Naue trespassing charges dismissed

News Report
Joan Conrow

Kauai District Court Judge Trudy Senda today dismissed trespassing charges against four men who occupied a beachfront lot at Naue last Aug. 7 to protect iwi kupuna (ancient burials) threatened by construction of a house there.

"My main thing is that we are decriminalized," said defendant Andre Perez of Oahu. "We walk away from this thing with dignity. We know who the real criminals were that day."

Senda ruled that the findings of fact and conclusions of law stipulated to by the defendants' attorneys, Dexter Kaiama and Peter Morimoto, and Kauai County deputy prosecutor Justin Kollar, "were reasonable and appropriate to grant the defendants' motion to dismiss with prejudice."

The findings of fact stated that the defendants had pursued all the administrative remedies available to them to malama iwi kupuna on the property, but the administrative process had failed them.

The conclusions of law were based on the precedent set in the case State v. Marley, which holds that defendants are justified in violating the law so long as there is no alternative available that does not involve violating the law, the harm to be prevented is imminent and the defendant's actions are reasonably designed to actually prevent the greater harm.

Defense attorneys expressed surprise that Kollar stipulated to the findings.

Senda also noted that Kauai Circuit Court Judge Kathleen Watanabe, in issuing an Oct. 2, 2008 ruling in the Naue burials case, had expressed her belief that the remedy to the ongoing dispute over the treatment of Hawaiian burials rests with the state Legislature.

Senda said she was aware that the legislative session was approaching, and it might include measures aimed at "plugging that void [in the state burial law] and making things clear." However, she cautioned those in her courtroom that in the meantime, "this isn't a precedent-setting ruling in this case. These stipulations are limited to the allegations of Aug. 7 only."

The ruling applied to defendants Perez, Palikapu Dedman, Jim Huff and Andrew Cabebe, whose pre-trial motions were on today's court calendar. Senda said the same stipulations will apply as well to Hanalei Fergerstrom and Steven Halela, who also were set to stand trial on trespassing charges on Jan. 22.

Warrants still have not been served on at least two men who also were charged with trespassing last August on property where Joe Brescia is building a beachfront house. Some 30 burials were found on the lot, and seven were capped in concrete under the foundation.

In a case brought last year by the Native Hawaiian Legal Corp., Watanabe found that the State Historic Preservation Division (SHPD) had failed to consult with the Kauai-Niihau Burial Council before approving a burial treatment plan for the property.

The judge ordered the state to consult with the Burial Council and other interested parties and draw up a new plan. Last November, the Burial Council voted to reject a new plan developed by SHPD, which called for capping the burials. SHPD reportedly is now working on another plan.

The Kauai County Planning Commission previously had approved a building permit for the house on the condition that the Burial Council and SHPD had approved a Burial Treatment Plan. Although the Burial Council rejected the most recent proposed plan, it did not move to formally ask the Commission to revoke the original building permit, citing concerns that Brescia might file a lawsuit.

Meanwhile, work is continuing on the house. Although Watanabe would not grant an injunction to halt construction, she cautioned Brescia's attorneys that the Council could decide to have the caps removed and the burials that are under the house reinterred. Therefore, she said, Brescia was proceeding at his own risk if he chose to keep building before a final treatment plan is approved.