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Electronically Filed
Supreme Court
SCAP-11-0000611
24-AUG-2012
07:54 AM
IN THE SUPREME COURT OF THE STATE OF HAWAI#I
---o0o---
PAULETTE KA#ANOHIOKALANI KALEIKINI,
Petitioner/Plaintiff-Appellant,
vs.
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
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 11-1-0206-01)
AUGUST 24, 2012
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
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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
1
The City defendants are: Wayne Yoshioka, in his official capacity
as Director of the City and County of Honolulu’s Department of Transportation
Services; the City and County of Honolulu; the Honolulu City Council; Peter
Carlisle, in his official capacity as Mayor of the City and County of
Honolulu; the City and County of Honolulu Department of Transportation
Services; and the City and County of Honolulu Department of Planning and
Permitting.
2
The State defendants are: William J. Aila, Jr., in his official
capacity as Chairperson of the Board of Land and Natural Resources (BLNR) and
state historic preservation officer; Pua#alaokalani Aiu, in her official
capacity as administrator of the State Historic Preservation Division (SHPD);
the BLNR; the Department of Land and Natural Resources (DLNR); Neil
Abercrombie, in his official capacity as Governor of the State of Hawai#i; and
the O#ahu Island Burial Council (OIBC). However, Kaleikini explained in her
complaint that the OIBC was named as “an interested party,” whose interests
were “more properly aligned with [Kaleikini].” Accordingly, reference to the
State in this opinion does not include the OIBC.
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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
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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.
3
The Honorable Gary W.B. Chang presided.
4
Kaleikini also seeks review of the following: (1) the circuit
court’s July 5, 2011 order granting summary judgment in favor of the City; (2)
the circuit court’s July 5, 2011 order granting the State’s substantive
joinder in the City’s motion to dismiss and/or for summary judgment; (3) the
circuit court’s July 5, 2011 order denying Kaleikini’s motion for
reconsideration of the court’s oral rulings granting the City’s motion to
dismiss and/or for summary judgment, and the State’s motion for substantive
joinder; and (4) the circuit court’s oral ruling denying Kaleikini’s Hawai#i
Rules of Civil Procedure (HRCP) Rule 56(f) request for additional time to
pursue discovery.
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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
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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
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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.
5
The EIS stated that the No Build Alternative “remains under
consideration as a viable option.” The EIS concluded that the Transportation
System Management Alternative, which involved a bus-based alternative,
involved fewer benefits than the other alternatives and raised concerns
regarding financial feasibility. The EIS further concluded that the Managed
Lane Alternative, which involved a two-lane elevated toll facility between
Waipahu and Downtown, would provide very little transit benefit at a high
cost.
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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. § 800.4 6] 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)
6
36 C.F.R. § 800.4 (2010) concerns the identification of historic
properties under federal law, and provides, in pertinent part:
Phased identification and evaluation. Where
alternatives under consideration consist of corridors
or large land areas, or where access to properties is
restricted, the agency official may use a phased
process to conduct identification and evaluation
efforts. The agency official may also defer final
identification and evaluation of historic properties
if it is specifically provided for in a memorandum of
agreement executed pursuant to § 800.6, a programmatic
agreement executed pursuant to § 800.14(b), or the
documents used by an agency official to comply with
the National Environmental Policy Act pursuant to
§ 800.8. The process should establish the likely
presence of historic properties within the area of
potential effects for each alternative or inaccessible
area through background research, consultation and an
appropriate level of field investigation, taking into
account the number of alternatives under
consideration, the magnitude of the undertaking and
its likely effects, and the views of the [State
Historic Preservation Officer/Tribal Historic
Preservation Officer] and any other consulting
parties. As specific aspects or locations of an
alternative are refined or access is gained, the
agency official shall proceed with the identification
and evaluation of historic properties in accordance
with paragraphs (b)(1) and (c) of this section.
36 C.F.R. § 800.4(b)(2) (emphasis added).
As discussed more fully below, the rules implementing Hawaii’s
historic preservation law do not include a similar provision.
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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 the design. The
City has consulted and continues to consult with SHPD
and OIBC on burial issues. . . . To balance the
current level of project design, the desire to limit
disturbance of native Hawaiian burials and residences
in Phase [4] of the project area, and the potential
transportation benefits that would accrue from the
proposed project, FTA, in consultation with the
parties, decided to develop a detailed approach in the
. . . draft PA for conducting archaeological
investigations for Phase [4] of the project. The City
has committed to conducting archaeological
investigations in locations where foundations will be
placed. This would limit the area disturbed for
archaeological investigations and construction to
potentially less than 10 percent of what would be
disturbed if archaeological investigations were
conducted for 100 percent of the alignment. The
City’s proposed schedule for the Project would have
construction starting in 2013 for Phase [4] (in the
Kaka#ako neighborhood). Although, the development of
more detailed design and, therefore, archeological
investigations for the last construction phase would
have typically been delayed until closer to the
anticipated construction start date, the City has
committed to starting the process much earlier.
A draft Programmatic Agreement (PA) was appended to the
final EIS, which described the “archaeological historic property
and resource identification and evaluation effort, as well as the
mitigation procedures for identified archaeological resources.”
The EIS indicated that the draft PA was developed to conform with
“Section 106 of the National Historic Preservation Act.” The PA
was developed in consultation with, inter alia, the SHPD.
The final PA was executed on or before January 18,
2011. Aila, as Hawai#i State Historic Preservation Officer, was
a signatory to the final PA. OIBC declined to sign the PA. The
7
HAR chapter 13-276 contains the rules governing standards for AISs
and AIS reports.
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PA provides for a “phased approach to identification and
evaluation of archaeological resources, under which an AIS must
be completed, and the results approved by the SHPD, for each
construction Phase before ground-disturbing activity in that
Phase can commence.” Accordingly, a single AIS for the whole
project will not be performed. Once an AIS for a given phase is
completed and the results approved by the SHPD and, where
necessary, the OIBC, construction on that phase may begin, even
if the AISs for the remaining phases are not yet complete.
The PA provides that archeological fieldwork will be
completed for each phase prior to the final design and
construction of that phase. The fieldwork shall include, but is
not limited to, reconnaissance surveys by way of archival
research and visual inspection, a sample survey of subsurface
conditions with ground-penetrating radar, subsurface inspection
as warranted, and subsurface testing. Any native Hawaiian
burials, or “iwi kupuna,” discovered during the AIS for each
phase will be treated as “previously identified” burials, and the
OIBC will therefore have jurisdiction to determine the treatment
of these burials pursuant to HAR chapter 13-300.8
8
HAR § 13-300-31(b) (1996) provides that “[b]urial sites discovered
during archaeological inventory surveys that appear to be over fifty years old
shall be classified as previously identified for which the [island burial
council] or [DLNR], whichever is applicable, shall determine appropriate
treatment.”
HAR § 13-300-3(b) (1996) provides that the “[a]uthority to
determine treatment of any burial site belongs to the [DLNR], following
appropriate consultations, except that where a burial site is Native Hawaiian
and previously identified, authority to determine treatment belongs to the
appropriate [island burial] council.” (Emphasis added).
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The PA requires the City to develop a plan for the AIS
process prior to archaeological fieldwork being performed. With
regard to Phase 4, the PA provides that the City must consult
with the OIBC, lineal and cultural descendants, native Hawaiian
organizations, and other interested parties within sixty days of
the execution of the PA regarding the scope of the investigation
for the AIS plan. “The AIS Plan will provide for investigation
of the entire Phase 4 area” and will “evaluate all areas that
will be disturbed by the Project.” The final PA provides that
the AIS plan is to be submitted to the SHPD for comment, and then
returned to the City to revise the AIS plan. “Archaeological
investigation will begin following approval of the AIS Plan by
the SHPD.” In addition, the final PA required that the City (1)
complete the AIS for Phase 4 prior to beginning final design for
that area; (2) inform the OIBC of the status of the AIS and
continue to meet regularly with the OIBC; and (3) in coordination
with the OIBC, lineal and cultural descendants, native Hawaiian
organizations, and other interested persons, complete a draft
protocol for consultation regarding treatment of any iwi kupuna
identified during the AIS.
With regard to treatment plans, the final PA provided:
Based on the results of the AIS fieldwork and in
consultation with the SHPD, the City shall develop a
specific treatment plan to avoid, minimize, or
mitigate adverse effects on historic properties
including archaeological sites and burials pursuant to
applicable state laws . . . for each construction
phase. Treatment plans shall be submitted to the SHPD
for approval. Upon approval by the SHPD, the City
shall implement the treatment plan.
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Additionally,
The City confirms that guideway columns may be
relocated a limited distance along the guideway at
most column locations, straddle-bent supports may be
used, or special sections developed to modify span
length allowing for preservation in-place to be viable
in those locations. If the OIBC determines that a
burial is to be relocated, the City will consult with
the OIBC to determine appropriate reinterment, which
may include relocation to Project property in the
vicinity of the discovery.
An AIS for Phase 1 has been completed and was approved
by the SHPD on April 19, 2010. The final PA required that the
AIS process for Phase 4 begin within sixty days of the execution
of the PA. However, the circuit court record does not contain
further information with regard to the progress or completion of
any other AIS.9
B. Circuit court proceedings
1. Complaint
On January 31, 2011, Kaleikini filed a complaint for
declaratory and injunctive relief seeking to delay the start of
construction on the rail project, and naming the City and State,
as well as the OIBC, as defendants.10 Kaleikini asserted that
she is a native Hawaiian who engages in native Hawaiian
traditional and customary practices, including “[p]rotection of
9
In documents attached to the City’s opposition to Kaleikini’s
Motion for Injunction Pending Appeal, which this court denied on April 4,
2012, the City asserted that (1) an AIS was completed for Phase 1, with no
burial sites found; (2) AIS fieldwork for Phase 2 is completed, with no burial
sites found; (3) AIS fieldwork for Phase 3 was expected to be completed in
June 2012; and (4) AIS fieldwork for Phase 4 was expected to be completed in
November 2012. The City further asserted that groundbreaking work on Phase 4
will not commence until March 2015. The City also asserted that the AIS for
Phase 4 was already underway and that no burials had yet been discovered.
10
See supra n.1 and 2.
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iwi in place and prevention of relocation[,]” and “ensur[ing]
that iwi remain undisturbed and that they receive proper care and
respect.” She further asserted that she is a recognized cultural
descendant of the iwi found in Kaka#ako.11 She alleged that an
AIS for the entire rail project corridor would allow her to
“better ensure the appropriate protection of iwi.” She further
asserted that she provided comment and testimony on the draft EIS
and special management area permit for the project, wherein she
opined that an AIS was needed for the entire project prior to
decision making on the project.
Kaleikini’s complaint alleged six counts. First,
Kaleikini alleged that the City’s grant of a special management
area permit for the rail project and its decision to commence
construction on the project prior to the completion of an AIS
violated HRS §§ 6E-812 and 6E-42,13 and their implementing rules,
11
“Cultural descendant” means, “with respect to Native Hawaiian
skeletal remains, a claimant recognized by the [island burial] council after
establishing genealogical connections to Native Hawaiian ancestors who once
resided or are buried or both, in the same ahupua#a or district in which
certain Native Hawaiian skeletal remains are located or originated from.” HAR
§ 13-300-2 (1996).
12
HRS § 6E-8 (2009) provides, in pertinent part:
Review of effect of proposed state projects. (a)
Before any agency or officer of the State or its
political subdivisions commences any project which may
affect historic property, aviation artifact, or a
burial site, the agency or officer shall advise the
department and allow the [DLNR] an opportunity for
review of the effect of the proposed project on
historic properties, aviation artifacts, or burial
sites, consistent with section 6E-43, especially those
listed on the Hawaii register of historic places. The
proposed project shall not be commenced, or in the
event it has already begun, continued, until the
department shall have given its written concurrence.
(continued...)
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HAR chapters 13-275 (2002) and 13-284 (2002) (Counts 1-2).
Kaleikini further alleged that the DLNR, through the SHPD,
violated HRS §§ 6E-8 and 6E-42, and their implementing rules, in
authorizing an AIS to be postponed (Counts 3-4). Kaleikini also
alleged that Governor Abercrombie violated HRS chapter 343 by
accepting the final EIS for the rail project, because the final
EIS did not contain an AIS and was therefore incomplete (Count
5). Finally, Kaleikini alleged that the City and State
Defendants had failed to “give full consideration of the impact
of the [rail project] on iwi and cultural and historic values
prior to decisionmaking” (Count 6).
Based on the foregoing, Kaleikini sought (1) a
12
(...continued)
The department is to provide written concurrence or
non-concurrence within ninety days after the filing of
a request with the department. The agency or officer
seeking to proceed with the project, or any person,
may appeal the department’s concurrence or
non-concurrence to the Hawaii historic places review
board. An agency, officer, or other person who is
dissatisfied with the decision of the review board may
apply to the governor, who may request the Hawaii
advisory council on historic preservation to report or
who may take action as the governor deems best in
overruling or sustaining the department.
13
HRS § 6E-42 (2009) provides, in pertinent part:
Review of proposed projects. (a) Before any agency or
officer of the State or its political subdivisions
approves any project involving a permit, license,
certificate, land use change, subdivision, or other
entitlement for use, which may affect historic
property, aviation artifacts, or a burial site, the
agency or office shall advise the department and prior
to any approval allow the department an opportunity
for review and comment on the effect of the proposed
project on historic properties, aviation artifacts, or
burial sites, consistent with section 6E-43, including
those listed in the Hawaii register of historic
places.
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declaration that the City and DLNR violated HRS §§ 6E-42 and/or
6E-8; (2) a declaration that an AIS must be prepared for the rail
project prior to “decisionmaking on the project and/or
commencement”; (3) a declaration that the final EIS was
“unacceptable” because it did not include an AIS; (4) a
declaration voiding “any and all state or county permits or
approvals” for the rail project; (5) an order prohibiting the
City from commencing or continuing any “ground disturbance” prior
to completion of an AIS and historic preservation review process;
(6) an injunction prohibiting the City from “engaging in any land
alteration” prior to the completion of an AIS and historic
preservation review process; (7) an order compelling the SHPD to
fulfill its obligations under HRS chapter 6E; (8) attorney’s fees
under the private attorney general doctrine; and (9) any other
relief deemed just and proper by the court.
2. Motion for preliminary injunction
Kaleikini filed a motion for preliminary injunction,
seeking to prevent the City from “commencing, or continuing, any
ground disturbance or land alteration” in support of the rail
project. In support of her motion, Kaleikini submitted a
declaration in which she declared, in pertinent part:
3. As a Native Hawaiian, I engage in various
traditional and customary practices that my parents
and other ancestors taught me.
4. One of the critical tenets of Native
Hawaiian traditional and customary practices is the
obligation to ensure that #iwi . . . remain
undisturbed; and that they receive proper care and
respect. Protection of #iwi in place and prevention
of relocation is a traditional and customary practice
of Native Hawaiians who inhabited the Hawaiian Islands
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prior to 1778.
5. One of the most important Native Hawaiian
traditional and customary practices that I engage in
is to malama burial sites na #iwi kãpuna. I visit
burial sites to ensure that they are clean (although
not necessarily marked). I ensure that these sites
are not disturbed. I do pule at burial sites.[ 14]
6. The [OIBC] has officially recognized me as a
cultural descendant of iwi found in Kaka#ako.
7. The unnecessary removal of iwi causes me
great pain and suffering.
8. I rely on information contained in
archaeological inventory surveys to advocate for the
protection of iwi.
9. Although the law may not allow me to
unilaterally decide the fate of ancestral remains, I
have filed this action to ensure that all proper
procedures are followed for the [rail project], which
will impact iwi.
10. An [AIS] along the entire corridor of the
[rail project] would help me meet my kuleana to ensure
the appropriate protection of iwi.
11. Every act of uncovering burial remains is
an alteration of a burial site.
. . . .
34. I am familiar with burials being buried in
Kaka#ako. For example, I helped wrap iwi of twenty-
five kãpuna (from coffins and unmarked) at the Queen
Street extension project; twenty-seven burials at
Kewalo Development (Alexander and Baldwin); sixty-
three burials at the Wal-Mart site on Ke#eaumoku
Street; as well as over sixty burials at Ward Villages
(General Growth Properties).
35. The planned rail corridor runs through this
same general area.
The OIBC filed a statement of position regarding
Kaleikini’s motion, stating as follows:
In accordance with its duties and
responsibilities, the OIBC set forth its significant
concerns over the planned rail project by letter dated
October 18, 2009. Those concerns include concerns
over the phased [AIS] approach to the project . . . .
The OIBC has also repeatedly raised in OIBC meetings
its understanding that the [PA] for the city’s rail
project does not exempt the city from historic
preservation responsibilities set forth in HRS
[c]hapter 6E and its associated administrative rules,
which do not allow for phased [AISs] that occur after
or simultaneously with approval and construction of a
project.
Accordingly, Defendant OIBC respectfully
14
“Malama” means “[t]o take care of, tend, attend, care for,
preserve, protect, beware, save [or] maintain[.]” Mary Kawena Pukui &
Samuel H. Elbert, Hawaiian Dictionary 232 (1986). “Pule” means, inter alia,
“prayer” or “blessing.” Id. at 353.
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requests that the"court weigh these concerns and
strongly consider [Kaleikini’s] motion for preliminary
injunction.
(Record citations omitted).
The OIBC also submitted the minutes of its April 14,
2010 meeting, in which the OIBC determined that it did not
support a phased approach to the AIS. The OIBC also submitted a
copy of an October 18, 2009 letter it sent to the U.S. Department
of Transportation concerning the rail project. The letter noted
“a gross lack of consultation” between the City and the OIBC
between 2005, when the City initiated consultation with OIBC, and
July 9, 2008, when the OIBC requested that City representatives
appear before the OIBC to update the OIBC on the project.
The letter also described the OIBC’s concerns with the
draft PA. The OIBC noted a “significant divide . . . between the
City’s and the OIBC’s perspective regarding how to ‘best protect
iwi kã puna.’” Specifically, the OIBC stated that “[t]he OIBC’s
view focuses on early identification of iwi kã puna to facilitate
a strategy of avoidance through the consideration of alternate
alignments[,]” while “[t]he City’s view focuses on early
commitment to a given alignment and later identification of iwi
kã puna, employing a strategy of mitigating the negative impacts
on iwi kã puna through design changes in the designated corridor.”
The OIBC also explained “[r]elevant Hawaiian [c]ultural
[p]erspectives” regarding burials as follows:
The act of burial and burial locations were kept huna
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(secret and hidden). Burials were kapu[ 15], intended
to be left in peace, and carefully guarded to ensure
that no disturbance occurred. Intrusions into burials
(opening up the ground to expose iwi kãpuna, touching
iwi kãpuna, uprooting iwi kãpuna, etc.) was considered
extremely offensive and disrespectful-an act of
violence and degradation directed at the deceased
individual, the living family members, and the larger
community associated with that burial. Such an act
would be akin to disrobing a living person and
physically handling them against their will.
The City and State opposed Kaleikini’s motion.
Attached to the City’s opposition was a declaration by
Pua#alaokalani Aiu, Administrator of the SHPD. Aiu declared that
she was involved in the consultation process that resulted in the
execution of the PA for the rail project. Aiu further stated
that, because the rail project will have an effect on historic
properties, Section 106 of the National Historic Preservation Act
of 1966 was applicable. “Pursuant to this Act, there was a
consultation process to address ways to minimize, mitigate, or
avoid effects to historic resources under state law during the
construction of the Project. The PA is the outcome of that
process.”
Aiu acknowledged that the SHPD must have an opportunity
to “review and comment on the effect of the Project on historical
properties or burial sites” as required under HRS § 6E-8. Aiu
stated that an “extensive consultation” process had taken place
between the SHPD and the City’s Department of Transportation
Services. Specifically, Aiu noted that consultants had prepared
15
“Kapu” means, inter alia, “forbidden” or “sacred, holy,
consecrated[.]” Pukui & Elbert at 132.
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“a series of extensive archaeological, historical and cultural
technical reports related to historic properties, and also
consulted with SHPD[.]” Aiu stated that the technical reports
“provided extensive cultural, historical and archaeological data
that served as a basis for developing a plan for identifying
historic properties that may be impacted by the Project,
including archaeological and burial sites.” Aiu further
declared:
10. It is SHPD’s position that neither HRS
§ 6E-8 nor HRS § 6E-42 requires the completion of an
[AIS] for the entire project prior to SHPD’s approval
of the plan set forth in the PA.
. . . .
13. The PA is SHPD’s written concurrence to the
phased construction approach, as required by [HRS]
§ 6E-8 and HAR § 13-275-3.
. . . .
15. SHPD considered the likely impacts of the
Project on historic properties, including subsurface
archaeological and burial sites.
16. SHPD has determined that the appropriate way
to address and mitigate these potential impacts is as
set out in the PA.
. . . .
23. It is SHPD’s position that this phased
approach to identification and handling of
archeological resources provided for in the PA,
satisfies the historic preservation review process set
forth under Chapter 6E and its regulations.
A copy of an August 15, 2008 Archaeological Resources
Technical Report, referenced in Aiu’s declaration, was also
appended to the City’s opposition to Kaleikini’s motion. The
report “identifie[d] likely impacts to archaeological resources
within the archaeological study area” relating to four
alternatives under consideration, i.e., No Build, Fixed Guideway
(Salt Lake), Fixed Guideway (Airport) and Fixed Guideway (Airport
& Salt Lake). The report stated, “[w]ith few exceptions, the
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archaeological resources that could be affected by the Project
are subsurface features and deposits that have not been
previously identified.” The report identified a high likelihood
of impacts to burials in the sub-areas of Dillingham, Downtown,
and Kaka#ako. The report noted that previous archaeological
research had been conducted along the corridor of the rail
project, and described these investigations. With regard to
Kaka#ako, the report noted
The area has been subject to intensive reconstruction
and growth since the mid-1990s as a consequence of the
growth of Honolulu and Waik§k§. Several
investigations have uncovered subsurface elevated sand
ridges, often containing burials in addition to other
archaeological resources. These factors have led to
the generation of numerous archaeological reports for
the area.
With regard to further archaeological research, the
report stated:
Identification of these archaeological resources
beneath in-use streets, sidewalks, and highways would
likely pose a significant disruption of traffic. The
cost and time requirements associated with identifying
subsurface archaeological deposits beneath developed
roadways and sidewalks greatly increase, because of
the need to disrupt traffic, saw-cut and remove
existing pavement to expose underlying sediments,
search for archaeological deposits, and then repave
the affected area. Additionally, the Project’s
potential archaeology-affecting ground disturbance
would be over a large geographic area, requiring an
extensive archaeological historic property/
archaeological resource identification effort.
Finally, the project design and engineering are still
under development, and the actual footprints of the
elevated guideway’s support columns will not be known
until after completion of the Project’s Federal
environmental and historic preservation reviews.
Until there is certainty regarding column placement,
any archaeological testing associated with the
Project’s archaeological historic property/
archaeological resource identification effort could be
outside the actual project footprint and could disturb
archaeological resources that would otherwise not be
disturbed by the Project. Nevertheless, to comply
with the Project’s State and Federal environmental and
historic preservation review process, a reasonable,
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good faith effort was made to identify archaeological
resources located within the proposed alignments and
to provide sufficient information to make reasonable
decisions regarding their mitigation during the
Project’s construction.
Kaleikini’s motion was decided along with the City’s
motion to dismiss and/or for summary judgment, discussed infra.
3. City’s motion to dismiss and/or for summary judgment
On February 9, 2011, the City filed a motion to dismiss
and/or for summary judgment. The City argued that Kaleikini
could not assert a private right of action to enjoin the rail
project under HRS § 6E-13(b) because she had not established a
“realistic threat of irreparable injury to any Native Hawaiian
burials.” (Emphasis in original). The City additionally argued
that Kaleikini could not demonstrate a violation of HRS § 6E-42
or HRS § 6E-8, or their implementing rules. Specifically, the
City asserted that Kaleikini could not demonstrate a violation of
HRS § 6E-42 because “the required coordination, consultation,
review and comment between the Project’s sponsoring agencies and
SHPD indisputably occurred.” The City additionally asserted that
the SHPD’s “decision to approve the AIS plan in the PA is
presumed valid under Hawai#i law.” (Citation and emphasis
omitted). Additionally, the City asserted that “burial handling
issues” were considered as evidenced by City Council Resolution
No. 11-7, CD1, “which expressly conditions the issuance of the
[special management area] permit upon the PA and Final [EIS].”16
16
A “true and correct copy” of Resolution No. 11-7 was attached to
the City’s motion as exhibit “M.” The resolution resolved to issue a special
(continued...)
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The City also asserted that the PA served as an “interim
protection plan” that allowed the rail project to commence.17
The City further asserted that Kaleikini could not
demonstrate any violation of HRS § 6E-8 because the “SHPD
provided formal written concurrence to the Project . . . through
its execution of the PA, which indisputably serves as a
permissible ‘interim protection plan’ for historic properties
that may be impacted by the Project under HAR § 13-275-3.”18
The City also asserted that Kaleikini could not
demonstrate a violation of HRS chapter 343 because an EIS is not
required to include a completed AIS. Additionally, with regard
to Kaleikini’s claim that the City and State failed to fully
16
(...continued)
management area permit to the City’s Department of Transportation Services,
and provided, in pertinent part:
Prior to the issuance of any development permit for
the Project, the [Department of Transportation
Services] shall provide the Director of the
[Department of Planning and Permitting] with written
documentation that a [PA] to minimize and mitigate
adverse effects on historic properties as generally
described in the Final [EIS] has been executed. The PA
and any amendments thereto shall record the terms and
conditions agreed upon to resolve potential adverse
effects on historic properties, and, shall include
stipulations related to the encountering of any
previously unidentified archaeological site or remains
(such as artifacts, shell, bone, or charcoal deposits,
human burials, rock or coral alignments, pavings, or
walls) during construction activities.
17
HAR § 13-284-3 (2002) provides, in pertinent part: “In cases where
interim protection plans are adequately in place and any data recovery
fieldwork has been adequately completed, the project may commence from a
historic preservation perspective.” (Emphasis added).
18
HAR § 13-275-3 (2002) provides, in pertinent part: “In cases where
interim protection plans are adequately in place or data recovery fieldwork
has been adequately completed, a determination letter may be issued.”
(Emphasis added). A “determination letter” is the “SHPD’s written response
which either concurs or does not concur with an agency’s proposed project.”
HAR § 13-275-2 (2002).
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consider the impact of the rail project on native Hawaiian
burials, the City noted that Kaleikini had not identified a legal
basis for her claim and that, in any event, the issue was
properly considered.
The City attached a declaration of Faith Miyamoto,
Chief of Transit Planning and Environmental Studies at the Rapid
Transit Division of the Department of Transportation Services.
Miyamoto declared that:
The PA is one way to satisfy federal requirements of
Section 106 of the National Historic Preservation Act
of 1966. The PA also includes a process, developed
through consultation with various participating
parties, including the [SHPD] of the [DLNR], for
addressing the discovery of burials and other
archaeological and cultural artifacts under state law
during the construction of the Project.
Miyamoto further declared that, during the
environmental review process, the City notified the SHPD of the
project and provided it “with an opportunity to review and
comment on the potential impact of the Project on historical
properties, including burial sites, as required under HRS § 6E-
42.” Miyamoto attached numerous supporting documents to her
declaration including the PA, excerpts from the draft and final
EISs, and various technical reports.
A hearing on the City’s motion was scheduled for
March 14, 2011. The State Defendants filed a substantive joinder
to the City Defendants’ motion. OIBC filed a statement of no
position as to the motion.
Kaleikini opposed the City’s motion. Citing HRCP Rule
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56(f),19 Kaleikini sought additional time to complete discovery
prior to the hearing on the motion, on the ground that it would
not be possible for her to submit admissible evidence by the
hearing date. Kaleikini also argued that “an AIS must precede
decisionmaking and commencement of the rail project” under HRS
chapter 6E. Accordingly, Kaleikini argued, the SHPD could not
have properly reviewed and commented on the project or given its
concurrence prior to an AIS being completed for the entire 20
mile project. Kaleikini also disputed the City’s assertion that
the PA could serve as an interim protection plan under the
applicable rules. Rather, Kaleikini asserted, “an interim
protection plan can only be approved after an [AIS] has been
prepared.” Kaleikini additionally asserted that neither the
statutes nor the rules allowed for the City’s phased approach to
the AISs.
Kaleikini further asserted that she had made the
requisite showing of an “irreparable injury” to establish a
private right of action. Specifically, Kaleikini asserted that
the potential for uncovering iwi constituted an irreparable
19
HRCP Rule 56 governs summary judgment. HRCP Rule 56(f) (2010)
provides:
When affidavits are unavailable. Should it
appear from the affidavits of a party opposing the
motion that the party cannot for reasons stated
present by affidavit facts essential to justify the
party’s opposition, the court may refuse the
application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be
taken or discovery to be had or may make such other
order as is just.
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injury, as did the City and State’s failure to follow proper
procedures under HRS chapter 6E.
Kaleikini further argued that the EIS was inadequate
because it did not contain an adequate description of “resources
of historic, archaeological, or aesthetic significance.”
(Quoting HAR § 11-200-17(G)20). Finally, Kaleikini asserted that
the City and State failed to “give full consideration to cultural
and historic values.” (Quoting Public Access Shoreline Hawaii v.
Hawai#i Cnty. Planning Comm’n (PASH), 79 Hawai#i 425, 435, 903
P.2d 1246, 1256 (1995)). Kaleikini asserted that such
consideration is required under HRS § 205A-4, this court’s
caselaw, and the public trust principles contained in HRS chapter
6E.
Kaleikini separately filed an opposition to the State’s
joinder, on the same grounds articulated in her opposition to the
City’s motion.
A hearing on the City’s motion was held on March 14,
15, and 23, 2011. At the conclusion of the hearing, the circuit
court orally denied Kaleikini’s HRCP Rule 56(f) request on the
ground that Kaleikini had failed to show that a continuance would
enable her to rebut the City’s showing that there was no genuine
issue of material fact and, in any event, the resolution of the
20
HAR § 11-200-17(G) (1996) requires that a draft EIS include a
description of “environmental resources that are rare or unique to the region
and the project site (including natural or human-made resources of historic,
archaeological, or aesthetic significance)[.]” A final EIS consists of, inter
alia, “[t]he draft EIS revised to incorporate substantive comments received
during the consultation and review process[.]” HAR § 11-200-18.
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City’s motion raised a question of law that did not turn on any
disputed facts of the case. The circuit court orally granted the
City’s motion for summary judgment and the State’s joinder, on
the ground that the phased approach to the AISs for the rail
project was not prohibited by law. The circuit court also denied
Kaleikini’s motion for preliminary injunction as moot based on
its oral ruling on the City’s motion.
Kaleikini filed a motion for reconsideration of the
circuit court’s oral rulings. Kaleikini appended various
exhibits to her motion, including declarations of Dr. K haulani
Cachola-Abad, who has a PhD in Anthropology with a specialization
in Hawaiian archaeology. Dr. Cachola-Abad opined that an AIS
should be performed prior to decision making. Dr. Cachola-Abad
further opined that,
Given the number of burials that are likely to be
encountered and the extent of excavation that will be
required for this project, the relocation of specific
piers will not likely adequately protect the burials
found along the corridor. In other words, more
fundamental options would need to be considered to
protect the burials - including the route and the
technology employed.
The circuit court denied the motion for reconsideration
on July 5, 2011. The same day, the circuit court filed its order
granting summary judgment in favor of the City and State, and
granting the State Defendants’ substantive joinder in the City’s
motion. On August 8, 2011, the circuit court filed its final
judgment in favor of the City, State, and OIBC, and against
Kaleikini on all claims.
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C. Appeal
Kaleikini filed a timely notice of appeal on August 11,
2011. On January 17, 2012, we granted Kaleikini’s application
for a mandatory and discretionary transfer of her appeal from the
ICA to this court.
Kaleikini raises four points of error: that the
circuit court erred in (1) granting the City’s motion for summary
judgment; (2) granting the State’s substantive joinder in the
City’s motion; (3) denying Kaleikini’s motion for
reconsideration; and (4) denying Kaleikini’s HRCP Rule 56(f)
request. As set forth in detail below, Kaleikini’s primary
argument on appeal is that the City and State failed to comply
with HRS §§ 6E-8 and 6E-42, and their implementing rules, by
allowing a decision on the project to be made prior to the
completion of an AIS for the entire project. In response, the
City and State argue that the requirements of the applicable
statutes and rules have been met and the process undertaken to
approve the rail project was permissible for a variety of
reasons, including that a phased approach to the AIS is
permissible, the SHPD has discretion to consider the separate
phases of the rail project as separate projects, and the PA
ensures that an AIS will eventually be completed.
II. Standards of Review
A. Summary judgment
“On appeal, the grant or denial of summary judgment is
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reviewed de novo.” First Ins. Co. of Hawaii v. A&B Props., 126
Hawai#i 406, 413, 271 P.3d 1165, 1172 (2012) (quoting Nuuanu
Valley Ass’n v. City & Cnty. of Honolulu, 119 Hawai#i 90, 96, 194
P.3d 531, 537 (2008)).
B. Statutory Interpretation
“Statutory interpretation is a question of law
reviewable de novo.” Id. at 414, 271 P.3d at 1173 (quoting State
v. Wheeler, 121 Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009)).
C. Interpretation of agency rules
In interpreting the HAR,
[t]he general principles of construction which apply
to statutes also apply to administrative rules. As in
statutory construction, courts look first at an
administrative rule’s language. If an administrative
rule’s language is unambiguous, and its literal
application is neither inconsistent with the policies
of the statute the rule implements nor produces an
absurd or unjust result, courts enforce the rule’s
plain meaning.
In re Wai#ola O Moloka#i, Inc., 103 Hawai#i 401, 425, 83 P.3d 664,
688 (2004) (quoting Int’l Bhd. of Elec. Workers, Local 1357 v.
Hawaiian Tel. Co., 68 Haw. 316, 323, 713 P.2d 943, 950 (1986)).
An agency’s interpretation of its own rules is
generally entitled to deference. Gillian v. Gov’t Emps. Ins.
Co., 119 Hawai#i 109, 125, 194 P.3d 1071, 1087 (2008) (“Arguably,
where an agency promulgates a rule, we will accord consideration
to its interpretation of its own rules.”) (citation omitted);
Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984)
(“[I]n deference to the administrative agency’s expertise and
experience in its particular field, the courts should not
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substitute their own judgment for that of the administrative
agency where mixed questions of fact and law are presented. This
is particularly true where the law to be applied is not a statute
but an administrative rule promulgated by the same agency
interpreting it.”) (citation omitted). However, this court does
not defer to agency interpretations that are “plainly erroneous
or inconsistent with the underlying legislative purpose.” In re
Wai#ola O Moloka#i, Inc., 103 Hawai#i at 425, 83 P.3d at 688.
D. Acceptability of an EIS
In reviewing a challenge to an accepted EIS, this court
“uses the ‘rule of reason’ to determine whether an EIS is legally
sufficient in adequately disclosing facts to enable a decision-
making body to render an informed decision.” Citizens for Prot.
of North Kohala Coastline v. Cnty. of Hawai#i, 91 Hawai#i 94, 107,
979 P.2d 1120, 1133 (1999) (brackets and citation omitted).
Under the “rule of reason,”
an EIS need not be exhaustive to the point of
discussing all possible details bearing on the
proposed action but will be upheld as adequate if it
has been compiled in good faith and sets forth
sufficient information to enable the decision-maker to
consider fully the environmental factors involved and
to make a reasoned decision after balancing the risks
of harm to the environment against the benefits to be
derived from the proposed action, as well as to make a
reasoned choice between alternatives.
Price v. Obayashi Hawaii Corp., 81 Hawai#i 171, 182, 914 P.2d
1364, 1375 (1996) (citation omitted).
Additionally, “courts are reluctant to ‘second guess’
the decision-making body regarding the sufficiency of an EIS.”
Id. at 182 n.12, 914 P.2d at 1375 n.12.
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E. Denial of a request for a HRCP Rule 56(f) continuance
“A trial court’s decision to deny a request for a
continuance pursuant to HRCP Rule 56(f) will not be reversed
absent an abuse of discretion.” Josue v. Isuzu Motors America,
Inc., 87 Hawai#i 413, 416, 958 P.2d 535, 538 (1998). An abuse of
discretion occurs if the trial court “clearly exceeded the bounds
of reason or disregarded rules or principles of law or practice
to the substantial detriment of a party litigant.” Amfac, Inc.
v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26
(1992).
F. Denial of a request for reconsideration
The appellate court reviews a “trial court’s ruling on
a motion for reconsideration . . . under the abuse of discretion
standard.” Ass’n of Apartment Owners of Wailea Elua v. Wailea
Resort Co., Ltd., 100 Hawai#i 97, 110, 58 P.3d 608, 621 (2002)
(quotation marks omitted) (quoting Sousaris v. Miller, 92 Hawai#i
505, 513, 993 P.2d 539, 547 (2000)).
III. Discussion
As set forth below, Kaleikini has made a sufficient
showing of irreparable injury to bring her claims under HRS
chapter 6E. With regard to the merits of her claims, the rules
implementing HRS §§ 6E-8 and 6E-42 require that historic
properties be identified in the “project area,” and the broad
definition of “project area” contained in the rules encompasses
the entire rail project. The rules do not permit the SHPD to
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concur in the rail project absent a completed AIS for the entire
project area. Rather, the rules establish a sequential process
under which an AIS, if required, must precede the SHPD’s
concurrence in a project. Because an AIS was not completed
before the SHPD gave its concurrence in the rail project, the
SHPD’s concurrence in and the City’s commencement of the project
were improper. Although the State argues that the PA constituted
an “interim protection plan” that permitted the SHPD to concur in
the project prior to the completion of the historic preservation
review process, the PA does not constitute an interim protection
plan under the applicable rules. Accordingly, the circuit court
erred in granting summary judgment in favor of the City and State
on Counts 1 through 4 of Kaleikini’s complaint.
However, the circuit court properly granted summary
judgment in favor of the City and State on Counts 5 and 6 because
(1) the final EIS was sufficient under HRS chapter 343 and was
properly accepted by the Governor; and (2) the City and State
gave full consideration to cultural and historic values as
required under HRS chapter 205A.
A. Kaleikini has made a sufficient showing of “irreparable
injury” to bring her claims under HRS § 6E-13(b)
The City argues that Kaleikini has not shown “an
immediate threat of irreparable harm to a burial or other
historic property[,]” which, the City argues, is required to
assert a private right of action under HRS § 6E-13(b). Kaleikini
asserts that she has made the requisite showing of an irreparable
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injury in the form of (1) a procedural injury; and (2) injury to
the burials and/or her interest in protecting the burials. With
regard to injury to the burials and Kaleikini’s interest in
protecting those burials, Kaleikini specifically asserts that
there is a high likelihood of uncovering burials in Phase 4 of
the project, and that the City’s decision to proceed with the
rail project without first completing the required historic
preservation review process forecloses options that would provide
greater protection to burials, including the no-build
alternative, and alternative technologies or routes. As set
forth below, Kaleikini has made a sufficient showing of
irreparable injury in the form of threatened injury to the
Kaka#ako burial sites, and accordingly has standing to bring her
claims. Additionally, Kaleikini has shown a sufficient
procedural injury to establish procedural standing.
HRS § 6E-13(b) permits individuals to bring actions for
injunctive relief as follows:
Any person may maintain an action in the trial court
having jurisdiction where the alleged violation
occurred or is likely to occur for restraining orders
or injunctive relief against the State, its political
subdivisions, or any person upon a showing of
irreparable injury, for the protection of an historic
property or a burial site and the public trust therein
from unauthorized or improper demolition, alteration,
or transfer of the property or burial site.
(Emphasis added).
Although the City characterizes the “irreparable
injury” requirement as a limitation on the private right of
action set forth in HRS § 6E-13(b), this requirement is more
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properly characterized as a limitation on standing, which is “the
aspect of justiciability focusing on the party seeking a forum
rather than on the issues he wants adjudicated.”21 Citizens for
Prot. of North Kohala Coastline, 91 Hawai#i at 100, 979 P.2d at
1126; see also Cnty. of Hawai#i v. Ala Loop Homeowners, 123
Hawai#i 391, 406 n.20, 235 P.3d 1103, 1118 n.20 (2010) (“While
the term ‘standing’ is sometimes used to describe the private
right of action inquiry, nevertheless, our cases make clear that
the two inquiries involve distinct policy considerations and
distinct tests[.] The private right of action inquiry focuses on
the question of whether any private party can sue to enforce a
statute, while the standing inquiry focuses on whether a
particular private party is an appropriate plaintiff.”)
(citations omitted) (emphasis in original).
In general, Hawai#i courts determine whether a
plaintiff has standing by asking “(1) has the plaintiff suffered
an actual or threatened injury; (2) is the injury fairly
traceable to the defendant’s actions; and (3) would a favorable
decision likely provide relief for plaintiff’s injury.” Id. at
422 n.43, 235 P.3d at 1134 n.43 (citation and ellipsis omitted).
However, HRS § 6E-13(b) qualifies the first prong of this test by
requiring that the “actual or threatened injury” be an
21
Although the City does not characterize its argument as a standing
argument, we nonetheless must address Kaleikini’s standing. Office of
Hawaiian Affairs v. Housing & Cmty. Dev. Corp. of Hawai#i, 121 Hawai#i 324,
326-27, 219 P.3d 1111, 1113-14 (2009) (noting that this court has a “duty to
consider, sua sponte, jurisdictional issues such as standing”) (citation
omitted).
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irreparable injury.
This court has further explained:
in analyzing whether a party has standing, our
touchstone remains the needs of justice. . . . Thus,
one whose legitimate interest is in fact injured by
illegal action of an agency or officer should have
standing because justice requires that such a party
should have a chance to show that the action that
hurts his interest is illegal. Moreover, at the
pleading stage, general factual allegations of injury
resulting from the defendant’s conduct may suffice.
Kaho#ohanohano v. State, 114 Hawai#i 302, 318, 162 P.3d 696, 712
(2007) (citations, internal quotation marks, and brackets
omitted).
Here, Kaleikini’s allegations are sufficient to
establish her standing. First, it is undisputed that Kaleikini
has a “legitimate interest” in the iwi found in Kaka#ako, see
Kaho#ohanohano, 114 Hawai#i at 318, 162 P.3d at 712, because she
is a recognized cultural descendant of those iwi.22 It is also
undisputed that the rail project has a high likelihood of
affecting iwi in Kaka#ako. Kaleikini declared that “[t]he
unnecessary removal of iwi causes [her] great pain and
suffering.” Additionally, the record reflects the OIBC’s view
that “[i]ntrusions into burials” are “considered extremely
offensive and disrespectful–-an act of violence and degradation
22
Additionally, this court has previously recognized in a different
context, in litigation concerning the availability of a contested case hearing
regarding the OIBC’s approval of a burial treatment plan, that Kaleikini’s
“cultural and religious beliefs regarding the protection of iwi” constitute a
legal interest sufficient to establish standing. Kaleikini v. Thielen, 124
Hawai#i 1, 26, 237 P.3d 1067, 1092 (2010) (“Throughout the instant litigation,
Kaleikini has averred that her cultural and religious beliefs require her to
ensure that the iwi is left undisturbed and that the OIBC’s decision, allowing
[General Growth Properties] to disinter the iwi, has caused her cultural and
religious injury. As such, we believe Kaleikini has alleged sufficient facts
upon which this court can determine she has standing.”).
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directed at the deceased individual, the living family members,
and the larger community associated with the burial.” These
“general factual allegations of injury resulting from the
defendant’s conduct,” see Kaho#ohanohano, 114 Hawai#i at 318, 162
P.3d at 712, are sufficient to establish that Kaleikini has
suffered an actual or threatened irreparable injury.
Nevertheless, the City argues that Kaleikini has not
asserted a sufficient injury because she has not “identified any
specific burial that is currently threatened by the Project.”
However, as stated, it is undisputed that the rail project has a
high likelihood of affecting iwi in Kaka#ako. Accordingly, the
likelihood of uncovering burials in Kaka#ako is not speculative
or conjectural, but rather is high.23 Cf. Mottl v. Miyahira, 95
Hawai#i 381, 389, 395, 23 P.3d 716, 724, 730 (2001) (noting that
the plaintiff’s injury must be “distinct and palpable, as opposed
to abstract, conjectural, or merely hypothetical[,]” and
concluding that plaintiffs did not have standing where the
allegations “amount[ed] to speculation”). Moreover, HRS § 6E-
13(b), on its face, provides that an action may be maintained
“where the alleged violation occurred or is likely to occur . . .
upon a showing of irreparable injury[.]” (Emphasis added).
Thus, HRS § 6E-13(b) specifically acknowledges that standing may
23
Moreover, the PA recognizes the potential for burials to be
relocated, which presumably would be unnecessary if all of the burials could
be preserved in place. Although the City acknowledged during oral argument
that the route may need to be altered if “there is a [burial] site that
prevents them from putting a column there or it’s so pervasive they cannot put
an alignment there,” the record does not establish that the City is willing or
able to reroute the project. See infra n.24.
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exist where an irreparable injury has not yet occurred.
In addition, the City’s narrow conception of standing
would frustrate enforcement of one of the central purposes of
state historic preservation law, which is to require that the
effects on historic properties be reviewed prior to the approval
of a project. HRS § 6E-42(a); see also HRS § 6E-8(a). Put
simply, under the City’s interpretation of HRS § 6E-13(b),
private plaintiffs would not have standing to challenge the lack
of an AIS until remains are uncovered during the course of
construction, except in certain limited circumstances where a
plaintiff happens to have prior knowledge of where burials are
located. Yet that is precisely the type of situation that the
historic preservation law is designed to avoid. The requirement
of “irreparable injury” in HRS § 6E-13(b) must be read in light
of the other provisions of chapter 6E. When it is so read,
standing clearly exists in the circumstances alleged here.
The City also asserts that Kaleikini cannot show an
irreparable injury to the burials because, under the PA, an AIS
will be completed prior to ground-disturbing construction in each
phase. Accordingly, an AIS will be performed prior to any ground
disturbance in the Kaka#ako area. However, the City’s point does
not address Kaleikini’s argument that the SHPD’s approval of the
entire rail project without a complete AIS forecloses the no-
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build option and alternative technologies or routes.24 Thus, the
approval of the rail project without an AIS may, for example,
lead to the relocation of burials that otherwise would remain in
place. This is sufficient to establish an irreparable injury to
the iwi for purposes of HRS § 6E-13(b).
Moreover, the City’s argument goes more to the merits
of Kaleikini’s claim than to Kaleikini’s standing. See Hawaii
Med. Ass’n v. Hawaii Med. Serv. Ass’n, Inc., 113 Hawai#i 77, 94-
95, 148 P.3d 1179, 1196-97 (2006) (“In determining whether the
plaintiff has standing, we look solely to whether the plaintiff
is the proper plaintiff in this case, without regard to the
merits of the allegations in the complaint.”) (citation and
brackets omitted). In order to conclude that Kaleikini suffers
no injury from the initiation of construction in Phase 1, we
would first be required to accept the City’s characterization of
the substantive law as permitting the AIS to be completed in
phases after the SHPD has given its concurrence to the entire
project. Thus, the resolution of this question requires inquiry
24
The parties dispute whether the City is willing or able to change
the rail’s route. However, the final EIS indicates that the rail is currently
set to run on Halekauwila Street through Kaka#ako. There is nothing in the
record, and in particular the PA, to indicate that the City intends to reroute
the project if burials are encountered. Rather, the PA indicates that the
City is willing to relocate “guideway columns” “a limited distance along the
guideway[,]” to use “straddle-bent supports[,]” or to “modify span length to
allow for preservation-in-place[.]” Moreover, although the record reflects
the Federal Transit Administration’s mandate that any proposed change to the
project be approved by the Federal Transit Administration in writing, the City
does not identify anywhere in the record where the Federal Transit
Administration has suggested it is amenable to altering the rail’s route.
Thus, the City’s assertion that it may reroute the project so as not to affect
burials in Kaka#ako is speculative and insufficient to defeat Kaleikini’s
standing.
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into the merits beyond the threshold question of Kaleikini’s
standing. See id.
Kaleikini also asserts that she suffered an irreparable
procedural injury, because she was denied her opportunity to
consult and obtain information prior to decision making on the
rail project, and because “bureaucratic momentum,” will lead to
“after-the-fact determinations [that] may leave practitioners of
customary and traditional uses unprotected from possible
arbitrary and self-serving actions on [the City’s] part.”
In Sierra Club v. Department of Transportation
(Superferry I), 115 Hawai#i 299, 322, 167 P.3d 292, 315 (2007),
this court recognized that a “procedural injury” may serve as a
basis for standing. This court noted,
This subset of standing doctrine - known as
“procedural standing” - derives from footnote seven of
the United States Supreme Court’s opinion in Lujan[ v.
Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)],
in which the Court stated that “[t]he person who has
been accorded a procedural right to protect his
concrete interests can assert that right without
meeting all the normal [standing] standards for
redressability and immediacy.
Id. at 314, 167 P.3d at 321.
In order to establish a cognizable procedural injury,
“at a minimum, a plaintiff must suffer some procedural wrong as
well as a threat to underlying concrete interests.” Id. at 324,
167 P.3d at 317 (emphasis in original). Additionally, in order
to establish that a procedural injury is sufficient to confer
standing under HRS § 6E-13(b), a plaintiff must establish that
the threat to his or her concrete interests involves a threat of
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irreparable injury.
Here, Kaleikini “has been accorded a procedural right
to protect [her] concrete interests[.]” See id. at 322, 167 P.3d
at 315. First, as stated, Kaleikini has a concrete interest in
protecting the iwi located in Kaka#ako. Additionally, although
neither HRS § 6E-8 nor HRS § 6E-42 specifically requires that
interested individuals such as Kaleikini be given an opportunity
to participate in the historic preservation review process, HAR
chapters 13-275, 13-276, and 13-284 do so require. Specifically,
HAR chapters 13-275 and 13-284 provide for a “consultation
process”25 at various points in the historic preservation review.
See, e.g., HAR §§ 13-275-5(e) and 13-284-5(e) (requiring, in
certain circumstances, a consultation in relation to an
archaeological inventory survey); HAR §§ 13-275-8(a)(3)(C) and
13-284-8(a)(3)(C) (requiring a consultation regarding mitigation
commitments for historic property that has “an important value to
the native Hawaiian people or to another ethnic group of the
state”). Additionally, HAR chapter 13-276 (2002), which governs
the scope of AISs, requires that an AIS describe the
“consultation process with knowledgeable individuals.” HAR § 13-
25
“Consultation process” means “notifying interested organizations
and individuals that a project could affect historic properties of interest to
them; seeking their views on the identification, significance evaluations, and
mitigation treatment of these properties; and considering their views in a
good faith and appropriate manner during the review process.” HAR § 13-275-2;
see also HAR § 13-284-2.
“Interested persons” is defined as “those organizations and
individuals that are concerned with the effect of a project on historic
properties.” HAR § 13-275-2.
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276-5(a). Accordingly, the rules provide Kaleikini a procedural
right to consult in the historic preservation review process.
Finally, Kaleikini has sufficiently alleged that the “procedural
wrong” of her being unable to consult in an AIS prior to the rail
project’s approval causes a threat of irreparable harm to her
concrete interests in the iwi located in Kaka#ako, for the
reasons stated supra. See Superferry I, 115 Hawai#i at 324, 167
P.3d at 317.
Based on the foregoing, Kaleikini has made a sufficient
showing of irreparable injury based on both the threat of injury
to the Kaka#ako burial sites and her procedural injury, and
therefore has standing to pursue her claims.
B. HAR chapters 13-275 and 13-284 required the completion of an
AIS prior to the SHPD’s approval of the rail project
Kaleikini argues that the City and State failed to
comply with HRS §§ 6E-8 and 6E-42 and their implementing rules by
proceeding with the rail project prior to the completion of an
AIS. Specifically, Kaleikini argues that, under the relevant
rules, the historic preservation review process is a sequential
process that requires the completion of an AIS prior to approval
of the project. Kaleikini also argues that “[t]here is only one
project at issue in this case: the entire 20-mile fixed guideway
rail system.” Accordingly, Kaleikini argues, the City cannot
phase its AIS for the rail project but must instead “study all
phases” of the rail project. Kaleikini argues that delaying or
phasing the AIS is inconsistent with the purposes of HRS chapter
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6E and its implementing rules.
In response to Kaleikini’s argument that the sequential
nature of the historic preservation review process under the
relevant rules requires the completion of an AIS prior to
approval of the project, the City asserts that the SHPD had the
opportunity to review the project and provide its approval and
concurrence as required under HRS chapter 6E. The State
similarly argues that the requirements of HRS chapter 6E have
been met, and also argues that the applicable rules “allow SHPD
to concur with commencement of projects absent full completion of
the review process, where appropriate interim protection plans
are in place.” (Citing HAR §§ 13-275-3 and 13-284-3). The State
asserts that the PA constitutes an “interim protection plan” that
allows the project to proceed prior to the completion of an AIS.
With regard to phasing, both the City and State argue
that phasing is not expressly prohibited by HRS chapter 6E, the
SHPD has discretion to determine the scope of the “project” and
to approve a phased approach, and phasing is not contrary to the
policies underlying HRS chapter 6E.
As set forth below, Kaleikini is correct that the
applicable rules clearly establish a sequential approach to the
historic preservation review process, which requires the
completion of an AIS prior to the approval of a project. This
process was not followed in the instant case. Moreover, although
the rules permit a project to commence where an “interim
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protection plan” is in place, the definition of “interim
protection measures” contained in HAR chapter 13-277 indicates
that the PA does not constitute 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 only be developed after an
AIS has been completed. See HAR §§ 13-275-8(a)(1), 13-284-
8(a)(1), 13-275-9(d), and 13-284-9(d).
Additionally, as set forth below, the City and State’s
arguments regarding phasing are without merit. Phasing the AISs
subsequent to approval of the project is impermissible because
the rules require that historic properties in the “project area”
be identified prior to approval. The broad definition of the
term “project area” encompasses the entire rail project corridor,
and the historic preservation review process was therefore
required to identify significant historic properties in the
entire rail project corridor prior to the SHPD giving its
concurrence. Accordingly, the circuit court erred in granting
summary judgment in favor of the City and State on Counts 1
through 4.
1. The applicable rules establish a sequential approach to
the historic preservation review process
HRS § 6E-8 provides, in pertinent part:
Review of effect of proposed state projects. (a)
Before any agency or officer of the State or its
political subdivisions commences any project which may
affect historic property, aviation artifact, or a
burial site, the agency or officer shall advise the
[DLNR] and allow the [DLNR] an opportunity for review
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of the effect of the proposed project on historic
properties, aviation artifacts, or burial sites,
consistent with section 6E-43, especially those listed
on the Hawaii register of historic places. The
proposed project shall not be commenced, or in the
event it has already begun, continued, until the
[DLNR] shall have given its written concurrence.
(Emphasis added).
HRS § 6E-42 provides, in pertinent part:
Review of proposed projects. (a) Before any
agency or officer of the State or its political
subdivisions approves any project involving a permit,
license, certificate, land use change, subdivision, or
other entitlement for use, which may affect historic
property, aviation artifacts, or a burial site, the
agency or office shall advise the [DLNR] and prior to
any approval allow the [DLNR] an opportunity for
review and comment on the effect of the proposed
project on historic properties, aviation artifacts, or
burial sites, consistent with section 6E-43,[ 26]
including those listed in the Hawaii register of
historic places.
(Emphasis added).
Both HRS §§ 6E-8 and 6E-42 apply in the instant case.
Both statutes similarly provide for a review and comment process
for projects that may affect burial sites. However, while HRS §
6E-8 applies to projects commenced by “any agency or officer of
the State or its political subdivisions[,]” HRS § 6E-42 applies
only to projects which require the approval of “any agency or
officer of the State or its political subdivisions” for a
“permit, license, certificate, land use change, subdivision, or
other entitlement for use[.]” Here, the rail project is a
project commenced by the City, and therefore HRS § 6E-8 applies.
Additionally, the City is required to approve various permits for
26
HRS § 6E-43 (2009) concerns the handling of prehistoric and
historic burial sites.
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the rail project, including a special management area permit, and
therefore HRS § 6E-42 also applies.
Both statutes require that the DLNR be given an
opportunity to review and comment on the proposed project. See
HRS §§ 6E-8 and 6E-42. Additionally, HRS § 6E-8 requires that
the DLNR give its written concurrence before the project can
commence, while HRS § 6E-42 does not. Compare HRS § 6E-8 with
HRS § 6E-42. Here, the City and State argue that the
requirements of HRS §§ 6E-8 and 6E-42 have been met because the
SHPD was given an opportunity to review and comment on the rail
project, and the SHPD gave its written concurrence by way of its
concurrence in the PA.
However, while HRS §§ 6E-8 and 6E-42 provide generally
for a review and comment process, the details of this process are
governed by HAR chapter 13-275 (for HRS § 6E-8) and HAR chapter
13-284 (for HRS § 6E-42). See HAR § 13-275-1(b) (“This chapter
itemizes the process to obtain concurrence.”); HAR § 13-284-1(b)
(“This chapter itemizes the review process that the SHPD shall
follow to make comments . . . thereby meeting the opportunity to
comment under [HRS §] 6E-42[.]”). The administrative rules
provide for a very similar review and comment process under both
statutes.
The rules implementing HRS § 6E-8 note that, before an
agency can begin a project, the SHPD must generally provide a
determination letter, which is “the SHPD’s written response which
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either concurs or does not concur with the agency’s proposed
project.”27 HAR §§ 13-275-2 and 13-275-3(a). The SHPD may issue
a determination letter where “adequate information” has been
received, and “[i]n cases where interim protection plans are
adequately in place or data recovery fieldwork has been
adequately completed[.]” HAR § 13-275-3(a).28 “Once concurrence
is received, the agency may begin with the project.” HAR § 13-
275-3(a). The process for obtaining a determination letter is,
in brief summary, as follows.
First, an agency proposing a project “shall notify the
27
A determination letter containing the SHPD’s concurrence in the
project is not required under HRS § 6E-42. Instead, “the agency involved
. . . shall consult with the SHPD and shall obtain the written comments of the
SHPD at each step of the review.” HAR § 13-284-3(a). Nevertheless, under the
rules, the § 6E-42 process, like the § 6E-8 process, requires that the SHPD
give its written acceptance or concurrence at various stages of the project.
See, e.g., HAR §§ 13-284-5(f), 13-284-6(e), 13-284-8(c). For purposes of the
instant case, the review steps under HAR chapter 13-284 are nearly identical
to those contained in chapter 13-275, and accordingly are not discussed in
detail herein.
28
In its entirety, HAR § 13-275-3(a) provides:
For the department to provide a letter of
determination, an agency proposing a project which may
have an effect upon historic properties shall notify
the department of the proposed project and request a
letter of determination. Upon the request of the
department, the agency shall provide the department
with information as to the number of historic
properties within a proposed project area, their
significance, the impact of the proposed project on
the historic properties, and any proposed mitigation
measures. Upon receipt of adequate information the
department will provide a determination letter within
ninety days. Any agency involved in the historic
preservation review process shall consult and obtain
the written approval of the SHPD at each step of the
review. Once concurrence is received, the agency may
begin the project. In cases where interim protection
plans are adequately in place or data recovery
fieldwork has been adequately completed, a
determination letter may be issued.
(Emphasis added).
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[DLNR] of the proposed project and request a letter of
determination.” HAR § 13-275-3(a). The agency must then
identify and inventory historic properties present in the project
area. HAR §§ 13-275-3(b)(1), 13-275-5(a). In so doing, the
agency “shall first consult the SHPD to determine if the area
proposed for the project needs to undergo an inventory survey to
determine if historic properties are present.” HAR § 13-275-
5(b). The SHPD may respond to the agency’s request in one of
three ways: (1) by determining that no historic properties are
present; (2) by determining that “an adequate survey exists and
that historic properties are present,” which allows the agency to
proceed to “the next step in the review process, [i.e.,]
evaluation of the significance of the historic properties”; or
(3) by concluding that an inventory survey needs to be done,
which must “identify all historic properties and gather enough
information to evaluate the properties’ significance.”29 HAR
§§ 13-275-5(b)(1)-(5).
Here, it is undisputed that the SHPD concluded an AIS
needed to be done. The rules define an AIS as “the
identification and documentation of archaeological historic
properties and burial sites in a delineated area, gathering
sufficient information to evaluate significance of the historic
properties and burial sites, and compiling the information into a
29
The rules describe three types of inventory surveys: an
archaeological inventory survey, an ethnographic survey, and an architectural
inventory survey. HAR §§ 13-275-5(b)(5)(A)-(C).
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written report for review and acceptance by the department.” HAR
§ 13-275-2 (emphasis added). The rules further provide that an
AIS:
may be undertaken when the SHPD concludes that
archaeological properties are present or are likely to
be present. Archaeological survey often involves
detailed field mapping and test excavations,
laboratory analyses, and interpretive studies. . . .
Results of the survey shall be reported either through
an archaeological assessment, if no sites were found,
or an archaeological survey report[.]
HAR § 13-275-5(b)(5)(A).
Where the SHPD determines that an AIS is needed, a copy
of the completed archaeological assessment or survey report
“shall” be submitted to the SHPD for review. HAR § 13-275-5(e).
Interested persons are given an opportunity to comment on the
assessment or report. HAR § 13-275-5(e)(1). The SHPD must
inform the agency within 45 days if the information contained in
the report or assessment is adequate or inadequate. HAR § 13-
275-5(e). If the report or assessment is inadequate, the agency
is given an opportunity to correct the problems and resubmit the
results. HAR § 13-275-5(e)(2). If the report or assessment is
adequate, it is accepted by the SHPD. HAR § 13-275-5(e)(3). If
the assessment or report is accepted and indicates no historic
properties are present, “then historic preservation review ends
and the SHPD shall include in the notice of final acceptance its
written concurrence to the project[.]” HAR § 13-275-5(f)
(emphasis added). In contrast, if the report is adequate and
historic properties are present, then the review process
continues and “the significance of each property shall be
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evaluated and discussed[.]” HAR § 13-275-5(g) (emphasis added).
The initial assessment of the significance of each
property may be made by the agency or the SHPD. HAR § 13-275-
6(a). For properties other than architectural properties, the
agency must “consult with ethnic organizations or members of the
ethnic group for whom some of the historic properties may have
significance . . . to seek their views on the significance
evaluations.” HAR § 13-275-6(c). The SHPD must concur in the
assessments of significance before they are finalized. HAR § 13-
275-6(d). “If there is an agreement that none of the historic
properties are significant, then historic preservation review
ends and the SHPD shall issue its written concurrence to the
project[.]” HAR § 13-275-6(e). However, “[w]hen significant
historic properties are present, then impacts of the proposed
action on these properties shall be assessed, and mitigation
commitments shall be devised as needed.” Id. (emphasis added).
The impact of the proposed action on historic
properties is initially determined by the agency. HAR § 13-275-
7(a). There are two possible determinations: (1) “no historic
properties affected”; or (2) “[e]ffect, with proposed mitigation
commitments,” meaning “[t]he project will affect one or more
significant historic properties, and the effects will be
potentially harmful. However, the agency has proposed mitigation
commitments . . . to reasonably and acceptably mitigate the
harmful effects.” HAR §§ 13-275-7(a)(1)-(2). The agency’s
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determination must be submitted to the SHPD for review and
approval, and must include “a map showing the location of the
project and a general discussion of the project’s scope of work,
so the nature of possible effects can be understood.” HAR § 13-
275-7(c). If the SHPD “agrees that the action will not affect
any significant historic properties, this is the SHPD’s written
concurrence and historic preservation review ends.” HAR § 13-
275-7(e). However, if the project “will have an ‘effect, with
proposed mitigation commitments’, then mitigation commitments and
detailed mitigation plans shall be developed by the agency and
approved by SHPD[.]” Id. (emphasis added).
Finally, where a project will have an effect on
significant historic properties, “then a mitigation commitment
proposing the form of mitigation to be undertaken for each
significant historic property shall be submitted by the agency to
the SHPD for review and approval.” HAR § 13-275-8(a) (emphasis
added). In certain circumstances, the agency must also consult
with “ethnic organizations or members of the ethnic group for
whom the historic properties have significance . . . to seek
their views on the proposed forms of mitigation.” HAR § 13-275-
8(a)(2). The mitigation commitment must contain, inter alia,
“[a] table of the significant historic properties, indicating
which form or forms of mitigation is proposed for each
property[.]” HAR § 13-275-8(a)(3)(A). “If the commitments are
acceptable, the SHPD shall send a determination letter concurring
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with the proposed project[.]” HAR § 13-275-8(c). Additionally,
however, “[i]f identified unmarked burial sites are present, the
relevant island burial council of the [DLNR] must approve the
proposed mitigation commitments for native Hawaiian burials,
following [HRS §] 6E-43, . . . and [HAR §] 13-300-33.” HAR § 13-
275-8(d).
Again, “[o]nce concurrence is received, the agency may
begin with the project.” HAR § 13-275-3(a). However, the agency
must still provide the SHPD with “detailed plans for the
mitigation work for SHPD review and approval.” HAR § 13-275-
8(h). Additionally, once the detailed mitigation plans are
carried out, the agency must document its completion of the plan,
and must request verification from the SHPD that the mitigation
work has been completed. HAR § 13-275-9(a). If the SHPD
concludes that the mitigation work has been successfully
concluded, “the historic preservation process is concluded.” HAR
§ 13-275-9(a), (c).
In sum, the rules clearly set out a sequential process
for obtaining the SHPD’s concurrence to a project. Where an AIS
is required, it forms part of the first step in this process,
i.e., identification and inventory of historic properties in the
project area. HAR § 13-275-5. Once an adequate AIS has been
submitted, the significance of “each property” is evaluated. HAR
§ 13-275-5(g); see also HAR § 13-275-6. If significant historic
properties are present, the impact of the proposed project on the
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properties must be assessed. HAR § 13-275-7. If the project
will affect significant historic properties, the agency must
submit mitigation commitments, “proposing the form of mitigation
to be undertaken for each significant historic property[.]” HAR
§ 13-275-8(a) (emphasis added). The rules do not authorize the
issuance of a determination letter until these mitigation
commitments have been accepted by the SHPD. HAR § 13-275-8(c).
It is undisputed that these steps were not followed
prior to the SHPD’s concurrence in the rail project. Here, the
SHPD concluded that an AIS needed to be completed for all four
phases of the rail project. However, only the AIS for Phase 1
was completed prior to the SHPD’s concurrence in the project.
Additionally, the PA does not fulfill the same
functions as the historic preservation review process. While the
rules utilize an AIS to identify and evaluate specific historic
properties and to develop specific forms of mitigation for those
properties, the PA provides generally that historic properties
are present in the project area, that OIBC will be consulted with
regard to burials, and that the as-yet-unidentified burials
identified during the AIS process will either be preserved in
place or relocated.
In short, the PA commits to undergoing the historic
preservation review process at a later time. The City appears to
acknowledge this in its opening brief, where the City states
that, “[i]n accordance with the terms of the PA and [c]hapter 6E,
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SHPD will continue to be consulted, have the opportunity to
comment, and retain the right and authority to approve the
remaining Phases.” However, the City does not address the rules,
which require that these steps be taken before the SHPD gives its
concurrence in the project.
Nevertheless, the State argues that “[a]pplicable rules
recognize SHPD’s discretion over decisions regarding the
appropriate scope and approach of the historic preservation
review process for a given project.” (Citing, inter alia, HAR
§§ 13-275-5 and 13-284-530). However, the provisions cited by
the State do not support the State’s apparent assertion that the
SHPD has the discretion to opt-out of the sequential process
outlined in the rules. HAR §§ 13-275-5 and 13-284-5 provide the
SHPD with the discretion to determine whether an AIS is
necessary. HAR §§ 13-275-5(b) and 13-284-5(b). The State does
not point to any subsection of HAR §§ 13-275-5 or 13-284-5 that
affords the SHPD discretion to forego or delay an AIS where one
is required.
Accordingly, the applicable rules establish a
sequential approach to the historic preservation review process,
under which an AIS will be completed prior to the SHPD giving its
concurrence in a project. These steps were not followed in the
instant case. Accordingly, the SHPD improperly concurred in the
rail project.
30
The State also cites to HAR §§ 13-275-3 and 13-284-3, which are
discussed infra.
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2. The PA does not constitute an interim protection plan
In the circuit court, the City argued that the PA
constituted an “interim protection plan” that allowed the SHPD to
give its concurrence in the rail project. Although the City does
not press this argument on appeal, the State argues that “[t]he
rules expressly allow SHPD to concur with commencement of
projects absent full completion of the review process, where
appropriate interim protection plans are in place.” (Emphasis
added).
HAR § 13-275-3(a) provides, in pertinent part: “In
cases where interim protection plans are adequately in place or
data recovery fieldwork has been adequately completed, a
determination letter may be issued.” (Emphasis added). HAR
§ 13-284-3(a) similarly provides, in pertinent part: “In cases
where any interim protection plans are adequately in place and
any data recovery fieldwork has been adequately completed, the
project may commence from a historic preservation perspective.”
(Emphasis added). The differences in these two provisions do not
appear to be material,31 and accordingly, we focus on HAR chapter
13-275 for ease of reference.
31
Although HAR § 13-284-3(a) is worded in the conjunctive, the
additional insertion of the word “any” appears to suggest that the intent was
not to require both an interim protection plan and data recovery fieldwork.
This makes sense since there could be projects where, for example, an interim
protection plan would be adequate to protect existing burials from damage
during construction and, therefore, there would be no need to recover data
from those burial sites since they would presumably remain intact. See
discussion infra describing “interim protection measures” and “archaeological
data recovery.”
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The State’s argument fails because the PA does not
constitute an interim protection plan. The State asserts that
the PA constitutes an interim protection plan because:
the PA requires completion of AISs for each
construction phase of the Project and mandates
consultation with OIBC regarding the disposition of
any burials discovered through that process prior to
final design and commencement of any ground-disturbing
activities in each phase. The PA expressly preserves
all protections afforded historic properties, and
burials in particular, under [c]hapter 6E and ensures
that the full review process is complete for each
phase before ground-disturbing work commences in each
phase.
Put another way, the State appears to assert that the
PA constitutes an interim protection plan because it requires
that the historic preservation review process, and the
protections it affords, be complied with at a later date. In
general, an agency’s interpretation of its own rules is entitled
to deference. Gillian, 119 Hawai#i at 125, 194 P.3d at 1087
(citation omitted). However, we do not defer to agency
interpretations that are “plainly erroneous or inconsistent with
the underlying legislative purpose.” In re Wai#ola O Moloka#i,
Inc., 103 Hawai#i at 425, 83 P.3d at 688; see In re Water Use
Permit Applications, 94 Hawai#i 97, 145, 9 P.3d 409, 457 (2000)
(“[W]e have not hesitated to reject an incorrect or unreasonable
statutory construction advanced by the agency entrusted with the
statute’s implementation.”). In the instant case, the State’s
interpretation of the phrase “interim protection plan” is not
supported by the rules, and is therefore plainly erroneous.
“Interim protection plan” is not defined in either HAR
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chapter 13-275 or 13-284. However, HAR chapter 13-277, which
contains the SHPD’s requirements for archaeological site
preservation and development, addresses “interim protection
measures.” HAR § 13-277-5 (2002). These measures include:
(1) Flagging the perimeter of the buffer zone;
(2) Erecting barriers (such as plastic fencing)
along the buffer zone;
(3) Placing avoidance instructions on construction
plans and specifications;
(4) On-site, pre-construction briefing of the hired
construction firm; and
(5) Having an archaeological monitor on-site during
ground alteration activities.
HAR § 13-277-5.
Presumably, then, an interim protection plan is a plan
to institute these or similar types of interim protection
measures. Notably, these measures appear designed to protect
specific, identified archaeological resources during the
construction phase of the project and do not involve, as the
State asserts, a plan to comply with the historic preservation
review process at a later date.
This interpretation is confirmed when the reference to
“interim protection plan” in HAR § 13-275-3(a) is viewed in the
larger context of chapter 13-275. Specifically, the section of
chapter 13-275 addressing mitigation contains references to both
“protection” and “data recovery.”32 HAR §§ 13-275-8(a)(1)(A)
32
Additionally, data recovery appears to refer to the specific
treatment of an identified significant historic property. Because either an
“interim protection plan” or “data recovery” is sufficient to allow a project
to proceed under HAR § 13-275-3(a), the meaning of “interim protection plan”
should be interpreted in light of the definition of “data recovery.” State v.
Matavale, 115 Hawai#i 149, 160, 166 P.3d 322, 333 (2007) (“[T]he meaning of
words or phrases in a statute may be determined by reference to the meaning of
(continued...)
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(“Preservation [] may include avoidance and protection
(conservation), stabilization, rehabilitation, restoration,
reconstruction, interpretation, or appropriate cultural use.”)
(emphasis added); 13-275-8(a)(1)(C) (noting that archaeological
data recovery “enables the recovery of an adequate and reasonable
amount of the significant information from a significant historic
property prior to its alteration or destruction”).
Under the sequential process described supra,
mitigation plans can only be developed after significant historic
property has been identified through an AIS or similar study.
This is because “[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). As Kaleikini states, it would “turn[] the process upside
down” to permit mitigation commitments to be made prior to the
properties at issue being identified.
Based on the foregoing, the State is incorrect in its
assertion that the PA constitutes an interim protection plan.
3. The City’s and State’s arguments regarding phasing are
without merit
The City and State argue that phasing of the historic
32
(...continued)
words or phrases associated with it[.]”) (citation omitted). Because the
definition of “data recovery” involves the treatment of specific historic
properties, it would be inconsistent to interpret “interim protection plan” to
refer to a general plan for the treatment of as-yet-unidentified historic
properties.
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preservation review process is permissible because (1) phasing is
not expressly prohibited by HRS chapter 6E; (2) phasing of the
historic preservation review process is distinct from the concept
of segmentation that is prohibited in the preparation of an EIS;
(3) the SHPD has discretion to determine the scope of the
“project” and to approve a phased approach; and (4) HRS chapter
6E is silent on phasing, and this court should therefore look to
federal law, which expressly permits phasing, for guidance.
The City’s and State’s arguments are without merit.
Neither HRS § 6E-8 nor § 6E-42 explicitly addresses whether the
historic preservation review process may be undertaken in phases.
However, the implementing rules for HRS §§ 6E-8 and 6E-42 require
identification of significant historic properties in the “project
area,” as well as specific plans to address any impacts on those
properties. See, e.g., HAR §§ 13-275-1(a), 13-284-1(a). This
process must be completed before the SHPD gives its concurrence,
and before the agency may begin with the project. HAR §§ 13-275-
3(a), 13-284-3(a). The definition of “project area” is quite
broad, and provides:
“Project area” means the area the proposed
project may potentially affect, either directly or
indirectly. It includes not only the area where the
proposed project will take place, but also the
proposed project’s area of potential effect.
HAR §§ 13-275-2 and 13-284-2 (emphasis added).
This definition of “project area” encompasses all four
phases of the rail project. Specific to the issue presented
here, the rail corridor through Kaka#ako is one of the areas in
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which the rail project “will take place,” and is thus one of the
areas “the proposed project may potentially affect[.]” See id.
Kaka#ako is therefore within the “project area,” and the historic
preservation review process was required to identify significant
historic properties in this area, and to address any impacts on
those properties, prior to the SHPD giving its concurrence. See,
e.g., HAR §§ 13-275-1(a) and 13-284-1(a).
The City and State point out that phasing is explicitly
prohibited in the environmental review process (and specifically
the Hawai#i Environmental Policy Act (HEPA)), but not in the
historic preservation review process. HEPA governs environmental
assessments and EISs for certain types of “actions.” See HRS
chapter 343-2. An “action” is defined as “any program or project
to be initiated by any agency or applicant.” HRS § 343-2. Under
the HEPA’s implementing rules, multiple or phased “actions” are
considered a “single action” in certain specified circumstances:
Multiple or Phased Applicant or Agency Actions. A
group of actions proposed by an agency or an applicant
shall be treated as a single action when:
A. The component actions are phases or increments
of a larger total undertaking;
B. An individual project is a necessary precedent
for a larger project;
C. An individual project represents a commitment to
a larger project; or
D. The actions in question are essentially
identical and a single statement will adequately
address the impacts of each individual action
and those of the group of actions as a whole.
HAR § 11-200-7.
The City and State argue that, because the historic
preservation law does not contain a provision similar to HAR
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§ 11-200-7, phasing is permissible. We recognize that there is
no similar provision in HRS chapter 6E or its implementing rules
that specifically addresses whether and when multiple phases of a
project must be considered to be a single project. However, the
broad definition of “project area” is, in itself, inconsistent
with phasing. Thus, while we agree with the City and State that
the historic preservation laws and the environmental protection
laws involve differing goals, policy considerations, and
protections, we do not find these distinctions to be dispositive.
Rather, our analysis is based on the plain language of the
respective rules and, specifically, the definition of “project
area.”
The City and State also assert that the SHPD has
discretion to determine what comprises a “project” under HRS
chapter 6E, and that its determination that a project can be
phased is entitled to deference. We note initially that the
question of “whether or not an agency has followed proper
procedures . . . in making its determination is a question of
law, and will be reviewed de novo.” Superferry I, 115 Hawai#i at
315, 167 P.3d at 308. In the instant case, we are asked to
determine whether the SHPD followed proper procedures in
concurring in the rail project. Under Superferry I, this is a
question of law, for which the agency is not entitled to
deference. Moreover, where a rule is unambiguous and consistent
with the policies of the statute, and its application will not
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produce an absurd or unjust result, we enforce the rule’s plain
meaning. In re Wai#ola O Moloka#i, Inc., 103 Hawai#i at 425, 83
P.3d at 688. Here, no ambiguity is created by the absence of an
express phasing provision from HAR chapters 13-275 and 13-278.
Under the plain meaning of the rules, the review process for the
entire project area must be completed prior to the SHPD giving
its concurrence in a project.
Moreover, even assuming arguendo that our review of
this issue is deferential to the agency, we note that we are not
being asked to defer to any express conclusion of the SHPD.
Although Aiu suggested in her declaration that the SHPD views the
PA as satisfying the requirements of HRS chapter 6E, the PA
itself does not reflect any express consideration of whether
phasing is permissible under state law. To the contrary, the
provisions of the PA, and the phased process it sets forth, focus
on compliance with federal law. The PA begins by noting that the
rail project is a federal undertaking subject to section 106 and
its implementing regulations, and the EIS refers to the PA as a
“Section 106 of the National Historic Preservation Act Draft
Programmatic Agreement.” The PA also notes that the Federal
Transit Administration consulted with the SHPD as a requirement
under the federal regulations. See 36 C.F.R. § 800.2(c)(1). It
states that the Federal Transit Administration and the SHPD “have
agreed that a phased approach to identification and evaluation of
archaeological sites is appropriate, pursuant to 36 C.F.R. §
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800.4(b)(2)[.]” (Emphasis added). Notably absent is any
reference to the phased approach fulfilling the requirements of
HRS chapter 6E. Although the SHPD ultimately agreed to the
phased approach, we are unconvinced that the SHPD’s concurrence
in the PA constitutes a discretionary decision as to the
requirements of HRS chapter 6E, to which we might otherwise give
deference.
In addition, the SHPD concurred in the entire rail
project by executing the PA. Indeed, the final EIS acknowledges
that “[t]he project is not a series of projects, but a single
project that consists of a series of construction phases[.]”
(Emphasis added). And, the City admitted, in its responses to
Kaleikini’s requests for admission, which were submitted with
Kaleikini’s motion for reconsideration, that “[a]ll four phases
of the [rail project] are connected and part of a single
project.” (Emphasis added). Again, the rules do not afford the
SHPD discretion to opt-out of the sequential review process
outlined in the rules. See HAR §§ 13-275-3(a), 13-284-3(a). The
rules require the SHPD to complete the entire historic
preservation review process prior to giving its concurrence in a
project, in this case, the entire rail project.
The City and State also argue that this court should
conclude that it is permissible to conduct the historic
preservation review process in phases, because federal law
expressly permits a phased approach, and no express prohibition
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against phasing is contained in Hawai#i law. The regulations
implementing the National Historic Preservation Act of 1966
(NHPA) explicitly permit the phased identification and evaluation
of historic properties as follows:
Phased identification and evaluation. Where
alternatives under consideration consist of corridors
or large land areas, or where access to properties is
restricted, the agency official may use a phased
process to conduct identification and evaluation
efforts. The agency official may also defer final
identification and evaluation of historic properties
if it is specifically provided for in a memorandum of
agreement executed pursuant to § 800.6, a programmatic
agreement executed pursuant to § 800.14(b), or the
documents used by an agency official to comply with
the National Environmental Policy Act pursuant to
§ 800.8. The process should establish the likely
presence of historic properties within the area of
potential effects for each alternative or inaccessible
area through background research, consultation and an
appropriate level of field investigation, taking into
account the number of alternatives under
consideration, the magnitude of the undertaking and
its likely effects, and the views of the [State
Historic Preservation Officer/Tribal Historic
Preservation Officer] and any other consulting
parties. As specific aspects or locations of an
alternative are refined or access is gained, the
agency official shall proceed with the identification
and evaluation of historic properties in accordance
with paragraphs (b)(1) and (c) of this section.
36 C.F.R. § 800.4(b)(2) (emphasis added).
The Hawai#i rules contain no such provision, and we
find the City’s and State’s reliance on federal law unpersuasive
in this context. An examination of the federal regulations
reveals that phasing is central to the federal historic
preservation review process. The federal regulations contain
separate provisions regarding phasing for the identification and
evaluation stage, the assessment stage, and the mitigation stage.
36 C.F.R. §§ 800.4(b)(2), 800.5(a)(3), 800.6(a)(1)(i)(C). The
regulations also contain detailed provisions regarding the use
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and development of programmatic agreements, and allow the
Advisory Council on Historic Preservation to provide a prototype
programmatic agreement that may be used for other federal
projects. 36 C.F.R. § 800.14(b). A body of federal caselaw has
developed regarding the propriety of phasing projects. E.g.,
Wilderness Soc’y v. U.S. Bureau of Land Mgmt., 822 F. Supp. 2d
933, 949-51 (D. Ariz. 2011). Furthermore, federal courts have
declined to import the phasing concept into other aspects of
federal law. E.g., N. Idaho Cmty. Action Network v. U.S. Dep’t
of Transp., 545 F.3d 1147, 1158-59 (9th Cir. 2008) (noting that
phasing is permitted under the NHPA, but concluding that it is
not permitted under § 4(f) of the Department of Transportation
Act, which requires that an evaluation be completed prior to an
agency issuing a record of decision).
None of the detailed provisions, limitations, or
safeguards defining the federal law on phasing are contained in
state law. While federal law is a useful tool for interpreting
state law where federal and state provisions are analogous, see
State v. Ontai, 84 Hawai#i 56, 61, 929 P.2d 69, 74 (1996)
(“[F]ederal law is an important aid to construction because HRS §
842-2 was derived from the federal . . . statute.”); see also
Cvitanovich-Dubie v. Dubie, 125 Hawai#i 128, 142 n.15, 254 P.3d
439, 453 (2011) (noting that interpretations of federal rules
“provide persuasive reasoning for the interpretation of” similar
state rules), it does not provide a means of importing absent
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provisions into Hawai#i law. In the circumstances here, reliance
on federal law would involve more than simply providing context
or content for an existing state statute or regulation. It would
require us to import a complex and detailed federal regulatory
scheme that has no analog in state law.
Moreover, a review of HAR chapters 13-275 and 13-284
indicates that the drafters of the rules were aware of the
federal regulations. Some of the Hawai#i rules refer directly to
federal standards. See HAR §§ 13-275-8(h)(5) and 13-284-8(e)(5)
(referring to the Secretary of the Interior’s standards for
historic preservation). Additionally, some of the provisions of
the Hawai#i rules appear to be loosely patterned after the
federal regulations. Compare HAR chapters 13-275 and 13-284 with
36 C.F.R. §§ 800.3 through 800.16. For example, the federal
regulations, like the Hawai#i rules, set forth a general process
for identification, assessment, and mitigation of effects on
historic properties. 36 C.F.R. §§ 800.4 through 800.6; see also
Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d
520, 553 (8th Cir. 2003) (noting that “an NHPA analysis involves
a three-step process of identification, assessment, and
mitigation.”). However, despite their apparent familiarity with
the federal regulations, the drafters of the Hawai#i rules did
not include a provision similar to 36 C.F.R. § 800.4(b)(2) that
would expressly permit phasing. The silence of the Hawai#i rules
with regard to phasing suggests an intent to preclude the phasing
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of projects, rather than an intent to leave that issue open.
Accordingly, the City’s and State’s argument that
phasing of the historic preservation review process is
permissible is without merit, since the rules adopted under HRS
chapter 6E do not permit it.33 Based on the foregoing analysis,
the circuit court erred in granting summary judgment in favor of
the City and the State on Counts 1 through 4.34 We therefore
vacate the circuit court’s judgment in favor of the City and
State on these counts. Although Kaleikini requests that we enter
summary judgment in her favor, we note that Kaleikini sought a
wide range of relief in the circuit court, and the rationale for
granting or denying that relief has not been fully developed.
Moreover, additional information may have become available since
the City’s motion was decided, and it is not clear what impact
these additional facts may have on the relief Kaleikini seeks.
Accordingly, we decline Kaleikini’s invitation to enter judgment
in her favor, and instead remand to the circuit court for further
proceedings.
C. The final EIS was not required to contain an AIS
Kaleikini argues that the final EIS was inadequate
under HRS chapter 343 because it did not contain a completed AIS.
33
We do not address whether the SHPD may amend the rules to allow
for the phased identification and evaluation of historic properties, such as
that permitted by 36 C.F.R. § 800.4(b)(2).
34
Aside from her arguments on the merits, Kaleikini does not provide
further argument as to how the circuit court abused its discretion in denying
her motion for reconsideration. Accordingly, we do not separately address
this point of error.
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The City argues that there is no requirement in HRS chapter 343
that an EIS contain an AIS. The State does not address
Kaleikini’s argument.
An EIS is:
an informational document prepared in compliance with
the rules adopted under [HRS] section 343-6 and which
discloses the environmental effects of a proposed
action, effects of a proposed action on the economic
welfare, social welfare, and cultural practices of the
community and State, effects of the economic
activities arising out of the proposed action,
measures proposed to minimize adverse effects, and
alternatives to the action and their environmental
effects.
HRS § 343-2 (2010) (emphasis added).
The definition of “environment” contained in the
administrative rules implementing HRS chapter 343 includes
objects of historical significance. HAR § 11-200-2.
The rules provide a process for the preparation of
draft and final EISs. HAR §§ 11-200-14 through 11-200-23. For
example, the rules explain:
Chapter 343, HRS, directs that in both agency and
applicant actions where statements are required, the
preparing party shall prepare the EIS, submit it for
review and comments, and revise it, taking into
account all critiques and responses. Consequently,
the EIS process involves more than the preparation of
a document; it involves the entire process of
research, discussion, preparation of a statement, and
review. The EIS process shall involve at a minimum:
identifying environmental concerns, obtaining various
relevant data, conducting necessary studies, receiving
public and agency input, evaluating alternatives, and
proposing measures for avoiding, minimizing,
rectifying or reducing adverse impacts. An EIS is
meaningless without the conscientious application of
the EIS process as a whole, and shall not be merely a
self-serving recitation of benefits and a
rationalization of the proposed action. Agencies
shall ensure that statements are prepared at the
earliest opportunity in the planning and
decision-making process. This shall assure an early
open forum for discussion of adverse effects and
available alternatives, and that the decision-makers
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will be enlightened to any environmental consequences
of the proposed action.
HAR § 11-200-14 (1996) (emphasis added).
Although an EIS is not specifically required to contain
an AIS, the draft EIS must contain, inter alia,
a description of the environment in the vicinity of
the action, as it exists before commencement of the
action, from both a local and regional perspective.
Special emphasis shall be placed on environmental
resources that are rare or unique to the region and
the project site (including natural or human-made
resources of historic, archaeological, or aesthetic
significance)[.]
HAR § 11-200-17(G) (1996) (emphasis added).
The final EIS consists of, inter alia, “[t]he draft EIS
revised to incorporate substantive comments received during the
consultation and review processes[.]” HAR § 11-200-18 (1996).
“The final EIS is [] required to be ‘accepted’ by the accepting
authority . . . before the proposed action or project can proceed
to the permitting stage.” Price, 81 Hawai#i at 180-81, 914 P.2d
at 1373-74; HAR §§ 11-200-4 (1996) and 11-200-23 (1996). The
acceptability of an EIS is evaluated by the decision maker “on
the basis of whether the statement, in its completed form,
represents an informational instrument which fulfills the
definition of an EIS and adequately discloses and describes all
identifiable environmental impacts and satisfactorily responds to
review comments.” HAR § 11-200-23.
In reviewing a challenge to an accepted EIS, this court
“uses the ‘rule of reason’ to determine whether an EIS is legally
sufficient in adequately disclosing facts to enable a decision-
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making body to render an informed decision.” Citizens for Prot.
of North Kohala Coastline, 91 Hawai#i at 107, 979 P.2d at 1133
(brackets and citation omitted). This court has further
explained that:
neither HRS [c]hapter 343 nor the administrative rules
of Chapter 200 indicate the level of detail or
specificity that should be included on any given
subject. The statute and rules were designed to give
latitude to the accepting agency as to the content of
each EIS. Thus, what is required in one EIS may not
be required in another, based upon the circumstances
presented by the particular project. Accordingly, the
standard to consider the sufficiency of an EIS under
the “rule of reason” is that an EIS need not be
exhaustive to the point of discussing all possible
details bearing on the proposed action but will be
upheld as adequate if it has been compiled in good
faith and sets forth sufficient information to enable
the decision-maker to consider fully the environmental
factors involved and to make a reasoned decision after
balancing the risks of harm to the environment against
the benefits to be derived from the proposed action,
as well as to make a reasoned choice between
alternatives.
Price, 81 Hawai#i at 183, 914 P.2d at 1376 (citation omitted)
(emphasis added).
Additionally, “courts are reluctant to ‘second guess’
the decision-making body regarding the sufficiency of an EIS.”
Id. at 183 n.12, 914 P.2d at 1375 n.12.
In Price, this court considered whether an EIS was
insufficient on several grounds. Id. at 184, 914 P.2d at 1377.
First, the plaintiff argued that the EIS “provide[d] an
inadequate discussion of the infrastructure in the neighborhood,
specifically, a lack of discussion on the fresh water supply,
waste water treatment facilities, and transportation facilities.”
Id. However, this court noted that the EIS contained “an entire
section devoted to each of these topics” with a discussion of
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“existing conditions, anticipated impacts, and mitigating
measures.” Id. Accordingly, this court determined that “the
EIS’s discussion concerning infrastructure was compiled in good
faith and sets forth sufficient information to enable the
decision-maker to consider fully the environmental factors
involved.” Id.
This court also held that the EIS was sufficient with
regard to its discussion of pesticides and herbicides, where the
EIS’s “discussion of pesticides and herbicides contains at least
three studies prepared by experts that detail the impact, effect,
and mitigation of pesticide and herbicide usage on the Lihi Lani
project.” Id. This court similarly held that the EIS was
sufficient with regard to erosion and possible flooding during
construction of the project, where the EIS contained an “erosion
control plan [that] would comply with relevant local and state
ordinances and guidelines” and “a report prepared by Dr. Gordon
Dugon on run-off and the impact to surrounding areas.” Id. at
185, 914 P.2d at 1378. Finally, this court concluded that the
EIS was sufficient with regard to native Hawaiian archaeological
sites in the proposed project area. Id. This court noted:
[The defendant] retained the services of Dr. Paul H.
Rosendahl, a noted archaeologist, to conduct a field
reconnaissance and provide a report and
recommendations concerning any archeological finds
that would be affected by the proposed project. There
is a lengthy discussion on archeology within the EIS
and Dr. Rosendahl’s report. Dr. Rosendahl explains
each and every finding, its location and value, and
his recommendations for preservation of historic
information. The study was comprehensive and more
than adequate to inform the Department of General
Planning of the archeological impacts of the project.
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Id.
In sum, this court stated,
[The defendant] has presented an EIS that consists of
two volumes of material, over 400 pages. Included
within the EIS are twenty-four technical reports
supporting the recommendations and findings presented.
The EIS addresses all of the statutory requirements of
HRS chapter 343, and chapter 200, Title 11 of the
Administrative Rules. Upon review of the EIS in
question, we hold that it is in compliance with the
mandates of HRS chapter 343, as well as the applicable
administrative rules of chapter 200.
Id.
Here, chapter 4.16 of the final EIS concerns
archaeological, cultural, and historic resources. The EIS
divided the rail corridor into ten different sub-areas to
“evaluate below-ground effects on archaeological resources within
the study corridor,” and developed a qualitative rating system to
describe potential archaeological impacts in each sub-area.
“This rating system considered existing archaeological
documentation, geological and depositional characteristics, and
some field inspection within the study corridor.” The EIS noted
that the “[a]rchaeological resources already documented within
the [area of potential effects] include . . . subsurface cultural
layers related to Native Hawaiians that may include religious or
cultural artifacts and resources, including iwi kupuna or
Hawaiian burials.” The EIS concluded that the potential for
encountering burials in the Dillingham, Downtown, and Kaka#ako
areas was high.
With regard to mitigation, the EIS noted that “[t]he
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Project will have an ‘effect, with proposed mitigation
commitments’ under State law[.]” Additionally, the draft PA,
which was appended to the final EIS, “describe[d] the
archaeological and historic property and resource identification
and evaluation effort, as well as the mitigation procedures for
identified archaeological resources.” The EIS noted that the
draft PA “describe[d] how post-review discoveries will be handled
and commits to providing public information throughout the term
of the draft PA.”
Based on the foregoing, “the EIS discussion concerning
[archaeological resources] was compiled in good faith and sets
forth sufficient information to enable the decision-maker to
consider fully the environmental factors involved.” See Price,
81 Hawai#i at 184, 914 P.2d at 1377.
Nevertheless, Kaleikini argues that the “rule of
reason” requires that the EIS for the rail project include an AIS
for the following nine reasons: (1) EISs often include AISs; (2)
the City has included AISs in EISs it has prepared for other
projects; (3) the EIS process requires “conducting necessary
studies”; (4) the City and State “admit that an AIS is a
necessary study”; (5) hundreds of other burials have been found
in the areas of Downtown and Kaka#ako that the rail will cross;
(6) the likelihood of encountering burials is high; (7) the
legislature found that native Hawaiian burials have not been
afforded sufficient legal protections; (8) an AIS determines if
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archaeological sites are present, identifies them, gathers
information regarding their significance, and provides
information to decision makers to enable them to preserve
historic properties; and (9) “significant negative consequences
result when an AIS is not completed before construction
commences[.]”
With regard to Kaleikini’s first and second points,
this court has previously noted that “what is required in one EIS
may not be required in another, based upon the circumstances
presented by the particular project.” Price, 81 Hawai#i at 183,
914 P.2d at 1376. Accordingly, the fact that other EISs have
included an AIS is not sufficient to show that an AIS was
required in the instant case.
With regard to Kaleikini’s third and fourth points,
there is nothing in HRS chapter 343 to indicate that an AIS is a
“necessary study” for the completion of an EIS. Although the
City and State may, as Kaleikini asserts, “admit that an AIS is a
necessary study” in the context of HRS chapter 6E, there is
nothing in the record to indicate that they viewed an AIS as a
“necessary study” for the completion of an EIS.
Kaleikini’s remaining points address the need for an
AIS to adequately identify and protect specific native Hawaiian
burials. However, these concerns are addressed under HRS chapter
6E, rather than HRS chapter 343. Accordingly, proposals for the
preservation of specific historic property, including burials,
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are not a per se requirement in an EIS.
Finally, Kaleikini argues that Price is distinguishable
because the developer in that case prepared an archaeological
field reconnaissance report.35 Again, however, “what is required
in one EIS may not be required in another, based upon the
circumstances presented by the particular project.” Price, 81
Hawai#i at 183, 914 P.2d at 1376. Accordingly, while a field
reconnaissance report was significant to this court’s analysis in
Price, it is not required in the instant case. Additionally, the
EIS in the instant case “considered existing archaeological
documentation, geological and depositional characteristics, and
some field inspection within the study corridor,” as well as
various technical reports, including the August 15, 2008
Archaeological Resources Technical Report.
Accordingly, although the final EIS did not include an
AIS, it was nonetheless sufficient “to enable the decision-maker
to consider fully the environmental factors involved.” See
Price, 81 Hawai#i at 184, 914 P.2d at 1377.
D. The City and State gave full consideration to cultural and
historic values as required under HRS chapter 205A
Kaleikini argues that, in declining to conduct an AIS
prior to approval and commencement of the rail project, the City
35
Kaleikini also argues that Price is distinguishable because
Kaleikini “does not seek to contradict a conclusion in the final EIS” but
rather “seeks to ensure that the final EIS discloses information now rather
than after decisionsmaking.” (Emphasis omitted). However, it is not clear
what aspect of the Price decision Kaleikini refers to. In any event, the
plaintiff in Price challenged the sufficiency of the EIS, rather than solely
“a conclusion in the final EIS.” Price, 81 Hawai#i 183-84, 914 P.2d 1376-77.
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and State failed to give full consideration to cultural and
historic values, as required under HRS chapter 205A. The City
argues that it has “clearly considered and taken appropriate
steps to handle the possible impacts on burials.” Kaleikini’s
argument is without merit.
HRS chapter 205A is Hawaii’s Coastal Zone Management
Act (CZMA). Under HRS chapter 205A, a permit is required for
development in any special management area. HRS § 205A-28
(2001). It is undisputed that a special management area permit
was required, and obtained, in the instant case.
The coastal zone management program has several
objectives.36 HRS § 205A-2. With regard to historic resources,
the objectives of the coastal zone management program are to
“[p]rotect, preserve, and, where desirable, restore those natural
and manmade historic and prehistoric resources in the coastal
zone management area that are significant in Hawaiian and
American history and culture.” HRS § 205A-2(b)(2)(A) (2001).
“In implementing the objectives of the coastal zone management
36
“Coastal zone management program” is defined as
the comprehensive statement in words, maps, or other
permanent media of communication, prepared, approved
for submission, and amended by the State and approved
by the United States government pursuant to Public Law
No. 92-583, as amended, and the federal regulations
adopted pursuant thereto, which describes objectives,
policies, laws, standards, and procedures to guide and
regulate public and private uses in the coastal zone
management area, provided however the “coastal zone
management program” is consistent with the intent,
purpose, and provisions of this chapter[.]
HRS § 205A-1 (2001) (emphasis added).
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program, the agencies shall give full consideration to
ecological, cultural, historic, esthetic, recreational, scenic,
and open space values, and coastal hazards, as well as to needs
for economic development.” HRS § 205A-4(a) (2001).
Additionally, these objectives are “binding upon actions within
the coastal zone management area by all agencies, within the
scope of their authority.” HRS § 205A-4(b) (2001). This court
has recognized that a special management area permit may only be
granted where the proposed development is “consistent with [CZMA]
objectives and policies[.]” PASH, 79 Hawai#i at 435, 903 P.2d at
1256. Accordingly, in granting a special management area permit
for the rail project, the City was required to give “full
consideration to . . . cultural [and] historic . . . values.”
HRS § 205A-4(a).
Kaleikini cites two cases for the proposition that the
City has failed to fully consider cultural and historic values:
Hui Alaloa v. Planning Commission of the County of Maui, 68 Haw.
135, 705 P.2d 1042 (1985), and Ka Pa#akai O Ka #Aina v. Land Use
Commission, 94 Hawai#i 31, 7 P.3d 1068 (2000). In Hui Alaloa,
this court considered whether the planning commission properly
granted two special management area permits. 68 Haw. at 135-36,
705 P.2d at 1043. This court noted that:
Surface archaeological surveys prepared for [the
developers] were presented to the planning commission.
Additionally, testimony was given on behalf of all the
parties. The planning commission granted permits to
[the developers] conditioned upon retention of a
qualified archaeologist to conduct a further survey
and excavation of the area, and to “prepare a written
report to maximize information retention through
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preservation or salvage of significant archaeological
sites and to provide a plan for protecting, restoring,
interpreting, and displaying historical resources
either preserved on or salvaged from the subject
areas.”
Id. at 136-37, 705 P.2d at 1044 (record citations omitted).
Additionally, this court noted that, under the planning
commission’s decision and order, “[the developer’s] archaeologist
is to determine the significance of various archaeological sites”
and the developers were required to “eliminate all grading or
construction impact on any significant archaeological sites prior
to salvage and preservation.” Id. at 137, 705 P.2d at 1044
(record citations omitted).
This court held that:
imposing these self-serving conditions without
requiring a hearing to review the additional study and
survey by the commission [was] in error. The
determination whether the development complies with
the policies and objectives of the CZMA regarding
historical and archaeological significance was, in
essence, left to the [developers] contrary to the
statutory command governing the issuance of SMA
permits. The statute clearly mandates the planning
commission to make such determinations prior to the
issuance of a SMA permit.
Id.
Accordingly, this court’s resolution of the case turned
on the “unlawful delegation of duty” to the developers. Id.
Moreover, this court expressly noted that the delegation in Hui
Alaloa differed from “conditions requiring the applicants to
obtain approval from other government agencies such as the state
department of health and county department of public works”
because “[t]hose agencies are not interested parties to the
permit application” and are “required to help enforce and
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implement CZMA by assuring that proposed development projects
requiring permits or approvals are consistent with the objectives
and policies of CZMA.” Id. The instant case is distinguishable
from Hui Alaloa, in that the signatories to the PA, specifically
the BLNR and the Department of Transportation Services, have a
continuing role in the enforcement of the PA, and “are required
to help enforce and implement CZMA by assuring that proposed
development projects requiring permits or approvals are
consistent with the objectives and policies of CZMA.” See id.
Accordingly, Kaleikini’s reliance on Hui Alaloa is misplaced.
Ka Pa#akai O Ka #Aina concerned the Land Use
Commission’s (LUC) grant of a petition to reclassify land from
“Conservation District” to “Urban District.” 94 Hawai#i at 34, 7
P.3d at 1071. The LUC’s approval of the petition provided that
the developer
will develop and implement a Resource Management Plan
(“RMP”) which would coordinate development with native
Hawaiian rights to coastal access for the purpose of
traditional cultural practice. . . . Under [the
developer’s] concept of the RMP, the goals of the RMP
are to provide for resource management and ensure
public access to the coastal area which balances [the
developer’s] needs with the traditional needs of
native Hawaiians and the recreational needs of the
public.
Id. at 36-37, 7 P.3d 1073-74 (emphasis in original).
This court concluded, consistent with Hui Alaloa, that
the “wholesale delegation of responsibility for the preservation
and protection of native Hawaiian rights to [the developer], a
private entity, [] was improper and misse[d] the point.” Id. at
50, 7 P.3d at 1087. This court noted that “the LUC found that
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[the developer] ‘will develop and implement’ its RMP, which
‘would in the future’ coordinate development with native Hawaiian
rights to coastal access for the purpose of traditional cultural
practice.” Id. at 51, 7 P.3d at 1088. This court concluded that
the LUC’s adoption of the developer’s “conceptual” “future” study
violated the LUC’s duty to independently assess the impacts of
the proposed reclassification on native Hawaiian customary and
traditional practices, and delegated to the developer the
authority to balance the needs of native Hawaiians against the
developer’s interests. Id. Significantly, this court noted:
Specific considerations regarding the extent of
customary and traditional practices and the impairment
and feasible protection of those uses must first be
made before a petition for a land use boundary change
is granted. The power and responsibility to determine
the effects on customary and traditional native
Hawaiian practices and the means to protect such
practices may not validly be delegated by the LUC to a
private petitioner who, unlike a public body, is not
subject to public accountability. Allowing a
petitioner to make such after-the-fact determinations
may leave practitioners of customary and traditional
uses unprotected from possible arbitrary and
self-serving actions on the petitioner’s part.
Id. at 52, 7 P.3d at 1089.
Like Hui Alaloa, Ka Pa#akai O Ka #Aina is
distinguishable from the instant case. Unlike in Ka Pa#akai O Ka
#Aina, here, the City Council did not delegate the power to
determine the effects on archaeological resources and the means
to protect such resources to a private petitioner. Cf. id.
Rather, that power remains with the SHPD and OIBC under the PA.
Additionally, the City Council conditioned the issuance of “any
development permit for the Project” on its receipt of
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documentation that a PA “to minimize and mitigate adverse effects
on historic properties as generally described in the Final [EIS]
has been executed.” As noted supra, the final 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. § 800.4] 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 HAR [c]hapter 13-276. 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 the
design. The City has consulted and continues to
consult with SHPD and OIBC on burial issues. . . . To
balance the current level of project design, the
desire to limit disturbance of native Hawaiian burials
and residences in Phase [4] of the project area, and
the potential transportation benefits that would
accrue from the proposed project, FTA, in consultation
with the parties, decided to develop a detailed
approach in the . . . draft PA for conducting
archaeological investigations for Phase [4] of the
project. The City has committed to conducting
archaeological investigations in locations where
foundations will be placed. This would limit the area
disturbed for archaeological investigations and
construction to potentially less than 10 percent of
what would be disturbed if archaeological
investigations were conducted for 100 percent of the
alignment. The City’s proposed schedule for the
Project would have construction starting in 2013 for
Phase [4] (in the Kaka#ako neighborhood). Although,
the development of more detailed design and,
therefore, archeological investigations for the last
construction phase would have typically been delayed
until closer to the anticipated construction start
date, the City has committed to starting the process
much earlier.
(Emphasis added).
A draft PA was appended to the final EIS, which
described the “archaeological historic property and resource
identification and evaluation effort, as well as the mitigation
procedures for identified archaeological resources.”
The detailed provisions contained in the draft PA go
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well beyond the “conceptual” “future” study that this court
concluded violated the LUC’s duty to independently assess the
impacts of the proposed reclassification on native Hawaiian
customary and traditional practices in Ka Pa#akai O Ka #Aina. Id.
at 51, 7 P.3d at 1088. Thus, Kaleikini’s reliance on Ka Pa#akai
O Ka #Aina is unpersuasive.37
Accordingly, the circuit court did not err in granting
summary judgment in favor of the City and State on Count 6 of
Kaleikini’s complaint.
E. The circuit court did not abuse its discretion in denying
Kaleikini’s HRCP Rule 56(f) motion
Kaleikini argues that the circuit court should have
given her “a reasonable amount of time to pursue discovery.” For
the reasons set forth below, this argument is without merit.
HRCP Rule 56(f) permits a court to order a continuance
to allow a party opposing a motion for summary judgment to obtain
affidavits, depositions or discovery, where the party “cannot for
reasons stated present by affidavit facts essential to justify
the party’s opposition[.]” A request for a continuance pursuant
to HRCP Rule 56(f) “must demonstrate how postponement of a ruling
on the motion will enable [the moving party], by discovery or
other means, to rebut the movant’s showing of absence of a
genuine issue of fact.” Josue, 87 Hawai#i at 416, 958 P.2d at
37
Kaleikini also refers to provisions of HRS chapter 6E that concern
the public trust. However, she does not articulate a cognizable argument as
to how the public trust relates to her argument under HRS chapter 205A.
Accordingly, we do not address public trust principles.
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538 (brackets omitted).
In the instant case, Kaleikini requested a continuance
in her opposition to the City’s motion to dismiss and/or for
summary judgment. Kaleikini’s request stated, in its entirety,
as follows:
[Kaleikini] agrees with the City that this Court
should not convert the City’s motion to dismiss to one
for summary judgment. If this Court were to consider
the City’s motion as one for summary judgment, then
this Court should give [Kaleikini] sufficient time to
pursue discovery and obtain admissible evidence.
(Citations omitted).
Accordingly, Kaleikini’s request did not demonstrate
how postponement of a ruling on the City’s motion would enable
her, “by discovery or other means, to rebut the movant’s showing
of absence of a genuine issue of fact.” Josue, 87 Hawai#i at
416, 958 P.2d at 538. Similarly, in her opening brief, Kaleikini
argues only that HRCP Rule 56(f) “should be liberally construed
particularly when the non-moving party has not had an adequate
opportunity to conduct discovery.” (Citation omitted).
Kaleikini argues that a continuance was warranted because “the
[City’s] motion was filed a week after service” and she “could
not obtain any discovery responses until . . . the same day that
the hearing on the City’s motion for summary judgment was
scheduled.” Again, however, Kaleikini did not explain how the
discovery responses would rebut the City’s showing of an absence
of a genuine issue of material fact. See Josue, 87 Hawai#i at
416, 958 P.2d at 538.
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Accordingly, because Kaleikini failed to meet this
burden, the circuit court did not abuse its discretion in denying
her HRCP Rule 56(f) request for a continuance.
IV. Conclusion
For the foregoing reasons, the circuit court erred in
granting summary judgment in favor of the City and State on
Counts 1 through 4 of Kaleikini’s complaint, because the rules
implementing HRS §§ 6E-8 and 6E-42 do not permit the SHPD to
concur in the rail project absent a completed AIS for the entire
project. However, the circuit court properly granted summary
judgment in favor of the City and State on Counts 5 and 6 because
(1) the final EIS was sufficient under HRS chapter 343 and was
properly accepted by the Governor; and (2) the City and State
gave full consideration to cultural and historic values as
required under HRS chapter 205A.
Accordingly, we vacate the circuit court’s judgment on
Counts 1 through 4, and remand for further proceedings. However,
we affirm the circuit court’s grant of summary judgment in favor
of the City and State on Counts 5 and 6.
David Kimo Frankel and /s/ Mark E. Recktenwald
Ashley K. Obrey for
petitioner /s/ Paula A. Nakayama
William J. Wynhoff for /s/ Sabrina S. McKenna
State respondents
/s/ R. Mark Browning
Robert C. Godbey, Don S.
Kitaoka, Gary Y. Takeuchi, /s/ Fa#auuga To#oto#o
John P. Manaut and Lindsay N.
McAneeley for City respondents
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