The almost-extinct scent of journalists–coffee, cigarettes, a hint of cheap cologne–wafted from the fast flicking of notepad pages being inked in shorthand. It was May 24, 2012, and in a packed courtroom the Hawaii Supreme Court oral arguments for Kaleikini v. Yoshioka were underway. The issue before the court was whether the City and County of Honolulu illegally approved and began constructing its heavy rail project before completing a surveyof burials.
“They’ve done what the rules specifically prohibit,” argued David Kimo Frankel, Native Hawaiian Legal Corporation (NHLC) attorney for plaintiff/appellant Paulette Kaanohiokalani Kaleikini who is a descendent of iwi kupuna (“ancestral bones”) buried in Kakaako, a district rich in history through which the rail is planned to run. The phasing of the rail project, Frankel explained, violates Hawaii Revised Statutes chapters 6E, 343, and 205A) which require that an archaeological inventory survey (AIS) be completed for an entire project before any final decisions as to route or technology are made. A With Phase One underway, an AIS has yet to be completed for Phase Four, the final stretch through Kakaako, despite the high likelihood of discovering burials there. The defendants/appellees in this case include Wayne Yoshioka, director of the city’s Department of Transportation Services; William J. Aila, Jr., Chair of the state Department of Land and Natural Resources a; Puaalaokalani Aiu, administrator of the State Historic Preservation Division (SHPD); Mayor Peter Carlisle and Gov. Neil Abercrombie.
John P. Manaut, special deputies corporation counsel, argued on behalf of Mr. Yoshioka and the city defendants, while William J. Wynhoff, deputy attorney general, argued on behalf of Mr. Aila and the other State defendants, excluding the Oahu Island Burial Council, which had filed a “Statement of No Position” in response to the city’s motion to dismiss at the circuit court level. Both Manaut and Wynhoff argued that the rail could be rerouted if burials were found in Phase Four and debated the definition of “project,” which, they argued, could also mean particular phases. They said the adjustment range for the piers is 75-100 feet, so the route could be relocated in the event that burials are found. . Judge Browning asked: “After spending billions of dollars on construction, how likely is it that the final segment will be moved if iwi are found?”
That would be highly unlikely, according to Melody Kapilialoha MacKenzie, associate professor and director of Native Hawaiian Law program at University of Hawaii-Manoa. “If burials are found during construction, SHPD must be notified immediately and, ultimately, has jurisdiction to decide what happens. Wal-Mart and Ward Villages are good examples of what happens during construction– most times iwi will be moved … It is difficult to make these changes after construction has begun, which is why a good AIS is so important before construction and even before major plans are finalized.”
SHPD administrator Pua Aiu declined to be interviewed due to ongoing litigation.
This case, the NHLC attorneys and Professor MacKenzie say, will set an important precedent for how development and native Hawaiian rights will coexist lawfully. “After the events at Honokahua and the discovery of over 900 iwi [during construction of the Ritz-Carlton hotel], the burials law was enacted in 1990 to ensure that iwi kupuna were respected and properly cared for,” MacKenzie says. “This case is a test of that law and, even more importantly, of how the law is implemented.”