Paulette Kaleikini and her attorneys from the Native Hawaiian Legal Corporation stopped construction on the city's rail project until the Archeological Surveys are completed
Paulette Kaleikini

BY CLIFF SLATER – In Paulette K. Kaleikini vs. Wayne Yoshioka et al., Kaleikini had sought,

(1) a declaration that the City and DLNR [Department of Land and Natural Resources] violated HRS §§ 6E-42 and/or 6E-8;

(2) a declaration that an AIS [Archeological Inventory Survey] must be prepared for the rail project prior to “decisionmaking on the project and/or commencement”;

(3) a declaration that the final EIS [Environmental Impact Statement] was “unacceptable” because it did not include an AIS;

(4) a declaration voiding “any and all state or county permits or approvals” for the rail project;

Today the Hawai‘i Supreme Court ruled unanimously that the City and the State had violated the law concerning the surveying of Native Hawai’ian burial sites. They said that,

“… the SHPD [State Historic Preservation Division] failed to follow its own rules when it concurred in the rail project prior to the completion of an archaeological inventory survey for the entire project. As explained below, the rules establish a sequential process under which an archaeological inventory survey must precede the SHPD’s concurrence in a project. As noted in the rules, “[t]he review process is designed to identify significant historic properties in project areas and then to develop and execute plans to handle impacts to the significant properties in the public interest.” HAR § 13-275-1(a) (emphasis added) …. the SHPD failed to comply with HRS chapter 6E and its implementing rules when it concurred in the rail project prior to the completion of the required archaeological inventory survey for the entire project. The City similarly failed to comply with HRS chapter 6E and its implementing rules by granting a special management area permit for the rail project and by commencing construction prior to the completion of the historic preservation review process.

“Accordingly, we vacate the circuit court’s judgment on [the above listed] Counts 1 through 4 of Kaleikini’s complaint, which challenged the rail project under HRS chapter 6E, and remand to the circuit court for further proceedings on those counts.”

Here is the full Hawaii Supreme Court ruling. How this will now proceed before Judge Chang is presently unclear.

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