Editor’s Note: This story has been updated to include comments and events that took place Friday after the Hawaii Supreme Court issued its ruling.
Rail construction is likely to stop, at least temporarily, given a Hawaii Supreme Court ruling Friday that found the city and state didn’t follow the law when surveying Native Hawaiian burial sites.
How long that delay might be has yet to be determined. City officials are still scrambling to interpret the high court’s ruling, and depending on what that analysis finds, construction might not start again until March.
Although the court’s decision isn’t a death sentence for the $5.26 billion project, rail opponents, and in particular former Hawaii governor and current Honolulu mayoral candidate Ben Cayetano, look to it as a victory.
“I think this has serious ramifications for the rail project,” Cayetano said. “It vindicates what we’ve been saying all along. We have accused the city of … not being transparent, misleading the public, and I think this certainly supports that allegation.”
The Hawaii Supreme Court unanimously sided with Paulette Kaleikini, who said the city should have completed its archaeological surveys in downtown Honolulu before starting construction on the project.
Kaleikini is the sole plaintiff in the case and is being represented by the Native Hawaiian Legal Corporation, a nonprofit law firm that specializes in defending the cultures and traditions of Hawaii’s indigenous people. She says she is a descendant of the Native Hawaiians buried in the Kakaako area, and had asked for an injunction to stop construction on the rail project.
In its 82-page ruling, the high court agreed with Kaleikini, finding that the city and state misinterpreted the law when it came to sacred Hawaiian burial grounds.
The city had argued that it could perform survey work in segments since the rail project was broken into four phases. The idea was that as long as the city completed the surveys for a particular phase, it could begin construction in that area.
But the court disagreed, finding that the city should have completed an archeological inventory survey (known as an AIS) that looked at the entire scope of the project, from Kapolei to Ala Moana prior to breaking ground.
“I’m happy with the decision of the Hawaii Supreme Court and the fact that they support myself and other Native Hawaiians in our cultural practices and our endeavors to protect our iwi kupuna, our ancestral remains,” Kaleikini said during a press conference.
She added that she doubts that the rail project will move forward because it’s inevitable the city will run into burial sites in the Kakaako area.
City officials, however, aren’t as quick to throw in the towel. Honolulu Authority for Rapid Transportation Executive Director Dan Grabauskas, carefully choosing his words, said the Supreme Court’s ruling was little more than a delay that needed to be more thoroughly analyzed.
“I don’t view it as anything other than an unfortunate, temporary setback,” Grabauskas said. “It is a delay to the degree that … there’s going to be additional cost, but we’ll have to deal with that as we do.”
Grabauskas said it’s too soon to know exactly how much a delay will cost the city. But he noted the city will now have to scale back its construction work until it completes its archeological survey work. There are more than 200 sites that will need to be surveyed, he said, 173 of those located in the city center.
The current work schedule has that survey work being completed in March. Grabauskas said that the city might be able to speed up the surveys to shorten the timeline.
Grabauskas said the city plans to continue putting up the cement support columns — the most visible evidence of rail construction in West Oahu — in areas where the ground has already been prepped for the work.
Kaleikini’s attorneys have asked the city to stop all construction. If that doesn’t occur by 8 a.m. Monday they said they would seek an injunction or temporary restraining order.
Grabauskas said the HART board plans to meet Thursday to discuss its options, and city attorneys planned to meet with Kaleikini’s attorneys to discuss how to proceed.
Friday’s ruling also highlighted problems with the state’s approval of the city’s plan to segment its archeological survey work. The Supreme Court said the State Historic Preservation Division “failed to comply with (state law) when it concurred in the rail project prior to the completion of the required archeological inventory survey for the entire project.”
That division has been plagued by understaffing and a severe permit backlog and is in danger of losing its federal funding and certification. Some people, including lawmakers, are also concerned that the division is badly managed. Rail supporters had been concerned that SHPD’s troubles could undermine the rail and other big developments.
The Hawaii Attorney General’s Office, which represented the state, said it is reviewing and analyzing the court’s ruling.
Pua Aiu, the head of SHPD told Civil Beat that she hasn’t read the ruling and wasn’t going to comment.
The court said the city also failed to follow state law by granting a special permit for the rail project and by starting construction before the historic preservation review process was finished.
Hinaleimoana Kalu is the chair of the Oahu Burial Council. She said the burial council refused to support the plan for a phased approach to archeological surveys. In fact, she said the burial council declined to sign onto the agreement that laid out that segmented approach.
By not completing the full assessment prior to construction, Kalu said, it closed off options for mitigating damage to Native Hawaiian burial remains, such as changing the route.
“Just how much leeway do you have to realign your project so that it is managed to not disturb the iwi kapuna?”
She said numerous other developers had done an excellent job at consulting with the burial council on issues of iwi as it relates to their projects. But not the rail developers.
“Although meetings have convened for the rail project, it has not been handled it in the same way,” Kalu said. “Only now, are they talking specifically about iwi kapuna mitigation plans.”
This ruling is separate from another case currently making its way through the federal court system that also challenges the rail project and involves issues related to Native Hawaiian burials. Arguments in that case were heard earlier this week.
It’s unclear how the state Supreme Court’s decision will affect that case, which involves federal law. While rail opponents said U.S. District Court Judge A. Wallace Tashima won’t be able to ignore such a ruling, Honolulu Deputy Corporation Counsel Gary Takeuchi reiterated the difference between the two cases.
“This was a decision about state law and the other case is a question of federal law so we’ll see,” Takeuchi said. “Obviously, we’d like to win them all, but we’ll deal with the decision as it comes out.”
Sophie Cocke contributed to this report.