A federal appeals court will not consider statements that reopening a sealed Big Island cave to retrieve 83 priceless Hawaiian burial artifacts could cause the cave to collapse.

The 9th U.S. Circuit Court of Appeals on Tuesday ruled that a written sworn statement by a masonry contractor submitted by Hui Malama I Na Kupuna 'O Hawai'i Nei should have been submitted earlier while the case was pending before the trial judge.

Hui Malama has filed an appeal seeking to keep the objects in the cave, but the 9th Circuit agreed with two other Hawaiian groups asking that the artifacts be returned to the Bishop Museum. The court struck the contractor's statement from the record.

Although the ruling favors the two groups, it does not necessarily mean the three-judge appeals-court panel will rule in their favor after it hears legal arguments Dec. 6 in San Francisco.

"I believe it helps our case," said Sherry Broder, lawyer for the two groups, Na Lei Ali'i Kawananakoa and the Royal Hawaiian Academy of Traditional Arts. "The ruling is what we thought was fair and right."

Hui Malama attorneys with the Native Hawaiian Legal Corp. could not be reached for comment yesterday.

U.S. District Judge David Ezra ruled in favor of the two groups Sept. 2. He ordered the return of the artifacts to ensure they are not damaged while Native Hawaiian groups sort out what should be done with them.

Hui Malama maintained that the artifacts had been looted from the cave in 1905. The objects were turned over to the Bishop Museum, which transferred them to Hui Malama in 2000. The group sealed them in the cave and maintains that the artifacts should remain there.

After Ezra issued his ruling, the group submitted to the appeals court a written statement by George Fields III, who said he sealed the cave. He said the reopening would require the removal of a concrete wall at the cave entrance, but the removal would endanger workers because of a "good chance the walls and ceilings of the cave itself could collapse in the process."

Ezra later supplemented his ruling by saying he would not have changed his decision if he had known about the assertions about the cave's potential collapse.

He said he could have ordered a review by an "appropriate" structural engineer to consider whether the reopening would cause any damage. Remedial action could then be taken to minimize any damage, he said.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com.