BY MALIA ZIMMERMAN – Paulette Kaleikini and attorneys from the Native Hawaiian Legal Corporation won a major victory in the Hawaii Supreme Court on Friday when all five justices unanimously ruled the city must complete its archeological survey before beginning construction on its planned 20-mile elevated steel rail system.
The Supreme Court justices said the city and state violated the law when they authorized the project without first inspecting all 20 miles of the project for native Hawaiian burials or iwi.
The city claimed it could parcel the route into four sections, but the justices did not buy the argument and remanded the case back to the First Circuit Court where the judge will have to review the Supreme Court decision and revise his earlier ruling against Kaleikini.
Despite three pending lawsuits challenging the project, the city began constructing the controversial $5.2 billion rail earlier this year, and has already erected at least 12 support pillars in the vacant Ewa plains in West Oahu.
But the city’s Honolulu Authority for Rapid Transportation (HART), the agency charged with constructing and managing the project, has no intention of stopping the rail construction – at least not yet.
Dan Grabauskas, executive director of HART, said he will rely on the 9 board members and city attorneys who will meet Thursday to determine what should be done next. In the meantime, construction will continue on Monday through Thursday of this coming week and possibly longer, depending on what board members decide.
Attorneys from the city will meet with Native Hawaiian Corporation lawyers to see if they can come to some sort of agreement – if not, they will be back in the lower court again and Frankel will seek an injunction against the city.
Paulette Kaleikini was unhappy with HART’s plan to keep building the rail despite her victory. She maintains the ruling from the Supreme Court was very clear – work on the rail needs to stop immediately.
Kaleikini is concerned that the rail construction, especially when it reaches the Kakaako area in Honolulu, will impact a number of large graveyards areas where her native Hawaiian ancestors may be buried. Hawaii law requires native Hawaiian burials be treated as if they are any modern graveyard. This can complicate construction because iwi are scattered heavily throughout Honolulu.
Former Gov. Ben Cayetano and Retired Judge Walter Heen, who are two of 8 plaintiffs in a federal lawsuit to stop the rail project all together, were pleased with the Supreme Court ruling.
Heen, who is on the board of the Native Hawaiian Legal Corporation, said Kaleikini was able to do what no one else in the state has been able to do yet – stop the project – or at least slow it down.
Cayetano said the ruling vindicates what he and other plaintiffs in the federal case have been saying – the city has not acted legally when it comes to the rail. He said the city rushed the project for political reasons.
Cayetano is running for mayor in part to stop the project because he believes it will bankrupt the city and prevent the city from spending the $12 billion to $15 billion it should to fix dilapidated infrastructure.
Cayetano’s opponent, Kirk Caldwell, supports the rail and had maintained the city acted legally when it started the project without completing the entire assessment. Caldwell was quiet today – no press conferences. And Honolulu Mayor Peter Carlisle, who pushed the project through, also did not comment.
But Cayetano said he felt vindicated.
Heen believes the Supreme Court action can only help Cayetano’s mayoral candidacy.
In a separate case, eight plaintiffs in a federal lawsuit filed last Spring, went before U.S. District Judge Wallace Tashima on Tuesday, August 21.
The plaintiffs, which include Heen and Cayetano, asked him to throw out the city’s Environmental Impact Statement that was approved by the FTA.
The plaintiffs believe the rail is illegally infringing on native Hawaiian burials, historical landmarks and the environment and violated the National Environmental Policy Act. The judge is expected to rule in the next several weeks.
City officials have maintained they started the rail project because they believed they would win in court and said delaying the construction would be more costly than building the rail pillars and then tearing them down.
They lost the first of what could be four battles, which include at least three lawsuits and an election.
Grabauskas told reporters there is no contingency plan – he will rely on the HART directors for that.
He believes the Supreme Court ruling could delay construction by a few months, possibly until January 2013.
But Heen, who served as a judge in both federal and state court, predicts this case will kill the project all together.
Grabauskas would not say how much the delays will increase the cost of the project or whether the city will pay any additional charges to contractors.
But he added: “This is a temporary setback but I make no bones about the fact that to the degree that delays result from this ruling, delays will cost money.”