AG: Iwi kūpuna destroyed after Hawaii halted North Shore project

Three sets of Native Hawaiian skeletal remains, including those of a very young child, were uncovered and later pulverized into hundreds of pieces under a heavy excavator during the installation of a septic system in Haleʻiwa last month.

The remains were first discovered May 1 by a work crew at a residential construction site on Ke Iki Road and reported to the Honolulu Police Department the next day.

Archaeologists with the State Historic Preservation Division who visited the site May 2 were shown bone fragments that had been collected by workers using an L&L restaurant disposable foam cup, according to a motion filed in the First Circuit Environmental Court.

After the iwi kūpuna were discovered, a manager had “instructed the crew to collect the bone fragments, place them in a cardboard box, place a ti leaf over them, and say a prayer and finish the job,” according to an account by state preservation archaeologist Samantha Hemenway and archaeology contractor Lehua Soares.

The state agency ordered work at the site to stop the same day.

But between May 2 and May 15, an excavator at the scene was moved and driven over the three temporary burials, breaking the iwi kūpuna into “1,000 bone fragments,” according to the court document.

An anonymous tip on May 15 brought Hemenway and other conservation staff back to the site, where they discovered the leach field excavation had been filled in and the excavator had been driven over the site and down the length of the driveway.

That much is not in dispute, but the Attorney General’s Office has asked the court to place a temporary restraining order on the landowner Elan Argil and his contractor Dumore Construction And Remodeling.

The motion alleges Argil and construction crews continued to work at the site between May 2 and May 15. “Defendants have exhumed, moved, and destroyed iwi kūpuna, even after explicitly being told and agreeing to stop work,” the filing said.

Those activities were an apparent attempt by Argil and the contractors “to finish their work before they can be forcibly stopped,” according to the motion.

Argil acknowledged the remains were damaged but denied the state allegations that any work had continued in a phone interview Wednesday.

“I informed everybody that nobody can come and nobody can touch anything. I was fully respectful of the process,” he told Civil Beat.

Instead, he said, the damage was done when an excavator that had been rented by Dumore was retrieved by the rental company without their knowledge.

Argil said the construction at Ke Iki was being done for his private residence. The Honolulu Department of Planning and Permitting has not issued the final building permit but had given him a permit for the new septic system. He hired Dumore to carry out the installation.

Argil said the damage was caused after the backhoe that Dumore had rented for the work was retrieved by the rental company without telling him or the contractor.

In an interview Wednesday, Dumore’s owner Steve Lequire said that none of his employees had been on the site since it was roped off on May 2, and he had never been on the scene.

“I was told that somebody came there with a trailer and took the equipment and that’s the reason why they’re filing a restraining order to keep us off the property,” he said.

Lequire said his company uses several rental companies so he wasn’t sure which one was responsible for moving the excavator.

The motion filed by the Attorney General’s Office asked the court to order Argil, Dumore and other contractors involved “to cease all ground-disturbance activities” until the iwi kūpuna are protected.

The AGʻs filing said, “there is no question that Defendantʻs activities violate Hawaiʻi state and administrative laws and that the State will prevail on the merits.”

A status conference on the temporary restraining order request was scheduled for Thursday in Honolulu.

Iwi Kūpuna Are Crushed And Scattered

The discovery of ancestral remains or iwi kūpuna in the island state has accelerated as the result of coastal development and erosion caused by sea level rise.

Unexpected discoveries are also being driven by legislation enacted in 2017 requiring the replacement of the state’s 80,000 cesspools by 2050. The State Historic Preservation Division halted the conversion of four cesspools to septic at Wainiha on Kauaʻi’s North Shore last October after iwi kūpuna were discovered there and Native Hawaiian activists occupied the property.

Hawaiʻi’s Intermediate Court of Appeals previously has determined that the protection of human remains was in the public interest, and “that injunctions should be granted to ensure their protection,” the AG’s filing said.

The same court ruled as recently as May 25, that the Hawaiʻi Board of Land and Natural Resources, which includes the historic preservation division, “had a duty to preserve and protect traditional and customary Native Hawaiian rights to protect iwi kūpuna.”

Despite working as a contractor for over 20 years in the state, Lequire said it was the first instance where his workers had come across any remains. He was told during a meeting on May 1 that there were “three skeletons in the pit.”

“My foreman on the job, he looked at it and he’s like, ‘I don’t know what that is.’ And I think a neighbor actually walked over and said, ‘Maybe it’s like, you know, some old bones or something.’ So, they called the cops,” Lequire said.

After HPD determined the remains were iwi kūpuna, state archaeologist Hemenway “placed flag pins where bone fragments had been encountered,” as well as flagging an area inside the property’s security gate “where construction workers had established an area to gather any skeletal remains found on the site,” according to her declaration.

When Hemenway returned with another state preservation staffer and a Division of Conservation and Resources Enforcement officer on May 15, only the pin flag at the gate was undisturbed.

“In the tracks of the excavator,” Hemenway said “Regina Hilo and I identified and recovered two isolated bone fragments that had been further displaced by using the excavator to back-fill the excavation site and remove the excavator from the property.”

Photos submitted by Hemenway show almost half of the proposed leach field site filled with sand from the excavation and a red backhoe on top of a trailer on Ke Iki Road in front of the property.

Lequire said he “can understand if the rental company came back and took their equipment, I can understand that because they must be losing revenue. But I’m not going to pay for it if it’s just sitting there, this thing could take years.”

Argil said he had immediately granted the State Historic Preservation Division access to the property and complied with directions to retain an archaeologist to consult, all of which Hemenway’s declaration confirms.

“Now I am finding myself where I have to pay a lot more money, and I have a restraining order against me,” he said. “I did not continue. I was not there trying to do anything else, because why would I want to do that? It was all flagged and all photographed.”

Argil said he hired the archaeology consultancy Pacific Legacy from the list the preservation division had supplied but he terminated the contract on May 23. Mara Mulrooney of Pacific Legacy said Wednesday she wasn’t able to comment.

Argil said he planned to hire a larger archaeological team to go over the site. The backfilling makes the treatment of the fragmented human remains more complicated and more costly. “Instead of sifting 50% of the sand, they will have to do 100% of the sand,” he said.

Argil said the cost of managing the remains would jump from $40,000 to around $100,000, so “there’s going to be a bunch of lawsuits going on.”

Lequire also is bracing for financial impact, saying he was trying to retain an attorney to represent his company in the state’s motion for a restraining order. He has been told that the minimum retainer is $10,000.

“I don’t think it’s fair to the homeowner, because he didn’t put the bones there and we did our part by calling out when we found them and we haven’t been back there since,” Lequire said.

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This story was originally published by Honolulu Civil Beat and distributed through a partnership with The Associated Press.