2012 09 04 city's motion for reconsideration

4819-9610-7280.1.031382-00011

NO. SCAP-11-0000611

IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

PAULETTE KAʻANOHIOKALANI KALEIKINI,

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, PUAALAOKALANI 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, Defendants-Appellees.

CIVIL NO. 11-1-0206-01 GWBC (DECLARATORY RELIEF)

APPEAL FROM:

(1) FINAL JUDGMENT FILED ON AUGUST 8, 2011

(2) JULY 5, 2011 ORDER GRANTING DEFENDANTS 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 PLANNING AND PERMITTING’S MOTION TO DISMISS COMPLAINT AND/OR FOR SUMMARY JUDGMENT FILED FEBRUARY 9, 2011

(3) JULY 5, 2011 ORDER GRANTING CERTAIN STATE DEFENDANTS’ SUBSTANTIVE JOINDER IN DEFENDANTS 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 PLANNING AND PERMITTING’S MOTION TO DISMISS COMPLAINT AND/OR FOR SUMMARY JUDGMENT FILED FEBRUARY 9, 2011

(4) JULY 5, 2011 ORDER DENYING PLAINTIFF’S MOTION FOR RECONSIDERATION OF THE COURT’S RULING OF MARCH 23, 2011

Electronically FiledSupreme CourtSCAP-11-000061104-SEP-201211:54 PM

2. 4819-9610-7280.1.031382-00011

CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAIÌ

HON. GARY W.B. CHANG

APPELLEE CITY DEFENDANTS’ MOTION TO RECONSIDER, MODIFY AND/OR CLARIFY OPINION FILED AUGUST 24, 2012

MEMORANDUM IN SUPPORT OF MOTION

DECLARATION OF JOHN P. MANAUT

CERTIFICATE OF SERVICE

ROBERT C. GODBEY 4685 Corporation Counsel DON S. KITAOKA 2967 GARY Y. TAKEUCHI 3261 Deputies Corporation Counsel Department of Corporation Counsel 530 S. King Street, Room 110 Honolulu, Hawaiì 96813 Telephone No. (808) 523-4115 CARLSMITH BALL LLP JOHN P. MANAUT 3989 LINDSAY N. MCANEELEY 8810 Special Deputies Corporation Counsel 2200 American Savings Bank Tower 1001 Bishop Street Honolulu, Hawaiì 96813 Telephone No. (808) 523-2500 Facsimile No. (808) 523-0842

Counsel for Defendants-Appellees 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, AND CITY AND COUNTY OF HONOLULU DEPARTMENT OF PLANNING AND PERMITTING

4819-9610-7280.1.031382-00011

NO. SCAP-11-0000611




vs.

WAYNE YOSHIOKA in his official capacity as Director of the City and County of Honolulu’s Department of Transportation Services, et al., Defendants-Appellees.




Pursuant to Haw. R. App. P. 40, Defendants-Appellees 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; and CITY AND COUNTY OF

HONOLULU DEPARTMENT OF PLANNING AND PERMITTING (collectively the “City”),

move this honorable Court to reconsider, modify or clarify its Opinion dated August 24, 2012,

which reversed the circuit court’s judgment in favor of the City on Counts 1 through 4 of

Plaintiff-Appellant Paulette Ka’anohiokalani Kaleikini’s (“Appellant”) Complaint filed January

31, 2011, on the basis that the State Historic Preservation Division (“SHPD”) on the basis that

the SHPD improperly approved phasing of the AIS work that allowed ground disturbing

construction work for the 20-mile long Honolulu High-Capacity Transit Corridor Project (“Rail

Project”) to proceed in four separate construction phases after SHPD’s review and approval of an

Archaeological Inventory Survey (“AIS”) for each respective phase.

By this Motion, the City seeks reconsideration on the following grounds:

1. It was not “plainly erroneous” for SHPD to interpret its own rules to allow

phasing for the following three reasons: (i) there is no express statute or rule prohibiting the

4819-9610-7280.1.031382-00011 2.

approval of a phased project; (ii) the statutory definition of the term “project” under Chapter 6E

of the Hawai‘i Revised Statutes (“HRS”) as “any activity” is sufficiently broad to allow SHPD to

have reasonably determined that each of the construction phases of the Rail Project (which are

subject to independent construction contracts and approvals) can be viewed as a “project” for

purposes of Chapter 6E review, notwithstanding the fact that they are part of a larger

development; (iii) the phrase “project area,” which is not defined in HRS § 6E-2 - but rather,

defined only in the Hawai‘i Administrative Rules (“HAR”) implementing regulations - is

necessarily a derivative of the term “project” such that the “project area” is necessarily included

within and limited by the defined “project.”

2. The legislature has expressly delegated to SHPD widespread authority to

administer the historic preservation program, and SHPD’s actions in this respect and

interpretation of its own rules are entitled to deference unless shown to be plainly erroneous or

inconsistent with the underlying legislative purpose. Respectfully, the Court’s determination that

SHPD’s approval of the phased approach to investigating historic resources set forth in the

Programmatic Agreement (“PA”) was “plainly erroneous” because it is inconsistent with the

definition of “project area” does not consider the term “project area” in light of SHPD’s

determination of what constitutes a “project,” and the Court did not conclude that SHPD

exceeded its authority in determining that a construction phase could be a “project” under

Chapter 6E.

3. It was not “inconsistent with the underlying legislative purpose” of Haw.

Rev. Stat. Chapter 6E for SHPD to treat each construction phase of the Rail Project as a

“project” such that the procedures outlined in HAR §§ 13-275-3 and 13-284-3 will be undertaken

for each phase before SHPD can give its written concurrence authorizing the commencement of

construction in that phase. The phased approach approved in the PA was intended to and does in

fact afford iwi kupuna greater protection by focusing invasive sub-surface testing in Phase 4 to

only those areas where actual ground disturbing construction would occur, and avoiding

unnecessary disturbance to burials that may exist in areas that would not otherwise be disturbed

through construction.

4. It appears from the Court’s opinion that a genuinely disputed issue of fact

exists regarding whether the City intends to commence ground disturbing construction work in

Phase 4 before SHPD provides is concurrence for the Phase 4 AIS report. The City submits that

4819-9610-7280.1.031382-00011 3.

the PA and the representations the City has made throughout the course of these proceedings

should resolve this issue. Nonetheless, to the extent that this Court does not find those

representations conclusive, the case should be remanded to the circuit court for an evidentiary

hearing on this issue, so that the appropriateness of injunctive relief under Haw. Rev. Stat. § 6E-

13(b) may be determined. In the meantime, based on a balance of harms and hardships,

construction should be allowed to proceed in Phases 1 and 2 on the basis that SHPD has already

provided its written concurrence to the full review process that has already been completed for

these phases.

DATED: Honolulu, Hawaiʻi, September 4, 2012.

/s/ John P. Manaut ROBERT C. GODBEY DON S. KITAOKA GARY Y. TAKEUCHI JOHN P. MANAUT LINDSAY N. MCANEELEY

Counsel for Defendants-Appellees 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, AND CITY AND COUNTY OF HONOLULU DEPARTMENT OF PLANNING AND PERMITTING

4840-1147-0352.1

NO. SCAP-11-0000611




vs.




i. 4840-1147-0352.1

TABLE OF CONTENTS

I. INTRODUCTION .................................................................................................................. 1

II. BACKGROUND .................................................................................................................... 2

III. ARGUMENT ........................................................................................................................ 10

A. The Court’s Determination that SHPD’s Approval of the Phased Approach Set Forth in the PA Was “Plainly Erroneous” Fails to Acknowledge SHPD’s Authority and Discretion to Determine What Constitutes a “Project” .................................................................................................. 10

1. The Broad Statutory Definition of “Project” as “Any Activity” Gives SHPD Discretion to Determine What Appropriately Constitutes a “Project” In a Given Instance ........................................................... 10

2. The Defined “Project” Should Control the Parameters of the “Project Area” Borders ........................................................................................... 11

B. The Legislature Delegated Widespread Historic Preservation Authority to SHPD Which has Broad Discretion and Implied Authority to Determine How Best to Protect Iwi Kupuna ................................................................. 13

1. SHPD’s Sequential Rules, as Interpreted by the Court, are Invalid Because they Impair SHPD’s Ability to Carry Out Its Statutory Purpose ................................................................................................................... 15

2. SHPD’s Exercise of Discretion in Entering into the PA is Entitled to Deference ............................................................................................................... 16

C. The Case Should Be Remanded to Determine If the City Intends to Avoid Its Commitments in the PA and Commence Construction Before SHPD Approves the Phase 4 AIS .................................................................................. 18

IV. CONCLUSION ..................................................................................................................... 19

TABLE OF AUTHORITIES Page

4840-1147-0352.1

Cases Application of Hawaiian Elec. Co., Inc.,

81 Haw. 459, 918 P.2d 561 (1996) ........................................................................................... 16 Beneficial Hawai‘i, Inc. v. Kida,

96 Hawai‘i 289, 30 P.3d 895 (2001) ......................................................................................... 17 Carlson v. Real Estate Comm'n of Territory of Hawaii,

38 Haw. 9 (1948) ...................................................................................................................... 15 C.C.T. Equip. Co. v. Hertz Corp.,

123 S.E.2d 802 (N.C. 1962) ..................................................................................................... 14 D.A.B.E., Inc. v. Toledo–Lucas County Bd. of Health,

773 N.E.2d 536 (Ohio 2002) ................................................................................................... 14 Flynn v. Shultz,

748 F.2d 1186 (7th Cir. 1984), cert. denied, 474 U.S. 830 (1985). .......................................... 18 Jacober v. Sunn,

6 Haw. App. 160, 715 P.2d 813 (1986) .................................................................................... 15 Kaleikini v. Thielen,

124 Haw. 1, 237 P.3d 1067 (2010) ........................................................................................... 16 Lee v. Elbaum

77 Hawaiì 446, 887 P.2d 656 (App. 1993) ............................................................................. 12 McNabb v. Bowen,

C.A.9th, 1987, 829 F.2d 787 ..................................................................................................... 15 Morgan v. Planning Dept. County of Kauai,

104 Haw. 173, 86 P.3d 982 (2004) ........................................................................................... 13 Morris v. Williams,

67 Cal. 2d 733, 433 P.2d 697 (1967) ........................................................................................ 15 North Idaho Cmty. Action Network v. U.S. Dep't of Transp.,

545 F.3d at 1147 (9th Cir. 2008)............................................................................................... 19 Public Util. Comm'n of Texas v. City Pub. Serv. Bd. of San Antonio,

53 S.W.3d 310 (Tex.2001) ....................................................................................................... 14 Pulaski v. California Occupational Safety & Health Standards Bd.,

75 Cal. App. 4th 1315, 90 Cal. Rptr. 2d 54 (1999) ................................................................... 16 TIG Ins. Co. v. Kauhane,

101 Hawai‘i 311, 67 P.3d 810 (App. 2003) ............................................................................. 14 Unite Here! Local 5 v. City & County of Honolulu,

123 Hawaiì 150, 231 P.3d 423 (2010) .................................................................................... 12

Statutes 23 C.F.R. § 771.113(a).................................................................................................................... 8 36 C.F.R § 800.4 ........................................................................................................................... 10 40 C.F.R. § 1506.1(a)(1) ................................................................................................................. 8 49 C.F.R. § 611.7 ............................................................................................................................ 9 HAR § 13-275-1(a) ....................................................................................................................... 15 HAR § 13-275-2 ..................................................................................................................... 10, 12

ii. 4840-1147-0352.1

HAR § 13-275-3 ....................................................................................................................... 9, 12 HAR §13-284-3(a) ........................................................................................................................ 15 HAR Chapter 13-275 .............................................................................................................. 11, 12 HAR Chapter 13-284 .................................................................................................................... 11 HRS § 6E-1 ................................................................................................................................... 14 HRS § 6E-2 ....................................................................................................................... 11, 12, 14 HRS § 6E-3 ................................................................................................................................... 14 HRS § 6E-4 ................................................................................................................................... 14 HRS § 6E-8 ......................................................................................................................... 9, 12, 15 HRS § 6E-8 ............................................................................................................................... 9, 14 HRS § 6E-13(b) ........................................................................................................................ 3, 20 HRS § 6E-42 ....................................................................................................................... 9, 14, 15 HRS Chapter 343 ............................................................................................................................ 7 HRS Chapter 6E ..................................................................................................................... passim Other Authorities 3 Admin. L. & Prac. § 8:32 (3d ed.) ............................................................................................. 18

Rules Haw. R. App. P. 40 ......................................................................................................................... 1 Haw. R. Civ. P. 56 ........................................................................................................................ 20

Constitutional Provisions Hawaii Constitution Article IX, section 9 ..................................................................................... 14

4819-9610-7280.1.031382-00011


I. INTRODUCTION

The City moves this Honorable Court to reconsider, modify or clarify its Opinion of

August 24, 2012, because, with all due respect, that decision does not provide sufficient

recognition of SHPD’s necessary discretion to carry out its mandated statutory obligations under

HRS Chapter 6E. The State Constitution empowers the State to “preserve and develop the

cultural, creative and traditional arts of its various ethnic groups.” Haw. Const. Art. IX, Sec. 9.

HRS Chapter 6E designates SHPD with the responsibility for administering the State’s historic

preservation program, and in enacting that statute and setting forth SHPD’s duties, the legislature

did not expressly prohibit a phased approach to the protection of Native Hawaiian burial sites.

SHPD’s administrative rules to implement Chapter 6E, in turn, refer to the “project area,” and

this term has been interpreted broadly by the Court to mean the area of the entire development –

in this case a 20-mile long rail alignment -- in contrast to SHPD’s established interpretation that

allowed for the project area to be considered in phases, when such phasing serves to enhance the

protection of undisturbed burials. For the reasons set forth in the following discussion, the

Court’s interpretation impairs SHPD’s ability to meet its statutory duties, and should be

reconsidered.

The phased AIS approach approved by SHPD was designed to minimize the impact of

the required archaeological investigations on unknown burials by focusing ground-disturbing

activities on places where, based on more detailed design, there would actually be touch down

points for the elevated rail guideway and its stations. In this manner, areas other than the

location for columns or other touch down points would not be needlessly disturbed. Indeed, as

noted in the Court’s Opinion, the Final EIS for the Rail Project pointed out that the approved

approach would reduce the area to be disturbed for AIS studies and construction to potentially

less than 10 percent of what would be disturbed if archaeological investigations were conducted

for 100 percent of the alignment.

As discussed hereinafter, SHPD’s interpretation of its rules to implement broad statutory

language in order to promote the protection of historic resources such as iwi kupuna should not

be deemed “plainly erroneous,” as concluded by the Court. Rather, a recognition of SHPD’s

implied authority and inherent discretion to carry out its mandated functions, and deference to

the agency’s exercise of such discretion when there is no showing of an arbitrary and capricious

2. 4819-9610-7280.1.031382-00011

interpretation, is warranted. If, instead, SHPD’s rules are deemed subject to only one

interpretation, such that the agency is impaired in its ability to fashion approvals that promote the

protection of iwi kupuna, then the rules themselves should be deemed invalid as inconsistent

with the agency’s statutory obligations and the policies that underlie them.

The record in the subject appeal is clear that under the phased approach agreed to by the

City, SHPD and others, unnecessary disturbance of sub-surface areas was promoted, and

protections were in place to ensure that any burials discovered through focused AIS studies of

actual touch down points would be fully protected. The Rail Project has consistently committed

to avoid and minimize adverse effects on historic properties including iwi kupuna, both through

the phased AIS studies based on more detailed design, and through avoidance of identified

historic properties through alternative designs, and project modifications as necessary. The PA

is a contract that ensures that these commitments will be met. However, the Court’s Opinion

appears to discount these facts, thereby invalidating this prudent approach.

By providing SHPD with the necessary discretion to meet its statutory obligations, the

Court will promote not only the protection of burials in the subject project, but also recognize

SHPD’s authority to require similar protections for other projects, particularly other public works

projects which, like the Rail Project, involve construction over long distances over many years,

and are required to follow funding guidelines that dictate when certain design work can be

commenced. Respectfully, we ask the Court to reconsider, modify or clarify its Opinion in light

of the foregoing and following discussion.

II. BACKGROUND

The following is a summary of the factors that the City requests should be reviewed to

support reconsideration under the circumstances presented.

Development of an appropriate and protective plan to handle the archaeological review

requirements for the 20-mile Rail Project from Kapolei through Kaka‘ako into the Ala Moana

area began almost 5 years ago and was initially evaluated through extensive archaeological

technical reports prepared for this project. R.40 at 189-244 (AR.34 at 187-242); R.42 at 219-428

(AR.36 at 143-349).1 The coordination with SHPD began early to formulate the most efficient

1 The original Record on Appeal was filed electronically in seven parts with the Intermediate Court of Appeal on October 3, 2011 as JEFS Document Nos. 40, 42, 44, 46, 48, 50 and 52. References to that Record on Appeal will be provided in the following format: “R.[JEFS Doc.

3. 4819-9610-7280.1.031382-00011

and appropriate plan for identification and evaluation of historic resources, including burials.

See R.42 at 250 (AR. 36 at 172) (2008 Archaelogical Technical Report addressing practical

considerations for phasing the historic review process and related consultation with SHPD and

the O‘ahu Island Burial Council)

The effort to determine if burials existed along the proposed alignment included

significant review of prior studies and consultation with Native Hawaiian groups, lineal and

cultural descendants, experts in the field, and extensive pre-existing technical survey studies for

areas within the already heavily developed Kaka‘ako area. See R.42 at 254-257 (AR.36 at 179).

The technical reports clearly stated there were no known existing burials anywhere along the

proposed rail alignment in Kaka‘ako, which at that time was based on conceptual drawings for

potential column touch down locations along existing street corridor areas, mainly Halekauwila

Street, then across Ward Avenue to Kona Street at Ala Moana Center. See generally R.42 at

219-428 (AR.36 at 143-349); R.42 at 351-366 (AR.36 at 273-288).

The initial conceptual designs contemplated an elevated guideway that would touch

ground only in discrete areas at approximately every 100 or 150 feet by support columns and

straddle spans, as well as elevated stations that would have limited ground-touching points. R.48

at 214 (AR.40 at 680). Adjustments to these touch down points, including adjustments to span

length supports and column locations, could be made in final design to accommodate and avoid a

presently unknown burial later located by an AIS or even discovered as an inadvertent find

during construction. R.40 at 112, § III(B)(4) (AR.34 at 110; R.40 at 114, § III(D)(2) (AR.34 at

112); R.40 at 129, § XII(C)(1) (AR.234 at 127).

Although the extensive archaeological and cultural reports confirmed the absence of any

known burials along the proposed alignment, it was determined that the potential for

encountering unknown burials in the broader Kaka‘ako area was “high.” See R.42 at 229 (AR.36

at 153); R.42 at 365 (AR. 36 at 287). While this "high likelihood" determination was important

No] at [PDF page number].” A Supplemental Record on Appeal was filed electronically on October 20, 2011 as JEFS Document No. 66, noting the transfer of a hard copy of the FEIS, dated June 2010 to the appellate Court. References to the Supplemental Record on Appeal will be provided as: “SR.66 at [FEIS page or section number].” An Amended Record on Apeal was filed electronically in five parts with the Hawai‘i Supreme Court on April 7, 2012 as JEFS Document Nos. 34, 36, 38, 40 and 42. Parallel citations to the Amended Record on Appeal will be provided in the following format: “AR.[JEFS Doc. No] at [PDF page number].”

4. 4819-9610-7280.1.031382-00011

for purposes of disclosing potential impacts of the overall development for environmental

disclosure requirements, the chances of encountering a burial along the already heavily

developed Kaka‘ako area streets that this alignment traverses would actually be much lower,

according to the same technical reports.2 Nevertheless, because unknown burials might still be

discovered under the already heavily developed streets and existing building areas, the

consultants, City, SHPD and federal authorities all agreed that to satisfy concerns and

sensitivities about possible burials, an AIS would be performed for each construction phase of

the Project. SHPD concurrence would also be obtained for each phase before ground-disturbing

construction work could commence in that phase. 3 See R.40 at 112-115 (AR.34 at 110-113);

SR.66 at 4-178 to 4-179; R.40 at 98-100, ¶¶ 7-10 (AR.34 at 96-98); R.48 at 319-320, ¶¶ 13-23

(AR.40 at 784-785). Moreover, given the higher risk of encountering burials in Phase 4, it was

agreed that the AIS for Phase 4 would involve and evaluation of 100% of the column and station

locations. See R.40 at 112, §III(B)(1) (AR.34 at 110).

Importantly, there was no formal finding by SHPD that an AIS was in fact required by

Chapter 6E. Instead, the City simply agreed to perform AISs in the four separate and discrete

defined construction phases, under the express conditions set forth in the PA. The PA was

designed to maximize protection of iwi kupuna by allowing more focused testing of Phase 4,

which had a higher likelihood of burials and contractually obligated the City to modify the Rail

Project as necessary to accommodate preservation in place, when determined to be necessary,

while also allowing the City to proceed with construction in discrete phases once SHPD gave its

concurrence for each particular phase. See R.40 at 112-118 (AR. 34 at 110-116). Had the AIS

for Phase 4 been required to be performed at the outset, it is likely that it would have involved a

random sampling plan that could have exposed burials outside of the area later determined to be

the Rail Project’s actual footprint. By waiting to perform a more comprehensive AIS after the

2 According to the Archaeological Resources Technical Report, a “High rating” means that” based on archeological research, there is a reasonable potential to encounter archaeological deposits over at least 50 percent of that sub-area. The actual percentage of the proposed sub-area where archeological resources are encountered will undoubtedly be small.” R.42 at 254 (AR.36 at 176).

3 This was consistent with the provision for construction contracts with contractors that are presently based on segregating construction and entering into separate contracts within each phase, and not the overall Rail Project.

5. 4819-9610-7280.1.031382-00011

column and station locations were determined with more certainty through further engineering,

and the City has secured rights to all properties along the alignment, a more focused, less

disruptive analysis could be performed in the areas of direct ground disturbance (including those

areas that are currently within existing businesses like the Ross Store on Ward Avenue in

Kaka‘ako). See R.48 at 326, ¶¶ 22-23 (AR. 40 at 791) (discussing the “urban conundrum” that

phases developments in urban areas and potential for phasing to help overcome these challenges

and enhance the protection of iwi kupuna.)

The PA also expressly commits to avoiding adverse effects to historic resources, such as

burials. According to the PA: “… the DTS (City) has included minimization and avoidance

measures during project design, including, but not limited to, narrow guideway design, route

selection, station location selection, and contained station footprints, to avoid and minimize

adverse effects on historic properties;….” (emphasis added). R.40 at 106 (AR.34 at 104). The

PA also provides that “Avoidance shall include relocation of columns, change of column design

to or from center alignment to straddle bent or other alternatively-supported design, modification

of span length, and alternate utility locations.” R.40 at 113, § III(B)(4) (AR.34 at 111).

Therefore, the PA commits the City to preserving burials in place when it is required to do so,

and to avoid harming any such burials through any necessary design modifications.

Under the phased approach to the AIS process set forth in the PA, the full historic review

process outlined in HAR §§ 13-275-3 and 13-284-3, culminating in SHPD concurrence, must

occur for each construction phase, or “project,” before construction can commence in that phase.

The sequential review process under the Chapter 6E regulations is fully preserved and

maintained for each construction phase.4 Compare PA requirements set forth in R.40 at 112-

115, § III with HAR §§ 13-275-3(b) and 13-284-3(b). Accordingly, the intent and purpose of

those rules to proceed through the requisite sequential evaluation before receiving final SHPD

concurrence is retained for each defined project phase.5

4 Under the PA, SHPD retains full oversight and is contractually committed and obligated to: (a) review and approve the AIS plan for all 4 Phases (see R.40 at 112, § III(A)(2) (AR.32 at 110)); (b) review and approve any treatment plan developed by the AIS report for each phase (see R.40 at 114, § III(D) (AR.34 at 112)); and (c) review and approve all site specific mitigation plans before any construction can commence (see R.40 at 114-115, § III(E) (AR.34 at 112-113).

5 Fundamentally, the PA establishes two complete and full tiers of review before work can commence in a phase. The initial approval of the plan for treating each construction phase as a

6. 4819-9610-7280.1.031382-00011

The commitment to avoid burials and require repositioning of columns, stations, or the

alignment exists even for an inadvertent burial find not discovered during the extensive AIS

process, but located after final design during actual ground disturbing construction. Indeed, the

PA expressly states: “For preservation in place, the City will modify the planned construction to

allow for the remains to stay in place in accordance with the burial treatment plan.” R.40 at 129,

§ XII(C)(1) (AR.34 at 127).

Thus, the City has clearly committed to avoiding a burial that requires preservation in

place, and has restated that intention throughout the proceedings in this case. There is absolutely

no evidence that the City has or intends to proceed with construction in Phases 3 and 4 until after

the historic review process for each phase is fully completed and approved by SHPD,

respectively. That has been the undeniable practice of the City to date for work commencing in

Phases 1 and 2, which have only proceeded after SHPD’s approval of completed AISs for those

phases. There is no evidence that the City will in fact proceed with construction in Phases 3 and

4 without SHPD’s prior approval, or in any manner violate its contractual commitments and

obligations set forth in the PA.6

“project” and phasing the review process based on these “projects” is given by SHPD’s execution of the PA. The PA, however, expressly preserves the need to proceed with the sequential review process set forth under HAR §§ 13-275-3(b) and 13-284-3(b) for each phase and to receive SHPD concurrence for each phase before construction can commence in that phase.

6 SHPD’s mandate is not to review projects for political approval or alternatives on a build or no-build basis that exists under other statutes, such as Chapter 343. SHPD’s mandate under Chapter 6E is to protect the ground from proposed construction activities that may harm a burial. In this case, no one can say that the approved AIS plans for phases 3 and 4 are faulty, wrong or otherwise create any realistic threat of harm to any unknown below ground burial. In reality, SHPD’s efforts in approving the PA have been to negotiate even greater protections for burials by timing this AIS review so that a more fuller design by access and funding can lead to a much more focused and comprehensive AIS process for phase 4 than would otherwise have existed if SHPD had allowed a simple random sampling AIS to proceed in Phase 4. SHPD’s approvals are eminently more reasonable and provide much more protections for identifying specific column locations than almost any other type of survey or data recovery effort. This effort to allow phasing to protect burials sites under Chapter 6E, is entirely distinguishable and distinct from the HEPA, Chapter 343, environmental review process which requires the entire phased project to be analyzed as one continuous project with logical start points and end points or termini for purposes of avoiding a segmentation argument. Such an argument does not exist here because each construction phase was reviewed as a whole for impacts under Chapter 343 and no part was

7. 4819-9610-7280.1.031382-00011

Since the Phase 4 Kaka‘ako area has a “high” likelihood of encountering burials

generally, the phased review process approved in the PA is particularly appropriate because it

allows for more focused evaluation of touch-down points7 that could not have been performed

until more sophisticate engineering and design plans were completed, property acquisitions

necessary to gain access to planned touch-down points occurred, and certain federal funding

commitments were in place.8 Moreover, performing a complete 100% evaluation in Phase 4, as

opposed to more general AIS sampling on a substantially lesser percentage area, posed a conflict

with federal rules and policy that prohibit final design and preliminary engineering until after the

ROD was issued.9 The necessary required further design and engineering for a more extensive

100% site specific evaluation was limited by federal policy because such extensive evaluation to

afford greater accuracy could only occur later in the design process following initial federal

approvals which come after the environmental review process. In order to be able to perform a

100% evaluation in Phase 4, as opposed to a lesser representative sampling, and thereby

promoting even greater protections by locating unknown burials by a more thorough AIS process

ignored. This is a separate analysis from the Chapter 6E concerns for its own definition of phasing and policy concerns, which are not threatened by a phased activity or use.

7 PA provides in pertinent part: “The AIS Plan will provide for investigation of the entire Phase 4 area,…. In the portion of Phase 4 with the greatest potential for resources … the AIS Plan will evaluate all areas that will be disturbed by the Project…including subsurface testing, for each column location, utility relocation, and major features of each station and traction power substation location based on preliminary engineering design data.” R.40 at 112, § III(B)(1) (AR.34 at 110).

8 As explained in the August 2008 Archaeological Technical Report: “…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.”

9 23 C.F.R. Section 771.113(a) in the FTA’s NEPA regulations prohibit FTA and the City from engaging in final design prior to issuance of the ROD. See also The Council on Environmental Quality’s NEPA regulations at 40 C.F.R. section 1506.1(a)(1). Therefore, the City needed to complete more detailed engineering to identify column and station locations more precisely before conducting the AIS in Phase 4 to achieve 100% evaluation.

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before the work commences, SHPD’s approval of phasing was the only realistic manner to

achieve the higher level of satisfaction for all parties.10

SHPD’s approval of the PA means that no ground altering work can commence in Phases

3 and 4 until the AIS process is completed for each of those phases, based on near final column

design locations; thereby providing even further safeguards to potential iwi kupuna in the area.11

10 If SHPD does not have the discretion to defer AIS sub-surface testing under these type of long highway or rail developments, SHPD will be forced to agree to perform early AIS sub-surface testing even if it means exposing iwi kupuna to a higher risk of disturbance because projects cannot practicably wait an additional 2-5 years to resolve an iwi issue because under FTA rules, preliminary engineering cannot be requested until the environmental review process is complete and other requirements are met under 49 C.F.R. § 611.7.

11 The Court’s Opinion at 79 noted that the June 2010 Final EIS stated: “The City has committed to conduct 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 declaration of SHPD Administrator Pua‘alaokalani Aiu stated:

10. It is SHPD’s position that neither HRS § 6E-8 nor HRS § 6E-42 requires the completion of an Archaeological Inventory Survey (“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 Haw. Rev. Stat. § 6E-8 and HAR § 13-275-3.…

16. SHPD has determined that the appropriate way to address and mitigate these potential impacts is as set out in the P A.

R.48 at 318-319 (AR.40 at 783-784).

The declaration of the City’s lead archaeologist, Hallett Hammatt, further stated:

23. As a reasonable alternative to the issuance of a “no effects” determination due to this “urban conundrum,” the plan set out in the PA for this Project provides for both flexibility and a comprehensive subsurface testing program prior to commencement of construction in each Phase of the Project in order to mitigate any potential harm to a potential burial site anywhere along the project route. This phased approach allows the AIS to focus more clearly on the area of potential effect in accordance with the preliminary design. It also allows adjustment of the design (interim and final phases) in accordance with findings in later design phases to avoid and protect burial finds.

9. 4819-9610-7280.1.031382-00011

If a burial is found, then the columns must be adjusted and relocated, so awaiting the higher level

of column location certainty was critical to the more extensive and protective review process

approved by SHPD.

The phased approach adopted in the PA cannot be shown to be unreasonable. In fact, as

the Court’s Opinion at page 8, n. 6 notes, the cited regulations in 36 C.F.R. § 800.4 (2010), allow

for phasing in lengthy federal highway projects which face the same access and design

coordination complexities that this 20-mile elevated rail guideway undeniably faces. If the

rationale is determined to be appropriate under federal law, there really is no rational basis to

think it would not also be reasonable to adopt a similar policy under State law. This is especially

true for long highway or rail projects where a myriad of funding, appeals, access, and other

issues make completion in a single one-time review process almost impossible to coordinate.

Because Phase 4 starts at Middle Street and runs through to Ala Moana, there is a wide

geographical area available to preserve the commitment to adjust columns and even shifting the

alignment if necessary to avoid iwi. Based on the PA, no construction work can commence until

after SHPD reviews and approves the Phase 4 AIS report for this large geographic area. No

admissible evidence exists to show the City or SHPD have disregarded or intend to ignore their

public duties and contractual commitments not to harm any iwi in Phase 4 by proceeding with

construction within Phase 4 prior to SHPD’s approval of the Phase 4 AIS report. However, if

this is still in doubt, then the Court should remand for a factual determination at an evidentiary

hearing to determine if such an intent to disregard these PA commitments by SHPD or the City

in fact exists. Until then, the work should be allowed to continue in Phases 1 and 2 on the basis

of SHPD approved AISs for those initial phases.

R.48 at 327 (AR.40 792).

In addition, the City has explained: “There are numerous justifications for this approach, including the magnitude of the Project, the heavily urbanized nature of much of the Project’s alignment, access to private property to excavate, the federal government’s funding requirements, and the fact that final design is still under development to determine final column placement; thus, any additional archaeological testing could be outside the Project’s actual footprint and therefore unnecessarily disturb resources that would otherwise not have been impacted by the Project. See City’s Ans. Br. at 22-23, fn. 9; see also e.g. R.42 at 249-250 (AR 36 at 171-172); R.48 at 326-327, ¶¶22-23).

10. 4819-9610-7280.1.031382-00011

III. ARGUMENT

A. The Court’s Determination that SHPD’s Approval of the Phased Approach Set Forth in the PA Was “Plainly Erroneous” Fails to Acknowledge SHPD’s Authority and Discretion to Determine What Constitutes a “Project”

The Court determined that phasing is not permissible because it is inconsistent with the

definition of “project area” set forth in HAR §§ 13-275-2 and 13-284-2. This determination,

however, does not address the exceptionally broad definition of “project” in HRS 6E-2, which is

defined as “any activity.” The breadth of this statutory definition, together with the authority

delegated to SHPD by the legislature, evidences a legislative intent to vest SHPD with broad

discretion in determining what constitutes a “project.” There are numerous practical reasons for

SHPD to have such discretion because different developments may present different challenges,

and SHPD should have flexibility to determine how best to approach the historic review process

for a given development to ensure the maximum protection for historic resources. Because the

definition of “project area” is derivative of the term “project,” the City respectfully submits that

the Court’s reliance on the definition of “project area” without having first addressing the

appropriateness of SHPD’s decision to treat the four construction phases as separate activities or

“projects” was overlooked and should be reconsidered.

1. The Broad Statutory Definition of “Project” as “Any Activity” Gives SHPD Discretion to Determine What Appropriately Constitutes a “Project” In a Given Instance

All parties agree that the concept of phasing the historic review process for a large

development is not expressly prohibited by any clear language in Chapter 6E or its implementing

regulations. Because there is no such express prohibition, one must look in the first instance to

the definition of “project” under Haw. Rev. Stat. § 6E-2 to evaluate whether SHPD has

discretion to allow phasing:

“Project” means any activity directly undertaken by the state or its political subdivisions or supported in whole or in part through appropriations, contracts, grants, subsidies, loans, or other forms of funding assistance from the State or its political subdivisions or involving any lease, permit license, certificate, land use change, or other entitlement for use issued by the State or its political subdivision. (emphasis added)

11. 4819-9610-7280.1.031382-00011

This statutory definition of “project” is sufficiently broad to encompass not only the full

20-mile alignment for the Rail Project, but also each of the individual construction phases.12 The

breadth of this definition suggests a determination that SHPD has inherent and implied discretion

to determine how to define a given “project” - and if appropriate, to determine that a large

development may in fact be comprised of multiple smaller “projects” so long as such a

determination is consistent with the goals and purposes of Chapter 6E. There is absolutely

nothing in the definition of “project” that forecloses the possibility of defining smaller activities

or uses as “projects.”13 Moreover, as discussed further below, doing so in this case is consistent

with the goals of Chapter 6E because the PA requires that the full historic review process be

completed for each construction phase, and that SHPD provide its written concurrence for that

phase or “project” before construction begins in that phase. Accordingly, the plain language of

Chapter 6E gives SHPD discretion to determine whether phasing the historic review process is

appropriate in a given instance, and this discretion is entitled to deference unless found to be

plainly erroneous. 14

2. The Defined “Project” Should Control the Parameters of the “Project Area” Borders

Notably, the definition of “project area” does not exist in the definition sections of Haw.

Rev. Stat. § 6E-2, so the word “project” and its broader discretionary implications should be the

controlling mandate for SHPD to follow. If phasing is allowed to be included within the

12 A defined construction phase, with independent bidding, contracts, and approvals could reasonably and prudently be considered a stand-alone “activity” under Haw. Rev. Stat. §6E-2, and therefore a “project.” In addition, the further definition of “project” also includes “other entitlement for use.” This second descriptive definition of “project” as any “other” “use” also provides for a broad range of applicability and does not expressly limit or restrict or prohibit the type of proposed use that the City and State describe in their approval of the PA.

13There is no express restriction or limitation in the definition of “project” and there is no limitation on what kind of activity or use can be approved by SHPD.

14 SHPD clearly approved such a phased activity or use in the PA. R.40 at 105 (AR.34 at 103) (“the FTA and the SHPD have agreed that a phased approach to identification and evaluation of archeological sites is appropriate….”); see also R.48 at 319, ¶ 13 (AR.40 at 784). The City also committed that its approach would “ensure that all treatment measures developed by the City and as a result of consultation are compliant with government-wide policies and regulations.” R.40 at 108, § I(E) (AR.34 at 106).. This provision includes State and local government in addition to the federal government.

12. 4819-9610-7280.1.031382-00011

definition of “project” as “any activity” or “use” with clearly defined geographic borders

identified for each discrete phase, then the secondary definition of “project area” in HAR § 13-

175-2 has to be limited to the prior defined scope of the term “project.” This is because the word

“project” included in and part of the term “project area.” In other words, if the project is already

defined for each phase or construction activity or use as being restricted to a discrete geographic

phase or location, then the “project area” would have to relate to those borders within that

approved activity or use. If phasing, under the definition of “project,” can mean “any activity”

or “use” as approved by SHPD, then the “project area” should be limited to those specific

defined geographic locations or borders for each phase. Therefore, Phase 1 can be analyzed as

the area stretching from Kapolei to Pearl City, with clearly defined start and ending borders for

that phase’s activity or use. Likewise, the Phase 4 activity or use can be defined as the area that

will be affected within identified borders that extend from its start border at Middle Street all the

way to its ending border at Ala Moana Center, which includes the Kaka‘ako area. This approach

fully preserves SHPD’s sequential oversight, and its review and approval of each phase’s AIS

before any construction work can proceed in each of those four geographic activity phases.

Absent an express statutory or rule prohibition, the concept of phasing as allowable by

the governing agency’s interpretation of its rules, should not be reviewed under the “plainly

erroneous” standard. Instead, the implementing agency that read and interpreted its own rules to

define “project” to allow phasing, was within its broad discretion to define a project as “any

activity” or “other entitlement for use.” In the absence of an express prohibition on phasing,

there is no clear basis to conclude that SHPD’s interpretation was contrary to its inherent

discretion and implied authority to interpret its own implementing rules as “plainly erroneous.”

In the face of an unclear or ambiguous regulation definition or meaning, the standard of

review that should be applied is deference to the agency’s implied authority and inherent

discretion. Based on that standard, the determination of phasing as an approved approach should

not be dismissed outright, but entitled to a presumption of validity and regularity which should

only be overturned upon a showing that such an interpretation by SHPD is both arbitrary and

capricious. See Unite Here! Local 5 v. City & County of Honolulu, 123 Hawaiì 150, 176, 231

P.3d 423, 449 (2010) ("[A]n administrative agency's authority includes those implied powers that

are reasonably necessary to carry out the powers expressly granted."); See Lee v. Elbaum, 77

Hawaiì 446, 457, 887 P.2d 656, 667 (App. 1993) ("[A]n administrative agency's interpretation

13. 4819-9610-7280.1.031382-00011

of its own rules is entitled to ‘deference unless it is plainly erroneous or inconsistent with the

underlying legislative purpose.') The City submits that no such showing has been made here or

could be made by Appellant under these circumstances.

B. The Legislature Delegated Widespread Historic Preservation Authority to SHPD Which has Broad Discretion and Implied Authority to Determine How Best to Protect Iwi Kupuna

Hawai‘i Constitution Article IX, section 9 states: “The State shall have the power to

preserve and develop the cultural, creative and traditional arts of its various ethnic groups.”

In Haw. Rev. Stat. § 6E-1, the legislature declared that it shall be the public policy of this State

“to conduct activities, plans, and programs in a manner consistent with the preservation and

enhancement of historic and cultural property.” Haw. Rev. Stat. § 6E-4 states: “All state projects

and programs relating to historic preservation shall come under the authority of the department

[DLNR].” Haw. Rev. Stat. § 6E-2 defines “historic preservation” as the “protection, restoration,

rehabilitation, and interpretation of…burial sites… of this State, its communities, or the nation.”

Finally, Haw. Rev. Stat. § 6E-3 established SHPD as a division within DLNR with the

responsibility “to administer a comprehensive historic preservation program, which shall include

but not be limited to the following: (1) Development of an on-going program of historical,

architectural, and archaeological research and development, including surveys, excavations,

scientific recording, interpretation, and publications on the State’s historical and cultural

resources;… (10) Coordination of the evaluation and management of burial sites as provided in

section 6E-43;…(13) Regulation of archaeological activities throughout the State.”

Against this back drop, the Legislature set forth SHPD’s Haw. Rev. Stat. § 6E-8 and

§ 6E-42 duties. Neither statutory provision expressly prohibits a phased approach to reviewing,

concurring and commenting on burial sites. However, the Court’s Opinion described SHPD’s

statutory authority as being limited and impaired by its rules,15 which is contrary to the Court’s

opinion in Morgan v. Planning Dept. County of Kauai, 104 Haw. 173, 181, 86 P.3d 982, 990:

15 At page 57, the Opinion stated:

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

14. 4819-9610-7280.1.031382-00011

An administrative agency can only wield powers expressly or implicitly granted to it by statute.” TIG Ins. Co. v. Kauhane, 101 Hawai‘i 311, 327, 67 P.3d 810, 826 (App.2003). However, it is well established that an administrative agency's authority includes those implied powers that are reasonably necessary to carry out the powers expressly granted. See, e.g., Kauhane, 101 Hawai‘i at 327, 67 P.3d at 826; D.A.B.E., Inc. v. Toledo–Lucas County Bd. of Health, 96 Ohio St.3d 250, 773 N.E.2d 536, 545–46 (2002) (noting that a statute's grant of power to an administrative agency “may be either express or implied, but the limitation put upon the implied power is that it is only such as may be reasonably necessary to make the express power effective”); Public Util. Comm'n of Texas v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 315 (Tex.2001) (“The basic rule is that a state administrative agency has only those powers that the Legislature expressly confers upon it. But an agency may also have implied powers that are reasonably necessary to carry out the express responsibilities given to it by the Legislature.”). The reason for implied powers is that, “[a]s a practical matter, the [l]egislature [cannot] foresee all the problems incidental to ... carrying out ... the duties and responsibilities of the [agency].” See C.C.T. Equip. Co. v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802, 806 (1962). [Emphasis added.]

SHPD had the statutory power and was constitutionally allowed to enter into the PA

where not doing so would unnecessarily disturb iwi kupuna whether or not the rules to which it

relied upon were invalid. SHPD did not have the discretion to avoid acting in the best interest of

historic preservation of burial sites. The phased approach to defining the project was approved

by SHPD as a reasonable and prudent plan to protect unknown iwi kupuna in what almost all

parties to this action agree is a Chapter 6E statute that is completely silent on the issue of such

phasing.

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).

15. 4819-9610-7280.1.031382-00011

1. SHPD’s Sequential Rules, as Interpreted by the Court, are Invalid Because they Impair SHPD’s Ability to Carry Out Its Statutory Purpose

The law is clear that agency regulations or rules that impair the scope of an agency’s

statutory power are invalid. Carlson v. Real Estate Comm’n of Territory of Hawaii, 38 Haw. 9,

12-13 (1948) (holding that in order to be valid and enforceable, an administrative rule “must not

conflict with, alter or amend, or enlarge or impair the scope of the provisions of legislative

enactment.”); Jacober v. Sunn, 6 Haw. App. 160, 167, 715 P.2d 813, 819 (1986) (holding that an

administrative agency “may not enact rules and regulations which enlarge, alter, or restrict the

provisions of the act being administered”); Morris v. Williams, 67 Cal. 2d 733, 748, 433 P.2d

697, 707 (1967) (Administrative regulations that alter or amend the statute or enlarge or impair

its scope are void and courts not only may, but it is their obligation to strike down such

regulations.); Pulaski v. California Occupational Safety & Health Standards Bd., 75 Cal. App.

4th 1315, 1332, 90 Cal. Rptr. 2d 54, 64 (1999) (“Administrative regulations that alter or amend

the statute or enlarge or impair its scope are void....”); McNabb v. Bowen, 829 F.2d 787, 791

(9th Cir. 1987) (“[The court] must reject administrative regulations which are inconsistent with

the statutory mandate or that frustrate the policies which Congress sought to implement.”);

Kaleikini v. Thielen, 124 Hawai'i 1, 20, 237 P.3d 1067, 1088 (2010) (“Administrative rules and

regulations which exceed the scope of the statutory enactment they were devised to implement

are invalid and must be struck down.”)

Accordingly, the Court's Opinion adopts an inflexible limit on SHPD's discretion to

approve projects in a manner that would more properly protect iwi kupuna. As interpreted by the

Court, SHPD’s administrative rules do not allow the agency the discretion to approve a phased

AIS approval process that, as previously described, was designed to protect unknown burials by

avoiding unnecessary subsurface investigation, and focusing the AIS study on the actual touch

down points in Phase 4, where there is the highest likelihood of encountering iwi kupuna. Given

the Court’s interpretation, the conclusion based on the foregoing authorities is that the rule must

be invalid. To conclude otherwise would impermissibly impair SHPD’s ability to meet its

statutory obligations.

16. 4819-9610-7280.1.031382-00011

2. SHPD’s Exercise of Discretion in Entering into the PA is Entitled to Deference

Application of Hawaiian Elec. Co., Inc., 81 Haw. 459, 467, 918 P.2d 561, 569-70 (1996)

held that:

In order to preserve the function of administrative agencies in discharging their delegated duties and the function of this court in reviewing agency determinations, a presumption of validity is accorded to decisions of administrative bodies acting within their sphere of expertise and one seeking to upset the order bears “the heavy burden of making a convincing showing that it is invalid because it is unjust and unreasonable in its consequences. . . . Additionally, courts decline to consider the weight of the evidence to ascertain whether it weighs in favor of the administrative findings, or to review the agency’s findings of fact by passing upon the credibility of witnesses or conflicts in testimony, especially the findings of an expert agency dealing with a specialized field.

In this case, the Court found that the PA does not constitute an interim protection plan.

While this issue is not revisited here, the rationale that allows a project to proceed so long as an

interim protection plan is in place is no different here for the approved geographically discrete

phases. The idea is to protect the ground areas and prevent harm to iwi kupuna. The project

should be allowed to proceed except in the areas that may be affected until final SHPD approvals

are granted. The same intention to protect iwi kupuna applies to phasing. Nothing can be done

in Phase 4 until the phase 4 AIS is completed and SHPD reviews, approves and concurs in its

findings. This is what the PA provides and the City has never stated it had any contrary intent.16

16 Given the additional protections being afforded by awaiting a more focused design, so as not to harm or adversely affect other areas that the construction may likely never touch, the PA is a realistic and reasonable plan for handling further unknown burial identification through an AIS process that otherwise would never have been required by a more typical AIS. Given this rationale, the actions of SHPD were consistent with the purposes of 6E, and not inconsistent. Long highway projects are a rarity in Hawai’i so taking advice and the lead from federal agencies that also must be sensitive to similar cultural and historical issues is entirely reasonable. Furthermore, SHPD’s approval to proceed with a project is not dependent on or determined by assessing a no-build or alternatives analysis. SHPD determines if there are burials in the proximity of the project activity or use by way of the historic review process which may or may not include an AIS. If an AIS is performed and it does disclose burials, then it can simply halt the construction. It is then up to the City to design around and avoid the burial.

17. 4819-9610-7280.1.031382-00011

What the interim protection plan section does impart, however, is that (1) SHPD retained

the ability to defer AIS testing in the appropriate circumstances as part of its inherent statutory

authority, or; (2) the AIS rules improperly impair SHPD’s statutory grant of power and must be

declared invalid. Any other result would leave SHPD powerless to protect burial sites under the

circumstances of this case. See Beneficial Hawai’i, Inc. v. Kida, 96 Hawai’i 289, 308, 30 P.3d

895, 914 (2001) (stating that “the legislature is presumed not to intend an absurd result, and

legislation will be construed to avoid, if possible, inconsistency, contradiction, and illogicality

(internal quotation marks and citation omitted).”)

SHPD’s decision to enter into the PA was based on its reasonable belief that the phased

approach spared unknown burials from unnecessary risks of disturbance from premature sub-

surface testing. Plaintiff has not disputed these facts as set forth in the August 2008

Archaeological Technical Report, the June 2010 Final EIS and the January 2011 PA. As noted

in the Declaration of Thomas J. Willoughby submitted by the City in its opposition to Plaintiff’s

Motion for Injunction Pending Appeal, on March 6, 2012, the cost to the City and the threat to

the entire Project from an injunction are extraordinary. On the other hand, the balance of harms

risk to Plaintiff and unknown burials in Phase 4 is virtually non-existent.

Moreover, the State stated in its Memorandum in Opposition to Plaintiff-Appellant’s

Motion for Injunctive Relief Pending Appeal at 5-6 that potential burials in Phase 4 would not be

affected if SHPD concurred with the project thus allowing for construction to begin in Phase 1:

“The gravamen of plaintiff’s complaint is that an AIS has not been completed for phase 4 of the

project in the Kaka‘ako area before ground disturbing construction activity commences there.

But that AIS is scheduled to be completed by November 2012, years before ground disturbing

activity starts in Kaka‘ako in March 2015.” Plaintiff’s lament that “the early preparation of an

AIS” is needed “before options are closed and agency commitments are set in concrete” is

factually wrong and ignores SHPD’s ability to develop phased plans with greater protections.

Accordingly, given the City and SHPD’s undisputed justification for deferring AIS

testing in Phase 4 to await more detailed engineering plans to reduce the area of investigation

potentially by 90%, given the extraordinary burial protective measures included in the PA, and

given that the Legislature delegated expansive historic preservation powers to SHPD, the fact

that SHPD’s rules (as interpreted by this Court) require completion of AIS for the entire Project

before SHPD may approve of the Project, then those rules would necessarily be invalid.

18. 4819-9610-7280.1.031382-00011

Otherwise the matter should be remanded to determine if SHPD’s purported justification, as set

forth in the record, was proper under the circumstances. 3 Admin. L. & Prac. § 8:32 (3d ed.)

(“When the agency has discretion, it, not the courts, should exercise that discretion and hence the

proper judicial remedy is remand. A court in fashioning a remand order must be very careful not

to inappropriately infringe on that intended freedom of action and intrude on a discretionary

function assigned to the agency.”) citing Flynn v. Shultz, 748 F.2d 1186, 1194 (7th Cir. 1984),

cert. denied, 474 U.S. 830, 106 S. Ct. 94, 88 L. Ed. 2d 77 (1985).

Therefore, SHPD, as the agency charged with authority to interpret its own implementing

rules, and the agency with implied authority and inherent discretion to do so under recognized

law, should be allowed to determine that its interpretation and approach is reasonable.

Otherwise, the project definition section is at least ambiguous, so it should be left to SHPD to

decide and resolve, as it did here. Since SHPD did interpret its rules and its authority to allow

for four discrete project phases, its determinations are entitled to a presumption of validity.

Given the inherent protections afforded to presently unknown iwi kupuna that could possibly be

located during the AIS process, it cannot be said to be unreasonable or arbitrary and capricious

for SHPD to have approved this project in four geographically distinct and separate activity or

project phases. If a realistic risk of harm is posed, then construction should be stopped in the

relevant specific area, not the entire 20 mile length and especially not in Phases 1 and 2 where

approved AISs already exist. Given there is no evidence of any real risk of harm to any burial

anywhere along this alignment by SHPD’s approval of a phased project, the project should be

allowed to proceed in phases 1 and 2 until the AISs are completed and approved in Phases 3 and

4, where no construction work will commence anyway until SHPD issues its final concurrence

and approval.

C. The Case Should Be Remanded to Determine If the City Intends to Avoid Its Commitments in the PA and Commence Construction Before SHPD Approves the Phase 4 AIS

The Court’s Opinion at footnote 23 states:

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.

19. 4819-9610-7280.1.031382-00011

Based on the express commitments cited above in the PA and at the various hearings in

this matter, it should be clear that the City has committed to avoid harming any burial in the

Kaka‘ako area that is required to be preserved in place. Clearly, SHPD will not approve the

project to proceed unless it demonstrates a plan to avoid iwi kupuna, so the authorization to

proceed in Phases 3 and 4 will not be given by SHPD without this final level of concurrence and

review that SHPD expressly reserved for itself in the PA. At minimum, these facts are genuinely

disputed so as to prevent summary judgment being entered on that clearly disputed fact that the

City will not proceed until it receives SHPD’s concurrence. Further, if there is any doubt about

the City’s intention to avoid iwi kupuna by the PA plan or otherwise, then under Haw. R. Civ. P.

56, the City’s genuinely disputes this fact and would request the case be remanded to Circuit

Court to determine if evidence does in fact exist that the City intends to wholly disregard its

obligations and proceed with work in Phase 4 without SHPD’s prior approval to proceed. If such

facts are demonstrated to exist, then the Circuit Court can certainly enjoin the Phase 4

construction under Haw. Rev. Stat. § 6E-13(b). Until then, construction should be allowed to

proceed in Phases 1 and 2 as previously approved by SHPD.

Furthermore, the court’s citation to North Idaho should also implicate the remedy result

from that case which clearly allowed that project to proceed until the remainder of the phased

historical review was performed. North Idaho Cmty. Action Network v. U.S. Dep't of Transp.,

545 F.3d 1147, 1160 (9th Cir. 2008) (“we find it unnecessary to enjoin the entire project

while the Agencies complete the necessary evaluation.”). There is no reason not to allow the

same result so that construction can continue in Phases 1 and 2 until the Phase 3 and 4 AISs are

completed, particularly given the prohibitions against any construction work commencing in

Phases 3 and 4 until SHPD has given final approval and concurrence to the AIS reports. If a

violation by the City in starting work in Phase 4 is shown, then there is little doubt the Circuit

Court would take swift action to issue injunctive relief.

IV. CONCLUSION

The City respectfully requests that the Court reconsider the determination that SHPD’s

interpretation of its rules to allow a phased activity or use to proceed was “plainly erroneous.”

Otherwise, SHPD had discretion and authority to interpret its own rules to allow a phased project

and the case should be remanded for the sole purpose of determining if the City intends to

commence construction in Phase 4 before SHPD approves the Phase 4 AIS, or if the City intends

20. 4819-9610-7280.1.031382-00011

to disturb later discovered iwi kupuna, notwithstanding its commitment to avoid harm to any iwi

kupuna preserved in place in Phase 4. Until that disputed factual determination is reached,

construction should be allowed to proceed in completed AIS Phases 1 and 2.

DATED: Honolulu, Hawai‘i, September 4,2012.

/s/ John P. Manaut ROBERT C. GODBEY DON S. KITAOKA GARY Y. TAKEUCHI JOHN P. MANAUT LINDSAY N. MCANEELEY Counsel for Defendants-Appellees 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, AND CITY AND COUNTY OF HONOLULU DEPARTMENT OF PLANNING AND PERMITTING

21. 4819-9610-7280.1.031382-00011

NO. SCAP-11-0000611




vs.




DECLARATION OF JOHN P. MANAUT

I, JOHN P. MANAUT, do declare under penalty of law as follows:

1. I am one of the attorneys of record for Defendants-Appellees 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, AND CITY AND

COUNTY OF HONOLULU DEPARTMENT OF PLANNING AND PERMITTING

(collectively the “City”).

This declaration is made on my personal knowledge and I am authorized and

competent to testify to the matters herein.

For the reasons set forth in the attached pleadings, this motion is submitted in

good faith and not for purposes of delay, as set forth in Haw. R. App. P. 40.

I declare under penalty of law that the foregoing is true and correct.

22. 4819-9610-7280.1.031382-00011

DATED: Honolulu, Hawaiʻi, September 4, 2012.

/s/ John P. Manaut___________________ JOHN P. MANAUT

4819-9610-7280.1.031382-00011

NO. SCAP-11-0000611




vs.





The undersigned hereby certifies that on the date indicated below, a true and correct copy

of Appellee City Defendants’ Motion to Reconsider, Modify and/or Clarify Opinion Filed

August 24, 2012 was served electronically through JEFS upon the following parties below:

DAVID KIMO FRANKEL, ESQ. ASHLEY K. OBREY, ESQ. Native Hawaiian Legal Corporation 1164 Bishop Street, Suite 1205 Honolulu, Hawaiʻi 96813

Attorneys for Plaintiff-Appellant WILLIAM J. WYNHOFF, ESQ.

465 South King Street, Suite 300 Honolulu, Hawaiʻi 96813

Attorneys for Defendants-Appellees

WILLIAM J. AILA, JR., in his official capacity as Chairperson of the Board of Land and Natural Resources and State Historic Preservation Officer,

// //

2. 4819-9610-7280.1.031382-00011

PUAALAOKALNI 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

JAMES C. PAIGE, ESQ.

S. KALANI BUSH, ESQ. 425 Queen Street Honolulu, Hawaiʻi 96813

Attorneys for Defendant-Appellee

OAHU ISLAND BURIAL COUNSEL

DATED: Honolulu, Hawaii, September 4, 2012.

/s/ John P. ManautROBERT C. GODBEY DON S. KITAOKA GARY Y. TAKEUCHI JOHN P. MANAUT LINDSAY N. MCANEELEY Counsel for Defendants-Appellees 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, AND CITY AND COUNTY OF HONOLULU DEPARTMENT OF PLANNING AND PERMITTING

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2012 09 04 city's motion for reconsideration