Friday, August 15, 2008

Musings: Justice For All?

The pre-dawn sky was clear with a hint of gold this morning, prompting Koko and me to head for the beach where we could watch the sun, bold and orange, rise from a sparkling sea that, for a briefly blissful time, also contained me.

I really needed to top up my joy supply after spending hours yesterday observing the machinations of what is passed off as justice. Despite its grandeur, the new Kauai courthouse always leaves me feeling dirty and ice cold, with a brooding despair.

Yesterday’s Circuit Court hearing, which ended with the construction ban at Joe Brescia’s Naue house lifted and plaintiff Nani Rogers sobbing in the hallway — “They’re going to let him build over bones” — was no different.

Here’s the gist of what happened: The hearing for a preliminary injunction to stop construction of Brescia’s house will resume Sept. 3 before Circuit Judge Kathleen Watanabe. Meanwhile, she’s allowing work to continue using the same reasoning that prompted her to deny an earlier motion for a temporary restraining order: since the concrete footings for the oceanfront house have already been poured, the burials aren’t at risk.

Before the proceedings got to that place, Watanabe refused to qualify Dr. Michael Graves, a witness called by the Native Hawaiian Legal Corp., as an expert in Hawaiian archaeology. Never mind that he spent 21 years at UH teaching undergraduate and graduate students in archaeology and served as head of the department.

Since that prohibited Graves from discussing whether the State Historic Preservation Division (SHPD) acted properly in its treatment of the Naue burials, much of the hearing was devoted to Kauai state archaeologist Nancy McMahon defending her decisions regarding the burials there.

Quite a few intriguing tidbits emerged from her testimony. For instance, when the Burial Council was voting whether to relocate the burials or preserve them in place, McMahon hadn’t even provided the panel with the most current burial treatment plan.

And when she later wanted to give the Council a revised plot plan that showed where the burials would be in relation to the house, the panel’s chairman — Mark Hubbard of Grove Farm — told her no, he didn’t want the issue back on the agenda.

Her testimony also seemed to indicate that Brescia’s consultants either failed to publish an accurate legal notice, or didn’t publish one at all, when a second set of burials were found on the site. These notices are intended to give descendants a chance to claim the burials.

Further, McMahon repeatedly stated that none of the concrete footings for the house were placed atop the burials, which she had decided — without consulting the burial council — should be encased in a concrete cap. But Brescia’s archeology consultant told me that some of the pilings were indeed atop burials, although there was an 18-inch “vertical buffer” between them and the actual bones.

What’s more, due to a strange quirk in county planning laws, people can actually get permits to build in the Special Management Area, which includes the shorelines where burials are typically found, without first having their projects reviewed by SHPD.

So then you run into the scenario, which is what happened up at Naue, of a landowner securing county approval to build, then finding burials, which puts his project before the burial council when it’s too late for them to do much of anything about it.

Yet way back in 1991, the former head of SHPD, Don Hibbard, had sent the county a letter saying the Sylvester Stallone subdivision at Naue was likely to contain burials and so his office wanted to review permit applications for those parcels prior to any permits being issued.

That obviously was not done, further strengthening NHLC’s case that Brescia's permits were improperly granted. But the judge refused to accept Hibbard’s letter into evidence.

Deputy Attorney General Vince Kanemoto, trying to get SHPD off the hook, asked the judge to dismiss all charges against the state, saying it was the county that had approved the house. She denied that motion.

Watanabe went on to say the court was making every accommodation for the case “because I understand the issues on all sides are very critical and I understand we have a community that’s split and this issue continues to create divisiveness in this community …. and so it needs to be resolved.”

But I wondered, is the issue really causing divisiveness? Or is it more accurately causing embarrassment for government officials, and the kind of public unrest that makes them so uneasy?

After the hearing, I was talking in the parking lot with Andrew Cabebe, one of the Hawaiians who camped out for weeks to protect the bones. “These places never work for us,” he said, gesturing toward the courthouse. “They just distract us and delay us. The only thing that’s going to make any difference is getting independence.”

Frankly, I had to agree.


Anonymous said...

Independence? If that's the case, that indeed all is lost to them.

Anonymous said...

On cross examination by Deputy Attorney General Vince Kanemoto, McMahon testified that the burial plan that the council had did show the burials in relation to the house. The council knew that the reason the builder wanted to move 6 and then 7 of the burials was because they were under the house's footprint. The issue of the different burial plans was that the council was never presented with the plan with mitigation "elements" after it had voted to preserve the burials in place.

I think two really helpful clarifying rulings would be what constitutes sufficient notice to potential lineal and cultural descendants, and what exactly can the burial councils approve and disapprove.

Andy Parx said...

This is what happens when you appoint a lifer government attorney to a judgeship- they start with the premise that the bureaucrats are always right or at least deserve the benefit of each doubt. Kathleen has shown her stripes again. She’s been extremely disappointing.

If she had any guts she’d be excoriating them at least for the sloppiness- if not outright misrepresentations and lies- and allowing the very testimony that makes the case

I’m wondering what the “strange quirk in the county planning laws” is. The SMA rules require all state departmental reviews to be submitted before approval .This sounds like the same line they gave us for years about the Land Use Commission when they rezone or issue zoning permits before state redistricting and use permits- which was struck down in the Kona case.

I suspect rather than some claimed “quirk” Ian Costa is again, as usual, negligent and covering his ass by claiming some sort of rule he pulled out of his, er, sleeve.

Joan Conrow said...

Yes, Charley, the Council saw the relationship of the burials to the house when they were talking about relocating the burials. That proposal was later dropped, and the Council never did see the second burial treatment plan with all the burials left in place and mitigation measures added.

And anyway, I'm referring to the plot plan McMahon had the consultant do that showed where the actual footings would be in relation to the burials. That's what Hubbard wouldn't put on the agenda.

Anonymous said...

Right. I'm just clarifying that the council knew where the burials were in relation to the house - that it did not vote to leave them in place with any ignorance that some of them were under the footprint.

Native Hawaiian Legal Corp. attorney Alan Murakami indicated that he might call burial council members. That should be interesting.

Anonymous said...

Hey andy! You said, "This is what happens when you appoint a lifer government attorney to a judgeship- they start with the premise that the bureaucrats are always right or at least deserve the benefit of each doubt."

Does this sound familiar?
"Judge Sakamoto’s Harsh Words for the City: 'The voice of the people should not be suffocated by erroneous rulings of the law by its own government'"


Joan Conrow said...


I don't believe that's correct, Charley. McMahon testified that there was no vote taken on whether the Council should allow the house to be built over some burials. She also testified that two members initially wanted to relocate the burials because they feared they would end up under the house, which she assured them would not be the case. She then testified that perhaps a lanai or a roof line would extend over them some burials.

She also testified that some Burial Council members were concerned that footings would be placed over the burials, which she later assured Hubbard would not be the case.

And yes, it would be quire interesting to hear the testimony of some Burial Council members.

Anonymous said...



Naue is one round of a fight that is far from over.

Anonymous said...

There would be no vote taken on whether the council would allow the house to be built, whether or not on burials. That's the whole argument about what is the councils' authority. The state maintains - and the law seems to say - that the authority is limited to determining whether to relocate or leave in place.

I was out for a chunk of McMahon's testimony. If you're right, it directly contradicts her answer to Kanemoto when on cross he asked her whether the plan that was before the council had a map showing the relation of the burials to the house. She answered unequivocally, yes. Maybe a council member will contradict her.

Joan Conrow said...


Yes, but then on re-cross from Murakami she acknowledged that they they were looking at the first BTP, which addressed relocating seven of the burials. They never saw the second BTP, which showed all 30 burials preserved in place and their relationship to the house.

Anonymous said...

But it was made clear on cross exam that the location of the burials requested to be moved were on the map. The testimony was that the council saw where the burials are - including those to have been moved - in relation to the house. She was clearly asked whether the plan before the council had the location of all the burials and the location of the house and she said yes. Kanemoto was clearly getting that point into the record.

Mr. Murakami's questions about the first and second burial treatment plans went to whether the council had input on the mitigation measures. The council basically didn't have such input and that is one of the important questions regarding interpretation of the statute - how much authority do the councils have?

Joan Conrow said...

As usual, Charley, you and I disagree, and since we don't have the transcript to verify this, let's just leave it at that.

Anonymous said...
This comment has been removed by a blog administrator.
Anonymous said...

I'll agree with you on that, Joan. And I think we agree that testimony by a burial council member would be interesting and enlightening.

Anonymous said...

Burial councils can only determine whether or not "previously identified" burials can be preserved in place or relocated. They may offer comments or recommendations on other details in a burial treatment plan -- landscaping, access, buffer zones -- but have no authority to enforce or require that their recommendations to be adopted.

The DLNR/SHPD has the authority to approve the plan and its details; they usually, but not always, incorporate recommendations made by the council in addition to conveying the council's determination of preserve in place or relocate.

The foregoing statements are paraphrases taken from HAR 13-300.

Finally, neither the council nor DLNR/SHPD has any authority to tell a landowner how or where s/he may build a house or other structure, even in relation to burials. Those things are handled by the counties.

Andy Parx said...

My thoughts exactly Anon 10:17 AM as I just posted today

Andy Parx said...

And what exactly have you Mr. Assimilationist, Mr. go along with the crowd, Mr. be nice, Mr. don’t offend anyone,. Mr. don’t make waves, Mr. Steve Covey win-win insider gotten accomplished? NADA, ZIP, BUPKIS.

Because the right wing nuts know they don’t have to worry about you because you’ll fold like a card table.

What are these “tactics” you’re using? Which ones do anything but sell us further down the river and compromise away everything we’re fighting for?

This isn’t about ego- it’s about what we can accomplish either as individuals or as a group or as an individual by changing with the group dynamic- and putting your own ass on the line to do it..

If you, as a self-declared “good cop”, can’t take advantage of us “bad cops” then you deserve exactly the non-accomplishments you create. The good cops I know and work with appreciate what the table-ponders do for the dynamic and we talk about how to make sure we are on the same page to razzle-dazzle them into dizziness and submissions- both the press and our opponents..

If you’re too lame to play the game at least get out of our way and stop compromising away the gains we make and admonishing us to let you do the nothing you’re doing.

Most of the time I can hardly tell the difference between the people we’re fighting and those who are telling the rabble-rousers to sit down and shut up because we might offend people who are taking advantage of your efforts not to offend anyone.

You have some damn nerve talking about ego when your own image and political viability is all you’re apparently- and statedly- concerned about. You’re so busy building up your ego gratification machine and getting people to like you, actually accomplishing anything is beyond your ability... unless it’s allowing a slightly watered down version of what we were all opposing in the first place.

Love me, love me I’m a liberal When everyone likes you, that’s you know you are a hack and egomaniac.

Be proud of the people who don’t like you- wear their distain like a badge of courage and accomplishment. don’t cower behind adulation for your ability to make everyone happy by making no one happy. People who accomplish things have tons of people who absolutely hate them... because they accomplish things.

People who are worried about what narrow-minded, bigoted mobs will think about a certain action at a certain moment rather than looking down the line and actually doing whatever it takes to change the dynamics- and therefore outcome- are more of a problem sometimes than the “bad guys”- at least you know where they’re at. All you do is to let them do their dirty work and snivel that they “should stop”.

And don’t tell me I’m personally attacking someone who hasn’t got the guts to put a name to their mana`o. that’s a non sequitor

While you’re selling us down the river to avoid conflict with the slave owners we’re busy conducting the underground railroad and raiding Harper’s Ferry because we can see beyond the end of our own “political viability” to avoid selling-out our brothers and sisters for political adulation.

Anonymous said...

What is Andy talking about?

Anonymous said...

Oh, he's just letting that good, self-satisfying, righteous anger alllll hang out -- and is so pissed that he doesn't even know he's posting in the wrong comments section! :D

"I'm sorry, this is the Justice For All discussion. You want the anger clinic -- just down the hall, 1st door on the left."
- with apologies to Monty Python

Anonymous said...

He's paying himself by the word. More words = bigger club to beat you with.

Anonymous said...

...And somebody on the "Anger is An Energy" comments said acting out anger is a frontal lobe thing? Um... looks like Mr. P definitely gots a bit o' brain stem action going here, folks. :-D

(Relax, Andy, we love ya.)

Anonymous said...


Meaning, it's about you. Your indignation. Your battles. Your striving. Your pain. Your martyrdom.

(You truly can't see that, can you?)

Anonymous said...


I'm sorry, Andy. The Nobility of Rejection is like a T-shirt that says "wannabe."

The sad fact is that you're working your butt off to wave a flag that has your face on it.

Anonymous said...

Look at his website. It defines "yellow journalism", to use the term "journalism" very loosely.

Andy Parx said...

Guess you can’t tell your blog post without a scorecard sometimes. But I’ll continue here and there

No 5:36- It’s about you and each of us.inclding the inactive people. . The amount of activism that is spurred by our true gut felings is too low. Most do it for money or fame or status.

Somtime is the issue isnt just isn’t “seling” and you’ve gota get them into the tent first and then give them the sermon. Then if you feed them they’ll come back.

That was another thing Abby a little self-promotion never hurt a project..

I respect people who fight for a real cause that makes them feel motivated, whether by anger or love anything else.

If everyone used their gut feelings to guide their actions instead of creature comforts and mental abstractions I’d be happier.

I often respect people like that no matter if I agree with them or not.

Rail and mass transit would be the greatest thing ever for Honolulu- or Kaua`i for that matter. But I love the people and the movement and support them all I can without supporting what they’re doing.

Anonymous said...


I have read a considerable amount of Andy's stuff, and no way is it yellow journalism. I disagree with his take-no-prisoners rhetoric, but not his passion. And there's one thing he absolutely does not do, which is to cynically sensationalize facts to make money.

The only relationship between Andy Parx in 2008 and Bill Hearst in 1898 is that Andy would be chucking rocks through the windows of Hearst' New York Journal -- no doubt followed by week-old fish and fresh dog poop wrapped in its editorial page.

Anonymous said...

Charley and Andy have one thing in common: lots of free time!

Anonymous said...

Joan too. Where do these bloggers get all the spare time?

Anonymous said...

ummm, same place as those of us reading the blogs and making comments?

Anonymous said...

"And there's one thing he (Andy) absolutely does not do, which is to cynically sensationalize facts to make money."

That's only because there's no money in it! lol

Anonymous said...

No doubt, no one makes money gadflying for local issues.

But in fairness to Andy Parx, my point at 7:29 PM above is that you can accuse him of many things, from bombastic diatribe to hair-curling hyperbole, but yellow journalism isn't one of them.

As much as I may disagree with what he says and how he presents it, he speaks without spin, stark naked of consideration who is signing his paycheck.

These days that's increasingly rare, and deserving of respect -- however wincingly given.


Anonymous said...

"he speaks without spin"

That's completely untrue. He spins to suit his predetermined outlook. He doesn't recognize facts that tend to disprove his biases, and he exaggerates facts that tend to support his biases. That is spin.

Anonymous said...

When have his posted ever not spun like a top?

Anonymous said...

I understand what you guys are saying; I was using "spin" in the PR sense of "disingenuous, deceptive, highly manipulative distortion of information" -- conscious, premeditated and cynical -- with the goal of empowering individuals or groups that the spinner may not even like and promoting causes he may not even believe in. The kind of thing that politicians, corporations and commercial media trade in as a matter of course.

Personally, I can't see those guys any closer to Parx than a flock of hawks to the man in the moon. Distorted as Andy's stuff may seem (sorry, Andy), it seems to me that he honestly owns it.

(Just my view that if you're going to nail names to a guy, you at least owe it to the names to choose them accurately.)

Anonymous said...

Much like Joan's Honolulu Weekly articles. Look at the latest. There's no quote by anyone with a different position from her thesis or even a neutral position. She just holds a microphone up to those with whom she already agrees. That's total spin.

Anonymous said...

"disingenuous, deceptive, highly manipulative distortion of information"

That would describe Andy perfectly. The only question is does he do it on purpose or just because he's so self deluding that he can't see through his own BS.

Anonymous said...

Interesting that the owner just couldn't move his building elsewhere on his property so as not to disturb those bones. I know that when the State found a large agricultural field system just touching the alignment of the Lahaina Bypass, they decided to go around the spot and are currently doing another Environmental Assessment for the route change.
For Alii Hwy, when the county came across some burials in the pathway of its road, they looked at either going around the spot or doing a bridge over the burials. I think they decided on the bridge but the footings for the bridge will lie away from the burials so as not to disturb the bones.
I think this homeowner and his home are in for some interesting spiritual encounters. Kind of reminds me of the Kona Lagoon Hotel that sat vacant for almost 15 years and finally Kamehameha Investiment tore it down. People said it was haunted. Now they are doing a cultural park in the area instead of building another hotel or condo. Kamehameha is finally finding its "roots" by realizing that the area was sacred and was not meant for a hotel in the first place. josephine

Anonymous said...

pleny mana there; goin bring freeks and geeks and all kine stuff. i never like stay there; even if you payed me. no frickin'way!

Katy said...

A couple of points:

It's not difficult to recognize a point of view in Andy's and Joan's writing. Is that wrong? I don't think so. They don't try to hide it. They aren't trying to trick anyone.

Andy has pointed out repeatedly that the notion of unbiased journalism is fraudelent anyway.

I'm no expert, but it seems to me that there are many different styles of journalism. From what I gather, Andy is comfortable using a style that leaves no real doubt as to his point of view. Readers know what they're getting, and there's no deception.

Point of view is made clear through the subject matter taken up,the angle of the story, and all kinds of other journalistic choices. As intelligent readers we know that if we want to we can seek out many different perspectives on an issue through the writings of various journalists and observers.

And concerning Brescia's property: before any digging occurred, when the site was relatively untrammeled and the markers were still in place showing the location of the various remains, it was really difficult to imagine any scenario under which a house could be built without covering or disturbing burials. There simply seemed to be no room for that on the pie-shaped lot.

The conflict over Naue illuminates the stark dispute between the hegemonic private-property-rights regime of the United States and the basic survival interests of Kanaka Maoli. In this case, as in so many others, a wealthy haole developer in California is granted more rights than the very people with intimate ties to the land in question.

Anonymous said...

Some journalists are assiduous about presenting all the material facts of a story and putting aside their personal biases, preferences and animosities. Nathan Eagle is an example. While one gets glimmers of his personal opinions, one is confident that he will not omit facts or tell half a story in the service thereof.

What intelligent readers know when reading Joan and Andy is that they write in the service of their personal biases, preferences and animosities. Reading them is valuable for keeping abreast of what a radicalized corner of the local population thinks, but as "journalism" they are worse than useless.

Katy said...

Again, I'm no expert, but let's admit that Nathan Eagle, of whom I am a fan, is writing in a much different format than Andy and Joan. A mainstream daily paper is different than a (purportedly) alternative weekly or a blog. The fact that Andy and Joan are writing for formats that are more flexible for a clear point of view does not make them less qualified as journalists. They each have the professional experience and education to legitimately be called journalists. They both do investigation for their work. I'm sure there are other definitions of journalism which they fulfill but that I'm not informed about.

Is what they write of value? I guess that depends on the opinion of the reader. I think it's valuable, and not because I often agree with their points of view. I just find value in oppositional voices ringing out which challenge the status quo and broaden debate.

Anonymous said...

The difference between Nathan Eagle and Joan/Andy is a matter of trust. One can trust Nathan Eagle to conscientiously provide readers with relevant facts whether or not those facts support his personal biases.

In other words, one can trust Nathan Eagle to let the facts, not his biases, guide his writing.

Quite the opposite with Joan and Andy. One trusts that their biases drive their writing. Their biases are the prisms through which they view the facts and through which they process the facts they write.

Joan Conrow said...

Thanks, Katy, but don't waste your time with Anonymous, who will never be convinced of anything other than what he perceives through the prisms of his own biases.

Anonymous said...

I see what anonymous means. Andy and Joan definitely write "through a prism" and we should read other accounts to get a full picture. But at least we know what their prism is and anonymous leaves out that their prism ins't represented in the main stream press. Katy also has a good point. We know what Andy and Joan's biases are. And we can read the newspaper to get more facts.

Anonymous said...

Unbiased, balanced reporting, as a concept, is a fairly new invention.

It came about with the corporatization and monopolization of media.

Originally, the First Amendment freedom-of-speech principle was conceived amidst a topography of multifarious perspectives and voices, each one more radical than the next. The First Amendment was created to protect this vast diversity of opinions.

There was no need to strive for balanced reporting, because the balance was in the overall landscape of opinions, where a level playing field for expression was enjoyed by all perspectives (as long as you were a white male, since blacks and women were denied the technology of literacy).

As monopolization of the media arose during the Industrial Revolution, the playing field for expression was no longer level. Far from it. The depth and breadth of voices and opinions was trumped by the mechanized production and distribution powers of the burgeoning corporate media.

In order to compensate for the shut-down of what had been a true democracy of diverse (white male) voices, the corporate, monopolized media invented the concept of "unbiased" "balanced" reporting.

It's so that we don't feel so bad about what we've lost.

For the corporate media, the best case scenario is when readers, who've bought into their invention of "unbiased reporting," deride individual reporters with undeniable points of view, as if this style of reporting is inherently flawed. Actually, these reporters are most true to our founding fathers' original intentions.


Andy Parx said...

The type of “news” presentation in the corporate press is if anything more spin-laden than anything I present these days in the blog format.

I’ve done straight news, without analysis too but am enjoying the freedom of blogging right now. But either way I’ve never felt the need to get “all viewpoints” into to story, especially when one is ridiculous and as far from the “truth” as you can get..

These “facts” that a few anonymous' cite as “real journalism” are merely “he says she says” reports where the reporter goes to two people, gets them to say sometimes absurd often false things and presents them as “the facts”. While it is certainly factual that they said it, it’s a poor excuse for digging out the truth, which is what journalism is..

This “opposing quotes” type of objectivity is nothing but a construction of late 20th century post war corporate journalism. No one looks for the actual truth any more because it takes a lot of work.

For every Sy Hirsch there’s hundreds of hacks on deadline regurgitating whatever two people told them instead of using their innate BS-meter- the “nose” being the most important thing a journalist has, based often on years of seeing when something smells like news and when something stinks- to report the stuff that checks out and knock down the stuff that doesn’t.

If someone is presenting a pack of corporate lies that are as far from the truth as possible I’d be less than a journalist if I just reported it as if it had any credibility rather than pointing out how abused their statement is.

Corporations- who support modern journalistic endeavors through advertising- count on the press to present things like “clean coal” as part of a supposedly “objective” presentation. Real journalists don’t let them get away with it..

Andy Parx said...

Ha- while i was writing the above Koohan stated it perfectly as to the history of real journalism I glossed over. Thanks.

Anonymous said...

I have to agree with Katy on this one. Blogs and alternative weeklies carry completely different reader expectations than newspapers. Generally I think readers are sophisticated enough to discern and discount even the different points of view more or less subtly displayed among traditional news sources (Fox News v. CNN v. NPR, for instance). These days I doubt many people have delusions about the balance or completeness of any source of information.

Anonymous said...

I would go along with that if both Andy and Joan didn't claim to be journalists.

Joan Conrow said...

OK, Anonymous, that's enough. You have repeatedly made comments on this and other posts knocking me as a journalist and I've had it.

If I don't fit your idea of a journalist, fine, that's your opinion and you don't have to read me or believe a word I write. But I'm not going to give you a forum on my personal blog to keep bashing me. Next time you make a comment about my journalistic credentials, it's going to be deleted.