Your SlideShare is downloading. ×
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
2012 09 04 city's motion for reconsideration
Upcoming SlideShare
Loading in...5
×

Thanks for flagging this SlideShare!

Oops! An error has occurred.

×
Saving this for later? Get the SlideShare app to save on your phone or tablet. Read anywhere, anytime – even offline.
Text the download link to your phone
Standard text messaging rates apply

2012 09 04 city's motion for reconsideration

930

Published on

Honolulu's motion for Supreme Court reconsideration

Honolulu's motion for Supreme Court reconsideration

Published in: Technology, Real Estate
0 Comments
0 Likes
Statistics
Notes
  • Be the first to comment

  • Be the first to like this

No Downloads
Views
Total Views
930
On Slideshare
0
From Embeds
0
Number of Embeds
2
Actions
Shares
0
Downloads
2
Comments
0
Likes
0
Embeds 0
No embeds

Report content
Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
No notes for slide

Transcript

  • 1. NO. SCAP-11-0000611 Electronically Filed IN THE SUPREME COURT OF THE STATE OF HAWAIʻISupreme Court PAULETTE KAʻANOHIOKALANI SCAP-11-0000611 CIVIL NO. 11-1-0206-01 GWBC KALEIKINI, (DECLARATORY RELIEF) 04-SEP-2012 11:54 PM Plaintiff-Appellant, APPEAL FROM: vs. (1) FINAL JUDGMENT FILED ON AUGUST 8, 2011 WAYNE YOSHIOKA in his official capacity as Director of the City and County of (2) JULY 5, 2011 ORDER GRANTING Honolulu’s Department of Transportation DEFENDANTS WAYNE YOSHIOKA IN HIS Services, CITY AND COUNTY OF OFFICIAL CAPACITY AS DIRECTOR OF HONOLULU, HONOLULU CITY THE CITY AND COUNTY OF COUNCIL, PETER CARLISLE in his official HONOLULU’S DEPARTMENT OF capacity as Mayor, CITY AND COUNTY OF TRANSPORTATION SERVICES, CITY AND HONOLULU DEPARTMENT OF COUNTY OF HONOLULU, HONOLULU TRANSPORTATION SERVICES, CITY CITY COUNCIL, PETER CARLISLE IN HIS AND COUNTY OF HONOLULU OFFICIAL CAPACITY AS MAYOR, CITY DEPARTMENT OF PLANNING AND AND COUNTY OF HONOLULU PERMITTING, WILLIAM J. AILA JR. in his DEPARTMENT OF PLANNING AND official capacity as Chairperson of the Board PERMITTING’S MOTION TO DISMISS of Land and Natural Resources and State COMPLAINT AND/OR FOR SUMMARY Historic Preservation Officer, JUDGMENT FILED FEBRUARY 9, 2011 PUAALAOKALANI AIU in her official capacity as Administrator of the State Historic (3) JULY 5, 2011 ORDER GRANTING Preservation Division, BOARD OF LAND CERTAIN STATE DEFENDANTS’ AND NATURAL RESOURCES, SUBSTANTIVE JOINDER IN DEPARTMENT OF LAND AND NATURAL DEFENDANTS WAYNE YOSHIOKA IN HIS RESOURCES, NEIL ABERCROMBIE in his OFFICIAL CAPACITY AS DIRECTOR OF official capacity as Governor, and O‘AHU THE CITY AND COUNTY OF ISLAND BURIAL COUNCIL, HONOLULU’S DEPARTMENT OF TRANSPORTATION SERVICES, CITY AND Defendants-Appellees. 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, 20114819-9610-7280.1.031382-00011
  • 2. CIRCUIT COURT OF THE FIRST CIRCUIT, STATE OF HAWAI`I 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 SERVICEROBERT C. GODBEY 4685Corporation CounselDON S. KITAOKA 2967GARY Y. TAKEUCHI 3261Deputies Corporation CounselDepartment of Corporation Counsel530 S. King Street, Room 110Honolulu, Hawai`i 96813Telephone No. (808) 523-4115CARLSMITH BALL LLPJOHN P. MANAUT 3989LINDSAY N. MCANEELEY 8810Special Deputies Corporation Counsel2200 American Savings Bank Tower1001 Bishop StreetHonolulu, Hawai`i 96813Telephone No. (808) 523-2500Facsimile No. (808) 523-0842Counsel for Defendants-AppelleesWAYNE YOSHIOKA in his official capacity asDirector of the City and County of Honolulu’sDepartment of Transportation Services, CITY ANDCOUNTY OF HONOLULU, HONOLULU CITYCOUNCIL, PETER CARLISLE in his officialcapacity as Mayor, CITY AND COUNTY OFHONOLULU DEPARTMENT OFTRANSPORTATION SERVICES, AND CITY ANDCOUNTY OF HONOLULU DEPARTMENT OFPLANNING AND PERMITTING 2.4819-9610-7280.1.031382-00011
  • 3. NO. SCAP-11-0000611 IN THE SUPREME COURT OF THE STATE OF HAWAIʻI PAULETTE KAʻANOHIOKALANI CIVIL NO. 11-1-0206-01 GWBC KALEIKINI, (DECLARATORY RELIEF) Plaintiff-Appellant, APPELLEE CITY DEFENDANTS’ MOTION TO RECONSIDER, MODIFY AND/OR vs. CLARIFY OPINION FILED AUGUST 24, 2012 WAYNE YOSHIOKA in his official capacity as Director of the City and County of Honolulu’s Department of Transportation Services, et al., Defendants-Appellees. APPELLEE CITY DEFENDANTS’ MOTION TO RECONSIDER, MODIFY AND/OR CLARIFY OPINION FILED AUGUST 24, 2012 Pursuant to Haw. R. App. P. 40, Defendants-Appellees WAYNE YOSHIOKA, in hisofficial capacity as Director of the City and County of Honolulu’s Department of TransportationServices; CITY AND COUNTY OF HONOLULU; HONOLULU CITY COUNCIL; PETERCARLISLE, in his official capacity as Mayor; CITY AND COUNTY OF HONOLULUDEPARTMENT OF TRANSPORTATION SERVICES; and CITY AND COUNTY OFHONOLULU 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 ofPlaintiff-Appellant Paulette Ka’anohiokalani Kaleikini’s (“Appellant”) Complaint filed January31, 2011, on the basis that the State Historic Preservation Division (“SHPD”) on the basis thatthe SHPD improperly approved phasing of the AIS work that allowed ground disturbingconstruction work for the 20-mile long Honolulu High-Capacity Transit Corridor Project (“RailProject”) to proceed in four separate construction phases after SHPD’s review and approval of anArchaeological 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 allowphasing for the following three reasons: (i) there is no express statute or rule prohibiting the4819-9610-7280.1.031382-00011
  • 4. approval of a phased project; (ii) the statutory definition of the term “project” under Chapter 6Eof the Hawai‘i Revised Statutes (“HRS”) as “any activity” is sufficiently broad to allow SHPD tohave reasonably determined that each of the construction phases of the Rail Project (which aresubject to independent construction contracts and approvals) can be viewed as a “project” forpurposes of Chapter 6E review, notwithstanding the fact that they are part of a largerdevelopment; (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 - isnecessarily a derivative of the term “project” such that the “project area” is necessarily includedwithin and limited by the defined “project.” 2. The legislature has expressly delegated to SHPD widespread authority toadminister the historic preservation program, and SHPD’s actions in this respect andinterpretation of its own rules are entitled to deference unless shown to be plainly erroneous orinconsistent with the underlying legislative purpose. Respectfully, the Court’s determination thatSHPD’s approval of the phased approach to investigating historic resources set forth in theProgrammatic Agreement (“PA”) was “plainly erroneous” because it is inconsistent with thedefinition of “project area” does not consider the term “project area” in light of SHPD’sdetermination of what constitutes a “project,” and the Court did not conclude that SHPDexceeded its authority in determining that a construction phase could be a “project” underChapter 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 undertakenfor each phase before SHPD can give its written concurrence authorizing the commencement ofconstruction in that phase. The phased approach approved in the PA was intended to and does infact afford iwi kupuna greater protection by focusing invasive sub-surface testing in Phase 4 toonly those areas where actual ground disturbing construction would occur, and avoidingunnecessary disturbance to burials that may exist in areas that would not otherwise be disturbedthrough construction. 4. It appears from the Court’s opinion that a genuinely disputed issue of factexists regarding whether the City intends to commence ground disturbing construction work inPhase 4 before SHPD provides is concurrence for the Phase 4 AIS report. The City submits that4819-9610-7280.1.031382-00011 2.
  • 5. the PA and the representations the City has made throughout the course of these proceedingsshould resolve this issue. Nonetheless, to the extent that this Court does not find thoserepresentations conclusive, the case should be remanded to the circuit court for an evidentiaryhearing 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 alreadyprovided its written concurrence to the full review process that has already been completed forthese 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 PERMITTING4819-9610-7280.1.031382-00011 3.
  • 6. NO. SCAP-11-0000611 IN THE SUPREME COURT OF THE STATE OF HAWAIʻI PAULETTE KAʻANOHIOKALANI CIVIL NO. 11-1-0206-01 GWBC KALEIKINI, (DECLARATORY RELIEF) Plaintiff-Appellant, MEMORANDUM IN SUPPORT OF MOTION 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.4840-1147-0352.1
  • 7. 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  i.4840-1147-0352.1
  • 8. TABLE OF AUTHORITIES PageCases Application of Hawaiian Elec. Co., Inc., 81 Haw. 459, 918 P.2d 561 (1996) ........................................................................................... 16Beneficial Hawai‘i, Inc. v. Kida, 96 Hawai‘i 289, 30 P.3d 895 (2001) ......................................................................................... 17Carlson v. Real Estate Commn of Territory of Hawaii, 38 Haw. 9 (1948) ...................................................................................................................... 15C.C.T. Equip. Co. v. Hertz Corp., 123 S.E.2d 802 (N.C. 1962) ..................................................................................................... 14D.A.B.E., Inc. v. Toledo–Lucas County Bd. of Health, 773 N.E.2d 536 (Ohio 2002) ................................................................................................... 14Flynn v. Shultz, 748 F.2d 1186 (7th Cir. 1984), cert. denied, 474 U.S. 830 (1985). .......................................... 18Jacober v. Sunn, 6 Haw. App. 160, 715 P.2d 813 (1986) .................................................................................... 15Kaleikini v. Thielen, 124 Haw. 1, 237 P.3d 1067 (2010) ........................................................................................... 16Lee v. Elbaum 77 Hawai`i 446, 887 P.2d 656 (App. 1993) ............................................................................. 12McNabb v. Bowen, C.A.9th, 1987, 829 F.2d 787 ..................................................................................................... 15Morgan v. Planning Dept. County of Kauai, 104 Haw. 173, 86 P.3d 982 (2004) ........................................................................................... 13Morris v. Williams, 67 Cal. 2d 733, 433 P.2d 697 (1967) ........................................................................................ 15North Idaho Cmty. Action Network v. U.S. Dept of Transp., 545 F.3d at 1147 (9th Cir. 2008)............................................................................................... 19Public Util. Commn of Texas v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310 (Tex.2001) ....................................................................................................... 14Pulaski v. California Occupational Safety & Health Standards Bd., 75 Cal. App. 4th 1315, 90 Cal. Rptr. 2d 54 (1999)................................................................... 16TIG Ins. Co. v. Kauhane, 101 Hawai‘i 311, 67 P.3d 810 (App. 2003) ............................................................................. 14Unite Here! Local 5 v. City & County of Honolulu, 123 Hawai`i 150, 231 P.3d 423 (2010) .................................................................................... 12Statutes 23 C.F.R. § 771.113(a).................................................................................................................... 836 C.F.R § 800.4 ........................................................................................................................... 1040 C.F.R. § 1506.1(a)(1) ................................................................................................................. 849 C.F.R. § 611.7 ............................................................................................................................ 9HAR § 13-275-1(a) ....................................................................................................................... 15HAR § 13-275-2 ..................................................................................................................... 10, 124840-1147-0352.1
  • 9. HAR § 13-275-3 ....................................................................................................................... 9, 12HAR §13-284-3(a) ........................................................................................................................ 15HAR Chapter 13-275 .............................................................................................................. 11, 12HAR Chapter 13-284 .................................................................................................................... 11HRS § 6E-1 ................................................................................................................................... 14HRS § 6E-2 ....................................................................................................................... 11, 12, 14HRS § 6E-3 ................................................................................................................................... 14HRS § 6E-4 ................................................................................................................................... 14HRS § 6E-8 ......................................................................................................................... 9, 12, 15HRS § 6E-8 ............................................................................................................................... 9, 14HRS § 6E-13(b) ........................................................................................................................ 3, 20HRS § 6E-42 ....................................................................................................................... 9, 14, 15HRS Chapter 343 ............................................................................................................................ 7HRS Chapter 6E..................................................................................................................... passimOther Authorities3 Admin. L. & Prac. § 8:32 (3d ed.) ............................................................................................. 18Rules Haw. R. App. P. 40 ......................................................................................................................... 1Haw. R. Civ. P. 56 ........................................................................................................................ 20Constitutional Provisions Hawaii Constitution Article IX, section 9..................................................................................... 14 ii.4840-1147-0352.1
  • 10. MEMORANDUM IN SUPPORT OF MOTIONI. INTRODUCTION The City moves this Honorable Court to reconsider, modify or clarify its Opinion ofAugust 24, 2012, because, with all due respect, that decision does not provide sufficientrecognition of SHPD’s necessary discretion to carry out its mandated statutory obligations underHRS Chapter 6E. The State Constitution empowers the State to “preserve and develop thecultural, 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 historicpreservation program, and in enacting that statute and setting forth SHPD’s duties, the legislaturedid 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,” andthis 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 thatallowed for the project area to be considered in phases, when such phasing serves to enhance theprotection of undisturbed burials. For the reasons set forth in the following discussion, theCourt’s interpretation impairs SHPD’s ability to meet its statutory duties, and should bereconsidered. The phased AIS approach approved by SHPD was designed to minimize the impact ofthe required archaeological investigations on unknown burials by focusing ground-disturbingactivities on places where, based on more detailed design, there would actually be touch downpoints for the elevated rail guideway and its stations. In this manner, areas other than thelocation for columns or other touch down points would not be needlessly disturbed. Indeed, asnoted in the Court’s Opinion, the Final EIS for the Rail Project pointed out that the approvedapproach would reduce the area to be disturbed for AIS studies and construction to potentiallyless than 10 percent of what would be disturbed if archaeological investigations were conductedfor 100 percent of the alignment. As discussed hereinafter, SHPD’s interpretation of its rules to implement broad statutorylanguage in order to promote the protection of historic resources such as iwi kupuna should notbe deemed “plainly erroneous,” as concluded by the Court. Rather, a recognition of SHPD’simplied authority and inherent discretion to carry out its mandated functions, and deference tothe agency’s exercise of such discretion when there is no showing of an arbitrary and capricious4819-9610-7280.1.031382-00011
  • 11. interpretation, is warranted. If, instead, SHPD’s rules are deemed subject to only oneinterpretation, such that the agency is impaired in its ability to fashion approvals that promote theprotection of iwi kupuna, then the rules themselves should be deemed invalid as inconsistentwith 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 theCity, SHPD and others, unnecessary disturbance of sub-surface areas was promoted, andprotections were in place to ensure that any burials discovered through focused AIS studies ofactual touch down points would be fully protected. The Rail Project has consistently committedto avoid and minimize adverse effects on historic properties including iwi kupuna, both throughthe phased AIS studies based on more detailed design, and through avoidance of identifiedhistoric properties through alternative designs, and project modifications as necessary. The PAis a contract that ensures that these commitments will be met. However, the Court’s Opinionappears to discount these facts, thereby invalidating this prudent approach. By providing SHPD with the necessary discretion to meet its statutory obligations, theCourt will promote not only the protection of burials in the subject project, but also recognizeSHPD’s authority to require similar protections for other projects, particularly other public worksprojects 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 becommenced. Respectfully, we ask the Court to reconsider, modify or clarify its Opinion in lightof the foregoing and following discussion.II. BACKGROUND The following is a summary of the factors that the City requests should be reviewed tosupport reconsideration under the circumstances presented. Development of an appropriate and protective plan to handle the archaeological reviewrequirements for the 20-mile Rail Project from Kapolei through Kaka‘ako into the Ala Moanaarea began almost 5 years ago and was initially evaluated through extensive archaeologicaltechnical 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 efficient1 The original Record on Appeal was filed electronically in seven parts with the IntermediateCourt 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. 2.4819-9610-7280.1.031382-00011
  • 12. 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 practicalconsiderations for phasing the historic review process and related consultation with SHPD andthe O‘ahu Island Burial Council) The effort to determine if burials existed along the proposed alignment includedsignificant review of prior studies and consultation with Native Hawaiian groups, lineal andcultural descendants, experts in the field, and extensive pre-existing technical survey studies forareas 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 theproposed rail alignment in Kaka‘ako, which at that time was based on conceptual drawings forpotential column touch down locations along existing street corridor areas, mainly HalekauwilaStreet, then across Ward Avenue to Kona Street at Ala Moana Center. See generally R.42 at219-428 (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 touchground only in discrete areas at approximately every 100 or 150 feet by support columns andstraddle spans, as well as elevated stations that would have limited ground-touching points. R.48at 214 (AR.40 at 680). Adjustments to these touch down points, including adjustments to spanlength supports and column locations, could be made in final design to accommodate and avoid apresently unknown burial later located by an AIS or even discovered as an inadvertent findduring construction. R.40 at 112, § III(B)(4) (AR.34 at 110; R.40 at 114, § III(D)(2) (AR.34 at112); R.40 at 129, § XII(C)(1) (AR.234 at 127). Although the extensive archaeological and cultural reports confirmed the absence of anyknown burials along the proposed alignment, it was determined that the potential forencountering unknown burials in the broader Kaka‘ako area was “high.” See R.42 at 229 (AR.36at 153); R.42 at 365 (AR. 36 at 287). While this "high likelihood" determination was importantNo] at [PDF page number].” A Supplemental Record on Appeal was filed electronically onOctober 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 willbe provided as: “SR.66 at [FEIS page or section number].” An Amended Record on Apeal wasfiled electronically in five parts with the Hawai‘i Supreme Court on April 7, 2012 as JEFSDocument Nos. 34, 36, 38, 40 and 42. Parallel citations to the Amended Record on Appeal willbe provided in the following format: “AR.[JEFS Doc. No] at [PDF page number].” 3.4819-9610-7280.1.031382-00011
  • 13. for purposes of disclosing potential impacts of the overall development for environmentaldisclosure requirements, the chances of encountering a burial along the already heavilydeveloped 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 bediscovered under the already heavily developed streets and existing building areas, theconsultants, City, SHPD and federal authorities all agreed that to satisfy concerns andsensitivities about possible burials, an AIS would be performed for each construction phase ofthe Project. SHPD concurrence would also be obtained for each phase before ground-disturbingconstruction 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 wasagreed that the AIS for Phase 4 would involve and evaluation of 100% of the column and stationlocations. 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 byChapter 6E. Instead, the City simply agreed to perform AISs in the four separate and discretedefined construction phases, under the express conditions set forth in the PA. The PA wasdesigned 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 RailProject 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 itsconcurrence for each particular phase. See R.40 at 112-118 (AR. 34 at 110-116). Had the AISfor Phase 4 been required to be performed at the outset, it is likely that it would have involved arandom sampling plan that could have exposed burials outside of the area later determined to bethe Rail Project’s actual footprint. By waiting to perform a more comprehensive AIS after the2 According to the Archaeological Resources Technical Report, a “High rating” means that”based on archeological research, there is a reasonable potential to encounter archaeologicaldeposits over at least 50 percent of that sub-area. The actual percentage of the proposed sub-areawhere archeological resources are encountered will undoubtedly be small.” R.42 at 254 (AR.36at 176).3 This was consistent with the provision for construction contracts with contractors that arepresently based on segregating construction and entering into separate contracts within eachphase, and not the overall Rail Project. 4.4819-9610-7280.1.031382-00011
  • 14. 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, lessdisruptive analysis could be performed in the areas of direct ground disturbance (including thoseareas that are currently within existing businesses like the Ross Store on Ward Avenue inKaka‘ako). See R.48 at 326, ¶¶ 22-23 (AR. 40 at 791) (discussing the “urban conundrum” thatphases developments in urban areas and potential for phasing to help overcome these challengesand enhance the protection of iwi kupuna.) The PA also expressly commits to avoiding adverse effects to historic resources, such asburials. According to the PA: “… the DTS (City) has included minimization and avoidancemeasures during project design, including, but not limited to, narrow guideway design, routeselection, station location selection, and contained station footprints, to avoid and minimizeadverse effects on historic properties;….” (emphasis added). R.40 at 106 (AR.34 at 104). ThePA also provides that “Avoidance shall include relocation of columns, change of column designto or from center alignment to straddle bent or other alternatively-supported design, modificationof 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 reviewprocess outlined in HAR §§ 13-275-3 and 13-284-3, culminating in SHPD concurrence, mustoccur 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 andmaintained 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 ofthose rules to proceed through the requisite sequential evaluation before receiving final SHPDconcurrence is retained for each defined project phase.54 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.40at 114, § III(D) (AR.34 at 112)); and (c) review and approve all site specific mitigation plansbefore 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 cancommence in a phase. The initial approval of the plan for treating each construction phase as a 5.4819-9610-7280.1.031382-00011
  • 15. The commitment to avoid burials and require repositioning of columns, stations, or thealignment exists even for an inadvertent burial find not discovered during the extensive AISprocess, but located after final design during actual ground disturbing construction. Indeed, thePA expressly states: “For preservation in place, the City will modify the planned construction toallow 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 inplace, and has restated that intention throughout the proceedings in this case. There is absolutelyno evidence that the City has or intends to proceed with construction in Phases 3 and 4 until afterthe 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 inPhases 1 and 2, which have only proceeded after SHPD’s approval of completed AISs for thosephases. There is no evidence that the City will in fact proceed with construction in Phases 3 and4 without SHPD’s prior approval, or in any manner violate its contractual commitments andobligations set forth in the PA.6“project” and phasing the review process based on these “projects” is given by SHPD’sexecution of the PA. The PA, however, expressly preserves the need to proceed with thesequential review process set forth under HAR §§ 13-275-3(b) and 13-284-3(b) for each phaseand to receive SHPD concurrence for each phase before construction can commence in thatphase.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 Chapter6E is to protect the ground from proposed construction activities that may harm a burial. In thiscase, no one can say that the approved AIS plans for phases 3 and 4 are faulty, wrong orotherwise 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 burialsby timing this AIS review so that a more fuller design by access and funding can lead to a muchmore focused and comprehensive AIS process for phase 4 than would otherwise have existed ifSHPD had allowed a simple random sampling AIS to proceed in Phase 4. SHPD’s approvals areeminently more reasonable and provide much more protections for identifying specific columnlocations than almost any other type of survey or data recovery effort. This effort to allowphasing to protect burials sites under Chapter 6E, is entirely distinguishable and distinct from theHEPA, Chapter 343, environmental review process which requires the entire phased project to beanalyzed as one continuous project with logical start points and end points or termini forpurposes of avoiding a segmentation argument. Such an argument does not exist here becauseeach construction phase was reviewed as a whole for impacts under Chapter 343 and no part was 6.4819-9610-7280.1.031382-00011
  • 16. Since the Phase 4 Kaka‘ako area has a “high” likelihood of encountering burialsgenerally, the phased review process approved in the PA is particularly appropriate because itallows for more focused evaluation of touch-down points7 that could not have been performeduntil more sophisticate engineering and design plans were completed, property acquisitionsnecessary to gain access to planned touch-down points occurred, and certain federal fundingcommitments were in place.8 Moreover, performing a complete 100% evaluation in Phase 4, asopposed to more general AIS sampling on a substantially lesser percentage area, posed a conflictwith federal rules and policy that prohibit final design and preliminary engineering until after theROD was issued.9 The necessary required further design and engineering for a more extensive100% site specific evaluation was limited by federal policy because such extensive evaluation toafford greater accuracy could only occur later in the design process following initial federalapprovals which come after the environmental review process. In order to be able to perform a100% evaluation in Phase 4, as opposed to a lesser representative sampling, and therebypromoting even greater protections by locating unknown burials by a more thorough AIS processignored. This is a separate analysis from the Chapter 6E concerns for its own definition ofphasing 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 4area,…. In the portion of Phase 4 with the greatest potential for resources … the AIS Plan willevaluate all areas that will be disturbed by the Project…including subsurface testing, for eachcolumn location, utility relocation, and major features of each station and traction powersubstation 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 andengineering are still under development, and the actual footprints of the elevated guideway’ssupport columns will not be known until after completion of the Project’s Federal environmentaland historic preservation reviews. Until there is certainty regarding column placement, anyarchaeological testing associated with the Project’s archaeological historic property/archaeological resource identification effort could be outside the actual project footprint andcould 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 fromengaging in final design prior to issuance of the ROD. See also The Council on EnvironmentalQuality’s NEPA regulations at 40 C.F.R. section 1506.1(a)(1). Therefore, the City needed tocomplete more detailed engineering to identify column and station locations more preciselybefore conducting the AIS in Phase 4 to achieve 100% evaluation. 7.4819-9610-7280.1.031382-00011
  • 17. before the work commences, SHPD’s approval of phasing was the only realistic manner toachieve the higher level of satisfaction for all parties.10 SHPD’s approval of the PA means that no ground altering work can commence in Phases3 and 4 until the AIS process is completed for each of those phases, based on near final columndesign locations; thereby providing even further safeguards to potential iwi kupuna in the area.1110 If SHPD does not have the discretion to defer AIS sub-surface testing under these type of longhighway or rail developments, SHPD will be forced to agree to perform early AIS sub-surfacetesting even if it means exposing iwi kupuna to a higher risk of disturbance because projectscannot 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 completeand 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 committedto conduct archaeological investigations in locations where foundations will be placed. Thiswould limit the area disturbed for archaeological investigations and construction to potentiallyless than 10 percent of what would be disturbed if archaeological investigations were conductedfor 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. 8.4819-9610-7280.1.031382-00011
  • 18. If a burial is found, then the columns must be adjusted and relocated, so awaiting the higher levelof column location certainty was critical to the more extensive and protective review processapproved by SHPD. The phased approach adopted in the PA cannot be shown to be unreasonable. In fact, asthe Court’s Opinion at page 8, n. 6 notes, the cited regulations in 36 C.F.R. § 800.4 (2010), allowfor phasing in lengthy federal highway projects which face the same access and designcoordination complexities that this 20-mile elevated rail guideway undeniably faces. If therationale is determined to be appropriate under federal law, there really is no rational basis tothink it would not also be reasonable to adopt a similar policy under State law. This is especiallytrue for long highway or rail projects where a myriad of funding, appeals, access, and otherissues 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 widegeographical area available to preserve the commitment to adjust columns and even shifting thealignment if necessary to avoid iwi. Based on the PA, no construction work can commence untilafter SHPD reviews and approves the Phase 4 AIS report for this large geographic area. Noadmissible evidence exists to show the City or SHPD have disregarded or intend to ignore theirpublic duties and contractual commitments not to harm any iwi in Phase 4 by proceeding withconstruction within Phase 4 prior to SHPD’s approval of the Phase 4 AIS report. However, ifthis is still in doubt, then the Court should remand for a factual determination at an evidentiaryhearing to determine if such an intent to disregard these PA commitments by SHPD or the Cityin fact exists. Until then, the work should be allowed to continue in Phases 1 and 2 on the basisof 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’salignment, access to private property to excavate, the federal government’s fundingrequirements, and the fact that final design is still under development to determine final columnplacement; thus, any additional archaeological testing could be outside the Project’s actualfootprint and therefore unnecessarily disturb resources that would otherwise not have beenimpacted by the Project. See City’s Ans. Br. at 22-23, fn. 9; see also e.g. R.42 at 249-250 (AR 36at 171-172); R.48 at 326-327, ¶¶22-23). 9.4819-9610-7280.1.031382-00011
  • 19. 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 thedefinition 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 isdefined as “any activity.” The breadth of this statutory definition, together with the authoritydelegated to SHPD by the legislature, evidences a legislative intent to vest SHPD with broaddiscretion in determining what constitutes a “project.” There are numerous practical reasons forSHPD 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 processfor a given development to ensure the maximum protection for historic resources. Because thedefinition of “project area” is derivative of the term “project,” the City respectfully submits thatthe Court’s reliance on the definition of “project area” without having first addressing theappropriateness 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 largedevelopment is not expressly prohibited by any clear language in Chapter 6E or its implementingregulations. Because there is no such express prohibition, one must look in the first instance tothe definition of “project” under Haw. Rev. Stat. § 6E-2 to evaluate whether SHPD hasdiscretion 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) 10.4819-9610-7280.1.031382-00011
  • 20. This statutory definition of “project” is sufficiently broad to encompass not only the full20-mile alignment for the Rail Project, but also each of the individual construction phases.12 Thebreadth of this definition suggests a determination that SHPD has inherent and implied discretionto determine how to define a given “project” - and if appropriate, to determine that a largedevelopment may in fact be comprised of multiple smaller “projects” so long as such adetermination is consistent with the goals and purposes of Chapter 6E. There is absolutelynothing in the definition of “project” that forecloses the possibility of defining smaller activitiesor uses as “projects.”13 Moreover, as discussed further below, doing so in this case is consistentwith the goals of Chapter 6E because the PA requires that the full historic review process becompleted for each construction phase, and that SHPD provide its written concurrence for thatphase or “project” before construction begins in that phase. Accordingly, the plain language ofChapter 6E gives SHPD discretion to determine whether phasing the historic review process isappropriate in a given instance, and this discretion is entitled to deference unless found to beplainly 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 thecontrolling mandate for SHPD to follow. If phasing is allowed to be included within the12 A defined construction phase, with independent bidding, contracts, and approvals couldreasonably 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 “otherentitlement for use.” This second descriptive definition of “project” as any “other” “use” alsoprovides for a broad range of applicability and does not expressly limit or restrict or prohibit thetype of proposed use that the City and State describe in their approval of the PA.13 There is no express restriction or limitation in the definition of “project” and there is nolimitation 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 ofarcheological sites is appropriate….”); see also R.48 at 319, ¶ 13 (AR.40 at 784). The City alsocommitted that its approach would “ensure that all treatment measures developed by the City andas a result of consultation are compliant with government-wide policies and regulations.” R.40at 108, § I(E) (AR.34 at 106).. This provision includes State and local government in addition tothe federal government. 11.4819-9610-7280.1.031382-00011
  • 21. definition of “project” as “any activity” or “use” with clearly defined geographic bordersidentified 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 alreadydefined for each phase or construction activity or use as being restricted to a discrete geographicphase or location, then the “project area” would have to relate to those borders within thatapproved 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 specificdefined geographic locations or borders for each phase. Therefore, Phase 1 can be analyzed asthe area stretching from Kapolei to Pearl City, with clearly defined start and ending borders forthat phase’s activity or use. Likewise, the Phase 4 activity or use can be defined as the area thatwill be affected within identified borders that extend from its start border at Middle Street all theway to its ending border at Ala Moana Center, which includes the Kaka‘ako area. This approachfully preserves SHPD’s sequential oversight, and its review and approval of each phase’s AISbefore 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 bythe governing agency’s interpretation of its rules, should not be reviewed under the “plainlyerroneous” standard. Instead, the implementing agency that read and interpreted its own rules todefine “project” to allow phasing, was within its broad discretion to define a project as “anyactivity” 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 inherentdiscretion 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 ofreview that should be applied is deference to the agency’s implied authority and inherentdiscretion. Based on that standard, the determination of phasing as an approved approach shouldnot be dismissed outright, but entitled to a presumption of validity and regularity which shouldonly be overturned upon a showing that such an interpretation by SHPD is both arbitrary andcapricious. See Unite Here! Local 5 v. City & County of Honolulu, 123 Hawai`i 150, 176, 231P.3d 423, 449 (2010) ("[A]n administrative agencys authority includes those implied powers thatare reasonably necessary to carry out the powers expressly granted."); See Lee v. Elbaum, 77Hawai`i 446, 457, 887 P.2d 656, 667 (App. 1993) ("[A]n administrative agencys interpretation 12.4819-9610-7280.1.031382-00011
  • 22. of its own rules is entitled to ‘deference unless it is plainly erroneous or inconsistent with theunderlying legislative purpose.) The City submits that no such showing has been made here orcould 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 topreserve 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 andenhancement of historic and cultural property.” Haw. Rev. Stat. § 6E-4 states: “All state projectsand 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 theresponsibility “to administer a comprehensive historic preservation program, which shall includebut 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 culturalresources;… (10) Coordination of the evaluation and management of burial sites as provided insection 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’sstatutory authority as being limited and impaired by its rules,15 which is contrary to the Court’sopinion 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 13.4819-9610-7280.1.031382-00011
  • 23. 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 agencys 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 statutes 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. Commn 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 PAwhere not doing so would unnecessarily disturb iwi kupuna whether or not the rules to which itrelied upon were invalid. SHPD did not have the discretion to avoid acting in the best interest ofhistoric preservation of burial sites. The phased approach to defining the project was approvedby SHPD as a reasonable and prudent plan to protect unknown iwi kupuna in what almost allparties to this action agree is a Chapter 6E statute that is completely silent on the issue of suchphasing. 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). 14.4819-9610-7280.1.031382-00011
  • 24. 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’sstatutory 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 notconflict with, alter or amend, or enlarge or impair the scope of the provisions of legislativeenactment.”); Jacober v. Sunn, 6 Haw. App. 160, 167, 715 P.2d 813, 819 (1986) (holding that anadministrative agency “may not enact rules and regulations which enlarge, alter, or restrict theprovisions of the act being administered”); Morris v. Williams, 67 Cal. 2d 733, 748, 433 P.2d697, 707 (1967) (Administrative regulations that alter or amend the statute or enlarge or impairits scope are void and courts not only may, but it is their obligation to strike down suchregulations.); 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 amendthe 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 withthe statutory mandate or that frustrate the policies which Congress sought to implement.”);Kaleikini v. Thielen, 124 Hawaii 1, 20, 237 P.3d 1067, 1088 (2010) (“Administrative rules andregulations which exceed the scope of the statutory enactment they were devised to implementare invalid and must be struck down.”) Accordingly, the Courts Opinion adopts an inflexible limit on SHPDs discretion toapprove projects in a manner that would more properly protect iwi kupuna. As interpreted by theCourt, SHPD’s administrative rules do not allow the agency the discretion to approve a phasedAIS approval process that, as previously described, was designed to protect unknown burials byavoiding unnecessary subsurface investigation, and focusing the AIS study on the actual touchdown points in Phase 4, where there is the highest likelihood of encountering iwi kupuna. Giventhe Court’s interpretation, the conclusion based on the foregoing authorities is that the rule mustbe invalid. To conclude otherwise would impermissibly impair SHPD’s ability to meet itsstatutory obligations. 15.4819-9610-7280.1.031382-00011
  • 25. 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 aninterim protection plan is in place is no different here for the approved geographically discretephases. The idea is to protect the ground areas and prevent harm to iwi kupuna. The projectshould be allowed to proceed except in the areas that may be affected until final SHPD approvalsare granted. The same intention to protect iwi kupuna applies to phasing. Nothing can be donein Phase 4 until the phase 4 AIS is completed and SHPD reviews, approves and concurs in itsfindings. This is what the PA provides and the City has never stated it had any contrary intent.1616 Given the additional protections being afforded by awaiting a more focused design, so as notto harm or adversely affect other areas that the construction may likely never touch, the PA is arealistic and reasonable plan for handling further unknown burial identification through an AISprocess that otherwise would never have been required by a more typical AIS. Given thisrationale, 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 federalagencies 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 byassessing a no-build or alternatives analysis. SHPD determines if there are burials in theproximity of the project activity or use by way of the historic review process which may or maynot include an AIS. If an AIS is performed and it does disclose burials, then it can simply haltthe construction. It is then up to the City to design around and avoid the burial. 16.4819-9610-7280.1.031382-00011
  • 26. What the interim protection plan section does impart, however, is that (1) SHPD retainedthe ability to defer AIS testing in the appropriate circumstances as part of its inherent statutoryauthority, or; (2) the AIS rules improperly impair SHPD’s statutory grant of power and must bedeclared invalid. Any other result would leave SHPD powerless to protect burial sites under thecircumstances of this case. See Beneficial Hawai’i, Inc. v. Kida, 96 Hawai’i 289, 308, 30 P.3d895, 914 (2001) (stating that “the legislature is presumed not to intend an absurd result, andlegislation 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 phasedapproach 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 2008Archaeological Technical Report, the June 2010 Final EIS and the January 2011 PA. As notedin the Declaration of Thomas J. Willoughby submitted by the City in its opposition to Plaintiff’sMotion for Injunction Pending Appeal, on March 6, 2012, the cost to the City and the threat tothe entire Project from an injunction are extraordinary. On the other hand, the balance of harmsrisk to Plaintiff and unknown burials in Phase 4 is virtually non-existent. Moreover, the State stated in its Memorandum in Opposition to Plaintiff-Appellant’sMotion for Injunctive Relief Pending Appeal at 5-6 that potential burials in Phase 4 would not beaffected 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 theproject 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 disturbingactivity starts in Kaka‘ako in March 2015.” Plaintiff’s lament that “the early preparation of anAIS” is needed “before options are closed and agency commitments are set in concrete” isfactually wrong and ignores SHPD’s ability to develop phased plans with greater protections. Accordingly, given the City and SHPD’s undisputed justification for deferring AIStesting in Phase 4 to await more detailed engineering plans to reduce the area of investigationpotentially by 90%, given the extraordinary burial protective measures included in the PA, andgiven that the Legislature delegated expansive historic preservation powers to SHPD, the factthat SHPD’s rules (as interpreted by this Court) require completion of AIS for the entire Projectbefore SHPD may approve of the Project, then those rules would necessarily be invalid. 17.4819-9610-7280.1.031382-00011
  • 27. Otherwise the matter should be remanded to determine if SHPD’s purported justification, as setforth 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 theproper judicial remedy is remand. A court in fashioning a remand order must be very careful notto inappropriately infringe on that intended freedom of action and intrude on a discretionaryfunction 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 implementingrules, and the agency with implied authority and inherent discretion to do so under recognizedlaw, 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 todecide and resolve, as it did here. Since SHPD did interpret its rules and its authority to allowfor 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 belocated during the AIS process, it cannot be said to be unreasonable or arbitrary and capriciousfor SHPD to have approved this project in four geographically distinct and separate activity orproject phases. If a realistic risk of harm is posed, then construction should be stopped in therelevant specific area, not the entire 20 mile length and especially not in Phases 1 and 2 whereapproved AISs already exist. Given there is no evidence of any real risk of harm to any burialanywhere along this alignment by SHPD’s approval of a phased project, the project should beallowed to proceed in phases 1 and 2 until the AISs are completed and approved in Phases 3 and4, where no construction work will commence anyway until SHPD issues its final concurrenceand 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. 18.4819-9610-7280.1.031382-00011
  • 28. Based on the express commitments cited above in the PA and at the various hearings inthis matter, it should be clear that the City has committed to avoid harming any burial in theKaka‘ako area that is required to be preserved in place. Clearly, SHPD will not approve theproject to proceed unless it demonstrates a plan to avoid iwi kupuna, so the authorization toproceed in Phases 3 and 4 will not be given by SHPD without this final level of concurrence andreview that SHPD expressly reserved for itself in the PA. At minimum, these facts are genuinelydisputed so as to prevent summary judgment being entered on that clearly disputed fact that theCity will not proceed until it receives SHPD’s concurrence. Further, if there is any doubt aboutthe 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 CircuitCourt to determine if evidence does in fact exist that the City intends to wholly disregard itsobligations and proceed with work in Phase 4 without SHPD’s prior approval to proceed. If suchfacts are demonstrated to exist, then the Circuit Court can certainly enjoin the Phase 4construction under Haw. Rev. Stat. § 6E-13(b). Until then, construction should be allowed toproceed in Phases 1 and 2 as previously approved by SHPD. Furthermore, the court’s citation to North Idaho should also implicate the remedy resultfrom that case which clearly allowed that project to proceed until the remainder of the phasedhistorical review was performed. North Idaho Cmty. Action Network v. U.S. Dept of Transp.,545 F.3d 1147, 1160 (9th Cir. 2008) (“we find it unnecessary to enjoin the entire projectwhile the Agencies complete the necessary evaluation.”). There is no reason not to allow thesame result so that construction can continue in Phases 1 and 2 until the Phase 3 and 4 AISs arecompleted, particularly given the prohibitions against any construction work commencing inPhases 3 and 4 until SHPD has given final approval and concurrence to the AIS reports. If aviolation by the City in starting work in Phase 4 is shown, then there is little doubt the CircuitCourt would take swift action to issue injunctive relief.IV. CONCLUSION The City respectfully requests that the Court reconsider the determination that SHPD’sinterpretation 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 projectand the case should be remanded for the sole purpose of determining if the City intends tocommence construction in Phase 4 before SHPD approves the Phase 4 AIS, or if the City intends 19.4819-9610-7280.1.031382-00011
  • 29. to disturb later discovered iwi kupuna, notwithstanding its commitment to avoid harm to any iwikupuna 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 20.4819-9610-7280.1.031382-00011
  • 30. NO. SCAP-11-0000611 IN THE SUPREME COURT OF THE STATE OF HAWAIʻI PAULETTE KAʻANOHIOKALANI CIVIL NO. 11-1-0206-01 GWBC KALEIKINI, (DECLARATORY RELIEF) Plaintiff-Appellant, APPELLEE CITY DEFENDANTS’ MOTION TO RECONSIDER, MODIFY AND/OR vs. CLARIFY OPINION FILED AUGUST 24, 2012 WAYNE YOSHIOKA in his official capacity as Director of the City and County of Honolulu’s Department of Transportation Services, et al., Defendants-Appellees. 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 WAYNEYOSHIOKA in his official capacity as Director of the City and County of Honolulu’sDepartment of Transportation Services, CITY AND COUNTY OF HONOLULU, HONOLULUCITY COUNCIL, PETER CARLISLE in his official capacity as Mayor, CITY AND COUNTYOF HONOLULU DEPARTMENT OF TRANSPORTATION SERVICES, AND CITY ANDCOUNTY OF HONOLULU DEPARTMENT OF PLANNING AND PERMITTING(collectively the “City”). This declaration is made on my personal knowledge and I am authorized andcompetent to testify to the matters herein. For the reasons set forth in the attached pleadings, this motion is submitted ingood 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. 21.4819-9610-7280.1.031382-00011
  • 31. DATED: Honolulu, Hawaiʻi, September 4, 2012. /s/ John P. Manaut___________________ JOHN P. MANAUT 22.4819-9610-7280.1.031382-00011
  • 32. NO. SCAP-11-0000611 IN THE SUPREME COURT OF THE STATE OF HAWAIʻI PAULETTE KAʻANOHIOKALANI CIVIL NO. 11-1-0206-01 GWBC KALEIKINI, (DECLARATORY RELIEF) Plaintiff-Appellant, CERTIFICATE OF SERVICE 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. CERTIFICATE OF SERVICE The undersigned hereby certifies that on the date indicated below, a true and correct copyof Appellee City Defendants’ Motion to Reconsider, Modify and/or Clarify Opinion FiledAugust 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, // //4819-9610-7280.1.031382-00011
  • 33. 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. 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 2.4819-9610-7280.1.031382-00011

×