283 P.3d 60
Haw.2012Background
- Kaleikini, a native Hawaiian with recognized cultural descendant status for iwi in Kaka‘ako, sues the City and State to challenge the Honolulu rail project.
- Rail project is ~20 miles, four phases; Phase 4 includes Kaka‘ako and has high likelihood of affecting archeological resources.
- Kaleikini seeks AIS for entire corridor before decisionmaking or construction; argues that HRS ch. 6E and HAR rules require AIS prior to SHPD concurrence.
- SHPD concurred in the rail project through the Programmatic Agreement (PA) before full AIS for all phases; PA described phased AIS with later mitigation.
- Circuit court granted summary judgment for City/State on some counts; Kaleikini’s counts 1–4 (HRS 6E-8/6E-42) were dismissed; Counts 5–6 (EIS sufficiency and full consideration under CZMA) were upheld.
- This court vacates Counts 1–4, remands for further proceedings, and affirms Counts 5–6.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SHPD concurrence occurred without a completed AIS. | Kaleikini: AIS for entire project required before concurrence. | City/State: PA interim plan suffices; phased AIS permissible. | Yes, SHPD concurrence without full AIS violated rules; remand on Counts 1–4. |
| Whether the PA constitutes an interim protection plan allowing commencement prior to AIS. | PA does not satisfy interim protection plan requirements. | PA constitutes interim protection plan. | PA is not an interim protection plan; not permitted to bypass AIS. |
| Whether phasing of AIS is permissible under HAR/HRS or prohibited by rule. | Phasing violates sequential AIS requirement; project-wide AIS needed before concurrence. | SHPD may determine project scope; federal phasing guidance applies. | Phasing is not permitted under Hawai‘i rules; sequential AIS required; Counts 1–4 vacated. |
| Whether final EIS was sufficient and City/State satisfied CZMA/HRS 205A requirements. | AIS omission undermines EIS sufficiency and full cultural/historic consideration. | EIS adequate under rule-of-reason; CZMA 205A satisfied. | Final EIS sufficient; full cultural/historic consideration satisfied; Counts 5–6 affirmed. |
Key Cases Cited
- Sierra Club v. Department of Transportation (Superferry I), 115 Hawai‘i 299 (2007) (procedural standing and irreparable injury concepts applied to standing/injury in writ context)
- Kahoohanohano v. State, 114 Hawai‘i 302 (2007) (standing requires legitimate interest and potential irreparable injury; flexible pleading)
- Price v. Obayashi Hawaii Corp., 81 Hawai‘i 171 (1996) (rule of reason governs EIS sufficiency; EIS need not be exhaustive if information enables reasoned decision)
- Hui Alaloa v. Planning Commission of the County of Maui, 68 Haw. 135 (1985) (CZMA-like considerations; improper delegation of duty to private party in SMA)
- Ka Paʻai O Ka Aina v. Land Use Commission, 94 Hawai‘i 31 (2000) (public trust and coordination with native rights; caution against private-developer control of determinations)