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Thursday, August 1, 2013
Hawaii Supreme Court Smacks Rail EIS - An Update
By Robert Thomas @ 5:06 PM :: 4590 Views :: Rail

Guest Post: Hawaii Supreme Court Smacks Rail EIS - An Update

by Robert Thomas

Our friend and colleague Paul Schwind brings us up to date on the status of the state court legal challenge to the Honolulu rail project, last reported on here.

A reminder: Paul and I will be presenting a session on the latest in the rail project (including happenings in both state court and the Ninth Circuit) at the upcoming Eminent Domain and Condemnation Law Conference (Honolulu, Aug. 21, 2013). Hope you can join us.


by Paul J. Schwind*

So far there have been two attempts by the parties in the state court rail litigation to have the Hawaii Supreme Court reconsider its opinion vacating and remanding to Circuit Court for further proceedings. See Kaleikini v. Yoshioka, 128 Haw. 53, 283 P.3d 60 (2012). The City and State appellees tried last year and were denied on September 27, 2012. Then the appellant, Paulette Kaleikini, tried this year and was denied on May 17, 2013. She then moved the Circuit Court on May 23 for summary judgment. Since documents in Hawaii’s trial courts are not readily available electronically, we do not know the content of her motion. But it is likely that on remand, she moved for judgment in her favor on the counts previously decided against her that were vacated by the Supreme Court. Argument on this motion was calendared to be heard by First Circuit Judge Gary W. B. Chang on July 9 at 3:00 p.m., but on June 19, Kaleikini filed a notice of withdrawal of her motion, and filed a stipulation and order instead. Presumably that ends her litigation against the rail, at least for the time being.

Hawaii Supreme Court Summary

The Supreme Court’s own summary of the case, now published, provides a succinct overview of the issues decided on appeal under Hawaii’s historic preservation law, and the rationale for the Court’s opinion:

HRS chapter 6E is Hawaii's historic preservation law. The Department of Land and Natural Resources, through its State Historic Preservation Division (SHPD), is the agency tasked with promulgating the rules to carry out this law, and with implementing these rules.

In the instant case, the SHPD failed to follow its own rules when it concurred in the rail project prior to the completion of an archaeological inventory survey for the entire project. As explained below, the rules establish a sequential process under which an archaeological inventory survey must precede the SHPD's concurrence in a project.  As noted in the rules, “[t]he review process is designed to identify significant historic properties in project areas and then to develop and execute plans to handle impacts to the significant properties in the public interest.” HAR § 13–275–1(a) (emphasis added). Moreover, the broad definition of the term “project area” contained in the rules encompasses the entire rail project, and does not permit the SHPD to consider the rail project in four separate phases for the purposes of historic preservation review.

In contrast to the requirements of the rules, the rail project's Programmatic Agreement provides for the completion of archaeological inventory surveys after the SHPD has provided its concurrence in the project. Nevertheless, the City and State have argued that the Programmatic Agreement constitutes an “interim protection plan,” which would allow the rail project to commence absent completion of the full historic preservation review process. Although the City and State are correct that the rules permit a project to commence where an “interim protection plan” is in place, a plain reading of the rules indicates that the Programmatic Agreement is not an interim protection plan. When viewed in context, it is apparent that an interim protection plan is a form of mitigation that, under the sequential approach of the rules, can be developed only after an AIS has been completed.

In sum, the SHPD failed to comply with HRS chapter 6E and its implementing rules when it concurred in the rail project prior to the completion of the required archaeological inventory survey for the entire project. The City similarly failed to comply with HRS chapter 6E and its implementing rules by granting a special management area permit for the rail project and by commencing construction prior to the completion of the historic preservation review process.

Accordingly, we vacate the circuit court's judgment on Counts 1 through 4 of Kaleikini’s complaint, which challenged the rail project under HRS chapter 6E, and remand to the circuit court for further proceedings on those counts.  We affirm the circuit court's judgment in all other respects.

Id. at 57, 283 P.3d at 64.

Along the way, the Court held that Kaleikini had made a sufficient showing of “irreparable injury” to Kakaako burial sites; the final EIS was not required to contain an AIS; and the City and State gave full consideration to cultural and historic values as required under HRS chapter 205A for the issuance of an SMA permit.  In the Court’s concluding words:

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.

Id. at 88, 283 P.3d at 95.

Statutory Amendment - Act 85

In a new twist in the case, Hawaii’s historic preservation law (HRS chapter 6E) was just amended on May 21 by  Act 85 of the 2013 Legislature (SB 1171 SD1 HD2) to define “programmatic agreement” and to permit “phased review” of projects where such an agreement exists and a project consists of corridors or large land areas, where access to properties is limited, and “circumstances dictate that construction be done in stages”.  In other words, although this legislation is not intended to have retroactive application, it appears that in the future, another large project could perhaps be legally phased under the historic preservation law, consistent with Federal regulations (36 C.F.R. § 800.4(b)(2)), if not also “segmented” under Hawaii’s environmental impact law (HRS chapter 343).


*voluntarily inactive member of the Hawaii Bar


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