Brescia and the state drifting toward opposite sides of the courtroom?

In an interesting Garden Island piece today on the apparent resumption of construction activities at the Naue burial site/Brecscia property, State Historical Preservation Division archaeologist and Preservation Manager Nancy McMahon states the truism that there is no law prohibiting construction over burial sites. She also asserts (whether correctly or not, I don't know) that building over remains was no big deal in pre-contact Hawaiian society.

Then she and Brescia attorney Calvert Chipchase get into a little back and forth when McMahon asserts that Brescia did not have permission from the Kaua‘i-Ni‘ihau Island Burial Council to cap the burials and Chipchase says when asked for his response, “We’ll let her lie,” explaining, according to the paper, that the plan under review by the SHPD says that the burials must be preserved in place and, as a matter of course, “[c]apping is one part of that.”

It's interesting to see the inevitable erosion between the state and the Brescia team. During last fall's unsuccessful injunction motion (most of which I attended) McMahan and state counsel sat at the same counsel table with Brescia's attorneys. If it wasn't obvious before that the state and Brescia could soon easily find themselves at opposing tables, it was by the time judge Watanabe ruled that, while Brescia didn't have to halt construction, the state had failed to follow the law when it approved the burial treatment plan and Brescia would therefore have to keep the burials accessible until the preservation division completes its performance under the order.

On the other hand, since the house is apparently to stand on stilts, it could be that construction to completion will not impede access to the burials and will therefore not run afoul of the court's order. In that case, the legal aspect of the controversy could be over.