Tentative pact reached over earthmoving in Maui Lani

Agreement has not been finalized; plaintiffs allowed to monitor work

A tentative agreement in a court case involving earthmoving activities by Maui Lani Partners, which raised concerns about impacts to burials and cultural sites, has been hammered out in mediation, plaintiffs said Thursday.

Clare Apana, Kaniloa Kamaunu and the group Malama Kakanilua, which was formed to protect bones, burials and historic and archaeologically significant sites, said they reached a tentative agreement after mediation with Maui Lani Partners on Nov. 21 in 2nd Circuit Court. The final outcome is pending a written settlement agreement.

Plaintiffs filed the lawsuit in 2017, seeking an injunction to halt all work until the developer complies with its archaeological monitoring plan. They also alleged Maui Lani Partners was continuing its ground-disturbing activities at its Maui Lani Phase 9 site in violation of state historic preservation laws, county grading permits and county zoning laws.

In September 2017, 2nd Circuit Judge Joseph Cardoza granted an injunction and prevented Maui Lani from doing earthmoving work unless certain conditions were met, including notifying plaintiffs or their attorney at least 48 hours before the work is conducted. This would allow a plaintiffs’ representative to monitor work on site.

But the plaintiffs said the tentative agreement is not exactly what they wanted, which is to halt the work in the Phase 9 project site, as well as in adjacent areas they say have burials and cultural sites needing protection. However, it is the best deal they can obtain, they said.

The tentative agreement contains similar remedies ordered by the court in the injunction. This includes plaintiffs having their own monitor at the work site to watch earthmoving activities.

The tentative agreement would allow plaintiffs to request another archaeologist (in addition to ones already on the job) if burials are found, said Noelani Ahia, a member of Malama Kakanilua.

Maui Lani would have to pay for the additional archaeologist, she added.

In the tentative settlement, Maui Lani also would pay $90,000 to the plaintiffs over four years. Ahia, Apana and Kamaunu all said there was no request for money from all of them, but the mediator ordered it.

They said funds will go to pay legal expenses, including plaintiffs’ attorney Lance Collins, who has worked pro-bono on the case.

The tentative settlement also would involve consulting Apana and Malama Kakanilua when a burial plan is needed for inadvertent discoveries of human remains.

A spokeswoman for Maui Lani said “the terms of a settlement agreement are still being worked out between the two parties and a settlement has not been finalized.”

Leiane Paci said she could confirm that the plaintiffs requested a payment in excess of $90,000, and Maui Lani was agreeable to an additional monitor during earthmoving activities.

In exchange, the plaintiffs would not trespass on the Phase 9 property or encourage others to do so, Paci said in an email Thursday.

Kamaunu, who was speaking for himself, said the settlement was unfair but it was offered as the best option the plaintiffs could receive.

“It was something we didn’t have a choice in,” Kamaunu said. “I thought we had a good enough case to continue on, but I’m not the experienced one.”

Ahia also was disappointed.

“Ultimately at the end of the day, what we want is for all of the construction to stop,” she said.

Apana said that the plaintiffs “get to watch them dig.”

“We may still get them, who knows what is under those trees,” she said via cellphone while monitoring work Thursday morning near the Maui Lani Phase 9 site.

Apana and Ahia were monitoring work on a waterline. The waterline is for a separate project, Maui Lani Phase 6, but it runs through Phase 9.

Apana does find some comfort in the tentative settlement, although she said there is more left to be done for identifying remains in the area.

“We get to see how the operations work. We get to be close to our kupuna,” Apana said.

* Melissa Tanji can be reached at mtanji@mauinews.com.