IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT STATE OF HAWAII JOSEPH A. BRESCIA,
) Civil No. 08-1-0107 ) (Other Civil Action) Plaintiff, ) ) vs. ) ) DECLARATION OF DANA NAONE HALL; KA`IULANI EDENS-HUFF; et al., ) ) Defendants. ) _____________________________________ ) ) JEFF CHANDLER, ) ) Third-Party Plaintiff, ) ) vs. ) ) JOSEPH A. BRESCIA; PUA AIU, et al., ) ) Third-Party Defendants. ) ) DECLARATION OF DANA NAONE HALL I, DANA NAONE HALL, under penalty of perjury hereby state: 1. I am competent to testify to the matters herein, and unless otherwise indicated, I make this declaration based upon personal knowledge. 2. I have been involved with the care, protection, reburial, and repatriation efforts of ancestral native Hawaiian burial sites for more than two decades. 3. I have learned native Hawaiian cultural practices involving the care of iwi kūpuna from Kahu David Ka’alakea and Parley Kanaka’ole, among others. 4. I was personally involved in the events related to the controversy surrounding the construction of the Ritz Carlton Hotel at Honokohua from 1986 to 1988, when archaeologists
working for the hotel developer excavated and disinterred hundreds of iwi kūpuna from sand dunes on the shoreline. 5. I served on the interim Maui/Lana’i Island Burial Council (MLIBC) in 1989 and 1990. After the passage of Act 306, I served on the legislatively established MLIBC from 1991 to 1997 and from 1999 to 2007. 6.
In my capacity as a member of the MIBC, I oversaw the care, management and
protection of hundreds of ancestral native Hawaiian remains and burial sites in a multitude of individual regional cases throughout the island of Maui. 7. I participated in scores of meetings of the MIBC, departmental and inter-agency meetings on the State, County and Federal levels, and meetings with construction, development, design, engineering and legal interests of landowners and developers, to discuss issues surrounding Native Hawaiian burial sites. 8. In the years when I have not been a member of the MLIBC, I have continued to attend MLIBC meetings and to take an active part in the care and protection of native Hawaiian burial sites. 9. The events and controversy generated by the Honokohua confrontation in 1988 ultimately led to the 1990 passage of burial protection laws in Hawai`i, under which we are currently operating. 10. I had a personal hand in securing passage of these laws, now encoded under HRS chapter 6E. 11. The legislation put into place an orderly procedure for dealing with iwi kūpuna that was supposed to minimize the impacts of construction on iwi kūpuna that the burial councils determined were worthy of protection under a set of criteria respectful of cultural values and our constitutional legacy of protecting the traditional and customary cultural practices of Hawaiians. 12. The procedure outlined in this law attempted to carefully balance the rights of landowners with the unique cultural values of Hawaiians so that it would be possible to prevent controversies like Honokahua from occurring again by providing a process and forum for resolving disputes. 13. The crux of that legislation was to grant the power to determine the disposition of previously identified iwi kūpuna to the island burial councils.
14. The core of the mechanism to reach consensus on the specific burial treatment measures to implement the council determinations was the burial treatment plan. 15. The State Historic Preservation Division (SHPD) approval of the final burial treatment plan following that determination is supposed to be a good faith implementation of the decision of the burial council. 16. Any burial treatment plan approved should not counteract or contradict the burial council determination. 17. In the course of my service with the MLIBC, I have become intimately familiar with the burial administrative rules, Chapter 13-300, Hawaii Administrative Rules, and its governing statute, HRS chapter 6E. 18. During my tenure on the MILBC, I was selected to serve on two appeals panels, one involving a determination by the Hawaii Island Burial Coucil to preserve in place multiple burials and the other concerning an Oahu Island Burial Council determination; in both cases, the appeals panels I was a part of, after full contested case hearings, voted unanimously to preserve the burial sites in place. 19. I have been involved with implementation and compliance issues with archaeological inventory surveys, reconnaissance surveys, data recovery plans, archaeological monitoring plans, burial treatment plans and burial preservation plans. 20. I have conducted hundreds of site visits to view unmarked burial sites and other cultural sites in varied circumstances â€“ in very remote burial sites, lava tubes, graveyards large and small, coastal, beach and tidal zones, mountains and cliffs and in urbanized, developed areas. 21. I have participated extensively in burial site identification, testing, protection, mitigation, stabilization, excavation, recovery, curation and reinterment. 22. I have worked with professional cultural resource management personnel relating to burial sites and human skeletal remains in the laboratory and in the field. 23. I have had the ongoing opportunity to review a large amount of written resource material ranging from archaeological survey reports, environmental and cultural impact statements and studies, oral history and ethnographic studies, scholarly publications, historical documents and other written material pertaining to the Hawaiian culture with a focus on burial customs and practices, and I continue to review and utilize these resources in my current capacity.
24. I developed both relationships with hundreds of individuals, including knowledgeable and respected kūpuna, spiritual and religious leaders, and cultural practitioners throughout the Hawaiian community and across the entire State of Hawai`i. 25. I was fortunate to be able to discuss and learn about varied cultural practices, views on culture, and beliefs regarding death, dying, and treatment of ancestral human skeletal remains, from a wide and diverse cross-section of the native Hawaiian population across the State of Hawai`i, and I continue to learn in my current capacity. 26. Decisions regarding the treatment of the remains of human beings are extremely sensitive. 27. The significance of bones, or iwi, in the Hawaiian culture is well documented throughout Hawaiian oral history and written history. 28. Iwi is a manifestation of the person once living and contains the spiritual power, or mana, of the individual. 29. Hawaiians protected the iwi of loved ones and ‘ohana to prevent them from being desecrated, mistreated or destroyed. 30. Based upon my training and experience, I can say that one of the critical tenets of Native Hawaiian traditional and customary practices is the obligation to ensure that iwi remain undisturbed and protected; and that they receive proper care and respect as a vital and integral connection to the ancestors and ancestral guidance. 31. As a Native Hawaiian, I believe in and respect the inherent sovereignty of each burial site. 32. Protection of iwi in place by ‘ohana acting as kahu, and prevention of disinterment, relocation, disturbance, or desecration, is a traditional and customary practice of Native Hawaiians who inhabited the islands prior to 1778. 33. Disturbing or moving iwi is not tolerated except in extraordinary circumstances and at the direction and discretion of the ‘ohana or kahu. 34. It is an established traditional and customary Native Hawaiian practice to visit burial sites and engage in various religious and cultural practices such as offering ho`okupu and pule, and seeking advice from, and communicating with, deceased ancestors, through their iwi. 35. Desecration or injury to iwi perceived to be ‘ohana or ancestral native Hawaiian kūpuna can create and manifest real harm in living descendants and are injurious to the ‘uhane,
the spirit, of the living person who has accepted the kuleana to care for and protect the iwi of the ancestors. 36. Since the passage of the burial law, when there are no identified lineal descendants, the island burial councils are charged with the familial responsibility of caring for the iwi kupuna. 37. I have read “:An Archaeological Inventory Survey of a 15,667 Square Foot Parcel in Wainiha Ahupua`a, Halele`a District, Island of Kaua`i, Hawai`i [TMK: (4)5-8-09:45] (January 2008). 38. I have read the Preservation Component of a Burial Treatment Plan for Multiple Burials Discovered on a 15,667 Square Foot Parcel in Wainiha Ahupua`a, Halele`a District, Island of Kaua`i, Hawai`i [TMK: (4) 5-8-009:045] (May 27, 2009) (Draft 11). 39. I have read the Preservation Component of a Burial Treatment Plan for Multiple Burials Discovered on a 18,106* Square Foot Parcel in Wainiha Ahupua`a, Halele`a District, Island of Kaua`i, Hawai`i [TMK: (4) 5-8-009:045] (July 9, 2009) (Draft 12). 40. The burials found to date constitute a concentration of remains as defined in Chapter 13-300, HAR. 41. The burials found to date constitute an ancestral native Hawaiian graveyard and cemetery. 42. I have read the July 9, 2009 letter from Michael Dega to Pua Aiu and Nancy McMahon regarding the June 30, 2009 SHPD Review Letter Pertaining to a Preservation Component of a Burial Treatment Plan for Multiple Burials Discovered on a 18,106 Square Foot Parcel in Wainiha Ahupua’a, Halele’a District, Island of Kaua’i, Hawai’I, TMK: (4) 5-8009:045. 43. In response to the SHPD’s request for “reasons why it seems unlikely that additional burials will be identified” in the area where the septic system will be located, Michael Dega states that “testing of the adjacent lot’s septic system…a 14’ x 14 foot septic tank area was excavated to 10’ deep” with negative results for burials. (Emphasis added.) 44. The burial findings on the adjacent property, Parcel 46, are clearly not the same as the concentration discovered on the Brescia parcel. 45. During the archaeological inventory survey for the Brescia parcel, Strategic Trench 29 was dug in the area of the proposed septic system’s location; the dimensions of the trench
were 136 feet (41.9 meters) long, 36 inches (approximately 1 meter) wide and less than three feet (90 centimeters) deep. 46. SHPD’s letter dated June 30, 2009, required any further burial treatment plan to include “a map of where the leach field will be located in relation to the burials already found,” however, the latest version of the plan (draft 12) fails to provide such a map. 47. The reduced-in-size maps provided, which are not to scale and are very difficult to read, nevertheless indicate that burials 29 and 30 are located very near to the proposed location for the 1,000 gallon septic tank. 48. The dimensions for the septic tank, barely readable on page D4 of the 12th draft plan, are 10’3” long x 6’ wide x 5’4 ½ deep. 49. The individual wastewater system plans also indicate that the septic tank will be placed on 6” of sand bedding, and that granular material must be used to back fill around the tank. 50. The usual practice is to excavate one foot beyond the actual dimensions of the tank in order to fit the tank in the hole excavated for it, which would make the overall area to be excavated 11’3” long x 7’ wide or 79 square feet (24 meters) in size. 51. With a 6” bedding and a minimum cover of one foot, according to specifications on page D6, the depth of the excavated hole for a 5’4 ½” deep septic tank will be 6’10 ½” or almost 7’ deep. 52. Item 9, on page D4, states that “the driveway over the septic tank shall be concrete with rebar” and use special manhole frame and covers. 53. Burial 30 is identified as in the driveway. 54. Burial 30 was found at 73 – 88 cmbs (between 2 to less than 3 feet). 55. Burial 30 was capped with concrete on July 17, 2008, more than a year ago, before legal acceptance of the burial treatment plan, which is still pending. 56. Burial 29 is located almost directly opposite of Burial 30 and no concrete cap is proposed for it as a preservation measure. 57. Burial 29 is located at 93 cmbs (less than three feet below the surface). 58. The 12th draft of the burial treatment plan states that most of the burials are located in the shoreline setback area.
59. In fact, at least half of the burials are located around or under the house, including Burials 29 and 30. 60. The 12th draft plan states that 18.26% of the parcel was tested and that burials were found in 24 of 44 trenches or 55% of the trenches. 61. Based on 30 burials identified during testing of 18.26% of the property, if 100% of the property were tested the number of burials may be 150 or more. 62. The June 30, 2009 SHPD letter asks for a “brief discussion on [the] possibility of seepage from the leach field affecting burials.” 63. Neither the 12th draft nor Michael Dega’s July 9, 2009 letter addresses the issue of wastewater seepage. 64. The 12th draft states on page 66 that the septic system will “run for 36.5 feet down the driveway.” 65. The septic and leach field plans in Appendix D, on page D9, show two 3’ x 37.5’ absorption trenches with piping connecting the two 37.5’ sections. 66. The same septic system layout plan shows at least an 18’ length of pipe connecting the septic tank to the distribution box at the head of the leach field unit. 67. The leach field part of the septic system is completely open at the bottom so that wastewater can be dispersed into the ground. 68. The soil matrix for Burial 29 is described as “very loose, finely-grained pale brown sand.” 69. The soil around Burial 30 is “very pale brown sand.” 70. Burial 30 has a concrete cap, but Burial 29 does not. 71. A concrete cap will not prevent seepage of wastewater from the leach field system. 72. The tested corridor for the septic tank and leach field was only 3 feet wide. 73. Effluent from the leach field will be dispersed beyond the three feet width of the trench, as stated earlier, it is an open-bottomed system. 74. Any burials in the vicinity, including those at deeper levels, will be the unfortunate recipients of sewage water seepage – the ultimate haumia (defilement). 75. Given the dimensions of ST 29, a considerable area to be covered by the septic system’s tank and leach field remain untested.
76. SHPD also requested a discussion as to “why artifacts found near the burials should not be considered as funerary objects.” 77. Michael Dega responded that many of the artifacts recovered were utilitarian items (such as basalt sinkers, coral abraders, hammerstones and fishhooks) “associated with habitation and not grave goods”, even though he should know that these kinds of artifacts have been found in direct association with individual burials in Honokahua and in many other sand dune contexts, including on the island of Kaua’i. 78. Michael Dega goes on to state that only sixteen artifacts could be considered personal adornments, but that none were identified directly associated with a burial, failing to state that the primary reason for this circumstance was due to the disturbance caused by backhoe excavation and the likely disassociation of the grave goods from the burials, especially when artifacts were found in the same trench with disarticulated human skeletal remains. 79. Michael Dega further states that “an array of midden was recovered with these artifacts”, however, there is no midden analysis in the inventory survey report or in the successive versions of the burial treatment plan. 80. According to Michael Dega, “there is a correlation between many of the artifacts and the site’s cultural layer”, a distinct falsehood - since there was no provenience information for any of the artifacts due to the mechanical trenching, no correlation was possible. 81. The SHPD did not provide the KNIBC information on which to base a proper identification of unmarked burial sites or the extent of the cemetery prior to granting approvals to construct a dwelling and initiate ground disturbing work. 82. The SHPD did not properly advise the Kaua`i/Ni`ihau Islands Burial Council on their respective role in making substantive recommendations to the Department of Land and Natural Resources in this case. 83. The SHPD did not properly and directly address the paramount issue of whether the Brescia home should be constructed upon the unmarked burial sites preserved in place by the Council. 84. Mr. Brescia is proceeding with construction without having a properly approved burial treatment plan first in place, and is unilaterally dictating what burial preservation measures will be observed during construction and later.
85. In my personal experience, the threat of irreparable physical, emotional and spiritual harm to the iwi kupuna and Native Hawaiians witnessing such harm is extremely high in this situation. 86. In particular, the iwi kūpuna, both under the footprint of the house and on the rest of the Brescia property, over which a residence is being built, are undergoing harm, injury and desecration. 87. To construct a home or any other substantive structure on this cemetery is a profound desecration of a wahi kapu (sacred place) of the Hawaiian people and will lead to further irreparable harm to Hawaiian who retain a sense of kuleana or duty to protect those iwi kūpuna. 88.
If Mr. Brescia were to build a house, install landscaping, and construct and
operate a sewage holding tank and leach field on the Naue property, my experience with similar properties containing burials would tell me that Hawaiians with ties to the iwi kūpuna on the property would be unable to perform a culturally appropriate religious ceremony, because these features would interfere with the ceremony possible under more natural conditions 89.
Moreover, these Hawaiians would be unable to maintain any kind of daily and/or
annual religious practices which would be part of an entire way of life, because these cultural practices they might otherwise follow require a belief in the undisturbed nature of the burial site and a spiritual connection to the site that would be undermined by the contamination caused by the leach field and the physical imposition of a man-made structure in such close proximity to, over or near the iwi kūpuna. . 90. From a Hawaiian cultural perspective, the proposed burial treatment plan for burials in TMK (4) 5-8-009:045 is inadequate as it precludes the ability of any lineal or cultural descendants of those buried there to care for the burials and to maintain a relationship with those buried individuals in culturally meaningful and appropriate ways. 91. From a Hawaiian cultural perspective, it is an extreme cultural affront for a stranger or non-family member to build a house atop a burial—an offense both to the buried individuals over which such a house might be built and to the lineal and cultural descendants associated with the buried individuals. 92. Proceeding with construction in the absence of a properly approved burial treatment plan to prescribe the treatment measures for a previously identified burial site is a complete
distortion of the legislative scheme with which I have become familiar as a Maui/Lanai Island Burial Council member. 93. Based on my long experience as a member of the MLIBC, I am convinced that construction of the Brescia house will foreclose options for burial treatment measures that could be imposed on the property in terms of both short-term and long-term preservation measures. 94. For example, I foresee that completion of construction could easily affect the extent of any buffers that might otherwise be imposed but for some feature of the house, fencing, or landscaping that may be constructed or installed, which interferes with proper preservation of iwi kūpuna. 95. I also foresee that the imposition of a major house structure over some of the burials to be a major obstacle to preserving all options for preserving a burial site, especially the area over the surface of a burial, since the erection of any building over or near a burial has the potential to seriously alter the site in a culturally inappropriate way. 96. None of the draft burial treatment plans I’ve reviewed, including the 11th and 12th drafts, specify exact buffers, whether short term or long term. 97. The only buffers described are 5-15 feet, and relate to those iwi kūpuna outside the immediate construction footprint of the planned residence. 98. For the iwi kūpuna located within the house footprint (burials # 3-8), there has never been any horizontal buffer specified in any of the draft plans, only vertical buffers. 99. In my experience on burial council matters, I have never seen the omission of horizontal buffers for any previously identified burial site which the island burial council determined should be preserved in place. 100.
I have never seen vertical buffers utilized as an exclusive burial preservation
buffer measure. 101.
I have never seen a house allowed on top of a burial site, let alone multiple
burials, which the island burial council has determined should be preserved in place. 102.
In general, the horizontal buffers typically established for burials determined to be
preserved in place is 15 feet or more. 103.
Typically, when a concentration of burials were identified on a particular
property, the MLIBC required the incorporation of the burials within a larger preservation area, encompassing all or nearly all the burials, rather than individual isolated buffers.
There is no specific provision in the burial treatment plan for access by
descendants identified in the future, only a vague statement that it will be discussed. 105.
The MLIBC has always required specific and clear access provisions for
visitation and ceremonies in the burial treatment plans for similar burial sites. 106.
If construction is completed without a clear and properly approved burial
treatment plan in place, my experience, as an MLIBC member, has taught me that one cannot achieve the objectives contained in the burial protection laws to maintain respect for iwi k큰puna in the orderly manner designed under those laws. 107.
I can think of no situation, as you have at Naue, where construction activity has
been allowed to supersede the procedure and preservation measures prescribed under HRS chapter 6E and HAR subchapter 13-300. 108.
The burials on the Brescia property are being treated more in the manner of
inadvertent discoveries, especially in light of the ongoing construction, rather than being given the full latitude of preservation in place protection afforded by HRS chapter 6E and HAR subchapter 13-300. I declare under penalty of perjury that the foregoing is true and correct. DATED: Wailuku, Hawaii, July 21, 2009.
___________________________________________ DANA NAONE HALL
Published on Dec 7, 2009
JOSEPH A. BRESCIA; PUA AIU, et al., I, DANA NAONE HALL, under penalty of perjury hereby state: construction of the Ritz Carlton Hotel at Hon...