But do they "regret the error"?

In one of the most understated corrections I've ever read (and confirming what an anonymous commenter to this post predicted), the GI said this morning:

A Saturday article entitled “Naue burial fight continues” should state that Calvert Chipchase said “We’ll let it lie.”

So, according to the correction, Brescia attorney Chipchase, while disagreeing with State Historical Preservation Division archaeologist Nancy McMahon's assertion that Brescia did not have permission from the Kaua‘i-Ni‘ihau Island Burial Council to cap the burials, didn't go so far as to accuse her of lying.

Here's the original context:

McMahon said Brescia did not have permission from the Kaua‘i-Ni‘ihau Island Burial Council to cap the burials, explaining that construction workers have placed large circular cement slabs over the burials, a few feet below the surface, and then covered them with dirt.

“He wasn’t supposed to do that, they never got that approval,” McMahon said. “They did that on their own, without consulting the burial treatment plan.”

“We’ll let her lie,” Chipchase fired back, explaining that the plan under review by the SHPD says that the burials must be preserved in place. “Capping is one part of that.”

Sunday shark blogging

My son and I got to swim with a couple of white tip reef sharks while diving Sheraton Caverns last Sunday. (Yes, we went diving on Mothers Day. But we made it up to her).

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.

Hawaii Supreme Court issues amended Superferry decision

After apparently considering the State's motion to reconsider and the Administration's and the Legislature's briefs, the state Supreme Court has issued an amended decision in the Superferry case. After a quick skim, it looks to me as though nothing much of substance was changed, however it does appear that the court addressed many of the issues raised in the other branches' arguments. I'm anxious, when I get some time, to read the court's final treatment of Bulgo which in my opinion was originally dealt with rather ham-fistedly.

I'm ecstatic to note that the court removed all the "equal protection" language that had so offended me from the decision's conclusion and even noted in footnote 33:

Our holding is based only on our "general law" analysis and does not in any way involve an "equal protection" analysis which involves a different standard.

10 sites that provide free access to case law

In Law Technology News.

Excusable neglect

With deadlines for a couple of appellate briefs and a handful of motions looming this month, blogging will continue to be light to non-existent for the next few weeks.