In a unanimous opinion issued today in Kaleikini v. Yoshioka, (No. SCAP-11-0000611), the Hawaii Supreme Court ruled the City & County of Honolulu should have completed a full archaeological review for the entire 20-mile Honolulu rail project before construction began. The high court remanded the case back to the state’s First Circuit Court.
The city argued the archeological survey for the elevated steel on steel rail project now under construction in Kapolei could be done in a “phased” or segment-by-segment basis. (See the briefs here.)
But the court in an 82-page decision held State failed to comply with HRS chapter 6E and its implementing rules when it allowed the rail project to move forward prior to the completion of the required archaeological inventory survey for the entire project.
The City also failed to comply with HRS chapter 6E and its implementing rules by issuing a special management area permit for the rail project and beginning construction prior to finishing the historic preservation review process.
Attorney Robert Thomas, who attended the May 24 oral arguments at the Hawaii Supreme Court, predicted this outcome. He explains Hawaii law requires that the government consult with persons who are descendants of “iwi kupuna” (Native Hawaiian remains) before beginning 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,” Thomas said.
Thomas, who reviewed the ruling today, said the big question, given that the City has already started construction, is “now what?” The Court held that construction should not have started prior to a survey of burials for the “whole project,” but the city already started construction on the foundation pillars.
“The Supreme Court opinion does not provide obvious answers, but perhaps the procedural posture of the case does,” Thomas said.
In an email to Hawaii Reporter, Thomas said: “Recall that the plaintiffs’ asked for a preliminary injunction to halt construction, which the circuit court denied. The court then granted the City’s motion for summary judgment, ruling that no trial was needed because the law clearly showed the City was right. The Supreme Court overturned the latter judgment, holding that the law is otherwise, and sent the case back to the circuit court for further action. Does this mean that on remand, the circuit court will stop the rail construction in Kapolei until the city properly completes its burial survey for Kakaako?”
He said there are two points to consider:
“First, the Court noted that the lack of a proper burial evaluation does not mean the Final EIS is no good. The Court held the Final EIS was “sufficient.”
“Second, it held that the City gave “full consideration” to the cultural and historical values and did not violate state law in that regard.
University of Hawaii Engineering Professor and Traffic Expert Panos Prevedouros, who has been critical of the project, agreed.
“The Hawaii Supreme Court came to the correct conclusion that it is inappropriate to ‘piece meal’ a project and start on one piece while the impacts on subsequent pieces are being ignored. Clearly Mayor Carlisle and HART broke the law and must be prosecuted for wasting people’s money on a law breaking project,” Prevedouros said.
Cliff Slater, one of 8 plaintiffs who filed a federal case against the rail project, in part based on this issue, said he and many others have maintained all along that the city should have completed the archeological survey before the started construction.
“In the federal law, it is not to start construction until you have eliminated all the alternatives. What if bones are found all the way through on Halekauwila Street? That tells the city they should try another route or technology that does not disturb anything. It would seem like the lower court judge does not have much choice except to stop construction until the city archeologists complete the survey, but there is the political aspect of this case and there will be a great deal of political pressure on the judge from U.S. Senator Daniel Inouye and other powerful politicians in favor of this project,” Slater said.
University of Hawaii law professor Randall Roth, another plaintiff in the federal lawsuit, said: “I expect that the City will be required to stop construction until it completes the archeological inventory and secures the necessary permit. That theoretically could only slow down the City, so it wouldn’t necessarily stop the elevated heavy rail project permanently. I continue to believe, however, that we will win the federal lawsuit and that it will amount to a death blow to the rail fiasco. Soon the City will have to decide which of its many consultants provided flawed advice.”
Neither the Honolulu Authority for Rapid Transportation nor the spokesperson for Honolulu Mayor Peter Carlisle returned emails sent this morning inquiring about the ruling.
Their comments will be added into this report should they respond.
David Kimo Frankel, who argued the case for the Native Hawaiian Legal Corporation, will offer his comments at a 1 p.m. press conference today, and former Gov. Cayetano, a plaintiff in the federal lawsuit to stop the rail project, will speak at 2 p.m. today.
MORE ON THE WEB:
HAWSCT Oral Argument Recap – Who Defines The “Project” For Archaeological Review? and The Real “Descendants” Plays Out In The Hawaii Supreme Court – Honolulu’s $4+ Billion Rail Project In Grave Danger).