In light of rail ruling, woman wants Kawaiaha’o work to cease

An opponent of a construction project that has displaced close to 600 burials at Kawaiaha‘o Church is seeking a court injunction to stop work given the recent Hawaii Supreme Court decision that halted the city’s rail project.

Attorneys for the Native Hawaiian Legal Corp. filed the request Wednesday with Hawaii’s Intermediate Court of Appeals on behalf of Hawaiian cultural specialist Dana Naone Hall.

Hall had appealed to the intermediate court in February after a state Circuit Court judge dismissed a lawsuit she filed in 2009 against the project, a $17.5 million multipurpose building.

Among claims Hall made was that the State Historic Preservation Division of the Department of Land and Natural Resources should have required an archaeological inventory survey before construction commenced.

That in a nutshell is the issue over which the state’s highest court made its rail case ruling. The city is conducting such a survey along the rail line but began construction before the survey was finished. The city and SHPD contended that construction was permissible in areas that had been surveyed, but the court said SHPD’s rules don’t allow that.

David Kimo Frankel, an attorney who challenged the rail project and is representing Hall, said the rail decision supports Hall’s contention that Kawaiaha‘o Church should be forced to stop excavation work.

"Given the continuing desecration of hundreds of burials, the Hawaii Supreme Court’s recent decision describing the historic review process and (Hall’s) good-faith efforts to comply with the rules, immediate judicial intervention is required," the injunction request said.

The rail and Kawaiaha‘o Church cases are, however, different in one distinctive area.

In the church’s case the lower court ruled that state law protecting Native Hawaiian burials doesn’t apply because the burials are within a Christian cemetery. The church relied on an exemption for "known, maintained, actively used" cemeteries to obtain a state Department of Health permit to remove burials from its construction site that long had been covered by another building.

Through Aug. 18, church contractors have disintered 584 burials.

William Haole, chairman of Kawaiaha‘o’s board of trustees, said burial laws at issue in the rail case don’t apply to cemeteries or the multipurpose center project. "The church complied with all applicable regulations, and the Circuit Court’s decision affirmed that position," he said. "We are confident that the appellate court will likewise find that the motion has no merit."