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Judge orders radar analysis for Maui Lani project

Survey aimed at locating possible burials before grading

A 2nd Circuit judge has ordered that ground-penetrating radar analysis be done on remaining work areas in the Maui Lani Phase 6, Increment 4 housing project where Native Hawaiians fear the desecration of burial sites.

Before groundwork can proceed again in Increment 4, the radar analysis must be done to look for burials where “substantial ground disturbance” will be conducted for the installation of sewer, drain, water, electric and cable television lines, telephone vaults and utility poles, according to a written order from Judge Joseph Cardoza issued April 19.

Cardoza’s order comes after he granted a preliminary injunction April 5 prohibiting work at the Maui Lani Phase 6 site. Jennifer Noelani Ahia, a cultural descendant of burials found at the site, filed a complaint in February against the state, the county and Maui Lani landowner HBT, alleging that the project had disturbed about 180 burials.

Maui Lani Phase 6 is a single-family residential development on 45.2 acres between The Dunes at Maui Lani golf course and Maui Lani Parkway in Kahului. The phase is being developed in four parts with the first three nearly completed with homes built and people moved in.

The current complaint centers on the fourth phase, which includes rock grading that was 97.5 percent complete and utility installation that was substantially underway, according to comments made in court last month by HBT attorney Michael Carroll.

On Friday, Ahia said a status conference was held in which attorneys relayed to her that HBT is in the process of mowing areas where the radar analysis will occur and that the analysis will take about seven to 10 weeks.

“I am grateful to Judge Cardoza for recognizing the irreparable harm that’s been done,” Ahia said in an email Friday. “His order to continue survey work using noninvasive GPR (ground penetrating radar) will help us identify and protect the iwi kupuna.”

Ahia added that “corporate profit, greed and development have repeatedly caused the disturbance, desecration and disinterment of our Kanaka Maoli burials.”

“This suffering this causes cannot be underestimated,” she added.

Ahia previously said that although she is the plaintiff, she is part of a group effort to protect the burials. The group has been working on other ways to remedy systemic issues with burial laws and compliance in Hawaii, including requesting intervention from the United Nations Committee on the Elimination of Racial Discrimination and beginning discussions with Maui County Mayor Michael Victorino.

“This case is only one path to restore pono, but it’s a good step in the right direction,” Ahia said.

Maui County Communications Director Brian Perry said via email on Friday that the mayor appreciates Cardoza’s “careful consideration of the issues involved in this case and the protection of iwi kupuna.”

“Permits issued by the county will allow work to resume on the condition that no additional ground disturbance will occur,” he continued. “If the developer chooses to perform any work involving ground disturbance, additional study will be required to identify burial areas. The results of the study would need to be provided to Maui County before the court will permit additional work to occur.

“Vertical construction on areas where foundations have been completed can resume.”

Attorneys for HBT and the state could not be reached for comment Friday.

In the April 19 order, Cardoza said that the results of the ground penetrating radar analysis will be provided to the plaintiff and other defendants upon completion.

HBT will assess for anomalies and the presence of possible burial features. 

Cardoza also ordered that controlled grading be implemented for all lateral connections into the lots, which include sewer, electrical and water, located within 50 feet of a burial site. Controlled grading involves slow horizontal scraping of the area in 2- to 4-inch depths to determine the presence of potential burial features.

If burial features are identified through radar analysis or through controlled grading, HBT will evaluate reasonable alternatives to avoid any unnecessary disturbances and to promote preservation in place, the order said.

HBT also must follow current state laws relating to burial sites and human remains when they are discovered.

Cardoza also ordered HBT to attend Maui Lanai Island Burial Council meetings to provide a report on the status of the project, including a description of all inadvertent burial discoveries.

HBT may recommence construction on the project when the order is fulfilled and complied with, the judge said.

Prior to ground-disturbing work, HBT must notify the plaintiff or plaintiff’s legal counsel at least 48 hours prior to ground disturbing work at the project site. Ahia or a designee will be allowed to observe the ground-disturbing work from about 100 yards away.

Cardoza also granted immediate access to the court on an emergency basis if the plaintiff or another party believes the order is not being followed.

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

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