arrested. That would be the only way to get this into the judicial system at this point. Kind of like why the Kaho`olawe guys intentionally got arrested. Perhaps Brescia needs to go up there with a shovel and invite the chief to arrest him.
I never really comprehended how many full blown creeps there are on this little island. I also canʻt imagine how the Hawaiians have endured the amount of abuse they have and how they have stomached the disgusting (physically and mentally) crud that lives on and destroys their resources, because they are too ignorant to understand how to preserve anything as the Hawaiians do.Everything they touch turns to ____just like their leader in Wash.Finally a Chief that THINKS and doesnʻt take marching orders from idiots. And by the way, the Chief would have done what he did regardless of the Mayorʻs death. That was a pretty distasteful comment.
Guess you feel like your white control is slipping away a little? Good - itʻs about time. Yep, Iʻm white and ashamed to be clumped into the same race as you people.
Ugh. Just reading these blogs snaps me into reality about the sachharin sweet people here and what theyʻre really made of.
Gee, Mel Iʻm surprised you have a link to this on your website...have you read some of the outright hate speech on this site? And the owner just lets it rip; very low caliber stuff.
You're wrong Andy.
The Chief prevented Brescia from going forward by threatening arrest.
The work crew can't sue for wrongful arrest clearly. But Brescia can go to court to get an order that his actions in digging are lawful rather than desecration.
Should be interesting to watch.
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