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State Supreme Court hands rail opponents victory over burials

  • 2012 MAY 31 CTY Shoot archeological survey being done for the rail project. AIS trench work Tuesday in Kaka`ako on Pohukaina Street between Keawe and Cooke Street next to Mother Waldron Park. SA photo by Craig T. Kojima

Opponents of the $5.26 billion Oahu rail project won a clear victory today when the Hawaii Supreme Court ruled that a state agency violated its own rules by approving the rail project before an archaeological survey was completed for the entire 20-mile rail route.

In a unanimous ruling, the court found that rules governing the State Historic Preservation Division “do not permit the SHPD to concur in the rail project” until the city completes the survey to determine if there are Native Hawaiian burials or other archaeological resources in the path of the rail line.

The city has been surveying the rail route in sections, and still has not completed the portion of the route in urban Honolulu where experts agree that burials are most likely to be found.

The ruling sends the case back to Circuit Court for further proceedings.

The case was filed by Paulette Kaanohiokalani Kaleikini, who was represented by David Kimo Frankel and Ashley Obrey of the Native Hawaiian Legal Corp.

“Our client feels vindicated by today’s decision, and is very grateful for all the support that she has received in her efforts to protect iwi kupuna,” Obrey said in a written statement.

Longtime rail opponent Cliff Slater said he expects the case will now go back to Circuit Court, where a judge will issue an injunction to stop construction until the archaeological survey is done.

That would be extremely expensive, because contractors working on the project will file delay claims with the city, said Slater, who was not involved in this lawsuit but is a plaintiff in another suit challenging rail.

“They can’t say we didn’t warn them,” Slater said. “We were saying from the get-go that this (survey) had to be done.”

Construction of the project began this year on the first segment from East Kapolei to Pearl Highlands, and a contract was awarded last year to Kiewit Infrastructure West Co. to build a second segment from Pearl Highlands to Aloha Stadium. Future segments are planned from Aloha Stadium to Middle Street, and from Middle Street to Ala Moana Center.

The Supreme Court concluded it is “indisputed” that the rail project has a high likelihood of affecting burials or other archaeological resources in portions of Kakaako, which is in the final segment of the project.

Deborah Ward, a spokeswoman for the Department of Land and Natural Resources, which oversees historic preservation, said the department had no comment. State attorney general’s office spokesman Joshua Wisch said the ruling is being reviewed and analyzed. The city didn’t immediately comment.

Obrey said it’s not clear how long it will take to return the case to Circuit Court.

In the meantime, the corporation sent an email to the city today saying continuing with construction is illegal and that if the city doesn’t respond by 8 a.m. Monday, the corporation will file for restraining orders and injunctive relief. "We hope the city in good faith would follow what we believe the law to be," Obrey said.

Today’s ruling will at least slow the city’s plans, with a court injunction likely to halt construction, said Randall Roth, a University of Hawaii law school professor. Roth, Slater and former Gov. Ben Cayetano are plaintiffs in the separate anti-rail lawsuit.

"It’s difficult for me to imagine the Circuit Court won’t grant an injunction," he said, adding he was not surprised by the ruling. "In my mind, the only question has been whether it would be unanimous or not."


The Associated Press contributed to this report.



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