Lawsuit filed against Maui Lani Partners

Plaintiffs seek halt to all work until developer complies with archaeological monitoring plan

A group opposing sand mining and other activities that it says threaten burials in Maui Lani filed a lawsuit against Maui Lani Partners on Thursday seeking an injunction to halt all work until the developer complies with the archaeological monitoring plan.

Malama Kakanilua and members Clare H. Apana and Kaniloa Kamaunu filed the lawsuit in 2nd Circuit Environmental Court as the Maui County Council considers ways to regulate sand mining in light of recent sand excavation and exportation in the Maui Lani Phase IX project. The council’s Infrastructure and Environmental Management Committee is set to take up the bill at 1:30 p.m. Monday in Council Chambers.

While the developer and contractor told the council in May that they have stopped grading work, except for erosion, safety and cleanup activities, community members “have since reported seeing sand hauled away from the Maui Lani project areas and ground disturbing activities at the site,” said a news release Friday by the plaintiffs.

Their attorney, Lance Collins, said trucks were seen going in and out of the project site with material for one whole day in the last couple of weeks. Collins said the group was told that blue rock and not sand was being moved, though members could not confirm that. Sites that have been used to video activities have been blocked from view, he said.

Calling it “a cat-and-mouse kind of thing,” Collins said Friday that excavating blue rock involves earth moving, which could disturb burials. The developers should not be doing anything, he said.

Leiane Paci of Maui Lani Partners said Friday that “no material has been transported off the property since before May 1st.”

“After May 1st, the only time equipment has been on property is to complete best management practices as required by the County Code,” she said.

Contractor HC&D and Maui Lani Partners stopped moving and transporting sand May 1 after receiving a county notice to correct violations. The county says that the developer’s grading permit was not in dispute, but that the excavation and exportation of high-quality sand for concrete and other uses meet the definition of “resource extraction,” which requires other permits.

Collins said Friday that he does not believe that the developer even can obtain a special-use or conditional permit because of the property’s residential zoning.

While the council, Mayor Alan Arakawa and the state Office of Hawaiian Affairs took up the cause, Malama Kakanilua members believe that action could be weeks or months away, and “they are concerned that more burials could be disturbed” if nothing were done, Collins said.

The complaint alleges that Maui Lani Partners is continuing its ground-disturbing activities at its Maui Lani Phase IX site in violation of state historic preservation laws, county grading permits and county zoning laws.

The plaintiffs are seeking a preliminary injunction from Environmental Court Judge Joseph Cardoza to halt earth-disturbing activities that can threaten burials until the developer complies with its archaeological monitoring plan, the news release said. The plaintiff’s contention is that the developer is required by the plan to have an archaeological monitor on site at all times when performing grading work, which has not been done, Collins said.

A Sept. 8 court date has been set for a hearing on the injunction. Cardoza could impose an injunction earlier, which would move up the hearing date, Collins added.

Malama Kakanilua is a hui formed years ago to protect iwi (bones), burials and other historic and archaeologically significant sites on Maui. The group is named for Kakanilua, a famous battle that occurred in the sand hills of Central Maui, the news release said.

“I want my children to grow up and know and be proud of the history of this place,” said Annette Heu, a member of Malama Kakanilua. “With our actions, the iwi kupuna will know that someone cared about them.”

“Ashes to ashes, dust to dust. Where does the man end and the sand begin?” asked Kamaunu, a lineal descendant of the area. “The dead from the battle of Kakanilua became part of this place, their ano melded with the sand hills, and they should not be disturbed.”

* Staff Writer Melissa Tanji contributed to the report. Lee Imada can be reached at leeimada@mauinews.com.

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