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High court rules against city on rail suit

August 25, 2012

HONOLULU - The state Supreme Court ruled Friday in favor of a Native Hawaiian woman suing to protect ancient Hawaiian burial sites along Honolulu's planned light rail route.

The high court ruled that a lower court was wrong in dismissing Paulette Kaleikini's lawsuit that claimed the city didn't properly survey whether construction would disturb remains known in Hawaiian as iwi kupuna.

Kaleikini alleged that the city illegally divided the rail route into segments then launched the project before all were surveyed.

The ruling said the state Historic Preservation Division "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," the ruling said. It added that the city also didn't comply with rules when it started construction before the review was done.

The ruling sends the lawsuit back to the lower court for further proceedings.

The city had argued that construction could begin on a section of the $5 billion project linking east Kapolei with Ala Moana Center as long as an archaeological study had been completed on that part of the project.

Deborah Ward, a spokeswoman for the Department of Land and Natural Resources, which oversees historic preservation, said the department had no comment. State attorney general's office spokesman Joshua Wisch said the ruling is being reviewed and analyzed. The city didn't immediately comment.

The ruling upheld dismissal of other claims, including one that the city and state didn't give full consideration to cultural and historic values as required by law.

The unanimous, 82-page ruling acknowledges that Kaleikini, whose cultural practices ensure that iwi receive proper care and respect, is a descendant of those whose remains are in the Kakaako area, and that burials would likely be affected by the project.

"Our client feels vindicated by today's decision and is very grateful for all the support that she has received in her efforts to protect iwi kupuna," said Ashley Obrey, an attorney with the Native Hawaiian Legal Corp., which represents Kaleikini.

Obrey said it's not clear how long it will take to return the case to circuit court.

In the meantime, the corporation sent an email to the city Friday saying continuing with construction is illegal and that if the city doesn't respond by 8 a.m. Monday, the corporation will file for restraining orders and injunctive relief. "We hope the city in good faith would follow what we believe the law to be," Obrey said.

The controversial rail project has divided Oahu residents. And the race for Honolulu mayor has turned into a referendum on the project, with candidate Ben Cayetano, a former Hawaii governor, vowing to put the brakes on rail.

Friday's ruling will at least slow the city's plans, with a court injunction likely to halt construction, said Randall Roth, a University of Hawaii law school professor who is a plaintiff in a federal lawsuit challenging the project on similar claims.

"It's difficult for me to imagine the circuit court won't grant an injunction," he said, adding that he was not surprised by the ruling. "In my mind, the only question has been whether it would be unanimous or not."



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