The city of Honolulu is rehashing old arguments in its request for the Hawaii Supreme Court to reevaluate its recent decision stopping the $5.26 billion Honolulu rail project, according to court documents filed Thursday by the Native Hawaiian Legal Corporation.

David Kimo Frankel, the attorney representing Paulette Kaleikini, the sole plaintiff in the Supreme Court case, said those arguments have been heard and rejected by the court before.

“In their motion for reconsideration, the City Defendants repackage the arguments they have already made and which this Court rightfully rejected,” Frankel wrote. “As such, the City Defendants fail to meet the test for reconsideration. To bolster their arguments they present a distorted presentation of the facts.”

City attorneys are hoping to restart rail construction despite a Supreme Court ruling last month that found the state was wrong to allow the city to begin work on the project before a full archaeological inventory survey had been completed. The State Historic Preservation Division allowed the route to be broken up into four phases, and construction to begin on a phase once studies for burial remains had been completed.

Last week, the city filed a motion for reconsideration with the court, arguing that justices had failed to acknowledge the State Historic Preservation Division’s authority to break up the rail line into four segments. Attorneys also argued that it was safer for Hawaiian burial remains for the city to do the work in four segments.

Frankel disagreed. In his rebuttal, he said the fact that the state has not joined in the city’s request for reconsideration is evidence of the city’s faulty arguments.

“There is no basis for deferring to the State Historic Preservation Division’s (SHPD) interpretation of its rules in this case,” wrote Frankel. “It is telling that William J. Aila, Jr. in his official capacity as Chairperson of the Board of Land and Natural Resources and as state historic preservation officer and Puaalaokalani Aiu in her official capacity as administrator of the SHPD have not requested reconsideration of this Court’s August 24, 2012 opinion.”

Aila did not immediately respond to a request for comment and Aiu said that she hadn’t read the filing and could not comment.

But a spokesperson for Gov. Neil Abercrombie said that the state is abiding by the court’s decision.

“We are respecting the decision of the Supreme Court,” said Donalyn Dela Cruz.

Frankel also dismissed the city’s argument that the phased approach better protects burial remains. In documents he argues that there is no evidence “in the record that SHPD determined that a phased approach would maximize protection of burials.”

The Native Hawaiian Legal Corporation has maintained throughout the case that not completing a full archaeological inventory survey on the project before starting construction jeopardizes the fate of iwi.

This lawsuit could create a six-month delay in project construction, potentially costing millions of dollars. City officials have not disclosed exactly how much.

Also on Thursday, construction workers found the first human remains along the proposed route in Kakaako.

The Supreme Court has until Sept. 28 to decide whether to take up the matter again.

Read the filing:

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