UPDATED 9/7/12 2:25 p.m.

Attorneys for Honolulu are asking the Hawaii Supreme Court to reconsider its recent ruling that effectively halted construction on the $5.26 billion Honolulu rail project and could result in millions of dollars in added costs.

In court documents, the city’s attorneys say justices should take another look at their unanimous decision that found archaeological survey work was supposed to have been completed for the entire project before construction began.

Two weeks ago, the high court ruled that the beleaguered State Historic Preservation Division erred when telling the city it could split the archaeological work up into four phases.

SHPD had told the city that as long as the survey work was done in one phase of the project — and subsequently approved by the agency — construction could proceed in that section.

But now city officials are saying there aren’t any statutes or rules that would prohibit a project from being phased.

They also contend that the word “project” is a broad term, and that “the Court did not conclude that SHPD exceeded its authority in determining that a construction phase could be a ‘project.’”

And in an argument that was heard during a separate federal court case involving rail, the city says that by doing the archeological surveys in phases actually protects Native Hawaiian burial sites.

The city is making the same argument in its request for reconsideration:

“The phased approach approved in the (programmatic agreement) was intended to and does in fact afford iwi kupuna greater protection by focusing invasive sub-surface testing in Phase 4 (in Honolulu’s downtown core) to only those areas where actual ground disturbing construction would occur, and avoiding unnecessary disturbance to burials that may exist in areas that would not otherwise be disturbed through construction.”

UPDATE The city has completed the archaeological survey work in the first two phases of the project, which are in West Oahu where concrete rail columns have been built. Officials say no burial sites have been found.1

The city is currently working on archaeological surveys in the final two phases of the project. So far it has completed about 25 percent of this work.

But the main area of concern is Kakaako in downtown Honolulu. In its appeal to the Supreme Court, the city says there are “no known existing burials” along the railway alignment in Kakaako. It does note, however, that there’s a “high likelihood” that there are unknown burials in the area.

This has rail opponents worried. They believe there’s no way the city can build rail through the area without disturbing human remains.

David Frankel is the attorney representing Paulette Kaleikini, the sole plaintiff in the Supreme Court case who also has ancestors buried in the Kakaako area. Frankel is with the Native Hawaiian Legal Corporation, a nonprofit that defends the culture and traditions of Hawaii’s indigenous people.

“Delaying the preparation of an archaeological inventory survey puts iwi at great risk,” Frankel said in an email. “The failure to conduct an archaeological investigation at Kawaiaha’o Church led to the desecration of almost 600 burials. The lack of archaeological studies at the Ward Villages project and Walmart prior to construction led to the disinterment of dozens of burials.”

The Native Hawaiian Legal Corporation has sued over the disturbance of iwi kupuna in all three instances.

The Supreme Court has 10 days to make a decision on whether it will reconsider the case in light of the city’s motion.

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