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Last week, we were on the Rick Hamada program on KHVH-AM, summing up the recent Hawaii Supreme Court oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611, the appeal asking whether archaeological review must be completed for the entire 20-mile length of the Honolulu rail project, or whether it can be done on a “phased” or segment-by-segment basis. (A preview and briefs are posted here.)

Here’s a “video” (no picture, this is radio).Continue Reading More Thoughts On Honolulu Rail And The Sufficiency Of Archaeological Review

Earlier today, the Hawaii Supreme Court heard oral argument in Kaleikini v. Yoshioka, No. SCAP-11-0000611, the appeal asking whether archaeological review must be completed for the entire 20-mile length of the Honolulu rail project, or whether it can be done on a “phased” or segment-by-segment basis. (A preview and briefs are posted here.)

As we wrote earlier today in our post-argument summary, it does not look good for the City and the State.

If you want to listen to the arguments, stream the recording here:

Or you can download it here.

Hawaii law requires that the government must undertake a survey and consult with persons who are descendants of “iwi kupuna” (Native Hawaiian buried remains) before commencing developments, and then take mitigation measures if any are discovered. The issue in this case is whether the City was required to evaluate burials that may be …

Continue Reading HAWSCT Oral Argument Recap – Who Defines The “Project” For Archaeological Review?

As of 10:00 a.m., the $4+ billion Honolulu rail project is officially in jeopardy.

Update: full report on the oral arguments here.

The Hawaii Supreme Court just concluded oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611 (preview and briefs posted here), and it does not look good for the City and the State. The court’s majority seemed highly skeptical of their arguments that government agencies have the discretion to determine the scope of the rail project, and have the authority to “segment” or “phase” it, and thereby put off evaluation of the entire project’s possible impact of burials. 

In the film “The Descendants,” George Clooney portrays a Honolulu lawyer who is also the trustee of an alii trust, but if they make a movie about the Kaleikini case, it would lay a better claim to the title. Hawaii law requires that the government consult with…

Continue Reading The Real “Descendants” Plays Out In The Hawaii Supreme Court – Honolulu’s $4+ Billion Rail Project In Grave Danger

In a big development project such as the $4+ billion Honolulu rail, must environmental review under state law be undertaken taking into account the entire project, or can it be done on a segment-by-segment basis?

That’s the question the Hawaii Supreme Court will consider this Thursday, May 24, 2012, when it hears oral arguments in Kaleikini v. Yoshioka, No. SCAP-11-0000611. The circuit court didn’t think it needed to be done all at once, and rejected the challenge by the Native Hawaiian Legal Corporation to the environmental reviews (the alleged impact of the the project on archaeological sites, including burials).

Here’s the short description from the Judiciary web site:

Kaleikini argues that the Honolulu High-Capacity Transit Corridor Project should be enjoined because the Programmatic Agreement and Final Environmental Impact Statement for the project permitted a “phased approach” to the required archeological inventory survey (AIS), rather than requiring that an…

Continue Reading Oral Argument Preview: Can The Honolulu Rail EIS Be Segmented?

There is still time to register for the Eminent Domain & Land Use in Hawaii seminar, to be held this Thursday, May 12, 2012, in downtown Honolulu. Along with James Mee, I am leading the session “Eminent Domain Update” in which we will talk about the latest in public use issues from the U.S. and Hawaii Supreme Courts, and other recent developments in condemnation law.

The Chair of the program is my Damon Key partner Mark M. Murakami. Also on the agenda is a session on potential burials issues in the rail project with another Damon Key partner, Greg Kugle, and a session on rail bid protests with Anna H. Oshiro. The final session of the day will be devoted to ethics, so you can get your MCLE credit requirement at least partially fulfilled for this year.

The complete faculty list and agenda is available here…

Continue Reading Honolulu Eminent Domain Seminar – May 12, 2012

Battle for Brooklyn film poster

Today was the Hawaii premiere of Battle For Brooklyn, the Oscar-shortlisted documentary film about the Atlantic Yards case. We’re introducing the film and conducting a question-and-answer session after each showing.

Screening information: Tuesday and Wednesday, January 3 and 4, at 1:00 p.m. and 7:30 p.m. each day at the Doris Duke Theater. More information (and ticket purchase) from the Academy of Arts web site here.

Battle-for-brooklyn-flyer

Today’s two screenings were followed by lively questions from the audience. Here are links to the key posts on the case, in the event you want to find out more:

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Continue Reading Hawaii Premiere Of “Battle for Brooklyn” – Oscar-Contending Docfilm Of Atlantic Yards Eminent Domain Fight

The Honolulu Star-Advertiser published my movie review of “Battle For Brooklyn,” the documentary about the Atlantic Yards eminent domain fight, on the op-ed page. Check it out here or below. More importantly, if you are in Honolulu next week, come to one of the four screenings (details and link to ticket purchase below).

‘Battle for Brooklyn’ coming to rail project near you

Battle for Brooklyn film posterHow would you react if the government ordered you to give up your home or business so a developer could build an arena for his basketball team? Accept what money is offered, or dig in your heels and fight?

“Battle for Brooklyn,” the Oscar-contending documentary premiering in Hawaii next week, chronicles one homeowner’s fight against the city’s taking of his property. But the film leaves open the question of whether he did the right thing, for the right reasons.

The film compresses seven years of events…

Continue Reading Movie Review: “Battle For Brooklyn” — Lessons For Honolulu Rail From A Reluctant Activist

Today’s post is by an old friend and colleague, Paul Schwind. He’s been following the federal litigation challenging the $4+ billion Honolulu rail project, and attended last week’s hearing. We asked him to write a guest post so the rest of us could come up to speed.

Update: December 13, 2011

In Honolulutraffic.com et al. v. Federal Transit Admin. et al., Judge Tashima issued his Order on December 12, denying Defendants’ Motion for Partial Judgment on the Pleadings. In essence, he followed the legal standard that requires that all doubts must be resolved in the light most favorable to the non-moving party (plaintiffs), where issues of material fact remain.  Therefore, the moving party (defendant) is not entitled to judgment as a matter of law. 

Judge Tashima pointed out that in this case, the full administrative record is not yet available to establish whether certain plaintiffs did not comment on…

Continue Reading Guest Post: The Federal Court Challenge To Honolulu Rail Project

For those who tuned in to today’s webinar Eminent Domain: Redevelopment Challenges for Local Government, here are the cases I spoke about during my session:

  • County of Hawaii v. C&J Coupe Family Ltd. P’ship, 198 P.3d 615 (Haw. 2008) (under Kelo, trial courts presented with prima facie evidence that the stated public use is a pretext to cover up private benefit must look to the real motive for a taking even if the taking is for a “classic” use).

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Continue Reading Links From Today’s Webinar “Eminent Domain: Redevelopment Challenges for Local Government”