POSTED: 1:30 a.m. HST, Feb 13, 2011
Not unpredictably for a controversial project of this magnitude, the city's $5.4 billion rail project ran into legal troubles right out of the gate. First up was a complaint over the process of awarding the first contracts, but it's the second — a challenge over the project's fulfillment of laws protecting Hawaiian burials — that presents the knottiest public-policy questions.
Often it's arcane legal principals that predominate in such court battles, but if common sense has a role, the city should seek a settlement that both allows this important project to begin at the west end and accelerates the survey of burials and other archaeological sites along the path.
In this second case, Paulette Kaleikini — a cultural practitioner who advocates for the care of iwi kupuna, the remains of ancient Hawaiians — is suing the city and state for allegedly proceeding with and approving an environmental impact statement before clearing some historic-preservation hurdles required by state law.
The law, Hawaii Revised Statutes Chapter 6E, sets up a process of review and community consultation in the early stages of a construction project aimed at preventing undue disturbance to iwi.
The core question seems to be: How early is early enough?
Kaleikini, represented by the Native Hawaiian Legal Corp., maintains that an architectural inventory survey should have been done along the entire 20-mile corridor of the rail project as part of the EIS process, and before any construction begins. The city counters by arguing that it's legitimate to break the project into phases and do the survey for each phase before starting construction in that area.
The city is eager to head off delays that could postpone indefinitely the scheduled Feb. 22 groundbreaking on the Ewa quadrant of the corridor: Last week, its lawyers filed a motion to dismiss the suit; so far, the other side hasn't sought an injunction to stop the project.
There are complicated legal issues here for the Circuit Court to adjudicate. The city contends that its EIS requirements on historic preservation were met through a programmatic agreement signed by state historic preservation authorities, but Kaleikini's attorneys say the regular review process can't be sidestepped.
While the attorneys battle it out, there's an opening for common sense here. It's already known that burials are expected to be found along the dedicated route. Especially in the Kakaako area, approaching the waterfront where burials were traditionally favored, many sets of remains have been unearthed in the course of developing several sites.
The best course for the city would be to begin the process of producing the archaeological survey now, especially in the zone where burials are most likely to be found. Chapter 6E provides for oversight of the construction process by state historic preservation officials and burial councils for each island. In an ideal world this would not be so onerous, but due to chronic vacancies on burial councils, state staffing shortages and other issues, reviews frequently bog down.
There are many problems with the implementation of the law that should be rectified, but meanwhile the city needs to work within the system it has. That system takes time, and giving the burials review ample time would be both the rational course of action with this massive rail project as well as a show of good faith where state burial policy is concerned.