Friday, August 24, 2012

Hawaii Supreme Court Grants Honolulu Rail Project Partial Victory

The Hawaii Supreme Court granted Honolulu's 20 mile, 21 station project a partial victory today in its decision in the case of Kaleikini v. Yoshioka.

On review of a circuit court order, the Supreme Court agreed that the court properly granted summary judgment on some key issues. First, the final EIS was sufficient under HRS chapter 343 and was properly accepted by the Governor. Although the final EIS did not include an archaeological inventory survey (AIS), it was nonetheless sufficient “to enable the decision-maker to consider fully the environmental factors involved.” Second, the City and State gave full consideration to cultural and historic values as required under HRS chapter 205A, Hawaii Coastal Zone Management Act (CZMA). The Programmatic Agreement (PA) was sufficient for CZMA purposes in that it described the “archaeological historic property and resource identification and evaluation effort, as well as the mitigation procedures for identified archaeological resources.”

However, the court disagreed with the circuit court's dismissal of Kaleikini's claims regarding the treatment of potential native Hawaiian burials under HRS chapter 6E, Hawaii's historic preservation law. The Supreme Court held that because an AIS was not completed before the State Historic Preservation Division (SHPD) gave its concurrence in the rail project, the SHPD’s concurrence in and the City’s commencement of the project were improper. In the Supreme Court's opinion, the PA does not constitute an interim protection plan under the applicable rules. Consequently, Kaleikini has standing in circuit court to pursue her claims under HRS chapter 6E.

The Supreme Court also held that phasing of archaeological studies is not allowed under HRS chapter 6E. It agreed with Kaleikini that "the applicable rules clearly establish a sequential approach to the historic preservation review process, which requires the completion of an AIS prior to the approval of a project." Consequently, Kaleikini's claims related to this issue should not have been dismissed by the circuit court.

The Supreme Court remanded the case to the circuit court for further proceedings, based upon "the rules implementing HRS §§ 6E-8 and 6E-42 do not permit the SHPD to concur in the rail project absent a completed AIS for the entire project." As the rail project is in the process of completing the last AIS of the four phases, this may be moot.

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