State wary of project impact law

Distressed that a state Supreme Court ruling that halted construction of the Hono­lulu rail project could also sidetrack state highway projects, the Abercrombie administration wants the state to be able to review in phases the potential impact of construction on burials or other historic sites.

The Supreme Court ruled in August that the State Historic Preservation Division failed to follow state law when it signed off on the $5.26 billion rail project before an archaeological inventory survey was completed along the 20-mile route from Kapo­lei to Ala Moana Center. The court found that the city erred by granting a permit for the rail project and by starting construction before the historic preservation review process was finished on all four phases.

The city suspended construction after the court ruling and is completing an archaeological survey on the entire route. Archaeologists have uncovered human remains, or iwi, during fieldwork in Kakaako and downtown since the ruling.

The Abercrombie administration has asked state lawmakers to amend the law so historic preservation reviews can be conducted in phases. The court ruling, the administration warns, could affect state highway projects that are often built in phases because of federal funding and timelines as well as practical considerations such as the timing of property condemnations.

"If all highway projects cannot be phased," the administration argues in its justification for the change, "it is possible that new highways cannot be built or old highways cannot be widened."

The administration also said that the state Department of Hawaiian Home Lands and other state agencies that phase projects over time could be affected by the court ruling.

William J. Aila Jr., director of the state Department of Land and Natural Resources, which oversees the State Historic Preservation Division, said the change would align state law with federal law that allows for phasing during archaeological and historic reviews.

"Otherwise, think of it, you wouldn’t have any multiyear projects," Aila said. "You wouldn’t build any highways. You wouldn’t build any long bridges. You wouldn’t build any dams. You have to allow phasing when you have multiyear funding for projects."

But Aila anticipates opposition. "Controversial? Absolutely," he said.

Many Native Hawaiians and conservationists view the state historic preservation law as critical to protect historic and cultural resources. But the State Historic Preservation Division, which is responsible for enforcing the law, has been under federal review for a chronic inability to live up to its mission.

"Decision-makers need to know where historic and cultural resources are before they grant a permit so that they can ensure the resources are properly protected," said David Kimo Frankel, an attorney for the Native Hawaiian Legal Corp. who represented Paulette Kalei­kini, the Native Hawaiian woman who successfully challenged the state and city over the Hono­lulu rail project.

"If you give a permit first, those resources are not protected."

The Supreme Court’s unanimous ruling in Kalei­kini v. Yoshi­oka overturned a Circuit Court decision in March 2011 in favor of the state and city. Circuit Judge Gary Chang had held that archaeological inventory surveys for construction projects could be done in phases, unlike environmental impact statements, where segmentation is prohibited.

The rail project involves four phases, and experts had predicted that construction of the last portion of the route — Middle Street to Ala Moana Center — could uncover burials.

State Rep. Karl Rhoads (D, Chinatown-Iwilei-Kalihi), chairman of the House Judiciary Committee, said he would be open to hearing the Abercrombie administration’s request, even though he does not have a problem with the Supreme Court’s interpretation of the law.

"I think it’s just reverting to the way it’s been for years," he said of allowing historic preservation reviews in phases.

State Sen. Clayton Hee (D, Heeia-Laie-Wai­alua), chairman of the Senate Judiciary and Labor Committee, said he is not comfortable with phasing.

"In my opinion, you do an entire survey, and you look at it so that you avoid the situation where you might do five of six phases, then all of a sudden the project comes to a screeching halt," he said. "And the logic from the economic perspective is, ‘Well, we finished five of six. It doesn’t make sense that we shouldn’t finish the sixth.’

"So what happens is, in this case, the presence of bones gets compromised," he said. "It becomes an economic equation, not a cultural" protection.