Disrespect to iwi isn’t rail’s intent

The plan to develop a 20-mile mass transit system for Oahu was dealt a sucker punch last week when the state Supreme Court ruled in favor of a plaintiff alleging the start of construction and the approval of key permits were unauthorized by the state’s burial-protection law and regulations. At issue was the city’s decision to do its archaeological surveys in sections, to be completed before work begins in that particular phase of the project.

In a unanimous decision reversing a lower court ruling, the high court found that the State Historic Preservation Division, the office that oversees that law, should not have allowed the project to proceed until the entire length of the rail route had been surveyed. Daniel Grabauskas, executive director of the Honolulu Authority for Rapid Transportation, said HART would comply with the ruling and would not do further "ground-disturbing activities" until that’s resolved.

Three points should be raised:

» The city should pull out the stops to accelerate its archaeological survey, which is the key to reducing costly project delays.

» It’s not clear what the court considers compliance with the ruling. The city has reportedly halted major rail building, while banking on ground rules being set to allow some kind of work to continue in the interim. But that determination must come from the state Circuit Court, to which the justices have remanded the case.

» At that point, depending on the security of the funding commitments and projections about the extent of the delays, the reality is that key decisionmakers could find their resolve on rail shaken.

We fervently hope that is not the outcome of the high court’s strict reading of the burials law. The relevant sections of Hawaii Revised Statute Chapter 6E and the administrative rules, on the books for some 16 years, were put in place for the affirmative purpose of ensuring the respectful treatment of Native Hawaiian burials. Its intended function was not to unilaterally kill projects, including one such as this. Rail will serve the needs of Oahu’s population and help to direct its growth wisely in the coming decades.

The law was part of reforms adopted because statutes at both the federal and state level tended to protect burials in specified cemeteries but not those in unmarked graves, which is typically how ancient Hawaiians, according to tradition, buried remains. Some Hawaiians buried family members near homes, but burial near the shoreline was especially common.

To keep construction projects from bulldozing blindly through an area, the system required archaeological inventory surveys to be performed early in the process so that if burials are discovered, there is time to reconfigure the project if possible. Decisions would be made with the consultation of burial councils established on each island, pulling together traditional knowledge that will help to identify burial sites and their related artifacts.

The court is right that there is no provision in the law for phased projects, but the law was never designed to deal with sprawling 20-mile projects, either. The original approach of phasing the studies and the construction made practical sense, but that is not where Honolulu finds itself now.

Burial protections are only as good as their enforcement, and over the years that enforcement has seemed selective. In some cases, the councils recommended relocating burials and in others they have drawn a hard line, insisting that they be preserved in place. In addition, some councils have had difficulty maintaining a quorum and meeting regularly.

Projects this consequential should be guided by the considerations of the burial councils, but not be wholly directed by them. That outcome belongs in the hands of county and state decisionmakers who have to balance competing interests — the respectful treatment of burial sites, along with everything else.