News media coverage of the Hawaii Supreme Court arguments over native burials (iwi kupuna) captured none of the drama and little of the significance.

Without advance publicity, the court room was packed. An hour into it, an onlooker emailed: “As of 10:00 a.m., the $4-plus billion Honolulu rail project is officially in jeopardy.”

The crux was whether the City can break Rail into four segments to start construction in Kapolei (“segment one”) before completing archaeology studies in the traditional burial grounds of Kakaako (“segment four”). The City argument, at its most contorted, was, “The Rail project is really four projects even though it’s one project.”

Chief Justice Mark E. Recktenwald sounded dispassionate in his questioning only so long. At a crucial point he asked what the City would do if it ran into so many burials that engineers could not avoid them by moving the supporting pillars. The lawyers answered: Move the Rail from Halekauila Street to either Queen Street or Kapiolani Boulevard.

The Chief Justice then asked if the City had talked with the Federal Transit Authority about this.

Answer: No.

Three of the other four justices were more openly skeptical.

Nonetheless legal veterans say that it is impossible to infer a decision from the tone of questioning.

In the Federal Court case alleging that Rail did not evaluate alternatives to elevated steel on steel, the National Historic Preservation Trust weighed in with a 32-page brief supporting the plaintiffs Cayetano, Roth, Heen, Slater, Hawaii’s Thousand Friends, Outdoor Circle etc. That was a point for the plaintiffs but it went unreported.