LIHU'E, Kaua'i — The State Historic Preservation Division failed to follow state law regarding Native Hawaiian burials at a Kaua'i beachfront house lot where 30 sets of human remains were found, Fifth Circuit Judge Kathleen Watanabe ruled yesterday.

The agency must now consult with the Kaua'i-Ni'ihau Island Burial Council, any lineal descendants of the remains, interested Hawaiian organizations, and landowner Joseph Brescia about a revised burial treatment plan, Watanabe said.

That step should have been taken earlier this year, after the burial council voted in April to preserve the burials in place, Watanabe noted. State archaeologist Nancy McMahon then improperly approved a burial treatment plan without the required consultations with the burial council and others, Watanabe said.

Watanabe did not halt construction of a house on the 15,667-square-foot lot on Kaua'i's north shore, as requested by plaintiff Jeff Chandler, a Native Hawaiian who claims the burials as his forebears. But she warned that any additional construction on the house proceeds with the understanding that the burial council could decide to relocate the graves now underneath it.

State rules governing burial protection recognize "that Native Hawaiian burials, especially, are vulnerable and often not afforded protection," Watanabe noted in her decision.

Chandler said he was grateful for the decision yesterday, although he'd have preferred that construction stop on the house.

"This is just the beginning for us as Native Hawaiians," Chandler said. "The court recognizing our rights is another door opening."

PuaNani Rogers, a Hawaiian activist who has followed the case, said she believes the burial council should be able to stop anything from being built on the graves.

Vince Kanemoto, the deputy attorney general handling the case, said the burial plan proposed by Brescia and already undertaken by Brescia's contractors will be presented to the burial council at its October meeting.

Construction to date has encased seven burials underneath the house in "concrete jackets" and maintains a "buffer" distance from them because the house is built on pilings above the ground.

That treatment is culturally unacceptable, Chandler and others testified during proceedings in Watanabe's court in August and earlier this month.

"We're pleased with the judge's ruling, without seeing an actual order," Kai Markell, director of Native Rights, Land and Culture for the state Office of Hawaiian Affairs, said yesterday. "We feel you really need to have people thinking about the ultimate disposition of these kupuna and carefully weighing the different options."

Markell said OHA may publicize a list of potential descendants of the iwi in an effort to find other families who might claim the burials and become involved in their care.

Native Hawaiian Legal Corporation attorney Alan Murakami, who represented Chandler, criticized efforts made by Brescia's contracted archaeologist and by the State Historic Preservation Division in trying to locate descendants.

"If this is not a shot over the bow of the SHPD, I don't know what is," Murakami said of Watanabe's ruling. "The state needs to step up and truly be a caretaker of these resources."

Calvert Chipchase, an attorney for Brescia, declined to comment on the judge's ruling.

McMahon's attorney, Deputy Attorney General Kanemoto, said she had no comment.