A lawyer for a Native Hawaiian whose ancestors are buried in Kakaako asked the Hawaii Supreme Court on Thursday to order the city to stop work on the $5.27 billion Honolulu rail system until it completes an archaeological survey to determine whether the project will disturb Hawaiian remains.
The court did not immediately rule on the arguments by David Kimo Frankel, a Native Hawaiian Legal Corp. lawyer who is representing Paulette Kaanohiokalani Kaleikini in her lawsuit against the city.
The lawsuit also names as defendants the state Historic Preservation Division of the Department of Land and Natural Resources, state Historic Preservation Officer Puaalaokalani Aiu, the Oahu Island Burial Council and Gov. Neil Abercrombie.
The lawsuit alleges the city illegally divided up the 20-mile rail route into segments and launched the rail project before all of those segments were surveyed to determine what effect construction would have on burials, or iwi kupuna.
The rail line will extend from East Kapolei to Ala Moana Center, and the city has been conducting archaeological surveys of individual rail route segments. The survey of the Kapolei end of the rail line has been completed, and construction has begun there.
No Hawaiian burials have been found so far in the path of the rail line, but burials are far more likely to be discovered in the so-called "city center" portion of the project, which includes Kakaako, downtown and the Dillingham Boulevard area. More than 400 burials have been found in that area since 1986, the lawsuit says.
The city has begun the city center archaeological survey, and last week the Honolulu Authority for Rapid Transportation reported consultants had completed 44 of the 232 survey trenches that will be dug in the city center segment to search for burials or archaeological sites.
Frankel and a lawyer for the city agreed Thursday that state administrative rules don’t specifically say whether projects can be divided into segments for the purpose of conducting archaeological surveys as was done with the rail project.
The city contends it gave appropriate consideration to the impact of the rail project on all cultural and historic resources, including any burials that might be encountered along the route.
State, city and federal agencies developed a programmatic agreement for the rail project that sets out a plan for investigating and handling historic properties including burials and archaeological sites.
Among other things, that agreement requires that the state Historic Preservation Division approve the archaeological survey for each segment of the rail line before construction can begin on that segment.
However, the lawsuit contends state law requires early preparation of the archaeological survey before the agencies make a decision and commit to a particular plan to protect the sites.
"What they’ve done is they skipped the (survey) process," Frankel said. "You have to identify the resources before you protect them."
Frankel argued that state law requires a "good faith" consultation with descendents and others on how to treat archeological finds including burials that are discovered in the path of construction projects.
"How is that consultation ‘in good faith’ if fundamental decisions have already been made?" Frankel asked.
In March 2011, Circuit Court Judge Gary Chang rejected Kaleikini’s arguments and dismissed the lawsuit. Kaleikini then appealed to the state Supreme Court.
» Hawaii News Now video: New developments in 2 separate rail lawsuits
