THE BRECIA CASE RE TUESDAYS MEETING

When I look at this issue, I remember when the burial council believed it might actually have some might and power to stop developments when bones were found, work with developers, educate, and  care for the iwi kupuna. It was a noble cause and one that everyone was hopeful about even though it was a state agency.

But again, it has turned into yet another way to divide and conquer Native Hawaiians and Native Hawaiian interests. It has perpetuated an "us vs them" mentality, while seeming to be yet just another feel good look good rubber stamp to developers who continue to get there way to dig up and pave over the bones of the Hawaiian people.

The most important thing however, that the Brecia incident and situation underscores for me, at least is the PRECEDENT that it is setting, and the actual weakening of the force of burial laws.

The very fact that we are dealing with a state funded entity who must tow the line of the philosophical ideals of whomever is making the appointments in this case the current Governor will never be a commission that is allowed to make an honest appraisal and decision. You can be a dedicated commission member, the same goes with the planning commission, make a decision and go with your heart but for the most part, in a state or government agency whomever and whatever it is you go with whomever butters your bread.

My fear with the Brescia incident is that the precedent that this sets will weaken any other decisions, claims or actions that the burial council will make in the future for any other projects that come up, and the same goes for the planning commission.

Further, when we look at this entity funded by political interests, rather than being an independent and required review board I feel that it is not serving its original intent which was to prevent something just like  this from happening.

Developers and landowners know how to sue. It is what they do best. People who objected are also learning how to sue. The most feared word in any county, state or federal attorneys office is the word "sue".  That is because you have to use the peoples money to pay for court proceedings, and you need a very strong case to proceed. WIth property rights issue the favored laws tend to run with the landowner so these cases are tough to win in court. It cannot be just public opinion that wins these cases, but clear evidence and a pristine action history by the state, county or federal agency, board or commission involved in any such action. If there was even a hint of something or someone who did not cross the "t's", and dot the "i's" along the way the case would be extremely weak in court even though public sentiment and resentment may run high against a landowner or developer in a case such as this.

It takes that entity to have a backbone and be willing to call the bluff of the "sue-ee" to undermine the intimidation of our county and state governments by those who just automatically say "sue" rather than "compromise", or realize that they have presented something that just will not fly and is totally unnacceptable without having to land up in court to force the issue.

Therefore, this is why Maunakea had to push this issue. The county cannot fight Brecia because he has the almighty power to sue the county, which will take time and cost money and the county is saying they don't have the money to fight Brescia, or maybe even the will to fight him, or the county or the state may not have dotted the "i's and t's" perfectly in this case, and are then vulnerable and they do not feel that their case is strong enough to win in court. This of course angers the public who have a huge issue and want something done as in this case when the iwi was not adequately protected and that was the mandate of the Burial Commission who tried to do their duty but was hampered by technicalities and loopholes and threats of lawsuits.

When we stop being intimidated in this way, when the people can stand up and say go ahead and sue, do your worst but we are not backing down from our position, when we can truly say as commissioners and board members we will show a united front and let them sue, things actually might start to change.

It is the commissioners themselves who are appointed and serve in the voluntary capacity that are given the power and authority to make these decisions.

I have often testified at planning commission meetings two things:

1. You, as commissioners have a lot more power than you think you do, and the attorney is there to advise. In this case, Maunakea had to advise that if you do this, Brescia will sue. The commissioners can show a united front get a backbone and "just say no".

2. Enforcement and the due diligence of properly funding enforcement operations. We continue to make laws that look good on paper, and continue to say to developers you must do A,B,C, or else, and then when they do not comply it is either a slap on the wrist or we give extensions and exceptions and exemptions because we hope they will do the right thing, or we are afraid of a lawsuit if we don't.

When we truly take the power of the people in hand and stop being afraid and intimidated, when we appoint commissioners and board members to positions where there is no conflict of interest,  and that will have a backbone then we will see enforcement and the funding for it occur, and the full power of these commissions and boards realized.

Until then, precedents will continue to occur that will weaken their power, and we will continue to be bowed and broken by the word "sue".