The city’s authority to conduct archaeological surveys in phases for the $5.5 billion rail project was at issue during two days of Circuit Court hearings this week.

Circuit Judge Gary Won Bae Chang heard arguments from both sides on the city’s motion to dismiss a lawsuit against the project.

The lawsuit, filed by Paulette Kaleikini, seeks to stop the project due to possible endangerment of ancient Hawaiian burials in the Kakaako area, the fourth and final phase of the project’s construction. It seeks to void all county and state permits until the city completes an archaeological inventory survey of the Kakaako area.

David Kimo Frankel, of the Native Hawaiian Legal Corp. and Kaleikini’s attorney, said the survey should have been done prior to approval of the project, in accordance with the law. He argued that the entire 20-mile route of the rail transit system constitutes a single project.

"By their own definition, the project is the whole thing," Frankel said. "By statutory analysis and by the rules, it’s the whole thing."

City attorney Pete Manant of Carlsmith Ball LLP said all the protection as required by law is afforded in the city’s approach to phased archaeological surveys.

The city has pledged that it would not do any construction before conducting an archaeological survey, and that it would move up the survey of the final phase in response to concerns.

"The only way we can define this project is that it’s a phased project that has four different construction projects so you can specifically identify the impacts within the phases as they’re being evaluated and constructed," Manant said.

Manant said the city will conduct tests in areas where it believes the columns for the guideway system will go, and that it should be completed by fall 2012. If a burial site is found, the city would adjust the column spacing to avoid disrupting the site.

"There’s going to be consultation, there’s going to be an AIS (archaeological inventory survey) done for each phase," Manant said. "The intent of the statute is protected."

The judge grilled Manant several times, asking him to find language in the law where a project can be defined as different phases.

"I don’t have any separate authority defining that any differently, and we believe it’s clearly in (the state Historic Preservation Division’s) discretion to determine that the protections required … are afforded in this phased project," Manant said.

The judge asked what would happen if the burial sites were too numerous and if adjusting the column spacing was not possible.

"There would be a slight adjustment to the alignment," Manant said. "We don’t believe there will be a significant change to the alignment."

Manant said that is why the final phase will be surveyed later this year, so the city can make any changes to the rail’s route if necessary.

After spending Monday afternoon and yesterday morning hearing arguments, the judge continued the hearing until next Wednesday, when he’s expected to also hear arguments on whether to grant a preliminary injunction on the project.