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Wednesday, May 23, 2012
Oral Argument Preview: Can The Honolulu Rail EIS Be Segmented?
By Robert Thomas @ 3:01 PM :: 4769 Views :: Maui County, Education K-12, Energy, Environment

Oral Argument Preview: Can The Honolulu Rail EIS Be Segmented?

by Robert Thomas, InverseCondemnation.com

In a big development project such as the $4+ billion Honolulu rail, must environmental review under state law be undertaken taking into account the entire project, or can it be done on a segment-by-segment basis?

That's the question the Hawaii Supreme Court will consider this Thursday, May 24, 2012, when it hears oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611. The circuit court didn't think it needed to be done all at once, and rejected the challenge by the Native Hawaiian Legal Corporation to the environmental reviews (the alleged impact of the the project on archaeological sites, including burials).

Here's the short description from the Judiciary web site:

Kaleikini argues that the Honolulu High-Capacity Transit Corridor Project should be enjoined because the Programmatic Agreement and Final Environmental Impact Statement for the project permitted a "phased approach" to the required archeological inventory survey (AIS), rather than requiring that an AIS for all four phases of the project be completed prior to approval and commencement of the project. Kaleikini argues that the phased approach to the AIS violates HRS chapters 6E, 343, and 205A. In response, the City and State defendants argue that a phased approach is legally permissible.

Here are the merits briefs, and the briefs addressing the plaintiffs-appellants' separate request for an injunction pending appeal. First, the merits briefs:

Here's the briefs on the request for injunctive relief on appeal:

This case was transferred by the Supreme Court from the Intermediate Court of Appeals (a process in which the Supreme Court moves a case from the ICA to the Supreme Court, thus skipping the usual ICA-followed-by-cert procedures). Both Justice Acoba and Justice Duffy are recused, and two circuit judges are sitting by designation in their places, so this could get interesting just for that fact alone.

We will attend the arguments and have a report (no live blog this time).

  *   *   *   *   *

From Councilmember Tom Berg

I received this email and want to share with you the following communication. (Note: January 26, 2011 council discussion captured on youtube - click here.)

Subject: Kaleikini v. Yoshioka - Hawai`i Supreme Court oral argument, May 24, 2012 at 9am

Forward to those who might be interested, mahalo.

On Thursday, May 24, 2012 at 9am, the Hawai`i Supreme Court will hear arguments as to whether the City illegally rushed to approve and begin construction of the City's rail project before taking necessary steps to protect burials.

In order to fast-track the rail project, the City and State agreed to postpone completion of an archaeological inventory survey (AIS) along the entire 20-mile corridor until after approval of the rail project. Despite common knowledge and their public recognition of the high likelihood of discovering burials in the Kaka`ako area, they refused to fully assess the negative impacts of the rail project on archaeological sites, including burial sites. An AIS is the key tool used by citizens, the island burial councils, and government agencies to identify and protect burial sites. A timely AIS allows for: (a) informed decision making that helps in the preservation of historic properties (including burial sites); (b) consideration of all options before agency commitments are set in concrete; and (c) a meaningful opportunity to protect identified burials.

Paulette Ka`anohiokalani Kaleikini's appeal of the Circuit Court's 2011 ruling in favor of the City and State was transferred from the Intermediate Court of Appeals to the Hawai`i Supreme Court to allow the high court to address the questions of fundamental public importance and issues of first impression inherent in this case. More specifically, the Hawai`i Supreme Court will decide whether the segmenting of the project for AIS purposes is lawful pursuant to Hawai`i Revised Statutes chapters 6E, 343, and 205A. Kaleikini argues that the law requires that an AIS should have been completed for the entire corridor before any final decisions as to route or technology were made and that the piecemealing of this project violates the law.



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