UPDATED 6 p.m. on 3/23/11
A Circuit Court judge threw out a case Wednesday that would have temporarily stopped Honolulu’s rail project based on concerns for ancient Hawaiian remains.
Plaintiff Paulette Kaleikini filed the suit because she has ancestors buried in the Kakaako area, where the rail line will terminate. Kaleikini sought to halt progress on the project until an archaeological survey could take place for the entire 20-mile rail line, the same way the project’s Environmental Impact Statement was completed.
The city’s plan is to complete archeological surveys for each phase of the project. The first survey was completed for phase 1, beginning in Kapolei, but there are four total phases. Determining the impact on ancient remains in phases 2 through 4 will take place before construction begins for each, and any needed adjustments will be made at that time.
Judge Gary Chang, who tossed the case, said that because the Federal Transit Authority approved the project, it also approved the phasing approach.
The ruling is a major victory for the city. One other lawsuit that could affect rail is still pending. That lawsuit deals with the city’s procurement process and asks that some rail contracts be rescinded. The victory comes on the same day the U.S. Transportation secretary met with top city, state and federal elected officials to go over progress on the rail project.
“It is undisputed that federal law does specifically allow segmentation of the federal process that is designed to protect archaeological and historical property,” Chang said in explaining his decision. “There is nothing beyond the silence of the Hawaii Legislature on the matter of segmentation that supports plaintiff’s contention.”
Kaleikini’s legal team claimed the willingness of Honolulu officials to change rail plans if significant remains were found would shrink as the project progressed.
“There’s been a lot of discussion about bureaucratic or administrative inertia,” Ashley Obrey, one of Kaleikini’s attorneys, told Civil Beat. “So as decisions are made, it makes the options more narrow once we get to the phase 4, as far as what the Oahu Island Burial Council can do with the iwi at that point… We’re looking to preserve and protect the dignity of the burials that are going to be found in Kakaako.”
Chang said nothing could be found in the law relating to inertia.
“At this time, the danger of administrative or bureaucratic inertia is nothing more than pure conjecture,” Chang said, citing an opinion from a similar 2006 case written by Hawaii Supreme Court Associate Justice James Duffy. “Injunctive relief cannot issue to enjoin harm which, although possible, remains theoretical. Therefore, the court concludes that there is no actual controversy involving administrative inertia.”
Chang applauded Kaleikini’s efforts — and specifically pointed out the skill of her lawyers — but ultimately said the case lacked a legal foundation to permit an injunction.
“To plaintiff — the court hopes that the disappointment you must certainly feel because of today’s ruling will be somewhat tempered by the court’s recognition of the enormous contribution your efforts have brought to remind, not only the powerful city and state government, but the world — yes to remind all of us — that our ancestors great and small and their final resting place deserve dignity and respect,” Chang said.
He told Kaleikini she was an invaluable source “to balance the awesome power of government.”
Kaleikini told Civil Beat she would appeal the decision. Her attorneys could not say when they would file an appeal.
Attorney Ashley Obrey provided Civil Beat with the following response to Judge Chang’s ruling. Obrey is a lawyer for the Native Hawaiian Legal Corporation, which represents Kaleikini.
“We appreciate Judge Chang’s thoroughness and attention in reviewing the motion; however, we respectfully disagree with his analysis. The court’s interpretation overlooked key factors that we will address with the appellate court,” said Ashley Obrey, attorney for the plaintiff Paulette Ka’anohiokalani Kaleikini.
“While Ms. Kaleikini is clearly disappointed with today’s decision, her commitment to malama iwi remains unyielding because, and as the presiding judge recognized, “without her, a community of silent burials would have no voice.”
The court held that unlike an Environmental Impact Statement, an archaeological inventory survey can be broken up into segments, and need not be completed for the entire project before decision making and commencement.”