Any project that involves the disinterment of Hawaiian remains is never going to be a simple matter, even if, as in the case of Kawaiaha’o Church, the more straightforward laws governing a Western cemetery would be predominant. Moving the burials of any Hawaiian, regardless of religious tradition, brings additional cultural sensitivities to bear.

However, the proposal to build a multipurpose center on part of Kawaiaha’o’s cemetery property, well-intentioned as it may have been, has been mishandled, with enough blame to go around among the church’s development team and the state agencies that have been overseeing things.

Today in state Circuit Court, Judge Edwin Nacino is due to resume the hearing of a lawsuit seeking an injunction barring further construction on the site.

The suit was brought by Paulette Kaleikini, who objects to the project, asserting her standing as having family members buried on the construction site. The complaint alleges that the church is violating a state permit that requires removal of all human burials before the center is built.

It’s a complicated case, but Nacino is expected to focus on whether state law — prescribing how the property’s dedication to cemetery use is to be decertified — has been violated. Kaleikini makes the stronger case on at least that point, given the clear legal language on cemetery dedications.

The law, Hawaii Revised Statute 441.15, states that "property dedicated to cemetery purposes shall be held and used exclusively for cemetery purposes unless and until the dedication is removed from all or any part of it." How can the property be seen as being used exclusively for burial purposes if construction already has begun, before all the steps to removal have been taken?

Removal of the dedication, under the law, is to be carried out through a court order and decree to be filed with the state Bureau of Conveyances or Land Court. Subsections 15 and 16 dictate that a hearing must be held, with advance notice, and that the cemetery authority must prove to the court that remains have been disinterred from the site or that it never was used for burials.

Given that reading of the law, it’s difficult to see how the Department of Health and the State Historic Preservation Division of the Department of Land and Natural Resources could have issued the disinterment permit to Kawaiaha’o Church in October 2010 and included decertification after, rather than before, construction among the permit conditions.

There’s evidence of some interagency discord on this issue. Alvin Onaka, the DOH state registrar, sent a letter dated April 26, 2011, months after the permit issuance, to Frank Pestana, chairman of the church board of trustees.

Onaka acknowledged that his agency doesn’t make the final call on decertification — that falls to the Department of Commerce and Consumer Affairs — but added that "it is DOH’s understanding that decertification must occur prior to the building of the new building."

Regardless of Nacino’s ruling, the pursuit of Kawaiaha’o’s project is all but certain to involve further litigation, and that’s an unfortunate waste of resources all around. But nothing would have been wasted had this project simply followed the correct process, seeing that the cemetery be correctly decertified in full view of affected families and the general public.

Despite all the past and future upheaval at Kawaiaha’o, there is a public interest served in ensuring that the process is upheld, and such a court ruling is critical here.