Kaleikini v. Yoshioka

• Decision Date: 24 August 2012
• Docket Number: No. SCAP–11–0000611.,SCAP–11–0000611.
• Citation: 128 Hawai'i 53,283 P.3d 60
• Parties: Paulette Ka‘anohiokalani KALEIKINI, Petitioner/Plaintiff–Appellant, v. Wayne YOSHIOKA, in his official capacity as Director of the City and County of Honolulu's Department of Transportation Services; City and County of Honolulu; Honolulu City Council ; Peter Carlisle, in his official capacity as Mayor; City and County of Honolulu Department of Transportation Services; City and County of Honolulu Department of Planning and Permitting; William J. Aila, Jr., in his official capacity as Chairperson of the Board of Land and Natural Resources and state historic preservation officer; Pua‘alaokalani Aiu, in her official capacity as administrator of the State Historic Preservation Division; Board of Land and Natural Resources; Department of Land and Natural Resources; Neil Abercrombie, in his official capacity as Governor; and O‘ahu Island Burial Council, Respondents/Defendants–Appellees.
• Court: Hawaii Supreme Court

128 Hawai'i 53

283 P.3d 60

Paulette Ka‘anohiokalani KALEIKINI, Petitioner/Plaintiff–Appellant,

v.Wayne YOSHIOKA, in his official capacity as Director of the City and County of Honolulu's Department of Transportation Services; City and County of Honolulu; Honolulu City Council ; Peter Carlisle, in his official capacity as Mayor; City and County of Honolulu Department of Transportation Services; City and County of Honolulu Department of Planning and Permitting; William J. Aila, Jr., in his official capacity as Chairperson of the Board of Land and Natural Resources and state historic preservation officer; Pua‘alaokalani Aiu, in her official capacity as administrator of the State Historic Preservation Division; Board of Land and Natural Resources; Department of Land and Natural Resources; Neil Abercrombie, in his official capacity as Governor; and O‘ahu Island Burial Council, Respondents/Defendants–Appellees.

No. SCAP–11–0000611.

Supreme Court of Hawai‘i.

Aug. 24, 2012.

David Kimo Frankel and Ashley K. Obrey, for petitioner.

William J. Wynhoff, for State respondents.

Robert C. Godbey, Don S. Kitaoka, Gary Y. Takeuchi, John P. Manaut and Lindsay N. McAneeley, for City respondents.

RECKTENWALD, C.J., NAKAYAMA, and McKENNA, JJ., Circuit Judge BROWNING, in place of ACOBA, J., Recused, and Circuit Judge TO‘OTO‘O, in place of DUFFY, J., Recused.

Opinion of the Court by RECKTENWALD, C.J.

Paulette Ka‘anohiokalani Kaleikini is a native Hawaiian who engages in traditional and customary practices, including the protection of native Hawaiian burial remains, or iwi. She is a recognized cultural descendant of the iwi found in Kaka‘ako. Kaleikini's traditional and customary practices involve protecting iwi from disturbance or relocation, and ensuring that iwi receive proper care and respect.

Kaleikini brought this suit against the City and County of Honolulu¹ and the State of Hawai‘i,² challenging the approval of the Honolulu High–Capacity Transit Corridor Project (rail project or project). The rail project involves the construction of an approximately 20–mile fixed guideway rail system from West O‘ahu to Ala Moana Center. Construction on the rail project is planned to take place in four phases: Phase 1 (East Kapolei to Pearl Highlands), Phase 2 (Pearl Highlands to Aloha Stadium), Phase 3 (Aloha Stadium to Middle Street), and Phase 4 (Middle Street to Ala Moana Center). It is undisputed that the rail project has a "high" likelihood of having a potential effect on archeological resources in certain areas of Phase 4, which includes Kaka‘ako.

Kaleikini argued that the rail project should be enjoined until an archaeological inventory survey, which identifies and documents archaeological historic properties and burial sites in the project area, is completed for all four phases of the project. More specifically, Kaleikini argued that Hawai‘i Revised Statutes chapters 6E, 343, and 205A, and their implementing rules, require that an archaeological inventory survey be completed prior to any approval or commencement of the project. Kaleikini asserted that the failure to complete an archaeological inventory survey prior to the start of construction jeopardized the integrity of native Hawaiian burial sites by foreclosing options such as not building the rail, changing its route, or using a technology that would have less impact on any sites.

The City moved to dismiss Kaleikini's complaint and/or for summary judgment, and the State joined in the motion. The City acknowledged that an archaeological inventory survey was required for each phase of the rail project. However, the City asserted that a plan for completion of the archaeological inventory surveys for each phase of the project was set forth in the project's Programmatic Agreement, and that the Programmatic Agreement would ensure that the requirements of HRS chapter 6E were complied with prior to the commencement of construction in any given phase. In other words, the City and State contended that as long as an archeological inventory survey had been completed for a particular phase, construction could begin on that part of the project even if the surveys for the other phases had not yet been completed. Based on the provisions of the Programmatic Agreement, the City argued that Kaleikini could not demonstrate a violation of HRS chapter 6E. Additionally, the City argued that neither HRS chapter 343 nor chapter 205A require the completion of an archaeological inventory survey.

The Circuit Court of the First Circuit granted summary judgment in favor of the City and State on all of Kaleikini's claims.³ Kaleikini appeals from the circuit court's August 8, 2011 final judgment in favor of the City and the State.⁴ As in the circuit court, Kaleikini's primary argument on appeal is that HRS chapters 6E, 343, and 205A require the completion of an archaeological inventory survey prior to approval of the project and commencement of construction.

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.

I. Background

A. Rail project

The following facts are undisputed. The rail project involves the construction of an approximately 20–mile fixed guideway rail system from West O‘ahu to Ala Moana Center. Construction on the rail project is planned to take place in four phases: Phase 1 (East Kapolei to Pearl Highlands), Phase 2 (Pearl Highlands to Aloha Stadium), Phase 3 (Aloha Stadium to Middle Street), and Phase 4 (Middle Street to Ala Moana Center).

The rail project's final Environmental Impact Statement (EIS) was completed in June 2010. The EIS indicates that four alternatives for the rail project were considered: (1) the No Build Alternative; (2) the Transportation System Management Alternative; (3) the Managed Lane Alternative;⁵ and (4) the Fixed Guideway Alternative. The EIS concluded that the Fixed Guideway Alternative "performed better at meeting the Project's Purpose and Need than any of the other alternatives" and "would improve transit performance and reliability[.]"

The EIS noted that three fixed guideway alternatives were considered: the Salt Lake Alternative, the Airport Alternative, and the Airport & Salt Lake Alternative. All three alternatives would involve the same route through Dillingham, Downtown, and Kaka‘ako. The Airport Alternative was ultimately chosen as the preferred alternative.

The EIS indicated that the rail project has a "[h]igh" likelihood of having a potential effect on archeological resources in certain areas of Phase 4, including Dillingham, Downtown, and Kaka‘ako. With regard to the need for an archaeological inventory survey (AIS), the EIS stated:

The City will develop an [AIS] plan for the [area of potential effects] for each construction phase in accordance with [ 36 C.F.R. § 800.4⁶ ] which allows for phased identification of archaeological resources to limit disturbance of potential resources during the investigation.... The AIS plans will follow the requirements of [Hawai‘i Administrative Rules (HAR) chapter 13–276.⁷ ] The City will conduct the archaeological fieldwork as presented in the AIS plan for each construction phase. The archaeological fieldwork will be completed in advance of the completion of the final design so that measures to avoid and/or minimize adverse effects to the historic properties can be incorporated into

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