BY MALIA ZIMMERMAN – Construction on Honolulu’s controversial $5.2 billion elevated steel on steel rail project is coming to a halt.
David Frankel, an attorney with the Native Hawaiian Legal Corporation, and officials from the Honolulu Authority for Rapid Transportation, met on Monday for 90 minutes to negotiate a resolution after the Hawaii Supreme Court dropped a bombshell on the rail project and its backers on Friday.
In a unanimous 82-page opinion in Kaleikini v. Yoshioka, Hawaii Supreme Court justices said the City did not comply with the State’s historic preservation and burial protection laws when it failed to complete an archeological inventory survey for the 20-mile route before starting construction.
The court maintained “it is undisputed that the rail project has a ‘high’ likelihood of having a potential effect on archeological resources….”
Paulette Kaleikini, a native Hawaiian with family members buried in Kakaako, possibly in the rail’s path, was represented by Native Hawaiian Legal Corporation and Frankel when she challenged the city’s decision to begin construction in the state’s highest court.
Frankel said City officials told him on Monday they would like to complete a few short-term tasks for public safety such as backfilling a trench; continue longer-term maintenance activities such as erosion control measures; complete the required archaeological inventory survey and perform other “miscellaneous activities.”
“The City is currently working on a list that would describe these activities with specificity. Attorneys for Paulette Kaleikini and the City are in discussions regarding whether any of these activities should be allowed to proceed,” Frankel said. “For all intents and purposes, construction of the project has been halted although there may be some narrowly tailored, low-impact exceptions.”
On Friday, Frankel threatened to file an injunction if HART did not comply with the Supreme Court ruling.
A statement from the Honolulu Transit Project Public Involvement team sent late Monday confirmed in order to avoid additional litigation costs, HART will not perform any “new” construction.
“HART has not yet determined the final details with respect to the recent state Supreme Court decision. In the meantime, in order to avoid additional litigation costs and until we are able to obtain guidance from the circuit court, no new construction, including ground-altering activity, will be done until the archaeological survey work is completed,” the HART public involvement team said.
“HART is working with its contractors to determine what work will be necessary for public health and safety, to secure and maintain the job sites, or to otherwise responsibly wind up ongoing activities. All parties involved have agreed to work together to address any issues that may arise in the coming weeks,” the statement continued.
Neither Honolulu Mayor Peter Carlisle, nor Mayoral Candidate Kirk Caldwell, who pushed for the rail project to move forward before the investigations were complete, had any comment today. City council members, the majority of who approved the rail project every step of the way, were also silent.
But Former Gov. Ben Cayetano, who is running for Honolulu mayor in the November 6 General Election against Caldwell and is a plaintiff in a federal lawsuit to stop the rail project, said he is glad the city will comply with the court order.
He sent a letter to Honolulu Mayor Peter Carlisle and Honolulu Authority for Rapid Transit CEO Daniel Grabauskas on Monday, asking them to immediately stop both the construction and design work.
Cayetano said it is important to stop both the construction and the design work and not just construction.
“In the event the archeological study discovers massive iwi and burial sites in the path of the current rail route, significant changes may have to be made. By allowing the design and construction work to continue the City is running up millions of dollars in costs–costs that will ultimately have to be borne by the taxpayers of Honolulu,” Cayetano said.
Many rail critics and legal observers predicted the Hawaii Supreme Court would rule against the city.
Attorney Robert Thomas said on May 24 after attending oral arguments in the case “it does not look good for the City and the State.”
“The court’s majority seemed highly skeptical of their arguments that government agencies have the discretion to determine the scope of the rail project, and have the authority to “segment” or “phase” it, and thereby put off evaluation of the entire project’s possible impact of burials,” Thomas said.
Kehaunani Abad, PhD, an archeologist specializing in native Hawaiian burials, calls the Kakaako area “burial central.” She wrote in an editorial in the Star Advertiser on April 29 that as early as 2005, “the Oahu Island Burial Council raised red flags about the elevated heavy rail project affecting Hawaiian burials.”
Three years later, after learning of the city’s plans, she said “the Oahu Island Burial Council protested the selected rail alignment because it would collide with burial concentrations.”
Transportation Experts Cliff Slater and Panos Prevedouros PhD battled the city for years over the rail project, and maintained the city should at least wait until the lawsuits and election was resolved to start the project.
When construction began on April 23, HART CEO Dan Grabauskas told Hawaii News Now: “The column you see beginning construction today will be standing there 100 years from now.”
That day, Carlisle said: “People can jump and scream and swear they’re going to stop it, and they’re going to have a real hard time doing it … It’s idiot mayor proof because of the HART board, it’s their decision, it is not the mayor’s decision.”
The Hawaii Supreme Court ruling will delay construction for at least 5 to 7 months, and could cost taxpayers even more in penalties from rail contractors and subcontractors.
Grabauskas said Friday he was unsure how much the delays would cost and if there is a provision in the city contracts with rail contractors for such legal delays.
While U.S. Senator Daniel Inouye, the project’s most powerful supporter, maintained at an April 12 rally for the project: “It’s on track. The only thing that will stop it would be World War III.”
Walter Heen, a former state and federal judge, said on Friday he believes the state’s high court ruling is the beginning of the end for the rail.
Heen joined Cayetano and 6 other plaintiffs in a federal lawsuit against the city and federal government, challenging the city’s Environmental Impact Statement, which they are optimistic they will win. The lawsuit was reviewed by Ninth Circuit Court Judge Wallace Tashima on August 21 and he is expected to issue a ruling within a matter of weeks.
Heen is also a co-chair for Cayetano’s mayoral campaign – and he believes Cayetano will win the November mayor’s election and end the project.
Rail critics say either of the rail suits or the mayor’s election could derail the rail for good. At the very least, if any native Hawaiian burials are found along the route, going into “burial central”, it could delay the project as much as 18 months.