Disappeared News

by Larry Geller

The setup appears to be transparent. The City and County of Honolulu is pushing its rail plan forward as fast as it can, without dealing with several aspects of community opposition. One of the clearest calls for caution has come from the Oahu Island Burial Council, because the City’s chosen route is certain to encounter burials of significant cultural significance. The City has chosen to ignore the problem for now.

When the bulldozers hit bones and desecrate burials and lawsuits stop construction, the city will scream and blame the Burial Council and probably Native Hawaiians for their obstruction of “progress.”

The ensuing lawsuits will no doubt show that the City should have fulfilled its obligations to locate burials before commencing the project.

Flashback to the present: hasn’t the City Council learned from the Superferry debacle that cutting legal corners at the beginning can lead to disaster down the line?  What have they learned from history to help them avoid repeating its mistakes?

The key issue is whether the city should have conducted an archaeological inventory survey before selecting a route through Kakaako. The concern is that the current route will almost certainly encounter buried human remains.

The city maintains that its research shows that the likelihood of encountering burials along the planned route is no greater than alternative routes nearby. Additionally, groups arguing for an alternative route should have expressed their concerns earlier, Garcia said. [Honolulu Advertiser, Council OKs rail resolutions, 10/28/2009]

The Burial Council has expressed its concerns earlier, and regardless, it is unlikely that a court will let the City escape its obligation to conduct a survey just because iwi can be found here or there or anywhere. The obligation is to do the survey where they plan to dig.

Opponents cited concerns raised by the Oahu Island Burial Council -- one of four preservation groups that served as consultants to the proposed agreement -- that urged the Council to delay a vote to allow time to work out language in the proposal.

The Burial Council is concerned over the route of the rail project, saying it is likely to disturb archaeological sites.

"I believe that by passing it, when we know that this agreement is incomplete, is not doing justice -- especially to the Hawaiians," Cachola said.

But Councilman Gary Okino, Transportation Committee chairman, argued against any delay, noting that the proposed agreement is "so comprehensive it will cover any contingencies that will come up." [Star-Bulletin, Rail 'programmatic' agreement OK'd, 10/28/2009]

Okino’s argument appears to sidestep the need for the survey. But the Burial Council has been clear. It filed its opposition to the programmatic agreement with the US Department of Transportation in a letter dated October 18, 2009, which is posted below.

Some snippets:

Divergent OIBC and City perspectives

Unfortunately, a significant divide remains between the City’s and the OIBC’s perspectives regarding how to “best protect iwi küpuna.” The OIBC’s view focuses on early identification of iwi küpuna to facilitate a strategy of avoidance through the consideration of alternate alignments. The City’s view focuses on early commitment to a given alignment and later identification of iwi küpuna, employing a strategy of mitigating the negative impacts on iwi küpuna through design changes in the designated corridor.

Early problems with the Project that undermine the current PA

During consultation meetings on the PA and in meetings with the Project team, the OIBC has consistently raised concerns about the process and outcome of the Alternatives Analysis (AA) conducted by the City in selecting its Locally Preferred Alternative (LPA). These concerns have not been allayed by the outcomes of the PA consultation.

The City committed itself to an LPA without first conducting an archaeological inventory survey (AIS), even with its recognition that the selected LPA would, in its Phase 4 alignment, traverse an area under which lies a natural sand deposit that is well known to house high concentrations of unmarked Native Hawaiian burials.

Failure of the City to consult with the OIBC in the AA process

This is why the OIBC was astounded to discover a gross lack of consultation with the OIBC in the interim between when City representatives first came to the OIBC in 2005 to initiate consultation with the OIBC and when the OIBC leadership requested City representatives to appear before the OIBC on July 9, 2008, to update our body. In the interim, the City selected an LPA absent OIBC consultation.

Though the Project team held public hearings regarding their selected LPA, the OIBC did not receive an invitation to these and was never briefed about the hearings through written correspondence or through a representative sharing such information at an OIBC monthly meeting.

The OIBC was further shocked to learn that the City—without a properly executed AIS—selected an LPA that included, in its Phase 4 segment, an area under which lies a natural sand deposit that is well known to house high concentrations of unmarked Native Hawaiian burials.

The Burial Council was clear that it doesn’t agree with the City’s conduct:

OIBC’s stance

It is for all of the above reasons that the OIBC voted unanimously at its October 14, 2009 meeting not to sign the PA as a concurring party. The OIBC, in all good conscience, cannot be a supportive party to an agreement that is founded on the assumption that the City’s AA included appropriate consultation or that the AA was based on current and thoroughly-researched data, including information on historic properties. Neither is true. The aforementioned missing archaeological and cultural assessments created fatal flaws in the City’s AA and LPA choice.

If the Burial Council holds its ground, legal action is quite probable at some point in the construction process. A merciful outcome, sparing the citizens of Honolulu additional legal expense, would be if the US Department of Transportation turns down the programmatic agreement and sends it back to the City to do their homework first. 

If viewer doesn’t work you can also download the Burial Council letter here.

Permalink posted by Larry @ 10/28/2009 07:38:00 AM