City wants court to revisit rail construction shutdown

Lawyers for the city are asking the Hawaii Supreme Court to reconsider its unanimous decision that shut down construction on the city’s $5.26 billion rail line.

The Supreme Court ruled Aug. 24 that the state Historic Preservation Division violated its own rules when it allowed rail construction to begin in East Kapolei before the city completed an archaeological survey of the entire 20-mile train route.

The court also found that a special management area permit issued by the city for the rail project was invalid. The Hono­lulu Authority for Rapid Transportation then shut down construction on the rail project apart from limited work such as filling in trenches for safety reasons.

In a new filing on Tuesday, the city argued the court should reconsider because SHPD has broad authority to administer the historic preservation program and did not make a "plainly erroneous" decision when it allowed construction to begin on portions of the rail project.

The city also argued that any Hawaiian remains that might lie in the path of the rail line are actually afforded greater protection by delaying the archaeological inventory of the entire rail line.

In its unanimous Aug. 24 ruling, the Supreme Court concluded the rules governing SHPD do not allow the agency to approve construction of any part of the rail project until the city finishes the archaeological survey to determine whether 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 the archaeological survey is finished for the first two sections of guideway that extend from East Kapolei to Aloha Stadium.

Survey work is continuing on the remaining two segments from Aloha Stadium to Ala Moana Center and is scheduled to be completed in the first quarter of 2013. City officials have said they are looking for ways to speed up that survey, which includes the portion of the rail route where experts agree that burials are most likely to be found.

Lawyers for the city contend in the new filing that if the archaeological survey is done now before final design of the rail system is complete, the digging for the survey might uncover burials or other cultural resources that would not have been disturbed by rail construction.

By waiting until the design is complete, the survey crews can disturb only those areas where actual construction will occur, according to the city filing.

Native Hawaiian Legal Corp. lawyer David Kimo Frankel represented Paulette Kaanohi­oka­lani Kalei­kini in her lawsuit against the city and state challenging the decision to allow construction to begin.

Asked to comment on the new city filing, Frankel re­plied, "I have nothing interesting to say."

The city has not provided any estimates of how expensive the construction shutdown could become, but HART Executive Director Daniel Grabauskas has warned there will be a cost. The city previously estimated that each month of delay in the rail project adds $10 million to the price tag for the train system.

The city has already agreed to pay $22.2 million in delay claims to contractor Kiewit Infrastructure West Co. because of unrelated delays to the rail project, and other delay claims by Kiewit are still pending.