William Aila, chair of the Hawaii Department of Land and Natural Resources, found himself at the center of a rail debate during his confirmation hearing.

In a questionnaire circulated to lawmakers, Aila was asked: “As the State Historic Preservation Officer you signed the Mass Transit Programmatic Agreement which authorized a phased in approach. Critics of this approach have indicated that this approach will assure that more NH (Native Hawaiian) burials will be disturbed because there will be additional pressure not to consider alternative routes once construction begins, how do you answer to those critics?”

Aila replied: “The Federal Transit Authority required a phased in approach in implementing a construction schedule for Rail development. In addition, completing an Archeological Inventory Survey (AIS) is not practical in this situation as the City and County of Honolulu does not own the land along the proposed route, does not have the funds to condemned (sic) the land along the proposed route, and it is problematic to remove existing commercial buildings and businesses to conduct an AIS in light of the reasons listed above. The Programmatic Agreement has protective processes to deal with Burial and Historic Architecture issues that may arise.”

It is true that the phased approach has been adopted for Honolulu’s rail project. There are four phases for the project, beginning in Kapolei and terminating in Kakaako.

But was Aila accurate in saying that the FTA required the phased approach for rail?

Not according to the FTA.

An FTA official told Civil Beat that while many large-scale rail projects often use a phased approach, there was nothing set in stone insisting Honolulu pursue that particular avenue. According to the FTA, the City and County of Honolulu chose the phased approach — it was not required to. A spokeswoman for the rail project said the FTA was the best source on the question.

Rail hinged on Aila’s signature and those opposed to the project on grounds that it should not be started without a full, 20-mile archeological survey had hoped he would not be willing to let it go forward using a phased approach.

When Aila signed the Programmatic Agreement in his capacity as the State Historic Preservation officer in early January, he was signing off on a plan that included phasing.

But the phased approach was not a stipulation of the FTA. It was a decision made by city officials and subsequently agreed to by the FTA as a reasonable means to complete a multi-billion dollar project, the FTA official said.

The issue was a particularly thorny one for Aila, a Native Hawaiian.

The Oahu Island Burial Council, a group appointed by the governor to protect Native Hawaiian remains, opposed the phased approach. It raised concerns that the general inertia of rail in its later stages could have justified shoddy handling of Hawaiian burials.

For example, if the city spent, say, $4 billion building the line and then had to face an archeological survey for Kakaako that determined drastic adjustments would be needed to maintain the integrity of Hawaiian remains, would Honolulu take the necessary steps to protect them?

The question warranted a court hearing. In March, a Circuit Court judge threw out a case brought forward by plaintiff Paulette Kaleikini, who claimed to have ancestors buried in the Kakaako area. Kaleikini wanted Honolulu to perform an archeological survey for the entire route before allowing construction to begin.

Judge Gary Chang dismissed the case, but lauded the efforts of Kaleikini and her legal team.