The city is already moving down the track on construction of the rail system. But can it swerve to avoid Native Hawaiian burials that might be uncovered along the way?

The Hawaii Supreme Court is wrestling with that question after an hour-long oral argument Thursday morning. The case was brought by Paulette Kaleikini, a cultural descendant who says her ancestors in the Kakaako area will be disturbed by the fourth and final phase of the rail project. Her lawyers with the Native Hawaiian Legal Corporation say the city should have completed an archaeological inventory survey (AIS) of the entire line before starting construction on any part of it.

“An AIS is a key tool used for identification of, consultation about and decision-making on burials,” David “Kimo” Frankel told the three justices and two elevated judges Thursday. “Segmenting, piecemeal-ing or phasing an AIS excludes vital information from decision-making, rendering consultation with Native Hawaiians in good faith a meaningless exercise.”

The Kaleikini case is one of several legal challenges facing the rail project. In federal court,, mayoral candidate Ben Cayetano and others are arguing that alternatives were not adequately considered. Also, losing rail car builder Bombardier has sued the city for inappropriately awarding a $1.4 billion contract to Ansaldo.

Frankel said allowing construction to continue without a completed comprehensive AIS could put pressure on the Oahu Island Burial Council to dig up burials found in the rail line because it will be too late and too costly to change the alignment. He said Honolulu has given burials a “short shrift” and has “put the cart before the horse.”

“Practically speaking, we have seen other cases where the city or other developers are like, ‘Well, we spent so much money, so all we can now do is just dig ’em up.’ And that’s not the dignity or respect that we seek,” Ashley Obrey, another attorney with the Native Hawaiian Legal Corporation, told Civil Beat after the hearing.

The city and state disagree and say the archaeological review is already well under way and will be finished years before construction begins on the downtown segment of the system.

A few members of the panel appeared to have serious concerns with the city’s approach, which included a programmatic agreement with the Department of Land and Natural Resources’ State Historic Preservation Division to allow the AIS to be completed in four phases.

Justice Sabrina McKenna was the most aggressive with her questions, pressing attorneys for the city and the state for details of its plans to protect burials and posing hypotheticals of segmentation that would create problems. Justice Paula Nakayama and Judge R. Mark Browning, sitting in for the recused Justice Simeon Acoba, also asked pointed questions.

John P. Manaut, a private attorney hired by the city to argue the case, told the court that the alignment in the Kakaako area can be adjusted in the event of a “mass graveyard.” If there are three or four areas in a small area, columns can be moved 75 or 100 feet, he said.

“That has not been foreclosed here,” he said.

“Truthfully, there is threat to any burial anywhere along this route, the 20 miles, until after we do the AIS process that the plaintiff wants us to do,” Manaut said. “The request here is to do an AIS, and we are going to do an AIS.”

Obrey, the Native Hawaiian Legal Corporation attorney, said the columns aren’t the only piece of the puzzle that might disturb burials. Water lines, sewer lines and other associated buildings will cause a “scraping” of the area, she said. It’s not enough to conduct an AIS while construction is already happening, she said. Instead, the NHLC wants construction to stop until an AIS is done.

Much of the argument focused on the language of the state laws that govern burials — Hawaii Revised Statutes Section 6E, in particular — and whether the language in and legislative intent behind that section is clear on the legality of phasing and segmentation or the definition of a “project.”

Chief Justice Mark Recktenwald asked the state’s attorney, William Wynhoff, “How do we get around the plain language of the rules?”

While it would be difficult to change the alignment because it would require a supplemental environmental review, Wynhoff said the route is not set in stone.

The court took the matter under advisement and is expected to render a written ruling.

Read a preview of the case with links to the parties’ briefs at Inverse Condemnation.

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