by Andrew Walden
The Hawaii State Supreme Court today handed down its unanimous decision in Kaleikini vs. Yoshioka in which plaintiff Kaleikini sought to halt rail construction pending archaeological review. The high court has overturned four counts of the original Circuit Court ruling in favor of Yoshioka and is remanding the case back to the Circuit Court for further proceedings. This will likely result in a circuit court order halting rail construction until archaeological work can be done. The result of this 100% predictable decision may be financially catastrophic for the HART and the City and County of Honolulu due to the numerous multi-million dollar delay penalties written into rail contractors' contracts.
From the text of this morning's Hawaii Supreme Court Ruling:
Kaleikini argued that the rail project should be enjoined until an archaeological inventory survey, which identifies and documents archaeological historic properties and burial sites in the project area, is completed for all four phases of the project. More specifically, Kaleikini argued that Hawaii Revised Statutes chapters 6E, 343, and 205A, and their implementing rules, require that an archaeological inventory survey be completed prior to any approval or commencement of the project. Kaleikini asserted that the failure to complete an archaeological inventory survey prior to the start of construction jeopardized the integrity of native Hawaiian burial sites by foreclosing options such as not building the rail, changing its route, or using a technology that would have less impact on any sites....
For the foregoing reasons, the circuit court erred in granting summary judgment in favor of the City and State on Counts 1 through 4 of Kaleikini’s complaint, because 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. However, the circuit court properly granted summary judgment in favor of the City and State on Counts 5 and 6 because (1) the final EIS was sufficient under HRS chapter 343 and was properly accepted by the Governor; and (2) the City and State gave full consideration to cultural and historic values as required under HRS chapter 205A.
Accordingly, we vacate the circuit court’s judgment on Counts 1 through 4, and remand for further proceedings. However, we affirm the circuit court’s grant of summary judgment in favor of the City and State on Counts 5 and 6.
Rail opponent Cliff Slater, a plaintiff in another stop rail lawsuit, told the Star-Advertiser:
He expects the case will now go back to Circuit Court, where a judge will issue an injunction to stop construction until the archeological survey is done. That would be extremely expensive, because contractors working on the project will file delay claims with the city, said Slater, who is not involved in this lawsuit but is among the plaintiffs in a separate court challenge to the project. “They can’t say we didn’t warn them,” Slater said. “We were saying from the get-go that this (survey) had to be done.”
Kaleikini's NHLC attorneys today demanded that HART halt all construction until archaeological inventories are completed.
Ben Cayetano told reporters, "I feel vindicated."
But the Honolulu Authority for Rapid Transportation isn't making that call by the deadline the plaintiffs asked them for. The city says it will wait until Thursday's HART board meeting in Kapolei for next steps and column work will continue meanwhile.
"You don't just drop your hammers and walk off a site," said Gary Takeuchi, Honolulu corporation counsel. "You've got to demobilize in some responsible manner, so there's going to be activity. even if you wanted to stop it all, those are the kind of things we need to sort out."
Both sides concur the ruling will delay Honolulu's rail project, but to what extent is still up in the air.
"This is a temporary setback," said HART CEO Dan Grabauskas, "but I make no bones about the fact that to the degree that delays result from this ruling, delays will cost money."
HART isn't saying how much or how long; they've previously pegged every month of delay at $10 million.
LINK: Full Text of Ruling
LINK: NHLC Demands HART Halt Rail Construction
Precisely as Predicted: Kaleikini v Yoshioka: Rail Project in 'Grave' Danger
Yoshioka Should Have Read This: Enviros win 90% in Hawaii Supreme Court