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.

5 COMMENTS

  1. Looks like this may be a repeat of the H3 fiasco, which took about 30 years to build 15 miles of highway. I would have thought that all the questions being asked now (about the rail project) would have already been asked and answered when the H3 was built.

  2. Oh, oh! Watch out! Here comes Senator Dan with another Congressional exemption for the rail from ALL LAWS stopping its progress…ala H3. Remember, H3 is the only US funded freeway in the nation exempt from any environmental laws.

  3. I agree. But theres a lot more issues with the rail than there was for the H3. The feds paid for the H3. We’re paying for the rail. The H3 didn’t move people from their homes or force longtime small business owners to shut down. The rail will. The fact that they started construction without serveying the entire length of the rail is just another way of shoving this train to nowhere down our throats.

  4. I don’t get it. Panos Prevedourous has about a dozen suggestions that would cost our state about $300 million to implement, that sound to me, like they would solve the traffic problems we have, and make the congestion “manageable”. Shouldn’t we TRY those first?

    I think the rail is crazy expensive and a stupid gamble that imo, won’t work.

  5. The FTA figures INDIGENOUS translates into Dig into the generations and never mind that they are the ancient peoples of the land. The Federal government always wanted to own ALL the land of the ahupua’a. This way the FEDs can do just that with the white man laws. Give’em a couple inches, they take 20miles. No surprise Akaka is pushing his Bill through now to limit full ownership of the entire state as it should be. We lent land for the purposes of strategic mission. Never acquiesced for purposes of, Gee, I think because I like you, I will give you all my land. It was taken, plain, simple, and very clear. Because of the mass slaughter that would occur, the Queen did not resist in the overthrow. That was apologized for. Oh, I am sorry we took your land. Now we want to limit you to one square mile and take more, by eminent domain if need be as well. Gee, good thing they were attacked Henry, or we would never have gotten this far. Good thing we have someone calling those Hawaiians, Humpty Dumptys on the mainland today! We might just pull this off yet with Grabby as head of Hart, and the smearing of the Filipino guy that seems honest when he says he will stop it. We might be able to stop that too. Those dumb Hawaiians; been dumb all our lives they say. If we so dumb, why they come and try steal our land with steal again? Why do they no consider that we may have learned something from the last time someone gave us a steal gift long ago? At least we are more ready to listen to the educated that never had a chance to push his educated transit plan, far more reasonable and less costly for island purposes.

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