LIHU'E — Within Joseph Brescia's 15,667-square-foot beachfront house lot on Kaua'i's north shore are 30 known burials of pre-Western-contact Native Hawaiians.

To Kaua'i residents Jeff Chandler, PuaNani Rogers and numerous other Native Hawaiians and others following the case, that constitutes a cemetery.

The proper action for such a small land area with so many burials is that the iwi, or bones, be left in place and nothing be built there, they say.

That's actually what they thought — or hoped — was going to happen after the Kaua'i-Ni'ihau Island Burial Council voted April 3 to "preserve in place" all 30 sets of remains.

The council is charged under state law with deciding whether to preserve in place or move burials discovered before construction on a site begins. Disposition of inadvertent discoveries of bones after a project begins are handled by a state archaeologist in collaboration with the builder.

Brescia has every right to build a house over the graves on his land because he's complying with a burial treatment plan for the property that the State Historic Preservation Division approved on April 24, his attorneys say.

But Chandler's attorney, Alan Murakami, of the Native Hawaiian Legal Corporation, says that Nancy McMahon, the division's deputy administrator for archaeology, improperly approved the treatment plan without consulting with the Burial Council and with lineal and cultural descendants of the iwi as is spelled out in state law.

McMahon also didn't try hard enough, or require Brescia's contract archaeologist to try hard enough, to inform members of the public of the 30 burials with enough detail about them, Murakami alleges.

Brescia's attorneys, Philip Leas and Calvert Chipchase, say that McMahon's approval of the burial treatments was correct. If Chandler had a problem with either the Burial Council's or McMahon's actions, he could have formally registered as a descendant and filed appeals, but he did not, they said.

Besides, Brescia's attorneys argued, the "concrete jackets" forming underground vaults around the burials and concrete footings that will support the house are already in place.

No more earth-moving work is expected that would disturb the other 23 burials on the property.

The two parties have been facing off before Fifth Circuit Judge Kathleen Watanabe, and Chandler is seeking a preliminary injunction to stop any further construction on Brescia's property.

Vince Kanemoto, a deputy state attorney general who represents both the Burial Council and the State Historic Preservation Division, has been defending McMahon's actions in court.

Watanabe said she will rule on the matter by Sept. 16.

Chandler, a lifelong Kaua'i resident who is seven-eighths Hawaiian, says he never intended for this to end in a courtroom.

Chandler testified that when he appeared before the Kaua'i-Ni'ihau Island Burial Council on Feb. 7 and April 3, identified himself as a descendant of the iwi and asked that they not be moved, he expected that would happen.

Testimony from Chandler and from Kai Markell, the former director of the state Burial Council program, emphasized that traditional Hawaiian cultural practice holds that the skeletal remains of Hawaiians should be protected from intrusion from strangers.

In Markell's opinion, moving, desecration or disturbance of iwi can produce real harm in living descendants in the form of 'eha (hurt, pain or suffering), kaumaha (feeling burdened, sorrowful), and manewanewa (grief, sorrow and mourning).

When asked if construction over the graves has personally harmed him, Chandler wept and choked back emotion before saying: "It's already taken its effect on me. ... Not only me, it's affecting my family."

Chandler also testified that he doesn't believe he should have to prove to the state that his family is from the area and therefore he is likely to be related to the iwi.

Chandler said he wants to preserve the site, which has archaeological evidence that ancient Hawaiians lived there, "as a significant cultural site for future generations." Among the artifacts found in addition to the burials are fishing lures and tools, fire pits and post holes.

Chandler filed his lawsuit against Brescia after Brescia sued Chandler, Rogers, Ka'iulani Huff and others, alleging they were trespassing on his land, harassing him and depriving him of the use of his property. That lawsuit was filed June 5, two days after protesters rallied on a nearby beach to pray for the Hawaiian ancestors' bones.

From Brescia's point of view, as he spelled out in a press release in June: "I am not wealthy enough to abandon as a charitable donation the more than a million dollars of my family savings, nor the more than seven years invested toward our home. If there is anyone or any organization willing to pay for the property, I am willing to listen."

In the meantime, he's moving ahead with house construction.

Watanabe warned parties Thursday that based on the legal guidelines, "this court has a very small amount it can do with this case."

"The biggest problem is the law does not go far enough to protect these burials," Watanabe said.

"Perhaps the best thing that will come out of this case will be some changes in the law," she said.

Public concern over the treatment of 1,000 Native Hawaiian burials found at the site of a Ritz-Carlton resort at Honokahua, Maui, in 1989 led to current state law regarding unmarked graves.

But chronic staff shortages at the State Historic Preservation Division and questionable actions by staff weaken the effectiveness of the law, Murakami said.

Watanabe emphasized Thursday that each party in the case brought out some points she found helpful.

Testimony by Burial Council members Presley Wann and Barbara Say "clearly indicated to the court (that the council's decision) may not have been an informed decision on their part."

Watanabe said she found Chandler's description of how the situation pained him "very sincere."

"The court will prioritize this despite our heavy trial schedule, because the treatment and preservation of burials — this court recognizes as very significant and the court takes the matter very seriously," she said.

Reach Diana Leone at dleone @honoluluadvertiser.com or 808-245-3074.