The Hawaii Supreme Court’s decision to deny the request by the city to reconsider its earlier motion on actions taken by the State Historic Preservation Division is disheartening.

When SHPD agreed to allow construction on the first phase of Honolulu’s rail transit project to proceed before the archaeological inventory survey (AIS) for all phases was completed, the protection of iwi kupuna was the first and foremost priority.

In its unanimous ruling on Aug. 24, the court never addressed the fact that SHPD deferred the AIS process in order to protect iwi from unnecessary sub-surface testing, on the basis that the area of testing would have been 10 times larger prior to the availability of preliminary engineering plans. Under federal regulations, the city could not request approval to begin preliminary engineering until very late in the EIS process.

Significantly, the Final EIS specifically stated: "The City has committed to conduct archaeological investigations in locations where foundations will be placed. This would limit the area disturbed for archaeological investigations and construction to potentially less than 10 percent of what would be disturbed if archaeological investigations were conducted for 100 percent of the alignment." SHPD also agreed to this phased approach, but only after obtaining the city’s commitment to test all construction disturbance areas once engineering plans became available and avoid any iwi identified during this process by making engineering changes, including re-routing if necessary.

Rail opponents mislead the public by arguing that the city, Federal Transit Administration, the state and SHPD ignored the interests of iwi in order to move the project forward. The record is absolutely clear and there is no evidence to the contrary that the city and SHPD, in good faith, agreed to this phased approach to defer AIS sub-surface testing because:

» Design plans were not detailed enough to limit the scope of testing to construction disturbance areas

» To begin testing earlier would result in unnecessary disturbance of additional iwi not within the project footprint.

This project is not like Honokahua, Ward Village Shops or Wal-Mart, where limited AIS subsurface testing resulted in the discovery of iwi during construction. Rather, SHPD, under the direction of William Aila, the former president of Hui Malama I Na Kupuna O Hawai‘i Nei, provided the gold-standard protection for iwi kupuna.

The bottom line is that the city, the state and the FTA agreed to the phased approach to reduce the risk of unnecessary disturbance to iwi. Unfortunately, given the Hawaii Supreme Court’s decision, it is likely that future developers will perform intrusive and widespread sub-surface testing during the AIS process to put rest any iwi issue that might delay a project, even if it means that testing will needlessly disturb iwi and needlessly increase construction costs.