Preliminary injunction in Brescia case granted in part, denied in part

Fifth Circuit Judge Watanabe ruled from the bench today on Jeff Chandler's motion for preliminary injunction in the Brescia case. She found that when the State Historical Preservation Division approved the burial treatment plan, it failed to follow the consultation requirements under HRS 6E-43 (d) -

Within ninety days following the final determination, a preservation or mitigation plan shall be approved by the department in consultation with any lineal descendants, the respective council, other appropriate Hawaiian organizations, and any affected property owner.

- and the judge ordered that the SHPD must take the treatment plan back to the burial council for consultation.

She did not enjoin the owner from continuing to build the house over burials. However, he is not allowed to alter the burials or render them in any way inaccessible until the Preservation Division completes its performance under the order. The judge suggested that at this point the council could change its mind and have the burials relocated, or the Preservation Division could provide that the burials remain accessible for visitation (could the SHPD provide for that? I don't know).

The judge commented that the owner had complied with all conditions and requirements and that it was the state which had failed to follow its procedures in the matter. She also stressed the policy goals of the law and the historical and cultural significance of ancient burials.

I'll comment further as time allows but, briefly, given the stated policy by the legislative and executive departments stressing the historical and cultural values underlying the burial law, and given the inevitable emotional turmoil that the passions inherent in these situations give rise to, it is insane for any party to be anything less than anally scrupulous in following every jot and tittle of the relevant statute and its rules.