LIHU'E — A contentious legal battle on Kaua'i over what constitutes proper treatment of unmarked Hawaiian burials could lead to new state laws on the subject, the judge hearing the case said yesterday.

Fifth Circuit Court Judge Kathleen Watanabe said she'll decide by Sept. 16 whether to grant Kaua'i resident Jeff Chandler's request that she stop construction of a house at a beachfront lot on Kaua'i's North Shore.

But Watanabe warned the parties that "this court has a very small amount it can do with this case," which involves the fate of 30 iwi, or Native Hawaiian skeletal remains, unearthed at the property.

"The biggest problem is the law does not go far enough to protect these burials," Watanabe said yesterday after three days of testimony regarding Chandler's motion for a preliminary injunction to stop construction on a lot owned by Joseph Brescia, a California resident.

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

Chandler's lawsuit names Brescia, state Historic Preservation Division Administrator Pua Aiu and state Department of Land and Natural Resources Director Laura Thielen. It alleges that Brescia's archeological consultants "submitted an incomplete and misleading burial treatment plan" to the state Historic Preservation Division about how he would deal with the burials, some of which are believed to date from the 13th century.

The Historic Preservation Division, which is a part of the DLNR, improperly overturned a decision by the Kaua'i-Ni'ihau Island Burial Council to "preserve in place" the 30 burials on the land, the lawsuit said.

Two members of the burial council testified in court Wednesday that they understood voting to preserve the iwi in place, as opposed to relocating them out of the proposed house footprint, meant Brescia could not build a house on the site.

But Nancy McMahon, the state's Kaua'i archeologist, approved Brescia's plans to place cement "caps" over burials located under the house, which is being built on pillars to raise it above the oceanfront flooding zone. And she did so without consulting with the burial council as required by law, alleged Alan Murakami of the Native Hawaiian Legal Foundation, Chandler's attorney.

McMahon's move was unprecedented, Murakami said yesterday outside of court.

When the Kaua'i-Ni'ihau Island Burial Council voted April 3 to "preserve in place" 30 ancient Hawaiian burials found on a beachfront house lot, its members didn't expect the landowner to build on top of the graves, he said.

Murakami said he's unaware of any other situation where a burial council decision to "preserve in place" resulted in construction on top of the gravesites.

Construction of the project was halted for two weeks in June and July by county police while the state attorney general and county attorney researched whether the building of a house atop burials constituted desecration under criminal law. The attorneys ultimately advised police that the civil laws under which Brescia preserved the iwi in place overrode the criminal law against grave desecration.

On Aug. 7, a number of protesters chained themselves together with homemade handcuffs in yet another attempt to stop construction at the site.

The group of men — who were from Maui, O'ahu and Big Island, as well as Kaua'i — left the site voluntarily that day without being arrested, but police have since ordered warrants for their arrest. Those had not been served yesterday.