The fate of Kawaiaha'o Church's new $17.5 million multipurpose center will be before a state Circuit Court judge tomorrow.

Judge Karl Sakamoto will consider whether to dismiss the complaint of Abigail Kawananakoa over the disturbance of her ancestors' burial plot by the construction project.

Kawananakoa's suit, filed in July, alleges that trenching work disturbed the graves of her ancestors — Queen Kapiolani and her family. The suit names the church and various state agencies as defendants. It alleges a violation of public trust, along with manipulation of state law, desecration of graves and gross negligence, among other charges.

In August the church's attorney, Crystal Rose, filed a motion to dismiss the suit, saying that the historic burial laws do not apply to a widely known cemetery.

George Van Buren, Kawananakoa's attorney, filed a response last week, saying Kawaiaha'o Church's history as an ancient native Hawaiian burial site subjects it to the state laws.

He says the church tried to skirt the burial laws with full knowledge that the discovery of burials could be considered a concentration, particularly with 69 remains, and therefore be subject to the burial council and possibly preserved in place.

“;If native Hawaiian burials cannot be protected in the Capitol Historic District located across the street from the seat of state and local government, they can't be protected anywhere,”; he said.

Kawaiaha'o Church plans to build a new multipurpose center next door to its sanctuary at the site of the former Likeke Hall, which has already been demolished.

Church officials hope the center will revive the historical church's membership of about 300, offering classrooms, offices, a kitchen and gathering space for the youth ministry.

Construction has been put on hold since March.

Kawaiaha'o Church issued a statement maintaining that its cemetery is an active Christian cemetery and not a native Hawaiian burial site.

The church says it followed the state Historic Preservation Division's instructions, which simply required an archaeological monitor on-site. The church's own Na Iwi committee carefully cleaned and wrapped the remains in lau hala baskets for storage in its basement.

The church notes that as recently as this year, both the state Department of Health and the SHPD have reaffirmed Kawaiaha'o Church as a cemetery.

At dispute is whether the church is subject to the public trust doctrine. Van Buren says because the church is on the national and state historic registers, and the project affects native Hawaiians, it is. Rose says because the church is privately owned, it is not.

Kawananakoa's suit was followed by a second one filed in August by the Native Hawaiian Legal Corp. on behalf of Dana Naone Hall, who also claims her family's burials were disturbed by construction work.

Both suits seek to stop construction until a full archaeological inventory survey — a formal study of all the native Hawaiian remains — can be completed, along with an environmental assessment, and deliberations by the Oahu Island Burial Council.

Thomas Dye of T.S. Dye & Colleagues Archaeologists submitted a statement confirming that upon inspection by his team, the Kapiolani burial plot “;had been encroached upon”; and that a 1920s map used by the church was inaccurate.

The Office of Hawaiian Affairs, which gave the church a grant for the center, also wrote a letter in May, saying the remains should be reviewed by the burial council. OHA said it was not too late to put the project back on a proper course.