Hawaii Supreme Court
Hawaii Supreme Court

BY ROBERT THOMAS – As of 10:00 a.m., the $5.3 billion Honolulu rail project is officially in jeopardy. (Update: full report on the oral arguments here)

The Hawaii Supreme Court just concluded oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611 (preview and briefs posted here), and 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.

In the film “The Descendants,” George Clooney portrays a Honolulu lawyer who is also the trustee of an alii trust, but if they make a movie about the Kaleikini case, it would lay a better claim to the title.

Hawaii law requires that the government consult with persons who are descendants of “iwi kupuna” (Native Hawaiian remains) before commencing developments, and then take mitigation measures if any are discovered. The issue in this case is whether the City was required to evaluate burials that may be located in the latter phases of the rail project before it turned the first shovel of dirt in the first phase. The heart of the case is whether the City and State have the discretion to define the scope of the project, and can decide to break it up into pieces, rather than evaluate the entire Kapolei-to-Ala Moana route.

As Deputy State Attorney General William Wynhoff argued, it was reasonable and practical for the agencies to conclude (along with the trial court) that the possible presence of burials in Kakaako should not hamper construction going on twenty miles away in Kapolei. That may be true, but the Hawaii Supreme Court has in the past not been swayed by arguments about practicality (see the Superferry case, for example), and is especially skeptical of agencies’ claims that they get to define the scope of their own authority (see Superferry and other cases), especially when environmental plaintiffs or Native Hawaiians are making the claim.

The court was active in its questioning, and particularly skeptical of the City’s and the State’s arguments. Circuit Judge Mark Browning, sitting by designation for the recused Justice Acoba, asked perhaps the most difficult question when he challenged the private attorney representing the City who argued that there was no actual threat to burials since the City can undertake mitigation measures, or can even move the rail alignment should they be discovered: “How do you know there’s no actual threat,” Judge Browning asked, “unless you’ve studied it?”

The City’s lawyer was hard pressed to answer that question. It appears that at least three of the Justices (Nakayama, McKenna, and Judge Browning) are inclined to view the government’s ability to define the rail project as a series of four discrete segments with very little deference.

More to follow, including a more detailed run-down of the arguments.

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.