Court hear final arguments in iwi dispute on Hawaii

Both sides in the long-running dispute over how to handle native Hawaiian remains found at the Ward Village Shops redevelopment project are slated to wrap up their case today before state Circuit Judge Glenn Kim.

The Native Hawaiian Legal Corp. is seeking a halt to construction and any further disinterments of the remains, or iwi, at the 6-acre site where General Growth Properties is building a $150 million mixed-use project that is to be anchored by a Whole Foods Market store.

Closing statements are being delivered this morning after two days of testimony, but Judge Kim said he won't likely render a decision until next week.

"We are asking the judge to stop the project now," said cultural descendant Paulette Kaleikini, the plaintiff in the case. "Instead of making decisions for 10 burials at time, they should have done a complete survey for the whole project area before starting any construction."

She fears that families that were buried together will be separated by removal -- and says that her fear that piles would be driven into some of the iwi has indeed materialized.

Most of the testimony yesterday pertained to the portion of the project where the Whole Foods store is being built, given that the state Historic Preservation Division recently authorized the removal of another 10 burials there. The current count of iwi discovered at the site is at 64.

Construction of Whole Foods store continued yesterday as the court hearings proceeded.

Witnesses have included Department of Land and Natural Resources director Laura Thielen, as well as Thomas Dye, president of the Society for Hawaiian Archaeology and Kaleikini.

Dye went on record stating that his professional estimate of the number of burials at the site was at 335, based on his review of documents.

That number should have been presented to the Oahu Island Burial Council last fall, he said in an earlier interview, rather than the tally of 11 actually presented before the council voted for removal and relocation.

All other burial discoveries have since fallen under the jurisdiction of the Historic Preservation Division, part of the Department of Land and Natural Resources.

Vince Kanemoto, representing the state, cross-examined Dye with an exhaustive list of questions, ranging from SHA's opinion of Melanie Chinen, the preservation division's administrator, to his qualifications as an expert on historic preservation, the definitions of a burial site, a concentration and the methodology for determining the ethnicity of human remains.

John Yamano, attorney for General Growth, said there have been numerous delays in the project. The motion before the court is one of several that have sought to stop construction -- but to date none have been granted.

Whenever new sets of remains are discovered, developers are required by law to inform the state and await directions on what to do with them. But the state must respond within 24 to 48 hours.

"General Growth has complied with every rule, regulation and statue" he said. "We've worked very closely with SHPD as well as their descendants, including the plaintiff."

He said this included giving the state additional time to respond in regards to new discoveries.

"General Growth has tried to be very responsible with the iwi," he said.

He said that Dye admitted in testimony he has never set foot on the project, but made his analysis based on three reports.

Judge Kim had his own set of questions for Dye on the determination of a "burial site" and "concentration of burials" stating: "The definitions are troublesome in and of themselves, and they require interpretation."

A skeletal remain, for example, can include anything from the tip of a human finger to a complete, intact set of bones. Historic property means any area over 50 years old.

Kaleikini said her great-grandfather's cousin, Ka'aua, held the land grant for the property, and that she is one of several family members chosen to take care of the iwi kupuna.

She has long held the position that iwi should first and foremost be preserved in place, unless natural elements -- like erosion -- warrant relocation. Construction is not a natural cause for disinterment.

The disinterment of iwi at the site has caused harm to her and her family, she said.