Supreme Court: Can Rail Avoid Hawaiian Burials?

Hawaii State Judiciary

The city is already moving down the track on construction of the rail system. But can it swerve to avoid Native Hawaiian burials that might be uncovered along the way?

The Hawaii Supreme Court is wrestling with that question after an hour-long oral argument Thursday morning. The case was brought by Paulette Kaleikini, a cultural descendant who says her ancestors in the Kakaako area will be disturbed by the fourth and final phase of the rail project. Her lawyers with the Native Hawaiian Legal Corporation say the city should have completed an archaeological inventory survey (AIS) of the entire line before starting construction on any part of it.

"An AIS is a key tool used for identification of, consultation about and decision-making on burials," David "Kimo" Frankel told the three justices and two elevated judges Thursday. "Segmenting, piecemeal-ing or phasing an AIS excludes vital information from decision-making, rendering consultation with Native Hawaiians in good faith a meaningless exercise."

The Kaleikini case is one of several legal challenges facing the rail project. In federal court, Honolulutraffic.com, mayoral candidate Ben Cayetano and others are arguing that alternatives were not adequately considered. Also, losing rail car builder Bombardier has sued the city for inappropriately awarding a $1.4 billion contract to Ansaldo.

Frankel said allowing construction to continue without a completed comprehensive AIS could put pressure on the Oahu Island Burial Council to dig up burials found in the rail line because it will be too late and too costly to change the alignment. He said Honolulu has given burials a "short shrift" and has "put the cart before the horse."

"Practically speaking, we have seen other cases where the city or other developers are like, 'Well, we spent so much money, so all we can now do is just dig 'em up.' And that's not the dignity or respect that we seek," Ashley Obrey, another attorney with the Native Hawaiian Legal Corporation, told Civil Beat after the hearing.

The city and state disagree and say the archaeological review is already well under way and will be finished years before construction begins on the downtown segment of the system.

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