Judge halts Maui Lani earthmoving
Injunction will allow lawsuit against site developer to proceed through the system
A 2nd Circuit Judge ordered Maui Lani Partners to halt earthmoving work at its Phase IX site in Kahului, saying that the facts show “at least preliminarily” that the company did not follow a state-approved archaeological monitoring plan.
Judge Joseph Cardoza granted a motion for preliminary injunction Wednesday to stop earthmoving work at the site, while a lawsuit to get Maui Lani to comply the archaeological monitoring plan proceeds through court.
Clare Apana, Kaniloa Kamaunu and the group Malama Kakanilua filed the lawsuit July 24 in 2nd Circuit Court. The plaintiffs are concerned that burials have been disturbed and desecrated and that further earthmoving would cause more harm. Malama Kakanilua is named after the famous 1776 battle that occurred in the sandhills of Central Maui, where many warriors were buried.
Over multiple hearings on the motion for preliminary injunction, which began last month, plaintiff witnesses showed videos and reported seeing earthmoving work at the construction site without an archaeological monitor present. Archaeological monitoring is required under the state-approved plan. But Maui Lani’s witnesses said that work observed by the plaintiffs was the type that did not need a monitor because the sand being moved was previously unearthed and previously monitored. Maui Lani has said publicly that it has adhered to the archaeological monitoring plan, and witnesses including construction workers testified that monitors were present when initial digging occurred.
In his ruling Wednesday, Cardoza said he weighed all the evidence on both sides.
He said there was evidence that a loader took sand from a bank of soil that had not previously been unearthed, and that there was no archaeological monitor present, as required, at the time.
The judge added that he wasn’t saying that the loader operator was being “malicious,” and Cardoza was not ruling that Maui Lani maliciously violated the archaeological monitoring plan.
But “in the court’s view, from a factual standpoint, there has not been compliance with the archaeological monitoring plan,” Cardoza said.
Strict adherence to the monitoring plan is needed to protect the important archaeological site, he said.
With the granting of the motion, Cardoza said Maui Lani would be prevented from doing earthmoving work, including moving stockpiled items.
If work were to occur on the site, such as for emergency repairs to a waterline, Cardoza said the plaintiffs or their attorney, Lance Collins, must be notified at least 48 hours before the work is conducted.
This would allow a plaintiff representative to monitor the work on site.
Also on Wednesday, Cardoza ruled in favor of Maui Lani’s motion to dismiss the original lawsuit. He dismissed it “without prejudice” on two of three counts, meaning the plaintiffs could return court to re-allege the complaints.
One of the dismissed counts involved a Maui Lani grading permit issued by Maui County. Plaintiffs argue the work being done on Phase IX is not in accordance with the permit.
The other issue involves an alleged zoning violation in which plaintiffs argue that the sand-mining operation by Maui Lani is unpermitted in the area.
Cardoza said these issues must be taken up administratively first before they could proceed in court.
Maui Lani Partners and contractor HC&D received notices from the county on May 1 to correct violations after the county found that the grading permit might not have been sufficient for the work conducted at the site. The county said that’s because the excavation and exportation of high-quality sand for concrete and other uses meet the definition of resource extraction, which requires other permits. Collins has said he doesn’t believe the developers could obtain other permits because of the property’s residential zoning.
In an email statement after the hearing, Maui Lani Partners said it “is satisfied with the judge’s dismissal of two out of three counts. With the last count, Maui Lani will continue to fully comply with the state-approved archaeological monitoring plan, which the court has confirmed allows us to proceed with permitted activities on the property.”
As for the incident that Cardoza cited of a loader moving unmonitored soil, Maui Lani said the equipment operator involved in the incident has more than 20 years of experience. The operator “is very skilled and is educated in the archaeological monitoring requirements,” the developer said. “Maui Lani feels it is improbable that such an error would occur.”
Outside of court Wednesday, plaintiffs were pleased by the rulings.
“For us, it’s a really good day. We are able to move along,” Kamaunu said. He added that the focus would be on the county and the state “to do what they have to do, which is to make sure their permits are given correctly and not just frivolously.”
Malama Kakanilua member Annette Heu said outside of court: “I’m grateful the court was able to understand the meaning of destruction (by) bulldozers and to understand the pain that we feel because these are our ancestors and there’s no place you can go with a shovel and a pick in any cemetery and do what is being done here. You can’t. It’s illegal.”
“We know this had been going on for years, and years and years,” she said. “We know this is time to say ‘enough.’ . . . Let them rest in peace.”
County spokesman Rod Antone said: “We are not a party to the lawsuit, but we will take a look at the order if we receive it.”
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With granting the motion in favor of plaintiffs, Cardoza said Maui Lani would be prevented from doing earthmoving work, unless certain conditions were met. Those would be that the plaintiffs or their attorney must be notified at least 48 hours before the work is conducted. This would not apply to emergency repairs, such as a waterline replacement.
The Maui News apologizes for the error.
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