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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