LIHUE » Trespassing charges were dismissed yesterday against five of the eight people who chained themselves together in August to protest the building of a home on top of an ancient Hawaiian graveyard.

After lengthy discussions, prosecutors and defense attorneys agreed that the six men had no choice but to block construction “;due to the failure of the administrative process,”; according to court papers.

The five men - Palikapu Dedman, Andre Perez, James Huiff, Andrew Cabebe and Hanalei Fergerstrom - were part of a group that blocked construction of a North Shore home in August after trying to get the homeowner to stop building the home atop at least 30 graves.

But another Kauai judge decided in September that the state Historic Preservation Division did not follow its procedures when granting homeowner Joseph Brescia his burial treatment plan in 2007.

Because the administrative process failed and the men were acting to “;prevent an imminent harm to the iwi kupuna at the property,”; the protesters “;acted reasonably to prevent further harm by peacefully placing themselves between construction and”; the bones, according to a stipulation of facts agreed upon by defense attorneys and prosecutors.

District Judge Trudy Senda warned, however, that this case was not precedent-setting because it was only confined to their actions on that August day.

However, after the dismissal, the protesters said they will do it again if Brescia continues building.

“;Everyone knows building a house on 40 burials is just wrong,”; Perez said. “;Anyone with a sense of humanity can understand our actions.”;

A new burial treatment plan has yet to be completed for the home since one was rejected in November by the Kauai Burial Council.