New developments in two separate rail lawsuits - Hawaii News Now - KGMB and KHNL

New developments in two separate rail lawsuits

Ashley Obrey; Native Hawaiian Legal Corporation Attorney Ashley Obrey; Native Hawaiian Legal Corporation Attorney
Cliff Slater; HonoluluTraffic.com and a plaintiff in the case Cliff Slater; HonoluluTraffic.com and a plaintiff in the case
HONOLULU (HawaiiNewsNow) -

There were two new developments today in the fight over Honolulu rail and it all centered around iwi kupuna and historic sites.

The case over iwi kupuna or ancestral bones was argued before the Hawaii Supreme Court.  The Native Hawaiian Legal Corporation claims the city should have checked the entire 20 mile route for bones first before starting construction.

"The gist is the law requires all these kinds of archaeological studies to be done up front so that all the information is known up front to help with the decision making process," said Ashley Obrey, Native Hawaiian Legal Corporation Attorney.

If not Obrey says the rail plans may be based on improper information.

The city responds by saying breaking the search up in phases is allowed by law.

"The justices clearly understood the issues and the arguments of the parties, including our explanation as to why conducting phased archaeological studies for the rail project is allowed under applicable laws and is the most reasonable approach. Those studies will be completed early next year for the entire alignment, including the Kakaako area where there is the strongest likelihood of encountering iwi kupuna.  Construction in that area will not begin for several years, allowing more than sufficient time to adjust column placement and make other design changes as necessary to avoid any burial," said the Department of the Corporation Counsel in a written statement.

"The alignment would only be moved in the hypothetical scenario, raised in questioning at the oral argument,  that iwi kupuna are so prevalent that no amount of engineering would enable the project to avoid them and if the burial council decides the iwi should be preserved in place.  There is currently no evidence that this is, or will be, the case.  In fact, to date no iwi kupuna have been discovered in any of the archaeological inventory studies for the entire alignment. The rail project remains committed to compliance with applicable laws, including those concerning iwi kupuna," continued the statement.

The Supreme Court has taken the issue under advisement. There is no timeline on a decision.

Also today the rail opponents picked up another ally.  The National Trust for Historic Preservation joined the fight.  It's one of the largest and most influential preservation groups in the country.

"We're just absolutely delighted to have them aboard because it really validates what we're doing.  This is another voice," said Cliff Slater, HonoluluTraffic.com and a plaintiff in the case.

Earlier this month the court threw out some of the historic sites on the list like the Hawaii Employers council building and Keehi Lagoon Beach Park.

Areas like Chinatown, Aloha Tower and Merchant Street are still part of the lawsuit.  Opponents argue the city and Federal Transit Administration did not thoroughly look at alternatives to going by historic sites.

"We know that they have not looked at other technologies in the way they're supposed to," said Slater.

City lawyers say "As shown in the administrative record, there was an extensive evaluation of historic properties, and the FTA's approval was lawful."

"The National Trust for Historic Preservation (NTHP) filed its brief just one day after it was announced that Honolulu has the worst traffic congestion in the U.S.  NTHP raises the same arguments as Plaintiffs in the federal litigation, which will be addressed in the City's brief on June 1.  As shown in the administrative record, there was an extensive evaluation of historic properties, and the FTA's approval was lawful," said the Department of the Corporation Counsel, in a separate written statement.

The historic buildings along the rail route have stood through a lot.  Time will tell if rail will run by them as well.

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