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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCAP-11-0000611
                                                              24-AUG-2012
                                                              07:54 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                                ---o0o---


                 PAULETTE KA#ANOHIOKALANI KALEIKINI,
                   Petitioner/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; PUA#ALAOKALANI 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,
                  Respondents/Defendants-Appellees.


                          NO. SCAP-11-0000611

       APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
                    (CIVIL NO. 11-1-0206-01)

                            AUGUST 24, 2012

     RECKTENWALD, C.J., NAKAYAMA, AND MCKENNA, JJ., CIRCUIT
       JUDGE BROWNING, IN PLACE OF ACOBA, J., RECUSED, AND
      CIRCUIT JUDGE TO#OTO#O, IN PLACE OF DUFFY, J., RECUSED
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              OPINION OF THE COURT BY RECKTENWALD, C.J.

            Paulette Ka#anohiokalani Kaleikini is a native Hawaiian

who engages in traditional and customary practices, including the

protection of native Hawaiian burial remains, or iwi.             She is a

recognized cultural descendant of the iwi found in Kaka#ako.

Kaleikini’s traditional and customary practices involve

protecting iwi from disturbance or relocation, and ensuring that

iwi receive proper care and respect.

            Kaleikini brought this suit against the City and County

of Honolulu1 and the State of Hawai#i,2 challenging the approval

of the Honolulu High-Capacity Transit Corridor Project (rail

project or project).      The rail project involves the construction

of an approximately 20-mile fixed guideway rail system from West

O#ahu to Ala Moana Center.       Construction on the rail project is

planned to take place in four phases: Phase 1 (East Kapolei to

Pearl Highlands), Phase 2 (Pearl Highlands to Aloha Stadium),

Phase 3 (Aloha Stadium to Middle Street), and Phase 4 (Middle


      1
            The City defendants are: Wayne Yoshioka, in his official capacity
as Director of the City and County of Honolulu’s Department of Transportation
Services; the City and County of Honolulu; the Honolulu City Council; Peter
Carlisle, in his official capacity as Mayor of the City and County of
Honolulu; the City and County of Honolulu Department of Transportation
Services; and the City and County of Honolulu Department of Planning and
Permitting.

       2
             The State defendants are: William J. Aila, Jr., in his official
capacity as Chairperson of the Board of Land and Natural Resources (BLNR) and
state historic preservation officer; Pua#alaokalani Aiu, in her official
capacity as administrator of the State Historic Preservation Division (SHPD);
the BLNR; the Department of Land and Natural Resources (DLNR); Neil
Abercrombie, in his official capacity as Governor of the State of Hawai#i; and
the O#ahu Island Burial Council (OIBC). However, Kaleikini explained in her
complaint that the OIBC was named as “an interested party,” whose interests
were “more properly aligned with [Kaleikini].” Accordingly, reference to the
State in this opinion does not include the OIBC.

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Street to Ala Moana Center).       It is undisputed that the rail

project has a “high” likelihood of having a potential effect on

archeological resources in certain areas of Phase 4, which

includes Kaka#ako.

           Kaleikini argued that the rail project should be

enjoined until an archaeological inventory survey, which

identifies and documents archaeological historic properties and

burial sites in the project area, is completed for all four

phases of the project.     More specifically, Kaleikini argued that

Hawai#i Revised Statutes chapters 6E, 343, and 205A, and their

implementing rules, require that an archaeological inventory

survey be completed prior to any approval or commencement of the

project.   Kaleikini asserted that the failure to complete an

archaeological inventory survey prior to the start of

construction jeopardized the integrity of native Hawaiian burial

sites by foreclosing options such as not building the rail,

changing its route, or using a technology that would have less

impact on any sites.

           The City moved to dismiss Kaleikini’s complaint and/or

for summary judgment, and the State joined in the motion.             The

City acknowledged that an archaeological inventory survey was

required for each phase of the rail project.          However, the City

asserted that a plan for completion of the archaeological

inventory surveys for each phase of the project was set forth in

the project’s Programmatic Agreement, and that the Programmatic


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Agreement would ensure that the requirements of HRS chapter 6E

were complied with prior to the commencement of construction in

any given phase.     In other words, the City and State contended

that as long as an archeological inventory survey had been

completed for a particular phase, construction could begin on

that part of the project even if the surveys for the other phases

had not yet been completed.       Based on the provisions of the

Programmatic Agreement, the City argued that Kaleikini could not

demonstrate a violation of HRS chapter 6E.            Additionally, the

City argued that neither HRS chapter 343 nor chapter 205A require

the completion of an archaeological inventory survey.

            The Circuit Court of the First Circuit granted summary

judgment in favor of the City and State on all of Kaleikini’s

claims.3   Kaleikini appeals from the circuit court’s August 8,

2011 final judgment in favor of the City and the State.4             As in

the circuit court, Kaleikini’s primary argument on appeal is that

HRS chapters 6E, 343, and 205A require the completion of an

archaeological inventory survey prior to approval of the project

and commencement of construction.



      3
            The Honorable Gary W.B. Chang presided.

      4
            Kaleikini also seeks review of the following: (1) the circuit
court’s July 5, 2011 order granting summary judgment in favor of the City; (2)
the circuit court’s July 5, 2011 order granting the State’s substantive
joinder in the City’s motion to dismiss and/or for summary judgment; (3) the
circuit court’s July 5, 2011 order denying Kaleikini’s motion for
reconsideration of the court’s oral rulings granting the City’s motion to
dismiss and/or for summary judgment, and the State’s motion for substantive
joinder; and (4) the circuit court’s oral ruling denying Kaleikini’s Hawai#i
Rules of Civil Procedure (HRCP) Rule 56(f) request for additional time to
pursue discovery.

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           HRS chapter 6E is Hawaii’s historic preservation law.

The Department of Land and Natural Resources, through its State

Historic Preservation Division (SHPD), is the agency tasked with

promulgating the rules to carry out this law, and with

implementing these rules.

           In the instant case, the SHPD failed to follow its own

rules when it concurred in the rail project prior to the

completion of an archaeological inventory survey for the entire

project.   As explained below, the rules establish a sequential

process under which an archaeological inventory survey must

precede the SHPD’s concurrence in a project.          As noted in the

rules, “[t]he review process is designed to identify significant

historic properties in project areas and then to develop and

execute plans to handle impacts to the significant properties in

the public interest.”     HAR § 13-275-1(a) (emphasis added).

Moreover, the broad definition of the term “project area”

contained in the rules encompasses the entire rail project, and

does not permit the SHPD to consider the rail project in four

separate phases for the purposes of historic preservation review.

           In contrast to the requirements of the rules, the rail

project’s Programmatic Agreement provides for the completion of

archaeological inventory surveys after the SHPD has provided its

concurrence in the project.      Nevertheless, the City and State

have argued that the Programmatic Agreement constitutes an

“interim protection plan,” which would allow the rail project to


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commence absent completion of the full historic preservation

review process.     Although the City and State are correct that the

rules permit a project to commence where an “interim protection

plan” is in place, a plain reading of the rules indicates that

the Programmatic Agreement is not an interim protection plan.

When viewed in context, it is apparent that an interim protection

plan is a form of mitigation that, under the sequential approach

of the rules, can be developed only after an AIS has been

completed.

           In sum, the SHPD failed to comply with HRS chapter 6E

and its implementing rules when it concurred in the rail project

prior to the completion of the required archaeological inventory

survey for the entire project.        The City similarly failed to

comply with HRS chapter 6E and its implementing rules by granting

a special management area permit for the rail project and by

commencing construction prior to the completion of the historic

preservation review process.

           Accordingly, we vacate the circuit court’s judgment on

Counts 1 through 4 of Kaleikini’s complaint, which challenged the

rail project under HRS chapter 6E, and remand to the circuit

court for further proceedings on those counts.           We affirm the

circuit court’s judgment in all other respects.

                              I.   Background

A.   Rail project

           The following facts are undisputed.          The rail project


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involves the construction of an approximately 20-mile fixed

guideway rail system from West O#ahu to Ala Moana Center.

Construction on the rail project is planned to take place in four

phases: Phase 1 (East Kapolei to Pearl Highlands), Phase 2 (Pearl

Highlands to Aloha Stadium), Phase 3 (Aloha Stadium to Middle

Street), and Phase 4 (Middle Street to Ala Moana Center).

           The rail project’s final Environmental Impact Statement

(EIS) was completed in June 2010.          The EIS indicates that four

alternatives for the rail project were considered: (1) the No

Build Alternative; (2) the Transportation System Management

Alternative; (3) the Managed Lane Alternative;5 and (4) the Fixed

Guideway Alternative.      The EIS concluded that the Fixed Guideway

Alternative “performed better at meeting the Project’s Purpose

and Need than any of the other alternatives” and “would improve

transit performance and reliability[.]”

           The EIS noted that three fixed guideway alternatives

were considered: the Salt Lake Alternative, the Airport

Alternative, and the Airport & Salt Lake Alternative.             All three

alternatives would involve the same route through Dillingham,

Downtown, and Kaka#ako.      The Airport Alternative was ultimately

chosen as the preferred alternative.


     5
            The EIS stated that the No Build Alternative “remains under
consideration as a viable option.” The EIS concluded that the Transportation
System Management Alternative, which involved a bus-based alternative,
involved fewer benefits than the other alternatives and raised concerns
regarding financial feasibility. The EIS further concluded that the Managed
Lane Alternative, which involved a two-lane elevated toll facility between
Waipahu and Downtown, would provide very little transit benefit at a high
cost.

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            The EIS indicated that the rail project has a “[h]igh”

likelihood of having a potential effect on archeological

resources in certain areas of Phase 4, including Dillingham,

Downtown, and Kaka#ako.      With regard to the need for an

archaeological inventory survey (AIS), the EIS stated:
            The City will develop an [AIS] plan for the [area of
            potential effects] for each construction phase in
            accordance with [36 C.F.R. § 800.4 6] which allows for
            phased identification of archaeological resources to
            limit disturbance of potential resources during the
            investigation. . . . The AIS plans will follow the
            requirements of [Hawai#i Administrative Rules (HAR)




      6
            36 C.F.R. § 800.4 (2010) concerns the identification of historic
properties under federal law, and provides, in pertinent part:

            Phased identification and evaluation. Where
            alternatives under consideration consist of corridors
            or large land areas, or where access to properties is
            restricted, the agency official may use a phased
            process to conduct identification and evaluation
            efforts. The agency official may also defer final
            identification and evaluation of historic properties
            if it is specifically provided for in a memorandum of
            agreement executed pursuant to § 800.6, a programmatic
            agreement executed pursuant to § 800.14(b), or the
            documents used by an agency official to comply with
            the National Environmental Policy Act pursuant to
            § 800.8. The process should establish the likely
            presence of historic properties within the area of
            potential effects for each alternative or inaccessible
            area through background research, consultation and an
            appropriate level of field investigation, taking into
            account the number of alternatives under
            consideration, the magnitude of the undertaking and
            its likely effects, and the views of the [State
            Historic Preservation Officer/Tribal Historic
            Preservation Officer] and any other consulting
            parties. As specific aspects or locations of an
            alternative are refined or access is gained, the
            agency official shall proceed with the identification
            and evaluation of historic properties in accordance
            with paragraphs (b)(1) and (c) of this section.

36 C.F.R. § 800.4(b)(2) (emphasis added).

            As discussed more fully below, the rules implementing Hawaii’s
historic preservation law do not include a similar provision.

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            chapter 13-276. 7] The City will conduct the
            archaeological fieldwork as presented in the AIS plan
            for each construction phase. The archaeological
            fieldwork will be completed in advance of the
            completion of the final design so that measures to
            avoid and/or minimize adverse effects to the historic
            properties can be incorporated into the design. The
            City has consulted and continues to consult with SHPD
            and OIBC on burial issues. . . . To balance the
            current level of project design, the desire to limit
            disturbance of native Hawaiian burials and residences
            in Phase [4] of the project area, and the potential
            transportation benefits that would accrue from the
            proposed project, FTA, in consultation with the
            parties, decided to develop a detailed approach in the
            . . . draft PA for conducting archaeological
            investigations for Phase [4] of the project. The City
            has committed to conducting 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
            City’s proposed schedule for the Project would have
            construction starting in 2013 for Phase [4] (in the
            Kaka#ako neighborhood). Although, the development of
            more detailed design and, therefore, archeological
            investigations for the last construction phase would
            have typically been delayed until closer to the
            anticipated construction start date, the City has
            committed to starting the process much earlier.

            A draft Programmatic Agreement (PA) was appended to the

final EIS, which described the “archaeological historic property

and resource identification and evaluation effort, as well as the

mitigation procedures for identified archaeological resources.”

The EIS indicated that the draft PA was developed to conform with

“Section 106 of the National Historic Preservation Act.”             The PA

was developed in consultation with, inter alia, the SHPD.

            The final PA was executed on or before January 18,

2011.   Aila, as Hawai#i State Historic Preservation Officer, was

a signatory to the final PA.        OIBC declined to sign the PA.           The


      7
            HAR chapter 13-276 contains the rules governing standards for AISs
and AIS reports.

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PA provides for a “phased approach to identification and

evaluation of archaeological resources, under which an AIS must

be completed, and the results approved by the SHPD, for each

construction Phase before ground-disturbing activity in that

Phase can commence.”      Accordingly, a single AIS for the whole

project will not be performed.        Once an AIS for a given phase is

completed and the results approved by the SHPD and, where

necessary, the OIBC, construction on that phase may begin, even

if the AISs for the remaining phases are not yet complete.

            The PA provides that archeological fieldwork will be

completed for each phase prior to the final design and

construction of that phase.       The fieldwork shall include, but is

not limited to, reconnaissance surveys by way of archival

research and visual inspection, a sample survey of subsurface

conditions with ground-penetrating radar, subsurface inspection

as warranted, and subsurface testing.         Any native Hawaiian

burials, or “iwi kupuna,” discovered during the AIS for each

phase will be treated as “previously identified” burials, and the

OIBC will therefore have jurisdiction to determine the treatment

of these burials pursuant to HAR chapter 13-300.8



      8
            HAR § 13-300-31(b) (1996) provides that “[b]urial sites discovered
during archaeological inventory surveys that appear to be over fifty years old
shall be classified as previously identified for which the [island burial
council] or [DLNR], whichever is applicable, shall determine appropriate
treatment.”
            HAR § 13-300-3(b) (1996) provides that the “[a]uthority to
determine treatment of any burial site belongs to the [DLNR], following
appropriate consultations, except that where a burial site is Native Hawaiian
and previously identified, authority to determine treatment belongs to the
appropriate [island burial] council.” (Emphasis added).

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          The PA requires the City to develop a plan for the AIS

process prior to archaeological fieldwork being performed.             With

regard to Phase 4, the PA provides that the City must consult

with the OIBC, lineal and cultural descendants, native Hawaiian

organizations, and other interested parties within sixty days of

the execution of the PA regarding the scope of the investigation

for the AIS plan.    “The AIS Plan will provide for investigation

of the entire Phase 4 area” and will “evaluate all areas that

will be disturbed by the Project.”        The final PA provides that

the AIS plan is to be submitted to the SHPD for comment, and then

returned to the City to revise the AIS plan.          “Archaeological

investigation will begin following approval of the AIS Plan by

the SHPD.”   In addition, the final PA required that the City (1)

complete the AIS for Phase 4 prior to beginning final design for

that area; (2) inform the OIBC of the status of the AIS and

continue to meet regularly with the OIBC; and (3) in coordination

with the OIBC, lineal and cultural descendants, native Hawaiian

organizations, and other interested persons, complete a draft

protocol for consultation regarding treatment of any iwi kupuna

identified during the AIS.

          With regard to treatment plans, the final PA provided:
          Based on the results of the AIS fieldwork and in
          consultation with the SHPD, the City shall develop a
          specific treatment plan to avoid, minimize, or
          mitigate adverse effects on historic properties
          including archaeological sites and burials pursuant to
          applicable state laws . . . for each construction
          phase. Treatment plans shall be submitted to the SHPD
          for approval. Upon approval by the SHPD, the City
          shall implement the treatment plan.



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            Additionally,
            The City confirms that guideway columns may be
            relocated a limited distance along the guideway at
            most column locations, straddle-bent supports may be
            used, or special sections developed to modify span
            length allowing for preservation in-place to be viable
            in those locations. If the OIBC determines that a
            burial is to be relocated, the City will consult with
            the OIBC to determine appropriate reinterment, which
            may include relocation to Project property in the
            vicinity of the discovery.

            An AIS for Phase 1 has been completed and was approved

by the SHPD on April 19, 2010.        The final PA required that the

AIS process for Phase 4 begin within sixty days of the execution

of the PA.    However, the circuit court record does not contain

further information with regard to the progress or completion of

any other AIS.9

B.    Circuit court proceedings

      1.    Complaint

            On January 31, 2011, Kaleikini filed a complaint for

declaratory and injunctive relief seeking to delay the start of

construction on the rail project, and naming the City and State,

as well as the OIBC, as defendants.10        Kaleikini asserted that

she is a native Hawaiian who engages in native Hawaiian

traditional and customary practices, including “[p]rotection of


      9
            In documents attached to the City’s opposition to Kaleikini’s
Motion for Injunction Pending Appeal, which this court denied on April 4,
2012, the City asserted that (1) an AIS was completed for Phase 1, with no
burial sites found; (2) AIS fieldwork for Phase 2 is completed, with no burial
sites found; (3) AIS fieldwork for Phase 3 was expected to be completed in
June 2012; and (4) AIS fieldwork for Phase 4 was expected to be completed in
November 2012. The City further asserted that groundbreaking work on Phase 4
will not commence until March 2015. The City also asserted that the AIS for
Phase 4 was already underway and that no burials had yet been discovered.

      10
            See supra n.1 and 2.

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iwi in place and prevention of relocation[,]” and “ensur[ing]

that iwi remain undisturbed and that they receive proper care and

respect.”    She further asserted that she is a recognized cultural

descendant of the iwi found in Kaka#ako.11         She alleged that an

AIS for the entire rail project corridor would allow her to

“better ensure the appropriate protection of iwi.”             She further

asserted that she provided comment and testimony on the draft EIS

and special management area permit for the project, wherein she

opined that an AIS was needed for the entire project prior to

decision making on the project.

            Kaleikini’s complaint alleged six counts.           First,

Kaleikini alleged that the City’s grant of a special management

area permit for the rail project and its decision to commence

construction on the project prior to the completion of an AIS

violated HRS §§ 6E-812 and 6E-42,13 and their implementing rules,


     11
            “Cultural descendant” means, “with respect to Native Hawaiian
skeletal remains, a claimant recognized by the [island burial] council after
establishing genealogical connections to Native Hawaiian ancestors who once
resided or are buried or both, in the same ahupua#a or district in which
certain Native Hawaiian skeletal remains are located or originated from.” HAR
§ 13-300-2 (1996).

     12
            HRS § 6E-8 (2009) provides, in pertinent part:

            Review of effect of proposed state projects. (a)
            Before any agency or officer of the State or its
            political subdivisions commences any project which may
            affect historic property, aviation artifact, or a
            burial site, the agency or officer shall advise the
            department and allow the [DLNR] an opportunity for
            review of the effect of the proposed project on
            historic properties, aviation artifacts, or burial
            sites, consistent with section 6E-43, especially those
            listed on the Hawaii register of historic places. The
            proposed project shall not be commenced, or in the
            event it has already begun, continued, until the
            department shall have given its written concurrence.
                                                                 (continued...)

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HAR chapters 13-275 (2002) and 13-284 (2002) (Counts 1-2).

Kaleikini further alleged that the DLNR, through the SHPD,

violated HRS §§ 6E-8 and 6E-42, and their implementing rules, in

authorizing an AIS to be postponed (Counts 3-4).                 Kaleikini also

alleged that Governor Abercrombie violated HRS chapter 343 by

accepting the final EIS for the rail project, because the final

EIS did not contain an AIS and was therefore incomplete (Count

5).   Finally, Kaleikini alleged that the City and State

Defendants had failed to “give full consideration of the impact

of the [rail project] on iwi and cultural and historic values

prior to decisionmaking” (Count 6).

               Based on the foregoing, Kaleikini sought (1) a


      12
           (...continued)
                The department is to provide written concurrence or
                non-concurrence within ninety days after the filing of
                a request with the department. The agency or officer
                seeking to proceed with the project, or any person,
                may appeal the department’s concurrence or
                non-concurrence to the Hawaii historic places review
                board. An agency, officer, or other person who is
                dissatisfied with the decision of the review board may
                apply to the governor, who may request the Hawaii
                advisory council on historic preservation to report or
                who may take action as the governor deems best in
                overruling or sustaining the department.

      13
               HRS § 6E-42 (2009) provides, in pertinent part:

               Review of proposed projects. (a) Before any agency or
               officer of the State or its political subdivisions
               approves any project involving a permit, license,
               certificate, land use change, subdivision, or other
               entitlement for use, which may affect historic
               property, aviation artifacts, or a burial site, the
               agency or office shall advise the department and prior
               to any approval allow the department an opportunity
               for review and comment on the effect of the proposed
               project on historic properties, aviation artifacts, or
               burial sites, consistent with section 6E-43, including
               those listed in the Hawaii register of historic
               places.


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declaration that the City and DLNR violated HRS §§ 6E-42 and/or

6E-8; (2) a declaration that an AIS must be prepared for the rail

project prior to “decisionmaking on the project and/or

commencement”; (3) a declaration that the final EIS was

“unacceptable” because it did not include an AIS; (4) a

declaration voiding “any and all state or county permits or

approvals” for the rail project; (5) an order prohibiting the

City from commencing or continuing any “ground disturbance” prior

to completion of an AIS and historic preservation review process;

(6) an injunction prohibiting the City from “engaging in any land

alteration” prior to the completion of an AIS and historic

preservation review process; (7) an order compelling the SHPD to

fulfill its obligations under HRS chapter 6E; (8) attorney’s fees

under the private attorney general doctrine; and (9) any other

relief deemed just and proper by the court.

     2.    Motion for preliminary injunction

           Kaleikini filed a motion for preliminary injunction,

seeking to prevent the City from “commencing, or continuing, any

ground disturbance or land alteration” in support of the rail

project.   In support of her motion, Kaleikini submitted a

declaration in which she declared, in pertinent part:
                 3. As a Native Hawaiian, I engage in various
           traditional and customary practices that my parents
           and other ancestors taught me.
                 4. One of the critical tenets of Native
           Hawaiian traditional and customary practices is the
           obligation to ensure that #iwi . . . remain
           undisturbed; and that they receive proper care and
           respect. Protection of #iwi in place and prevention
           of relocation is a traditional and customary practice
           of Native Hawaiians who inhabited the Hawaiian Islands


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           prior to 1778.
                  5. One of the most important Native Hawaiian
           traditional and customary practices that I engage in
           is to malama burial sites na #iwi kãpuna. I visit
           burial sites to ensure that they are clean (although
           not necessarily marked). I ensure that these sites
           are not disturbed. I do pule at burial sites.[ 14]
                  6. The [OIBC] has officially recognized me as a
           cultural descendant of iwi found in Kaka#ako.
                  7. The unnecessary removal of iwi causes me
           great pain and suffering.
                  8. I rely on information contained in
           archaeological inventory surveys to advocate for the
           protection of iwi.
                  9. Although the law may not allow me to
           unilaterally decide the fate of ancestral remains, I
           have filed this action to ensure that all proper
           procedures are followed for the [rail project], which
           will impact iwi.
                  10. An [AIS] along the entire corridor of the
           [rail project] would help me meet my kuleana to ensure
           the appropriate protection of iwi.
                  11. Every act of uncovering burial remains is
           an alteration of a burial site.
                  . . . .
                  34. I am familiar with burials being buried in
           Kaka#ako. For example, I helped wrap iwi of twenty-
           five kãpuna (from coffins and unmarked) at the Queen
           Street extension project; twenty-seven burials at
           Kewalo Development (Alexander and Baldwin); sixty-
           three burials at the Wal-Mart site on Ke#eaumoku
           Street; as well as over sixty burials at Ward Villages
           (General Growth Properties).
                  35. The planned rail corridor runs through this
           same general area.

           The OIBC filed a statement of position regarding

Kaleikini’s motion, stating as follows:

                 In accordance with its duties and
           responsibilities, the OIBC set forth its significant
           concerns over the planned rail project by letter dated
           October 18, 2009. Those concerns include concerns
           over the phased [AIS] approach to the project . . . .
           The OIBC has also repeatedly raised in OIBC meetings
           its understanding that the [PA] for the city’s rail
           project does not exempt the city from historic
           preservation responsibilities set forth in HRS
           [c]hapter 6E and its associated administrative rules,
           which do not allow for phased [AISs] that occur after
           or simultaneously with approval and construction of a
           project.
                 Accordingly, Defendant OIBC respectfully


      14
            “Malama” means “[t]o take care of, tend, attend, care for,
preserve, protect, beware, save [or] maintain[.]” Mary Kawena Pukui &
Samuel H. Elbert, Hawaiian Dictionary 232 (1986). “Pule” means, inter alia,
“prayer” or “blessing.” Id. at 353.

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            requests that the"court weigh these concerns and
            strongly consider [Kaleikini’s] motion for preliminary
            injunction.

(Record citations omitted).

            The OIBC also submitted the minutes of its April 14,

2010 meeting, in which the OIBC determined that it did not

support a phased approach to the AIS.         The OIBC also submitted a

copy of an October 18, 2009 letter it sent to the U.S. Department

of Transportation concerning the rail project.           The letter noted

“a gross lack of consultation” between the City and the OIBC

between 2005, when the City initiated consultation with OIBC, and

July 9, 2008, when the OIBC requested that City representatives

appear before the OIBC to update the OIBC on the project.

            The letter also described the OIBC’s concerns with the

draft PA.    The OIBC noted a “significant divide . . . between the

City’s and the OIBC’s perspective regarding how to ‘best protect

iwi kã puna.’”   Specifically, the OIBC stated that “[t]he OIBC’s

view focuses on early identification of iwi kã puna to facilitate

a strategy of avoidance through the consideration of alternate

alignments[,]” while “[t]he City’s view focuses on early

commitment to a given alignment and later identification of iwi

kã puna, employing a strategy of mitigating the negative impacts

on iwi kã puna through design changes in the designated corridor.”

The OIBC also explained “[r]elevant Hawaiian [c]ultural

[p]erspectives” regarding burials as follows:
            The act of burial and burial locations were kept huna




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            (secret and hidden). Burials were kapu[ 15], intended
            to be left in peace, and carefully guarded to ensure
            that no disturbance occurred. Intrusions into burials
            (opening up the ground to expose iwi kãpuna, touching
            iwi kãpuna, uprooting iwi kãpuna, etc.) was considered
            extremely offensive and disrespectful-an act of
            violence and degradation directed at the deceased
            individual, the living family members, and the larger
            community associated with that burial. Such an act
            would be akin to disrobing a living person and
            physically handling them against their will.

            The City and State opposed Kaleikini’s motion.

Attached to the City’s opposition was a declaration by

Pua#alaokalani Aiu, Administrator of the SHPD.           Aiu declared that

she was involved in the consultation process that resulted in the

execution of the PA for the rail project.          Aiu further stated

that, because the rail project will have an effect on historic

properties, Section 106 of the National Historic Preservation Act

of 1966 was applicable.       “Pursuant to this Act, there was a

consultation process to address ways to minimize, mitigate, or

avoid effects to historic resources under state law during the

construction of the Project.        The PA is the outcome of that

process.”

            Aiu acknowledged that the SHPD must have an opportunity

to “review and comment on the effect of the Project on historical

properties or burial sites” as required under HRS § 6E-8.              Aiu

stated that an “extensive consultation” process had taken place

between the SHPD and the City’s Department of Transportation

Services.    Specifically, Aiu noted that consultants had prepared



      15
            “Kapu” means, inter alia, “forbidden” or “sacred, holy,
consecrated[.]” Pukui & Elbert at 132.

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“a series of extensive archaeological, historical and cultural

technical reports related to historic properties, and also

consulted with SHPD[.]”       Aiu stated that the technical reports

“provided extensive cultural, historical and archaeological data

that served as a basis for developing a plan for identifying

historic properties that may be impacted by the Project,

including archaeological and burial sites.”           Aiu further

declared:

                  10. It is SHPD’s position that neither HRS
            § 6E-8 nor HRS § 6E-42 requires the completion of an
            [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 [HRS]
            § 6E-8 and HAR § 13-275-3.
                  . . . .
                  15. SHPD considered the likely impacts of the
            Project on historic properties, including subsurface
            archaeological and burial sites.
                  16. SHPD has determined that the appropriate way
            to address and mitigate these potential impacts is as
            set out in the PA.
                  . . . .
                  23. It is SHPD’s position that this phased
            approach to identification and handling of
            archeological resources provided for in the PA,
            satisfies the historic preservation review process set
            forth under Chapter 6E and its regulations.

            A copy of an August 15, 2008 Archaeological Resources

Technical Report, referenced in Aiu’s declaration, was also

appended to the City’s opposition to Kaleikini’s motion.             The

report “identifie[d] likely impacts to archaeological resources

within the archaeological study area” relating to four

alternatives under consideration, i.e., No Build, Fixed Guideway

(Salt Lake), Fixed Guideway (Airport) and Fixed Guideway (Airport

& Salt Lake).     The report stated, “[w]ith few exceptions, the


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archaeological resources that could be affected by the Project

are subsurface features and deposits that have not been

previously identified.”     The report identified a high likelihood

of impacts to burials in the sub-areas of Dillingham, Downtown,

and Kaka#ako.    The report noted that previous archaeological

research had been conducted along the corridor of the rail

project, and described these investigations.          With regard to

Kaka#ako, the report noted
          The area has been subject to intensive reconstruction
          and growth since the mid-1990s as a consequence of the
          growth of Honolulu and Waik§k§. Several
          investigations have uncovered subsurface elevated sand
          ridges, often containing burials in addition to other
          archaeological resources. These factors have led to
          the generation of numerous archaeological reports for
          the area.

          With regard to further archaeological research, the

report stated:
          Identification of these archaeological resources
          beneath in-use streets, sidewalks, and highways would
          likely pose a significant disruption of traffic. The
          cost and time requirements associated with identifying
          subsurface archaeological deposits beneath developed
          roadways and sidewalks greatly increase, because of
          the need to disrupt traffic, saw-cut and remove
          existing pavement to expose underlying sediments,
          search for archaeological deposits, and then repave
          the affected area. Additionally, the Project’s
          potential archaeology-affecting ground disturbance
          would be over a large geographic area, requiring an
          extensive archaeological historic property/
          archaeological resource identification effort.
          Finally, 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. Nevertheless, to comply
          with the Project’s State and Federal environmental and
          historic preservation review process, a reasonable,

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            good faith effort was made to identify archaeological
            resources located within the proposed alignments and
            to provide sufficient information to make reasonable
            decisions regarding their mitigation during the
            Project’s construction.

            Kaleikini’s motion was decided along with the City’s

motion to dismiss and/or for summary judgment, discussed infra.

      3.    City’s motion to dismiss and/or for summary judgment

            On February 9, 2011, the City filed a motion to dismiss

and/or for summary judgment.        The City argued that Kaleikini

could not assert a private right of action to enjoin the rail

project under HRS § 6E-13(b) because she had not established a

“realistic threat of irreparable injury to any Native Hawaiian

burials.”    (Emphasis in original).       The City additionally argued

that Kaleikini could not demonstrate a violation of HRS § 6E-42

or HRS § 6E-8, or their implementing rules.           Specifically, the

City asserted that Kaleikini could not demonstrate a violation of

HRS § 6E-42 because “the required coordination, consultation,

review and comment between the Project’s sponsoring agencies and

SHPD indisputably occurred.”        The City additionally asserted that

the SHPD’s “decision to approve the AIS plan in the PA is

presumed valid under Hawai#i law.”         (Citation and emphasis

omitted).    Additionally, the City asserted that “burial handling

issues” were considered as evidenced by City Council Resolution

No. 11-7, CD1, “which expressly conditions the issuance of the

[special management area] permit upon the PA and Final [EIS].”16

      16
            A “true and correct copy” of Resolution No. 11-7 was attached to
the City’s motion as exhibit “M.” The resolution resolved to issue a special
                                                                (continued...)

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The City also asserted that the PA served as an “interim

protection plan” that allowed the rail project to commence.17

            The City further asserted that Kaleikini could not

demonstrate any violation of HRS § 6E-8 because the “SHPD

provided formal written concurrence to the Project . . . through

its execution of the PA, which indisputably serves as a

permissible ‘interim protection plan’ for historic properties

that may be impacted by the Project under HAR § 13-275-3.”18

            The City also asserted that Kaleikini could not

demonstrate a violation of HRS chapter 343 because an EIS is not

required to include a completed AIS.         Additionally, with regard

to Kaleikini’s claim that the City and State failed to fully

      16
        (...continued)
management area permit to the City’s Department of Transportation Services,
and provided, in pertinent part:

            Prior to the issuance of any development permit for
            the Project, the [Department of Transportation
            Services] shall provide the Director of the
            [Department of Planning and Permitting] with written
            documentation that a [PA] to minimize and mitigate
            adverse effects on historic properties as generally
            described in the Final [EIS] has been executed. The PA
            and any amendments thereto shall record the terms and
            conditions agreed upon to resolve potential adverse
            effects on historic properties, and, shall include
            stipulations related to the encountering of any
            previously unidentified archaeological site or remains
            (such as artifacts, shell, bone, or charcoal deposits,
            human burials, rock or coral alignments, pavings, or
            walls) during construction activities.

      17
            HAR § 13-284-3 (2002) provides, in pertinent part: “In cases where
interim protection plans are adequately in place and any data recovery
fieldwork has been adequately completed, the project may commence from a
historic preservation perspective.” (Emphasis added).

      18
            HAR § 13-275-3 (2002) provides, in pertinent part: “In cases where
interim protection plans are adequately in place or data recovery fieldwork
has been adequately completed, a determination letter may be issued.”
(Emphasis added). A “determination letter” is the “SHPD’s written response
which either concurs or does not concur with an agency’s proposed project.”
HAR § 13-275-2 (2002).

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consider the impact of the rail project on native Hawaiian

burials, the City noted that Kaleikini had not identified a legal

basis for her claim and that, in any event, the issue was

properly considered.

             The City attached a declaration of Faith Miyamoto,

Chief of Transit Planning and Environmental Studies at the Rapid

Transit Division of the Department of Transportation Services.

Miyamoto declared that:
             The PA is one way to satisfy federal requirements of
             Section 106 of the National Historic Preservation Act
             of 1966. The PA also includes a process, developed
             through consultation with various participating
             parties, including the [SHPD] of the [DLNR], for
             addressing the discovery of burials and other
             archaeological and cultural artifacts under state law
             during the construction of the Project.

             Miyamoto further declared that, during the

environmental review process, the City notified the SHPD of the

project and provided it “with an opportunity to review and

comment on the potential impact of the Project on historical

properties, including burial sites, as required under HRS § 6E-

42.”    Miyamoto attached numerous supporting documents to her

declaration including the PA, excerpts from the draft and final

EISs, and various technical reports.

             A hearing on the City’s motion was scheduled for

March 14, 2011.       The State Defendants filed a substantive joinder

to the City Defendants’ motion.          OIBC filed a statement of no

position as to the motion.

             Kaleikini opposed the City’s motion.          Citing HRCP Rule



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56(f),19 Kaleikini sought additional time to complete discovery

prior to the hearing on the motion, on the ground that it would

not be possible for her to submit admissible evidence by the

hearing date.     Kaleikini also argued that “an AIS must precede

decisionmaking and commencement of the rail project” under HRS

chapter 6E.    Accordingly, Kaleikini argued, the SHPD could not

have properly reviewed and commented on the project or given its

concurrence prior to an AIS being completed for the entire 20

mile project.     Kaleikini also disputed the City’s assertion that

the PA could serve as an interim protection plan under the

applicable rules.     Rather, Kaleikini asserted, “an interim

protection plan can only be approved after an [AIS] has been

prepared.”    Kaleikini additionally asserted that neither the

statutes nor the rules allowed for the City’s phased approach to

the AISs.

            Kaleikini further asserted that she had made the

requisite showing of an “irreparable injury” to establish a

private right of action.       Specifically, Kaleikini asserted that

the potential for uncovering iwi constituted an irreparable



      19
            HRCP Rule 56 governs summary judgment.   HRCP Rule 56(f) (2010)
provides:

                  When affidavits are unavailable. Should it
            appear from the affidavits of a party opposing the
            motion that the party cannot for reasons stated
            present by affidavit facts essential to justify the
            party’s opposition, the court may refuse the
            application for judgment or may order a continuance to
            permit affidavits to be obtained or depositions to be
            taken or discovery to be had or may make such other
            order as is just.

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injury, as did the City and State’s failure to follow proper

procedures under HRS chapter 6E.

            Kaleikini further argued that the EIS was inadequate

because it did not contain an adequate description of “resources

of historic, archaeological, or aesthetic significance.”

(Quoting HAR § 11-200-17(G)20).        Finally, Kaleikini asserted that

the City and State failed to “give full consideration to cultural

and historic values.”       (Quoting Public Access Shoreline Hawaii v.

Hawai#i Cnty. Planning Comm’n (PASH), 79 Hawai#i 425, 435, 903

P.2d 1246, 1256 (1995)).        Kaleikini asserted that such

consideration is required under HRS § 205A-4, this court’s

caselaw, and the public trust principles contained in HRS chapter

6E.

            Kaleikini separately filed an opposition to the State’s

joinder, on the same grounds articulated in her opposition to the

City’s motion.

            A hearing on the City’s motion was held on March 14,

15, and 23, 2011.      At the conclusion of the hearing, the circuit

court orally denied Kaleikini’s HRCP Rule 56(f) request on the

ground that Kaleikini had failed to show that a continuance would

enable her to rebut the City’s showing that there was no genuine

issue of material fact and, in any event, the resolution of the


      20
            HAR § 11-200-17(G) (1996) requires that a draft EIS include a
description of “environmental resources that are rare or unique to the region
and the project site (including natural or human-made resources of historic,
archaeological, or aesthetic significance)[.]” A final EIS consists of, inter
alia, “[t]he draft EIS revised to incorporate substantive comments received
during the consultation and review process[.]” HAR § 11-200-18.

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City’s motion raised a question of law that did not turn on any

disputed facts of the case.      The circuit court orally granted the

City’s motion for summary judgment and the State’s joinder, on

the ground that the phased approach to the AISs for the rail

project was not prohibited by law.        The circuit court also denied

Kaleikini’s motion for preliminary injunction as moot based on

its oral ruling on the City’s motion.

           Kaleikini filed a motion for reconsideration of the

circuit court’s oral rulings.       Kaleikini appended various

exhibits to her motion, including declarations of Dr. K haulani

Cachola-Abad, who has a PhD in Anthropology with a specialization

in Hawaiian archaeology.      Dr. Cachola-Abad opined that an AIS

should be performed prior to decision making.          Dr. Cachola-Abad

further opined that,
           Given the number of burials that are likely to be
           encountered and the extent of excavation that will be
           required for this project, the relocation of specific
           piers will not likely adequately protect the burials
           found along the corridor. In other words, more
           fundamental options would need to be considered to
           protect the burials - including the route and the
           technology employed.

           The circuit court denied the motion for reconsideration

on July 5, 2011.    The same day, the circuit court filed its order

granting summary judgment in favor of the City and State, and

granting the State Defendants’ substantive joinder in the City’s

motion.   On August 8, 2011, the circuit court filed its final

judgment in favor of the City, State, and OIBC, and against

Kaleikini on all claims.



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C.   Appeal

           Kaleikini filed a timely notice of appeal on August 11,

2011.   On January 17, 2012, we granted Kaleikini’s application

for a mandatory and discretionary transfer of her appeal from the

ICA to this court.

           Kaleikini raises four points of error:           that the

circuit court erred in (1) granting the City’s motion for summary

judgment; (2) granting the State’s substantive joinder in the

City’s motion; (3) denying Kaleikini’s motion for

reconsideration; and (4) denying Kaleikini’s HRCP Rule 56(f)

request.   As set forth in detail below, Kaleikini’s primary

argument on appeal is that the City and State failed to comply

with HRS §§ 6E-8 and 6E-42, and their implementing rules, by

allowing a decision on the project to be made prior to the

completion of an AIS for the entire project.           In response, the

City and State argue that the requirements of the applicable

statutes and rules have been met and the process undertaken to

approve the rail project was permissible for a variety of

reasons, including that a phased approach to the AIS is

permissible, the SHPD has discretion to consider the separate

phases of the rail project as separate projects, and the PA

ensures that an AIS will eventually be completed.

                        II.   Standards of Review

A.   Summary judgment

           “On appeal, the grant or denial of summary judgment is


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reviewed de novo.”     First Ins. Co. of Hawaii v. A&B Props., 126

Hawai#i 406, 413, 271 P.3d 1165, 1172 (2012) (quoting Nuuanu

Valley Ass’n v. City & Cnty. of Honolulu, 119 Hawai#i 90, 96, 194

P.3d 531, 537 (2008)).

B.   Statutory Interpretation

           “Statutory interpretation is a question of law

reviewable de novo.”      Id. at 414, 271 P.3d at 1173 (quoting State

v. Wheeler, 121 Hawai#i 383, 390, 219 P.3d 1170, 1177 (2009)).

C.   Interpretation of agency rules

           In interpreting the HAR,
           [t]he general principles of construction which apply
           to statutes also apply to administrative rules. As in
           statutory construction, courts look first at an
           administrative rule’s language. If an administrative
           rule’s language is unambiguous, and its literal
           application is neither inconsistent with the policies
           of the statute the rule implements nor produces an
           absurd or unjust result, courts enforce the rule’s
           plain meaning.

In re Wai#ola O Moloka#i, Inc., 103 Hawai#i 401, 425, 83 P.3d 664,

688 (2004) (quoting Int’l Bhd. of Elec. Workers, Local 1357 v.

Hawaiian Tel. Co., 68 Haw. 316, 323, 713 P.2d 943, 950 (1986)).

           An agency’s interpretation of its own rules is

generally entitled to deference.        Gillian v. Gov’t Emps. Ins.

Co., 119 Hawai#i 109, 125, 194 P.3d 1071, 1087 (2008) (“Arguably,

where an agency promulgates a rule, we will accord consideration

to its interpretation of its own rules.”) (citation omitted);

Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984)

(“[I]n deference to the administrative agency’s expertise and

experience in its particular field, the courts should not


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substitute their own judgment for that of the administrative

agency where mixed questions of fact and law are presented.                 This

is particularly true where the law to be applied is not a statute

but an administrative rule promulgated by the same agency

interpreting it.”) (citation omitted).          However, this court does

not defer to agency interpretations that are “plainly erroneous

or inconsistent with the underlying legislative purpose.”              In re

Wai#ola O Moloka#i, Inc., 103 Hawai#i at 425, 83 P.3d at 688.

D.   Acceptability of an EIS

           In reviewing a challenge to an accepted EIS, this court

“uses the ‘rule of reason’ to determine whether an EIS is legally

sufficient in adequately disclosing facts to enable a decision-

making body to render an informed decision.”           Citizens for Prot.

of North Kohala Coastline v. Cnty. of Hawai#i, 91 Hawai#i 94, 107,

979 P.2d 1120, 1133 (1999) (brackets and citation omitted).

Under the “rule of reason,”
           an EIS need not be exhaustive to the point of
           discussing all possible details bearing on the
           proposed action but will be upheld as adequate if it
           has been compiled in good faith and sets forth
           sufficient information to enable the decision-maker to
           consider fully the environmental factors involved and
           to make a reasoned decision after balancing the risks
           of harm to the environment against the benefits to be
           derived from the proposed action, as well as to make a
           reasoned choice between alternatives.

Price v. Obayashi Hawaii Corp., 81 Hawai#i 171, 182, 914 P.2d

1364, 1375 (1996) (citation omitted).

           Additionally, “courts are reluctant to ‘second guess’

the decision-making body regarding the sufficiency of an EIS.”

Id. at 182 n.12, 914 P.2d at 1375 n.12.

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E.   Denial of a request for a HRCP Rule 56(f) continuance

           “A trial court’s decision to deny a request for a

continuance pursuant to HRCP Rule 56(f) will not be reversed

absent an abuse of discretion.”        Josue v. Isuzu Motors America,

Inc., 87 Hawai#i 413, 416, 958 P.2d 535, 538 (1998).            An abuse of

discretion occurs if the trial court “clearly exceeded the bounds

of reason or disregarded rules or principles of law or practice

to the substantial detriment of a party litigant.”            Amfac, Inc.

v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 114, 839 P.2d 10, 26

(1992).

F.   Denial of a request for reconsideration

           The appellate court reviews a “trial court’s ruling on

a motion for reconsideration . . . under the abuse of discretion

standard.”    Ass’n of Apartment Owners of Wailea Elua v. Wailea

Resort Co., Ltd., 100 Hawai#i 97, 110, 58 P.3d 608, 621 (2002)

(quotation marks omitted) (quoting Sousaris v. Miller, 92 Hawai#i

505, 513, 993 P.2d 539, 547 (2000)).

                             III.   Discussion

           As set forth below, Kaleikini has made a sufficient

showing of irreparable injury to bring her claims under HRS

chapter 6E.    With regard to the merits of her claims, the rules

implementing HRS §§ 6E-8 and 6E-42 require that historic

properties be identified in the “project area,” and the broad

definition of “project area” contained in the rules encompasses

the entire rail project.       The rules do not permit the SHPD to


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concur in the rail project absent a completed AIS for the entire

project area.    Rather, the rules establish a sequential process

under which an AIS, if required, must precede the SHPD’s

concurrence in a project.       Because an AIS was not completed

before the SHPD gave its concurrence in the rail project, the

SHPD’s concurrence in and the City’s commencement of the project

were improper.     Although the State argues that the PA constituted

an “interim protection plan” that permitted the SHPD to concur in

the project prior to the completion of the historic preservation

review process, the PA does not constitute an interim protection

plan under the applicable rules.        Accordingly, the circuit court

erred in granting summary judgment in favor of the City and State

on Counts 1 through 4 of Kaleikini’s complaint.

           However, the circuit court properly granted summary

judgment in favor of the City and State on Counts 5 and 6 because

(1) the final EIS was sufficient under HRS chapter 343 and was

properly accepted by the Governor; and (2) the City and State

gave full consideration to cultural and historic values as

required under HRS chapter 205A.

A.   Kaleikini has made a sufficient showing of “irreparable
     injury” to bring her claims under HRS § 6E-13(b)

           The City argues that Kaleikini has not shown “an

immediate threat of irreparable harm to a burial or other

historic property[,]” which, the City argues, is required to

assert a private right of action under HRS § 6E-13(b).             Kaleikini

asserts that she has made the requisite showing of an irreparable

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injury in the form of (1) a procedural injury; and (2) injury to

the burials and/or her interest in protecting the burials.             With

regard to injury to the burials and Kaleikini’s interest in

protecting those burials, Kaleikini specifically asserts that

there is a high likelihood of uncovering burials in Phase 4 of

the project, and that the City’s decision to proceed with the

rail project without first completing the required historic

preservation review process forecloses options that would provide

greater protection to burials, including the no-build

alternative, and alternative technologies or routes.            As set

forth below, Kaleikini has made a sufficient showing of

irreparable injury in the form of threatened injury to the

Kaka#ako burial sites, and accordingly has standing to bring her

claims.   Additionally, Kaleikini has shown a sufficient

procedural injury to establish procedural standing.

           HRS § 6E-13(b) permits individuals to bring actions for

injunctive relief as follows:
           Any person may maintain an action in the trial court
           having jurisdiction where the alleged violation
           occurred or is likely to occur for restraining orders
           or injunctive relief against the State, its political
           subdivisions, or any person upon a showing of
           irreparable injury, for the protection of an historic
           property or a burial site and the public trust therein
           from unauthorized or improper demolition, alteration,
           or transfer of the property or burial site.

(Emphasis added).

           Although the City characterizes the “irreparable

injury” requirement as a limitation on the private right of

action set forth in HRS § 6E-13(b), this requirement is more


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properly characterized as a limitation on standing, which is “the

aspect of justiciability focusing on the party seeking a forum

rather than on the issues he wants adjudicated.”21           Citizens for

Prot. of North Kohala Coastline, 91 Hawai#i at 100, 979 P.2d at

1126; see also Cnty. of Hawai#i v. Ala Loop Homeowners, 123

Hawai#i 391, 406 n.20, 235 P.3d 1103, 1118 n.20 (2010) (“While

the term ‘standing’ is sometimes used to describe the private

right of action inquiry, nevertheless, our cases make clear that

the two inquiries involve distinct policy considerations and

distinct tests[.]     The private right of action inquiry focuses on

the question of whether any private party can sue to enforce a

statute, while the standing inquiry focuses on whether a

particular private party is an appropriate plaintiff.”)

(citations omitted) (emphasis in original).

            In general, Hawai#i courts determine whether a

plaintiff has standing by asking “(1) has the plaintiff suffered

an actual or threatened injury; (2) is the injury fairly

traceable to the defendant’s actions; and (3) would a favorable

decision likely provide relief for plaintiff’s injury.”             Id. at

422 n.43, 235 P.3d at 1134 n.43 (citation and ellipsis omitted).

However, HRS § 6E-13(b) qualifies the first prong of this test by

requiring that the “actual or threatened injury” be an


      21
            Although the City does not characterize its argument as a standing
argument, we nonetheless must address Kaleikini’s standing. Office of
Hawaiian Affairs v. Housing & Cmty. Dev. Corp. of Hawai#i, 121 Hawai#i 324,
326-27, 219 P.3d 1111, 1113-14 (2009) (noting that this court has a “duty to
consider, sua sponte, jurisdictional issues such as standing”) (citation
omitted).

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irreparable injury.

            This court has further explained:
            in analyzing whether a party has standing, our
            touchstone remains the needs of justice. . . . Thus,
            one whose legitimate interest is in fact injured by
            illegal action of an agency or officer should have
            standing because justice requires that such a party
            should have a chance to show that the action that
            hurts his interest is illegal. Moreover, at the
            pleading stage, general factual allegations of injury
            resulting from the defendant’s conduct may suffice.

Kaho#ohanohano v. State, 114 Hawai#i 302, 318, 162 P.3d 696, 712

(2007) (citations, internal quotation marks, and brackets

omitted).

            Here, Kaleikini’s allegations are sufficient to

establish her standing.       First, it is undisputed that Kaleikini

has a “legitimate interest” in the iwi found in Kaka#ako, see

Kaho#ohanohano, 114 Hawai#i at 318, 162 P.3d at 712, because she

is a recognized cultural descendant of those iwi.22           It is also

undisputed that the rail project has a high likelihood of

affecting iwi in Kaka#ako.      Kaleikini declared that “[t]he

unnecessary removal of iwi causes [her] great pain and

suffering.”    Additionally, the record reflects the OIBC’s view

that “[i]ntrusions into burials” are “considered extremely

offensive and disrespectful–-an act of violence and degradation

      22
             Additionally, this court has previously recognized in a different
context, in litigation concerning the availability of a contested case hearing
regarding the OIBC’s approval of a burial treatment plan, that Kaleikini’s
“cultural and religious beliefs regarding the protection of iwi” constitute a
legal interest sufficient to establish standing. Kaleikini v. Thielen, 124
Hawai#i 1, 26, 237 P.3d 1067, 1092 (2010) (“Throughout the instant litigation,
Kaleikini has averred that her cultural and religious beliefs require her to
ensure that the iwi is left undisturbed and that the OIBC’s decision, allowing
[General Growth Properties] to disinter the iwi, has caused her cultural and
religious injury. As such, we believe Kaleikini has alleged sufficient facts
upon which this court can determine she has standing.”).

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directed at the deceased individual, the living family members,

and the larger community associated with the burial.”             These

“general factual allegations of injury resulting from the

defendant’s conduct,” see Kaho#ohanohano, 114 Hawai#i at 318, 162

P.3d at 712, are sufficient to establish that Kaleikini has

suffered an actual or threatened irreparable injury.

            Nevertheless, the City argues that Kaleikini has not

asserted a sufficient injury because she has not “identified any

specific burial that is currently threatened by the Project.”

However, as stated, it is undisputed that the rail project has a

high likelihood of affecting iwi in Kaka#ako.          Accordingly, the

likelihood of uncovering burials in Kaka#ako is not speculative

or conjectural, but rather is high.23        Cf. Mottl v. Miyahira, 95

Hawai#i 381, 389, 395, 23 P.3d 716, 724, 730 (2001) (noting that

the plaintiff’s injury must be “distinct and palpable, as opposed

to abstract, conjectural, or merely hypothetical[,]” and

concluding that plaintiffs did not have standing where the

allegations “amount[ed] to speculation”). Moreover, HRS § 6E-

13(b), on its face, provides that an action may be maintained

“where the alleged violation occurred or is likely to occur . . .

upon a showing of irreparable injury[.]”          (Emphasis added).

Thus, HRS § 6E-13(b) specifically acknowledges that standing may

      23
            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. See infra n.24.

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exist where an irreparable injury has not yet occurred.

           In addition, the City’s narrow conception of standing

would frustrate enforcement of one of the central purposes of

state historic preservation law, which is to require that the

effects on historic properties be reviewed prior to the approval

of a project.   HRS § 6E-42(a); see also HRS § 6E-8(a).           Put

simply, under the City’s interpretation of HRS § 6E-13(b),

private plaintiffs would not have standing to challenge the lack

of an AIS until remains are uncovered during the course of

construction, except in certain limited circumstances where a

plaintiff happens to have prior knowledge of where burials are

located.   Yet that is precisely the type of situation that the

historic preservation law is designed to avoid.           The requirement

of “irreparable injury” in HRS § 6E-13(b) must be read in light

of the other provisions of chapter 6E.         When it is so read,

standing clearly exists in the circumstances alleged here.

           The City also asserts that Kaleikini cannot show an

irreparable injury to the burials because, under the PA, an AIS

will be completed prior to ground-disturbing construction in each

phase.   Accordingly, an AIS will be performed prior to any ground

disturbance in the Kaka#ako area.       However, the City’s point does

not address Kaleikini’s argument that the SHPD’s approval of the

entire rail project without a complete AIS forecloses the no-




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build option and alternative technologies or routes.24            Thus, the

approval of the rail project without an AIS may, for example,

lead to the relocation of burials that otherwise would remain in

place.   This is sufficient to establish an irreparable injury to

the iwi for purposes of HRS § 6E-13(b).

            Moreover, the City’s argument goes more to the merits

of Kaleikini’s claim than to Kaleikini’s standing.            See Hawaii

Med. Ass’n v. Hawaii Med. Serv. Ass’n, Inc., 113 Hawai#i 77, 94-

95, 148 P.3d 1179, 1196-97 (2006) (“In determining whether the

plaintiff has standing, we look solely to whether the plaintiff

is the proper plaintiff in this case, without regard to the

merits of the allegations in the complaint.”) (citation and

brackets omitted).      In order to conclude that Kaleikini suffers

no injury from the initiation of construction in Phase 1, we

would first be required to accept the City’s characterization of

the substantive law as permitting the AIS to be completed in

phases after the SHPD has given its concurrence to the entire

project.    Thus, the resolution of this question requires inquiry



      24
            The parties dispute whether the City is willing or able to change
the rail’s route. However, the final EIS indicates that the rail is currently
set to run on Halekauwila Street through Kaka#ako. There is nothing in the
record, and in particular the PA, to indicate that the City intends to reroute
the project if burials are encountered. Rather, the PA indicates that the
City is willing to relocate “guideway columns” “a limited distance along the
guideway[,]” to use “straddle-bent supports[,]” or to “modify span length to
allow for preservation-in-place[.]” Moreover, although the record reflects
the Federal Transit Administration’s mandate that any proposed change to the
project be approved by the Federal Transit Administration in writing, the City
does not identify anywhere in the record where the Federal Transit
Administration has suggested it is amenable to altering the rail’s route.
Thus, the City’s assertion that it may reroute the project so as not to affect
burials in Kaka#ako is speculative and insufficient to defeat Kaleikini’s
standing.

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into the merits beyond the threshold question of Kaleikini’s

standing.    See id.

            Kaleikini also asserts that she suffered an irreparable

procedural injury, because she was denied her opportunity to

consult and obtain information prior to decision making on the

rail project, and because “bureaucratic momentum,” will lead to

“after-the-fact determinations [that] may leave practitioners of

customary and traditional uses unprotected from possible

arbitrary and self-serving actions on [the City’s] part.”

            In Sierra Club v. Department of Transportation

(Superferry I), 115 Hawai#i 299, 322, 167 P.3d 292, 315 (2007),

this court recognized that a “procedural injury” may serve as a

basis for standing.      This court noted,
            This subset of standing doctrine - known as
            “procedural standing” - derives from footnote seven of
            the United States Supreme Court’s opinion in Lujan[ v.
            Defenders of Wildlife, 504 U.S. 555, 572 n.7 (1992)],
            in which the Court stated that “[t]he person who has
            been accorded a procedural right to protect his
            concrete interests can assert that right without
            meeting all the normal [standing] standards for
            redressability and immediacy.


Id. at 314, 167 P.3d at 321.

            In order to establish a cognizable procedural injury,

“at a minimum, a plaintiff must suffer some procedural wrong as

well as a threat to underlying concrete interests.”            Id. at 324,

167 P.3d at 317 (emphasis in original).          Additionally, in order

to establish that a procedural injury is sufficient to confer

standing under HRS § 6E-13(b), a plaintiff must establish that

the threat to his or her concrete interests involves a threat of


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irreparable injury.

            Here, Kaleikini “has been accorded a procedural right

to protect [her] concrete interests[.]”          See id. at 322, 167 P.3d

at 315.    First, as stated, Kaleikini has a concrete interest in

protecting the iwi located in Kaka#ako.         Additionally, although

neither HRS § 6E-8 nor HRS § 6E-42 specifically requires that

interested individuals such as Kaleikini be given an opportunity

to participate in the historic preservation review process, HAR

chapters 13-275, 13-276, and 13-284 do so require.            Specifically,

HAR chapters 13-275 and 13-284 provide for a “consultation

process”25 at various points in the historic preservation review.

See, e.g., HAR §§ 13-275-5(e) and 13-284-5(e) (requiring, in

certain circumstances, a consultation in relation to an

archaeological inventory survey); HAR §§ 13-275-8(a)(3)(C) and

13-284-8(a)(3)(C) (requiring a consultation regarding mitigation

commitments for historic property that has “an important value to

the native Hawaiian people or to another ethnic group of the

state”).    Additionally, HAR chapter 13-276 (2002), which governs

the scope of AISs, requires that an AIS describe the

“consultation process with knowledgeable individuals.”             HAR § 13-



      25
            “Consultation process” means “notifying interested organizations
and individuals that a project could affect historic properties of interest to
them; seeking their views on the identification, significance evaluations, and
mitigation treatment of these properties; and considering their views in a
good faith and appropriate manner during the review process.” HAR § 13-275-2;
see also HAR § 13-284-2.

            “Interested persons” is defined as “those organizations and
individuals that are concerned with the effect of a project on historic
properties.” HAR § 13-275-2.

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276-5(a).     Accordingly, the rules provide Kaleikini a procedural

right to consult in the historic preservation review process.

Finally, Kaleikini has sufficiently alleged that the “procedural

wrong” of her being unable to consult in an AIS prior to the rail

project’s approval causes a threat of irreparable harm to her

concrete interests in the iwi located in Kaka#ako, for the

reasons stated supra.        See Superferry I, 115 Hawai#i at 324, 167

P.3d at 317.

             Based on the foregoing, Kaleikini has made a sufficient

showing of irreparable injury based on both the threat of injury

to the Kaka#ako burial sites and her procedural injury, and

therefore has standing to pursue her claims.

B.     HAR chapters 13-275 and 13-284 required the completion of an
       AIS prior to the SHPD’s approval of the rail project

             Kaleikini argues that the City and State failed to

comply with HRS §§ 6E-8 and 6E-42 and their implementing rules by

proceeding with the rail project prior to the completion of an

AIS.    Specifically, Kaleikini argues that, under the relevant

rules, the historic preservation review process is a sequential

process that requires the completion of an AIS prior to approval

of the project.       Kaleikini also argues that “[t]here is only one

project at issue in this case: the entire 20-mile fixed guideway

rail system.”      Accordingly, Kaleikini argues, the City cannot

phase its AIS for the rail project but must instead “study all

phases” of the rail project.          Kaleikini argues that delaying or

phasing the AIS is inconsistent with the purposes of HRS chapter

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6E and its implementing rules.

          In response to Kaleikini’s argument that the sequential

nature of the historic preservation review process under the

relevant rules requires the completion of an AIS prior to

approval of the project, the City asserts that the SHPD had the

opportunity to review the project and provide its approval and

concurrence as required under HRS chapter 6E.          The State

similarly argues that the requirements of HRS chapter 6E have

been met, and also argues that the applicable rules “allow SHPD

to concur with commencement of projects absent full completion of

the review process, where appropriate interim protection plans

are in place.”    (Citing HAR §§ 13-275-3 and 13-284-3).          The State

asserts that the PA constitutes an “interim protection plan” that

allows the project to proceed prior to the completion of an AIS.

          With regard to phasing, both the City and State argue

that phasing is not expressly prohibited by HRS chapter 6E, the

SHPD has discretion to determine the scope of the “project” and

to approve a phased approach, and phasing is not contrary to the

policies underlying HRS chapter 6E.

          As set forth below, Kaleikini is correct that the

applicable rules clearly establish a sequential approach to the

historic preservation review process, which requires the

completion of an AIS prior to the approval of a project.            This

process was not followed in the instant case.          Moreover, although

the rules permit a project to commence where an “interim


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protection plan” is in place, the definition of “interim

protection measures” contained in HAR chapter 13-277 indicates

that the PA does not constitute an “interim protection plan.”

When viewed in context, it is apparent that an “interim

protection plan” is a form of mitigation that, under the

sequential approach of the rules, can only be developed after an

AIS has been completed.     See HAR §§ 13-275-8(a)(1), 13-284-

8(a)(1), 13-275-9(d), and 13-284-9(d).

          Additionally, as set forth below, the City and State’s

arguments regarding phasing are without merit.          Phasing the AISs

subsequent to approval of the project is impermissible because

the rules require that historic properties in the “project area”

be identified prior to approval.       The broad definition of the

term “project area” encompasses the entire rail project corridor,

and the historic preservation review process was therefore

required to identify significant historic properties in the

entire rail project corridor prior to the SHPD giving its

concurrence.   Accordingly, the circuit court erred in granting

summary judgment in favor of the City and State on Counts 1

through 4.

     1.   The applicable rules establish a sequential approach to
          the historic preservation review process

          HRS § 6E-8 provides, in pertinent part:

          Review of effect of proposed state projects. (a)
          Before any agency or officer of the State or its
          political subdivisions commences any project which may
          affect historic property, aviation artifact, or a
          burial site, the agency or officer shall advise the
          [DLNR] and allow the [DLNR] an opportunity for review


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            of the effect of the proposed project on historic
            properties, aviation artifacts, or burial sites,
            consistent with section 6E-43, especially those listed
            on the Hawaii register of historic places. The
            proposed project shall not be commenced, or in the
            event it has already begun, continued, until the
            [DLNR] shall have given its written concurrence.

(Emphasis added).

            HRS § 6E-42 provides, in pertinent part:

                  Review of proposed projects. (a) Before any
            agency or officer of the State or its political
            subdivisions approves any project involving a permit,
            license, certificate, land use change, subdivision, or
            other entitlement for use, which may affect historic
            property, aviation artifacts, or a burial site, the
            agency or office shall advise the [DLNR] and prior to
            any approval allow the [DLNR] an opportunity for
            review and comment on the effect of the proposed
            project on historic properties, aviation artifacts, or
            burial sites, consistent with section 6E-43,[ 26]
            including those listed in the Hawaii register of
            historic places.

(Emphasis added).

            Both HRS §§ 6E-8 and 6E-42 apply in the instant case.

Both statutes similarly provide for a review and comment process

for projects that may affect burial sites.          However, while HRS §

6E-8 applies to projects commenced by “any agency or officer of

the State or its political subdivisions[,]” HRS § 6E-42 applies

only to projects which require the approval of “any agency or

officer of the State or its political subdivisions” for a

“permit, license, certificate, land use change, subdivision, or

other entitlement for use[.]”        Here, the rail project is a

project commenced by the City, and therefore HRS § 6E-8 applies.

Additionally, the City is required to approve various permits for



      26
            HRS § 6E-43 (2009) concerns the handling of prehistoric and
historic burial sites.

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the rail project, including a special management area permit, and

therefore HRS § 6E-42 also applies.

            Both statutes require that the DLNR be given an

opportunity to review and comment on the proposed project.             See

HRS §§ 6E-8 and 6E-42.     Additionally, HRS § 6E-8 requires that

the DLNR give its written concurrence before the project can

commence, while HRS § 6E-42 does not.         Compare HRS § 6E-8 with

HRS § 6E-42.    Here, the City and State argue that the

requirements of HRS §§ 6E-8 and 6E-42 have been met because the

SHPD was given an opportunity to review and comment on the rail

project, and the SHPD gave its written concurrence by way of its

concurrence in the PA.

            However, while HRS §§ 6E-8 and 6E-42 provide generally

for a review and comment process, the details of this process are

governed by HAR chapter 13-275 (for HRS § 6E-8) and HAR chapter

13-284 (for HRS § 6E-42).      See HAR § 13-275-1(b) (“This chapter

itemizes the process to obtain concurrence.”); HAR § 13-284-1(b)

(“This chapter itemizes the review process that the SHPD shall

follow to make comments . . . thereby meeting the opportunity to

comment under [HRS §] 6E-42[.]”).         The administrative rules

provide for a very similar review and comment process under both

statutes.

            The rules implementing HRS § 6E-8 note that, before an

agency can begin a project, the SHPD must generally provide a

determination letter, which is “the SHPD’s written response which


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either concurs or does not concur with the agency’s proposed

project.”27    HAR §§ 13-275-2 and 13-275-3(a).        The SHPD may issue

a determination letter where “adequate information” has been

received, and “[i]n cases where interim protection plans are

adequately in place or data recovery fieldwork has been

adequately completed[.]”       HAR § 13-275-3(a).28        “Once concurrence

is received, the agency may begin with the project.”             HAR § 13-

275-3(a).     The process for obtaining a determination letter is,

in brief summary, as follows.

            First, an agency proposing a project “shall notify the


      27
            A determination letter containing the SHPD’s concurrence in the
project is not required under HRS § 6E-42. Instead, “the agency involved
. . . shall consult with the SHPD and shall obtain the written comments of the
SHPD at each step of the review.” HAR § 13-284-3(a). Nevertheless, under the
rules, the § 6E-42 process, like the § 6E-8 process, requires that the SHPD
give its written acceptance or concurrence at various stages of the project.
See, e.g., HAR §§ 13-284-5(f), 13-284-6(e), 13-284-8(c). For purposes of the
instant case, the review steps under HAR chapter 13-284 are nearly identical
to those contained in chapter 13-275, and accordingly are not discussed in
detail herein.

      28
            In its entirety, HAR § 13-275-3(a) provides:

            For the department to provide a letter of
            determination, an agency proposing a project which may
            have an effect upon historic properties shall notify
            the department of the proposed project and request a
            letter of determination. Upon the request of the
            department, the agency shall provide the department
            with information as to the number of historic
            properties within a proposed project area, their
            significance, the impact of the proposed project on
            the historic properties, and any proposed mitigation
            measures. Upon receipt of adequate information the
            department will provide a determination letter within
            ninety days. Any agency involved in the historic
            preservation review process shall consult and obtain
            the written approval of the SHPD at each step of the
            review. Once concurrence is received, the agency may
            begin the project. In cases where interim protection
            plans are adequately in place or data recovery
            fieldwork has been adequately completed, a
            determination letter may be issued.

(Emphasis added).

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[DLNR] of the proposed project and request a letter of

determination.”      HAR § 13-275-3(a).     The agency must then

identify and inventory historic properties present in the project

area.      HAR §§ 13-275-3(b)(1), 13-275-5(a).      In so doing, the

agency “shall first consult the SHPD to determine if the area

proposed for the project needs to undergo an inventory survey to

determine if historic properties are present.”           HAR § 13-275-

5(b).      The SHPD may respond to the agency’s request in one of

three ways:      (1) by determining that no historic properties are

present; (2) by determining that “an adequate survey exists and

that historic properties are present,” which allows the agency to

proceed to “the next step in the review process, [i.e.,]

evaluation of the significance of the historic properties”; or

(3) by concluding that an inventory survey needs to be done,

which must “identify all historic properties and gather enough

information to evaluate the properties’ significance.”29            HAR

§§ 13-275-5(b)(1)-(5).

              Here, it is undisputed that the SHPD concluded an AIS

needed to be done.      The rules define an AIS as “the

identification and documentation of archaeological historic

properties and burial sites in a delineated area, gathering

sufficient information to evaluate significance of the historic

properties and burial sites, and compiling the information into a



      29
            The rules describe three types of inventory surveys: an
archaeological inventory survey, an ethnographic survey, and an architectural
inventory survey. HAR §§ 13-275-5(b)(5)(A)-(C).

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written report for review and acceptance by the department.”                  HAR

§ 13-275-2 (emphasis added).          The rules further provide that an

AIS:
             may be undertaken when the SHPD concludes that
             archaeological properties are present or are likely to
             be present. Archaeological survey often involves
             detailed field mapping and test excavations,
             laboratory analyses, and interpretive studies. . . .
             Results of the survey shall be reported either through
             an archaeological assessment, if no sites were found,
             or an archaeological survey report[.]

HAR § 13-275-5(b)(5)(A).

             Where the SHPD determines that an AIS is needed, a copy

of the completed archaeological assessment or survey report

“shall” be submitted to the SHPD for review.             HAR § 13-275-5(e).

Interested persons are given an opportunity to comment on the

assessment or report.        HAR § 13-275-5(e)(1).       The SHPD must

inform the agency within 45 days if the information contained in

the report or assessment is adequate or inadequate.              HAR § 13-

275-5(e).     If the report or assessment is inadequate, the agency

is given an opportunity to correct the problems and resubmit the

results.     HAR § 13-275-5(e)(2).       If the report or assessment is

adequate, it is accepted by the SHPD.           HAR § 13-275-5(e)(3).         If

the assessment or report is accepted and indicates no historic

properties are present, “then historic preservation review ends

and the SHPD shall include in the notice of final acceptance its

written concurrence to the project[.]”            HAR § 13-275-5(f)

(emphasis added).       In contrast, if the report is adequate and

historic properties are present, then the review process

continues and “the significance of each property shall be

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evaluated and discussed[.]”      HAR § 13-275-5(g) (emphasis added).

            The initial assessment of the significance of each

property may be made by the agency or the SHPD.           HAR § 13-275-

6(a).   For properties other than architectural properties, the

agency must “consult with ethnic organizations or members of the

ethnic group for whom some of the historic properties may have

significance . . . to seek their views on the significance

evaluations.”    HAR § 13-275-6(c).       The SHPD must concur in the

assessments of significance before they are finalized.            HAR § 13-

275-6(d).    “If there is an agreement that none of the historic

properties are significant, then historic preservation review

ends and the SHPD shall issue its written concurrence to the

project[.]”    HAR § 13-275-6(e).     However, “[w]hen significant

historic properties are present, then impacts of the proposed

action on these properties shall be assessed, and mitigation

commitments shall be devised as needed.”         Id. (emphasis added).

            The impact of the proposed action on historic

properties is initially determined by the agency.           HAR § 13-275-

7(a).   There are two possible determinations: (1) “no historic

properties affected”; or (2) “[e]ffect, with proposed mitigation

commitments,” meaning “[t]he project will affect one or more

significant historic properties, and the effects will be

potentially harmful.     However, the agency has proposed mitigation

commitments . . . to reasonably and acceptably mitigate the

harmful effects.”    HAR §§ 13-275-7(a)(1)-(2).        The agency’s


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determination must be submitted to the SHPD for review and

approval, and must include “a map showing the location of the

project and a general discussion of the project’s scope of work,

so the nature of possible effects can be understood.”            HAR § 13-

275-7(c).    If the SHPD “agrees that the action will not affect

any significant historic properties, this is the SHPD’s written

concurrence and historic preservation review ends.”           HAR § 13-

275-7(e).    However, if the project “will have an ‘effect, with

proposed mitigation commitments’, then mitigation commitments and

detailed mitigation plans shall be developed by the agency and

approved by SHPD[.]”     Id. (emphasis added).

            Finally, where a project will have an effect on

significant historic properties, “then a mitigation commitment

proposing the form of mitigation to be undertaken for each

significant historic property shall be submitted by the agency to

the SHPD for review and approval.”        HAR § 13-275-8(a) (emphasis

added).    In certain circumstances, the agency must also consult

with “ethnic organizations or members of the ethnic group for

whom the historic properties have significance . . . to seek

their views on the proposed forms of mitigation.”           HAR § 13-275-

8(a)(2).    The mitigation commitment must contain, inter alia,

“[a] table of the significant historic properties, indicating

which form or forms of mitigation is proposed for each

property[.]”    HAR § 13-275-8(a)(3)(A).       “If the commitments are

acceptable, the SHPD shall send a determination letter concurring


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with the proposed project[.]”       HAR § 13-275-8(c).      Additionally,

however, “[i]f identified unmarked burial sites are present, the

relevant island burial council of the [DLNR] must approve the

proposed mitigation commitments for native Hawaiian burials,

following [HRS §] 6E-43, . . . and [HAR §] 13-300-33.”            HAR § 13-

275-8(d).

            Again, “[o]nce concurrence is received, the agency may

begin with the project.”      HAR § 13-275-3(a).      However, the agency

must still provide the SHPD with “detailed plans for the

mitigation work for SHPD review and approval.”          HAR § 13-275-

8(h).   Additionally, once the detailed mitigation plans are

carried out, the agency must document its completion of the plan,

and must request verification from the SHPD that the mitigation

work has been completed.      HAR § 13-275-9(a).      If the SHPD

concludes that the mitigation work has been successfully

concluded, “the historic preservation process is concluded.”               HAR

§ 13-275-9(a), (c).

            In sum, the rules clearly set out a sequential process

for obtaining the SHPD’s concurrence to a project.           Where an AIS

is required, it forms part of the first step in this process,

i.e., identification and inventory of historic properties in the

project area.   HAR § 13-275-5.      Once an adequate AIS has been

submitted, the significance of “each property” is evaluated.               HAR

§ 13-275-5(g); see also HAR § 13-275-6.         If significant historic

properties are present, the impact of the proposed project on the


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properties must be assessed.       HAR § 13-275-7.     If the project

will affect significant historic properties, the agency must

submit mitigation commitments, “proposing the form of mitigation

to be undertaken for each significant historic property[.]”                HAR

§ 13-275-8(a) (emphasis added).       The rules do not authorize the

issuance of a determination letter until these mitigation

commitments have been accepted by the SHPD.          HAR § 13-275-8(c).

          It is undisputed that these steps were not followed

prior to the SHPD’s concurrence in the rail project.            Here, the

SHPD concluded that an AIS needed to be completed for all four

phases of the rail project.      However, only the AIS for Phase 1

was completed prior to the SHPD’s concurrence in the project.

          Additionally, the PA does not fulfill the same

functions as the historic preservation review process.            While the

rules utilize an AIS to identify and evaluate specific historic

properties and to develop specific forms of mitigation for those

properties, the PA provides generally that historic properties

are present in the project area, that OIBC will be consulted with

regard to burials, and that the as-yet-unidentified burials

identified during the AIS process will either be preserved in

place or relocated.

          In short, the PA commits to undergoing the historic

preservation review process at a later time.          The City appears to

acknowledge this in its opening brief, where the City states

that, “[i]n accordance with the terms of the PA and [c]hapter 6E,


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SHPD will continue to be consulted, have the opportunity to

comment, and retain the right and authority to approve the

remaining Phases.”      However, the City does not address the rules,

which require that these steps be taken before the SHPD gives its

concurrence in the project.

            Nevertheless, the State argues that “[a]pplicable rules

recognize SHPD’s discretion over decisions regarding the

appropriate scope and approach of the historic preservation

review process for a given project.”         (Citing, inter alia, HAR

§§ 13-275-5 and 13-284-530).       However, the provisions cited by

the State do not support the State’s apparent assertion that the

SHPD has the discretion to opt-out of the sequential process

outlined in the rules.      HAR §§ 13-275-5 and 13-284-5 provide the

SHPD with the discretion to determine whether an AIS is

necessary.    HAR §§ 13-275-5(b) and 13-284-5(b).          The State does

not point to any subsection of HAR §§ 13-275-5 or 13-284-5 that

affords the SHPD discretion to forego or delay an AIS where one

is required.

            Accordingly, the applicable rules establish a

sequential approach to the historic preservation review process,

under which an AIS will be completed prior to the SHPD giving its

concurrence in a project.       These steps were not followed in the

instant case.     Accordingly, the SHPD improperly concurred in the

rail project.

      30
            The State also cites to HAR §§ 13-275-3 and 13-284-3, which are
discussed infra.

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      2.    The PA does not constitute an interim protection plan

            In the circuit court, the City argued that the PA

constituted an “interim protection plan” that allowed the SHPD to

give its concurrence in the rail project.          Although the City does

not press this argument on appeal, the State argues that “[t]he

rules expressly allow SHPD to concur with commencement of

projects absent full completion of the review process, where

appropriate interim protection plans are in place.”            (Emphasis

added).

            HAR § 13-275-3(a) provides, in pertinent part: “In

cases where interim protection plans are adequately in place or

data recovery fieldwork has been adequately completed, a

determination letter may be issued.”         (Emphasis added).      HAR

§ 13-284-3(a) similarly provides, in pertinent part: “In cases

where any interim protection plans are adequately in place and

any data recovery fieldwork has been adequately completed, the

project may commence from a historic preservation perspective.”

(Emphasis added).     The differences in these two provisions do not

appear to be material,31 and accordingly, we focus on HAR chapter

13-275 for ease of reference.



      31
            Although HAR § 13-284-3(a) is worded in the conjunctive, the
additional insertion of the word “any” appears to suggest that the intent was
not to require both an interim protection plan and data recovery fieldwork.
This makes sense since there could be projects where, for example, an interim
protection plan would be adequate to protect existing burials from damage
during construction and, therefore, there would be no need to recover data
from those burial sites since they would presumably remain intact. See
discussion infra describing “interim protection measures” and “archaeological
data recovery.”

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          The State’s argument fails because the PA does not

constitute an interim protection plan.         The State asserts that

the PA constitutes an interim protection plan because:
          the PA requires completion of AISs for each
          construction phase of the Project and mandates
          consultation with OIBC regarding the disposition of
          any burials discovered through that process prior to
          final design and commencement of any ground-disturbing
          activities in each phase. The PA expressly preserves
          all protections afforded historic properties, and
          burials in particular, under [c]hapter 6E and ensures
          that the full review process is complete for each
          phase before ground-disturbing work commences in each
          phase.

          Put another way, the State appears to assert that the

PA constitutes an interim protection plan because it requires

that the historic preservation review process, and the

protections it affords, be complied with at a later date.             In

general, an agency’s interpretation of its own rules is entitled

to deference.   Gillian, 119 Hawai#i at 125, 194 P.3d at 1087

(citation omitted).     However, we do not defer to agency

interpretations that are “plainly erroneous or inconsistent with

the underlying legislative purpose.”        In re Wai#ola O Moloka#i,

Inc., 103 Hawai#i at 425, 83 P.3d at 688; see In re Water Use

Permit Applications, 94 Hawai#i 97, 145, 9 P.3d 409, 457 (2000)

(“[W]e have not hesitated to reject an incorrect or unreasonable

statutory construction advanced by the agency entrusted with the

statute’s implementation.”).       In the instant case, the State’s

interpretation of the phrase “interim protection plan” is not

supported by the rules, and is therefore plainly erroneous.

          “Interim protection plan” is not defined in either HAR


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chapter 13-275 or 13-284.       However, HAR chapter 13-277, which

contains the SHPD’s requirements for archaeological site

preservation and development, addresses “interim protection

measures.”    HAR § 13-277-5 (2002).        These measures include:
            (1)   Flagging the perimeter of the buffer zone;
            (2)   Erecting barriers (such as plastic fencing)
                  along the buffer zone;
            (3)   Placing avoidance instructions on construction
                  plans and specifications;
            (4)   On-site, pre-construction briefing of the hired
                  construction firm; and
            (5)   Having an archaeological monitor on-site during
                  ground alteration activities.

HAR § 13-277-5.

            Presumably, then, an interim protection plan is a plan

to institute these or similar types of interim protection

measures.    Notably, these measures appear designed to protect

specific, identified archaeological resources during the

construction phase of the project and do not involve, as the

State asserts, a plan to comply with the historic preservation

review process at a later date.

            This interpretation is confirmed when the reference to

“interim protection plan” in HAR § 13-275-3(a) is viewed in the

larger context of chapter 13-275.           Specifically, the section of

chapter 13-275 addressing mitigation contains references to both

“protection” and “data recovery.”32          HAR §§ 13-275-8(a)(1)(A)


      32
            Additionally, data recovery appears to refer to the specific
treatment of an identified significant historic property. Because either an
“interim protection plan” or “data recovery” is sufficient to allow a project
to proceed under HAR § 13-275-3(a), the meaning of “interim protection plan”
should be interpreted in light of the definition of “data recovery.” State v.
Matavale, 115 Hawai#i 149, 160, 166 P.3d 322, 333 (2007) (“[T]he meaning of
words or phrases in a statute may be determined by reference to the meaning of
                                                                 (continued...)

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(“Preservation [] may include avoidance and protection

(conservation), stabilization, rehabilitation, restoration,

reconstruction, interpretation, or appropriate cultural use.”)

(emphasis added); 13-275-8(a)(1)(C) (noting that archaeological

data recovery “enables the recovery of an adequate and reasonable

amount of the significant information from a significant historic

property prior to its alteration or destruction”).

            Under the sequential process described supra,

mitigation plans can only be developed after significant historic

property has been identified through an AIS or similar study.

This is because “[t]he review process is designed to identify

significant historic properties in project areas and then to

develop and execute plans to handle impacts to the significant

properties in the public interest.”         HAR § 13-275-1(a) (emphasis

added).    As Kaleikini states, it would “turn[] the process upside

down” to permit mitigation commitments to be made prior to the

properties at issue being identified.

            Based on the foregoing, the State is incorrect in its

assertion that the PA constitutes an interim protection plan.

      3.    The City’s and State’s arguments regarding phasing are
            without merit

            The City and State argue that phasing of the historic



      32
        (...continued)
words or phrases associated with it[.]”) (citation omitted). Because the
definition of “data recovery” involves the treatment of specific historic
properties, it would be inconsistent to interpret “interim protection plan” to
refer to a general plan for the treatment of as-yet-unidentified historic
properties.

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preservation review process is permissible because (1) phasing is

not expressly prohibited by HRS chapter 6E; (2) phasing of the

historic preservation review process is distinct from the concept

of segmentation that is prohibited in the preparation of an EIS;

(3) the SHPD has discretion to determine the scope of the

“project” and to approve a phased approach; and (4) HRS chapter

6E is silent on phasing, and this court should therefore look to

federal law, which expressly permits phasing, for guidance.

          The City’s and State’s arguments are without merit.

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

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).    The definition of “project area” is quite

broad, and provides:
                “Project area” means the area the proposed
          project may potentially affect, either directly or
          indirectly. It includes not only the area where the
          proposed project will take place, but also the
          proposed project’s area of potential effect.

HAR §§ 13-275-2 and 13-284-2 (emphasis added).

          This definition of “project area” encompasses all four

phases of the rail project.      Specific to the issue presented

here, the rail corridor through Kaka#ako is one of the areas in

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which the rail project “will take place,” and is thus one of the

areas “the proposed project may potentially affect[.]”             See id.

Kaka#ako is therefore within the “project area,” and the historic

preservation review process was required to identify significant

historic properties in this area, and to address any impacts on

those properties, prior to the SHPD giving its concurrence.                See,

e.g., HAR §§ 13-275-1(a) and 13-284-1(a).

          The City and State point out that phasing is explicitly

prohibited in the environmental review process (and specifically

the Hawai#i Environmental Policy Act (HEPA)), but not in the

historic preservation review process.        HEPA governs environmental

assessments and EISs for certain types of “actions.”            See HRS

chapter 343-2.    An “action” is defined as “any program or project

to be initiated by any agency or applicant.”          HRS § 343-2.     Under

the HEPA’s implementing rules, multiple or phased “actions” are

considered a “single action” in certain specified circumstances:
          Multiple or Phased Applicant or Agency Actions. A
          group of actions proposed by an agency or an applicant
          shall be treated as a single action when:
          A.    The component actions are phases or increments
                of a larger total undertaking;
          B.    An individual project is a necessary precedent
                for a larger project;
          C.    An individual project represents a commitment to
                a larger project; or
          D.    The actions in question are essentially
                identical and a single statement will adequately
                address the impacts of each individual action
                and those of the group of actions as a whole.

HAR § 11-200-7.

          The City and State argue that, because the historic

preservation law does not contain a provision similar to HAR



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§ 11-200-7, phasing is permissible.        We recognize that there is

no similar provision in HRS chapter 6E or its implementing rules

that specifically addresses whether and when multiple phases of a

project must be considered to be a single project.           However, the

broad definition of “project area” is, in itself, inconsistent

with phasing.   Thus, while we agree with the City and State that

the historic preservation laws and the environmental protection

laws involve differing goals, policy considerations, and

protections, we do not find these distinctions to be dispositive.

Rather, our analysis is based on the plain language of the

respective rules and, specifically, the definition of “project

area.”

          The City and State also assert that the SHPD has

discretion to determine what comprises a “project” under HRS

chapter 6E, and that its determination that a project can be

phased is entitled to deference.       We note initially that the

question of “whether or not an agency has followed proper

procedures . . . in making its determination is a question of

law, and will be reviewed de novo.”        Superferry I, 115 Hawai#i at

315, 167 P.3d at 308.     In the instant case, we are asked to

determine whether the SHPD followed proper procedures in

concurring in the rail project.       Under Superferry I, this is a

question of law, for which the agency is not entitled to

deference.   Moreover, where a rule is unambiguous and consistent

with the policies of the statute, and its application will not


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produce an absurd or unjust result, we enforce the rule’s plain

meaning.   In re Wai#ola O Moloka#i, Inc., 103 Hawai#i at 425, 83

P.3d at 688.   Here, no ambiguity is created by the absence of an

express phasing provision from HAR chapters 13-275 and 13-278.

Under the plain meaning of the rules, the review process for the

entire project area must be completed prior to the SHPD giving

its concurrence in a project.

           Moreover, even assuming arguendo that our review of

this issue is deferential to the agency, we note that we are not

being asked to defer to any express conclusion of the SHPD.

Although Aiu suggested in her declaration that the SHPD views the

PA as satisfying the requirements of HRS chapter 6E, the PA

itself does not reflect any express consideration of whether

phasing is permissible under state law.         To the contrary, the

provisions of the PA, and the phased process it sets forth, focus

on compliance with federal law.       The PA begins by noting that the

rail project is a federal undertaking subject to section 106 and

its implementing regulations, and the EIS refers to the PA as a

“Section 106 of the National Historic Preservation Act Draft

Programmatic Agreement.”      The PA also notes that the Federal

Transit Administration consulted with the SHPD as a requirement

under the federal regulations.       See 36 C.F.R. § 800.2(c)(1).          It

states that the Federal Transit Administration and the SHPD “have

agreed that a phased approach to identification and evaluation of

archaeological sites is appropriate, pursuant to 36 C.F.R. §


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800.4(b)(2)[.]”    (Emphasis added).      Notably absent is any

reference to the phased approach fulfilling the requirements of

HRS chapter 6E.    Although the SHPD ultimately agreed to the

phased approach, we are unconvinced that the SHPD’s concurrence

in the PA constitutes a discretionary decision as to the

requirements of HRS chapter 6E, to which we might otherwise give

deference.

            In addition, the SHPD concurred in the entire rail

project by executing the PA.       Indeed, the final EIS acknowledges

that “[t]he project is not a series of projects, but a single

project that consists of a series of construction phases[.]”

(Emphasis added).    And, the City admitted, in its responses to

Kaleikini’s requests for admission, which were submitted with

Kaleikini’s motion for reconsideration, that “[a]ll four phases

of the [rail project] are connected and part of a single

project.”    (Emphasis added).     Again, the rules do not afford the

SHPD discretion to opt-out of the sequential review process

outlined in the rules.     See HAR §§ 13-275-3(a), 13-284-3(a).            The

rules require the SHPD to complete the entire historic

preservation review process prior to giving its concurrence in a

project, in this case, the entire rail project.

            The City and State also argue that this court should

conclude that it is permissible to conduct the historic

preservation review process in phases, because federal law

expressly permits a phased approach, and no express prohibition


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against phasing is contained in Hawai#i law.         The regulations

implementing the National Historic Preservation Act of 1966

(NHPA) explicitly permit the phased identification and evaluation

of historic properties as follows:
          Phased identification and evaluation. Where
          alternatives under consideration consist of corridors
          or large land areas, or where access to properties is
          restricted, the agency official may use a phased
          process to conduct identification and evaluation
          efforts. The agency official may also defer final
          identification and evaluation of historic properties
          if it is specifically provided for in a memorandum of
          agreement executed pursuant to § 800.6, a programmatic
          agreement executed pursuant to § 800.14(b), or the
          documents used by an agency official to comply with
          the National Environmental Policy Act pursuant to
          § 800.8. The process should establish the likely
          presence of historic properties within the area of
          potential effects for each alternative or inaccessible
          area through background research, consultation and an
          appropriate level of field investigation, taking into
          account the number of alternatives under
          consideration, the magnitude of the undertaking and
          its likely effects, and the views of the [State
          Historic Preservation Officer/Tribal Historic
          Preservation Officer] and any other consulting
          parties. As specific aspects or locations of an
          alternative are refined or access is gained, the
          agency official shall proceed with the identification
          and evaluation of historic properties in accordance
          with paragraphs (b)(1) and (c) of this section.

36 C.F.R. § 800.4(b)(2) (emphasis added).

          The Hawai#i rules contain no such provision, and we

find the City’s and State’s reliance on federal law unpersuasive

in this context.    An examination of the federal regulations

reveals that phasing is central to the federal historic

preservation review process.       The federal regulations contain

separate provisions regarding phasing for the identification and

evaluation stage, the assessment stage, and the mitigation stage.

36 C.F.R. §§ 800.4(b)(2), 800.5(a)(3), 800.6(a)(1)(i)(C).             The

regulations also contain detailed provisions regarding the use

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and development of programmatic agreements, and allow the

Advisory Council on Historic Preservation to provide a prototype

programmatic agreement that may be used for other federal

projects.    36 C.F.R. § 800.14(b).       A body of federal caselaw has

developed regarding the propriety of phasing projects.            E.g.,

Wilderness Soc’y v. U.S. Bureau of Land Mgmt., 822 F. Supp. 2d

933, 949-51 (D. Ariz. 2011).       Furthermore, federal courts have

declined to import the phasing concept into other aspects of

federal law.    E.g., N. Idaho Cmty. Action Network v. U.S. Dep’t

of Transp., 545 F.3d 1147, 1158-59 (9th Cir. 2008) (noting that

phasing is permitted under the NHPA, but concluding that it is

not permitted under § 4(f) of the Department of Transportation

Act, which requires that an evaluation be completed prior to an

agency issuing a record of decision).

            None of the detailed provisions, limitations, or

safeguards defining the federal law on phasing are contained in

state law.    While federal law is a useful tool for interpreting

state law where federal and state provisions are analogous, see

State v. Ontai, 84 Hawai#i 56, 61, 929 P.2d 69, 74 (1996)

(“[F]ederal law is an important aid to construction because HRS §

842-2 was derived from the federal . . . statute.”); see also

Cvitanovich-Dubie v. Dubie, 125 Hawai#i 128, 142 n.15, 254 P.3d

439, 453 (2011) (noting that interpretations of federal rules

“provide persuasive reasoning for the interpretation of” similar

state rules), it does not provide a means of importing absent


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provisions into Hawai#i law.      In the circumstances here, reliance

on federal law would involve more than simply providing context

or content for an existing state statute or regulation.            It would

require us to import a complex and detailed federal regulatory

scheme that has no analog in state law.

          Moreover, a review of HAR chapters 13-275 and 13-284

indicates that the drafters of the rules were aware of the

federal regulations.     Some of the Hawai#i rules refer directly to

federal standards.    See HAR §§ 13-275-8(h)(5) and 13-284-8(e)(5)

(referring to the Secretary of the Interior’s standards for

historic preservation).     Additionally, some of the provisions of

the Hawai#i rules appear to be loosely patterned after the

federal regulations.     Compare HAR chapters 13-275 and 13-284 with

36 C.F.R. §§ 800.3 through 800.16.        For example, the federal

regulations, like the Hawai#i rules, set forth a general process

for identification, assessment, and mitigation of effects on

historic properties.     36 C.F.R. §§ 800.4 through 800.6; see also

Mid States Coal. for Progress v. Surface Transp. Bd., 345 F.3d

520, 553 (8th Cir. 2003) (noting that “an NHPA analysis involves

a three-step process of identification, assessment, and

mitigation.”).    However, despite their apparent familiarity with

the federal regulations, the drafters of the Hawai#i rules did

not include a provision similar to 36 C.F.R. § 800.4(b)(2) that

would expressly permit phasing.       The silence of the Hawai#i rules

with regard to phasing suggests an intent to preclude the phasing


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of projects, rather than an intent to leave that issue open.

            Accordingly, the City’s and State’s argument that

phasing of the historic preservation review process is

permissible is without merit, since the rules adopted under HRS

chapter 6E do not permit it.33       Based on the foregoing analysis,

the circuit court erred in granting summary judgment in favor of

the City and the State on Counts 1 through 4.34           We therefore

vacate the circuit court’s judgment in favor of the City and

State on these counts.      Although Kaleikini requests that we enter

summary judgment in her favor, we note that Kaleikini sought a

wide range of relief in the circuit court, and the rationale for

granting or denying that relief has not been fully developed.

Moreover, additional information may have become available since

the City’s motion was decided, and it is not clear what impact

these additional facts may have on the relief Kaleikini seeks.

Accordingly, we decline Kaleikini’s invitation to enter judgment

in her favor, and instead remand to the circuit court for further

proceedings.

C.    The final EIS was not required to contain an AIS

            Kaleikini argues that the final EIS was inadequate

under HRS chapter 343 because it did not contain a completed AIS.


      33
            We do not address whether the SHPD may amend the rules to allow
for the phased identification and evaluation of historic properties, such as
that permitted by 36 C.F.R. § 800.4(b)(2).

      34
            Aside from her arguments on the merits, Kaleikini does not provide
further argument as to how the circuit court abused its discretion in denying
her motion for reconsideration. Accordingly, we do not separately address
this point of error.

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The City argues that there is no requirement in HRS chapter 343

that an EIS contain an AIS.      The State does not address

Kaleikini’s argument.

          An EIS is:
          an informational document prepared in compliance with
          the rules adopted under [HRS] section 343-6 and which
          discloses the environmental effects of a proposed
          action, effects of a proposed action on the economic
          welfare, social welfare, and cultural practices of the
          community and State, effects of the economic
          activities arising out of the proposed action,
          measures proposed to minimize adverse effects, and
          alternatives to the action and their environmental
          effects.

HRS § 343-2 (2010) (emphasis added).

          The definition of “environment” contained in the

administrative rules implementing HRS chapter 343 includes

objects of historical significance.        HAR § 11-200-2.

          The rules provide a process for the preparation of

draft and final EISs.     HAR §§ 11-200-14 through 11-200-23.          For

example, the rules explain:
          Chapter 343, HRS, directs that in both agency and
          applicant actions where statements are required, the
          preparing party shall prepare the EIS, submit it for
          review and comments, and revise it, taking into
          account all critiques and responses. Consequently,
          the EIS process involves more than the preparation of
          a document; it involves the entire process of
          research, discussion, preparation of a statement, and
          review. The EIS process shall involve at a minimum:
          identifying environmental concerns, obtaining various
          relevant data, conducting necessary studies, receiving
          public and agency input, evaluating alternatives, and
          proposing measures for avoiding, minimizing,
          rectifying or reducing adverse impacts. An EIS is
          meaningless without the conscientious application of
          the EIS process as a whole, and shall not be merely a
          self-serving recitation of benefits and a
          rationalization of the proposed action. Agencies
          shall ensure that statements are prepared at the
          earliest opportunity in the planning and
          decision-making process. This shall assure an early
          open forum for discussion of adverse effects and
          available alternatives, and that the decision-makers


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          will be enlightened to any environmental consequences
          of the proposed action.

HAR § 11-200-14 (1996) (emphasis added).

          Although an EIS is not specifically required to contain

an AIS, the draft EIS must contain, inter alia,
          a description of the environment in the vicinity of
          the action, as it exists before commencement of the
          action, from both a local and regional perspective.
          Special emphasis shall be placed on environmental
          resources that are rare or unique to the region and
          the project site (including natural or human-made
          resources of historic, archaeological, or aesthetic
          significance)[.]

HAR § 11-200-17(G) (1996) (emphasis added).

          The final EIS consists of, inter alia, “[t]he draft EIS

revised to incorporate substantive comments received during the

consultation and review processes[.]”        HAR § 11-200-18 (1996).

“The final EIS is [] required to be ‘accepted’ by the accepting

authority . . . before the proposed action or project can proceed

to the permitting stage.”      Price, 81 Hawai#i at 180-81, 914 P.2d

at 1373-74; HAR §§ 11-200-4 (1996) and 11-200-23 (1996).            The

acceptability of an EIS is evaluated by the decision maker “on

the basis of whether the statement, in its completed form,

represents an informational instrument which fulfills the

definition of an EIS and adequately discloses and describes all

identifiable environmental impacts and satisfactorily responds to

review comments.”    HAR § 11-200-23.

          In reviewing a challenge to an accepted EIS, this court

“uses the ‘rule of reason’ to determine whether an EIS is legally

sufficient in adequately disclosing facts to enable a decision-


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making body to render an informed decision.”            Citizens for Prot.

of North Kohala Coastline, 91 Hawai#i at 107, 979 P.2d at 1133

(brackets and citation omitted).         This court has further

explained that:
            neither HRS [c]hapter 343 nor the administrative rules
            of Chapter 200 indicate the level of detail or
            specificity that should be included on any given
            subject. The statute and rules were designed to give
            latitude to the accepting agency as to the content of
            each EIS. Thus, what is required in one EIS may not
            be required in another, based upon the circumstances
            presented by the particular project. Accordingly, the
            standard to consider the sufficiency of an EIS under
            the “rule of reason” is that an EIS need not be
            exhaustive to the point of discussing all possible
            details bearing on the proposed action but will be
            upheld as adequate if it has been compiled in good
            faith and sets forth sufficient information to enable
            the decision-maker to consider fully the environmental
            factors involved and to make a reasoned decision after
            balancing the risks of harm to the environment against
            the benefits to be derived from the proposed action,
            as well as to make a reasoned choice between
            alternatives.

Price, 81 Hawai#i at 183, 914 P.2d at 1376 (citation omitted)

(emphasis added).

            Additionally, “courts are reluctant to ‘second guess’

the decision-making body regarding the sufficiency of an EIS.”

Id. at 183 n.12, 914 P.2d at 1375 n.12.

            In Price, this court considered whether an EIS was

insufficient on several grounds.         Id. at 184, 914 P.2d at 1377.

First, the plaintiff argued that the EIS “provide[d] an

inadequate discussion of the infrastructure in the neighborhood,

specifically, a lack of discussion on the fresh water supply,

waste water treatment facilities, and transportation facilities.”

Id.   However, this court noted that the EIS contained “an entire

section devoted to each of these topics” with a discussion of

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“existing conditions, anticipated impacts, and mitigating

measures.”    Id.    Accordingly, this court determined that “the

EIS’s discussion concerning infrastructure was compiled in good

faith and sets forth sufficient information to enable the

decision-maker to consider fully the environmental factors

involved.”    Id.

            This court also held that the EIS was sufficient with

regard to its discussion of pesticides and herbicides, where the

EIS’s “discussion of pesticides and herbicides contains at least

three studies prepared by experts that detail the impact, effect,

and mitigation of pesticide and herbicide usage on the Lihi Lani

project.”    Id.    This court similarly held that the EIS was

sufficient with regard to erosion and possible flooding during

construction of the project, where the EIS contained an “erosion

control plan [that] would comply with relevant local and state

ordinances and guidelines” and “a report prepared by Dr. Gordon

Dugon on run-off and the impact to surrounding areas.”              Id. at

185, 914 P.2d at 1378.      Finally, this court concluded that the

EIS was sufficient with regard to native Hawaiian archaeological

sites in the proposed project area.        Id.   This court noted:
            [The defendant] retained the services of Dr. Paul H.
            Rosendahl, a noted archaeologist, to conduct a field
            reconnaissance and provide a report and
            recommendations concerning any archeological finds
            that would be affected by the proposed project. There
            is a lengthy discussion on archeology within the EIS
            and Dr. Rosendahl’s report. Dr. Rosendahl explains
            each and every finding, its location and value, and
            his recommendations for preservation of historic
            information. The study was comprehensive and more
            than adequate to inform the Department of General
            Planning of the archeological impacts of the project.


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Id.

            In sum, this court stated,
            [The defendant] has presented an EIS that consists of
            two volumes of material, over 400 pages. Included
            within the EIS are twenty-four technical reports
            supporting the recommendations and findings presented.
            The EIS addresses all of the statutory requirements of
            HRS chapter 343, and chapter 200, Title 11 of the
            Administrative Rules. Upon review of the EIS in
            question, we hold that it is in compliance with the
            mandates of HRS chapter 343, as well as the applicable
            administrative rules of chapter 200.

Id.

            Here, chapter 4.16 of the final EIS concerns

archaeological, cultural, and historic resources.             The EIS

divided the rail corridor into ten different sub-areas to

“evaluate below-ground effects on archaeological resources within

the study corridor,” and developed a qualitative rating system to

describe potential archaeological impacts in each sub-area.

“This rating system considered existing archaeological

documentation, geological and depositional characteristics, and

some field inspection within the study corridor.”             The EIS noted

that the “[a]rchaeological resources already documented within

the [area of potential effects] include . . . subsurface cultural

layers related to Native Hawaiians that may include religious or

cultural artifacts and resources, including iwi kupuna or

Hawaiian burials.”      The EIS concluded that the potential for

encountering burials in the Dillingham, Downtown, and Kaka#ako

areas was high.

            With regard to mitigation, the EIS noted that “[t]he


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Project will have an ‘effect, with proposed mitigation

commitments’ under State law[.]”       Additionally, the draft PA,

which was appended to the final EIS, “describe[d] the

archaeological and historic property and resource identification

and evaluation effort, as well as the mitigation procedures for

identified archaeological resources.”        The EIS noted that the

draft PA “describe[d] how post-review discoveries will be handled

and commits to providing public information throughout the term

of the draft PA.”

          Based on the foregoing, “the EIS discussion concerning

[archaeological resources] was compiled in good faith and sets

forth sufficient information to enable the decision-maker to

consider fully the environmental factors involved.”           See Price,

81 Hawai#i at 184, 914 P.2d at 1377.

          Nevertheless, Kaleikini argues that the “rule of

reason” requires that the EIS for the rail project include an AIS

for the following nine reasons: (1) EISs often include AISs; (2)

the City has included AISs in EISs it has prepared for other

projects; (3) the EIS process requires “conducting necessary

studies”; (4) the City and State “admit that an AIS is a

necessary study”; (5) hundreds of other burials have been found

in the areas of Downtown and Kaka#ako that the rail will cross;

(6) the likelihood of encountering burials is high; (7) the

legislature found that native Hawaiian burials have not been

afforded sufficient legal protections; (8) an AIS determines if


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archaeological sites are present, identifies them, gathers

information regarding their significance, and provides

information to decision makers to enable them to preserve

historic properties; and (9) “significant negative consequences

result when an AIS is not completed before construction

commences[.]”

           With regard to Kaleikini’s first and second points,

this court has previously noted that “what is required in one EIS

may not be required in another, based upon the circumstances

presented by the particular project.”        Price, 81 Hawai#i at 183,

914 P.2d at 1376.    Accordingly, the fact that other EISs have

included an AIS is not sufficient to show that an AIS was

required in the instant case.

           With regard to Kaleikini’s third and fourth points,

there is nothing in HRS chapter 343 to indicate that an AIS is a

“necessary study” for the completion of an EIS.           Although the

City and State may, as Kaleikini asserts, “admit that an AIS is a

necessary study” in the context of HRS chapter 6E, there is

nothing in the record to indicate that they viewed an AIS as a

“necessary study” for the completion of an EIS.

           Kaleikini’s remaining points address the need for an

AIS to adequately identify and protect specific native Hawaiian

burials.   However, these concerns are addressed under HRS chapter

6E, rather than HRS chapter 343.       Accordingly, proposals for the

preservation of specific historic property, including burials,


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are not a per se requirement in an EIS.

           Finally, Kaleikini argues that Price is distinguishable

because the developer in that case prepared an archaeological

field reconnaissance report.35       Again, however, “what is required

in one EIS may not be required in another, based upon the

circumstances presented by the particular project.”            Price, 81

Hawai#i at 183, 914 P.2d at 1376.        Accordingly, while a field

reconnaissance report was significant to this court’s analysis in

Price, it is not required in the instant case.           Additionally, the

EIS in the instant case “considered existing archaeological

documentation, geological and depositional characteristics, and

some field inspection within the study corridor,” as well as

various technical reports, including the August 15, 2008

Archaeological Resources Technical Report.

           Accordingly, although the final EIS did not include an

AIS, it was nonetheless sufficient “to enable the decision-maker

to consider fully the environmental factors involved.”             See

Price, 81 Hawai#i at 184, 914 P.2d at 1377.

D.   The City and State gave full consideration to cultural and
     historic values as required under HRS chapter 205A

           Kaleikini argues that, in declining to conduct an AIS

prior to approval and commencement of the rail project, the City


      35
            Kaleikini also argues that Price is distinguishable because
Kaleikini “does not seek to contradict a conclusion in the final EIS” but
rather “seeks to ensure that the final EIS discloses information now rather
than after decisionsmaking.” (Emphasis omitted). However, it is not clear
what aspect of the Price decision Kaleikini refers to. In any event, the
plaintiff in Price challenged the sufficiency of the EIS, rather than solely
“a conclusion in the final EIS.” Price, 81 Hawai#i 183-84, 914 P.2d 1376-77.

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and State failed to give full consideration to cultural and

historic values, as required under HRS chapter 205A.             The City

argues that it has “clearly considered and taken appropriate

steps to handle the possible impacts on burials.”             Kaleikini’s

argument is without merit.

            HRS chapter 205A is Hawaii’s Coastal Zone Management

Act (CZMA).     Under HRS chapter 205A, a permit is required for

development in any special management area.           HRS § 205A-28

(2001).    It is undisputed that a special management area permit

was required, and obtained, in the instant case.

            The coastal zone management program has several

objectives.36    HRS § 205A-2.     With regard to historic resources,

the objectives of the coastal zone management program are to

“[p]rotect, preserve, and, where desirable, restore those natural

and manmade historic and prehistoric resources in the coastal

zone management area that are significant in Hawaiian and

American history and culture.”          HRS § 205A-2(b)(2)(A) (2001).

“In implementing the objectives of the coastal zone management



      36
            “Coastal zone management program” is defined as

            the comprehensive statement in words, maps, or other
            permanent media of communication, prepared, approved
            for submission, and amended by the State and approved
            by the United States government pursuant to Public Law
            No. 92-583, as amended, and the federal regulations
            adopted pursuant thereto, which describes objectives,
            policies, laws, standards, and procedures to guide and
            regulate public and private uses in the coastal zone
            management area, provided however the “coastal zone
            management program” is consistent with the intent,
            purpose, and provisions of this chapter[.]

HRS § 205A-1 (2001) (emphasis added).

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program, the agencies shall give full consideration to

ecological, cultural, historic, esthetic, recreational, scenic,

and open space values, and coastal hazards, as well as to needs

for economic development.”      HRS § 205A-4(a) (2001).

Additionally, these objectives are “binding upon actions within

the coastal zone management area by all agencies, within the

scope of their authority.”      HRS § 205A-4(b) (2001).       This court

has recognized that a special management area permit may only be

granted where the proposed development is “consistent with [CZMA]

objectives and policies[.]”      PASH, 79 Hawai#i at 435, 903 P.2d at

1256.   Accordingly, in granting a special management area permit

for the rail project, the City was required to give “full

consideration to . . . cultural [and] historic . . . values.”

HRS § 205A-4(a).

           Kaleikini cites two cases for the proposition that the

City has failed to fully consider cultural and historic values:

Hui Alaloa v. Planning Commission of the County of Maui, 68 Haw.

135, 705 P.2d 1042 (1985), and Ka Pa#akai O Ka #Aina v. Land Use

Commission, 94 Hawai#i 31, 7 P.3d 1068 (2000).          In Hui Alaloa,

this court considered whether the planning commission properly

granted two special management area permits.          68 Haw. at 135-36,

705 P.2d at 1043.    This court noted that:
           Surface archaeological surveys prepared for [the
           developers] were presented to the planning commission.
           Additionally, testimony was given on behalf of all the
           parties. The planning commission granted permits to
           [the developers] conditioned upon retention of a
           qualified archaeologist to conduct a further survey
           and excavation of the area, and to “prepare a written
           report to maximize information retention through

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            preservation or salvage of significant archaeological
            sites and to provide a plan for protecting, restoring,
            interpreting, and displaying historical resources
            either preserved on or salvaged from the subject
            areas.”

Id. at 136-37, 705 P.2d at 1044 (record citations omitted).

            Additionally, this court noted that, under the planning

commission’s decision and order, “[the developer’s] archaeologist

is to determine the significance of various archaeological sites”

and the developers were required to “eliminate all grading or

construction impact on any significant archaeological sites prior

to salvage and preservation.”         Id. at 137, 705 P.2d at 1044

(record citations omitted).

            This court held that:
            imposing these self-serving conditions without
            requiring a hearing to review the additional study and
            survey by the commission [was] in error. The
            determination whether the development complies with
            the policies and objectives of the CZMA regarding
            historical and archaeological significance was, in
            essence, left to the [developers] contrary to the
            statutory command governing the issuance of SMA
            permits. The statute clearly mandates the planning
            commission to make such determinations prior to the
            issuance of a SMA permit.

Id.

            Accordingly, this court’s resolution of the case turned

on the “unlawful delegation of duty” to the developers.              Id.

Moreover, this court expressly noted that the delegation in Hui

Alaloa differed from “conditions requiring the applicants to

obtain approval from other government agencies such as the state

department of health and county department of public works”

because “[t]hose agencies are not interested parties to the

permit application” and are “required to help enforce and

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implement CZMA by assuring that proposed development projects

requiring permits or approvals are consistent with the objectives

and policies of CZMA.”     Id.   The instant case is distinguishable

from Hui Alaloa, in that the signatories to the PA, specifically

the BLNR and the Department of Transportation Services, have a

continuing role in the enforcement of the PA, and “are required

to help enforce and implement CZMA by assuring that proposed

development projects requiring permits or approvals are

consistent with the objectives and policies of CZMA.”              See id.

Accordingly, Kaleikini’s reliance on Hui Alaloa is misplaced.

          Ka Pa#akai O Ka #Aina concerned the Land Use

Commission’s (LUC) grant of a petition to reclassify land from

“Conservation District” to “Urban District.”          94 Hawai#i at 34, 7

P.3d at 1071.   The LUC’s approval of the petition provided that

the developer
          will develop and implement a Resource Management Plan
          (“RMP”) which would coordinate development with native
          Hawaiian rights to coastal access for the purpose of
          traditional cultural practice. . . . Under [the
          developer’s] concept of the RMP, the goals of the RMP
          are to provide for resource management and ensure
          public access to the coastal area which balances [the
          developer’s] needs with the traditional needs of
          native Hawaiians and the recreational needs of the
          public.

Id. at 36-37, 7 P.3d 1073-74 (emphasis in original).

          This court concluded, consistent with Hui Alaloa, that

the “wholesale delegation of responsibility for the preservation

and protection of native Hawaiian rights to [the developer], a

private entity, [] was improper and misse[d] the point.”              Id. at

50, 7 P.3d at 1087.     This court noted that “the LUC found that

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[the developer] ‘will develop and implement’ its RMP, which

‘would in the future’ coordinate development with native Hawaiian

rights to coastal access for the purpose of traditional cultural

practice.”   Id. at 51, 7 P.3d at 1088.        This court concluded that

the LUC’s adoption of the developer’s “conceptual” “future” study

violated the LUC’s duty to independently assess the impacts of

the proposed reclassification on native Hawaiian customary and

traditional practices, and delegated to the developer the

authority to balance the needs of native Hawaiians against the

developer’s interests.     Id.   Significantly, this court noted:
          Specific considerations regarding the extent of
          customary and traditional practices and the impairment
          and feasible protection of those uses must first be
          made before a petition for a land use boundary change
          is granted. The power and responsibility to determine
          the effects on customary and traditional native
          Hawaiian practices and the means to protect such
          practices may not validly be delegated by the LUC to a
          private petitioner who, unlike a public body, is not
          subject to public accountability. Allowing a
          petitioner to make such after-the-fact determinations
          may leave practitioners of customary and traditional
          uses unprotected from possible arbitrary and
          self-serving actions on the petitioner’s part.

Id. at 52, 7 P.3d at 1089.

          Like Hui Alaloa, Ka Pa#akai O Ka #Aina is

distinguishable from the instant case.         Unlike in Ka Pa#akai O Ka

#Aina, here, the City Council did not delegate the power to

determine the effects on archaeological resources and the means

to protect such resources to a private petitioner.           Cf. id.

Rather, that power remains with the SHPD and OIBC under the PA.

Additionally, the City Council conditioned the issuance of “any

development permit for the Project” on its receipt of


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documentation that a PA “to minimize and mitigate adverse effects

on historic properties as generally described in the Final [EIS]

has been executed.”     As noted supra, the final EIS stated:
          The City will develop an [AIS] plan for the [area of
          potential effects] for each construction phase in
          accordance with [36 C.F.R. § 800.4] which allows for
          phased identification of archaeological resources to
          limit disturbance of potential resources during the
          investigation. . . . The AIS plans will follow the
          requirements of HAR [c]hapter 13-276. The City will
          conduct the archaeological fieldwork as presented in
          the AIS plan for each construction phase. The
          archaeological fieldwork will be completed in advance
          of the completion of the final design so that measures
          to avoid and/or minimize adverse effects to the
          historic properties can be incorporated into the
          design. The City has consulted and continues to
          consult with SHPD and OIBC on burial issues. . . . To
          balance the current level of project design, the
          desire to limit disturbance of native Hawaiian burials
          and residences in Phase [4] of the project area, and
          the potential transportation benefits that would
          accrue from the proposed project, FTA, in consultation
          with the parties, decided to develop a detailed
          approach in the . . . draft PA for conducting
          archaeological investigations for Phase [4] of the
          project. The City has committed to conducting
          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 City’s proposed schedule for the
          Project would have construction starting in 2013 for
          Phase [4] (in the Kaka#ako neighborhood). Although,
          the development of more detailed design and,
          therefore, archeological investigations for the last
          construction phase would have typically been delayed
          until closer to the anticipated construction start
          date, the City has committed to starting the process
          much earlier.

(Emphasis added).

          A draft PA was appended to the final EIS, which

described the “archaeological historic property and resource

identification and evaluation effort, as well as the mitigation

procedures for identified archaeological resources.”

          The detailed provisions contained in the draft PA go

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well beyond the “conceptual” “future” study that this court

concluded violated the LUC’s duty to independently assess the

impacts of the proposed reclassification on native Hawaiian

customary and traditional practices in Ka Pa#akai O Ka #Aina.               Id.

at 51, 7 P.3d at 1088.      Thus, Kaleikini’s reliance on Ka Pa#akai

O Ka #Aina is unpersuasive.37

            Accordingly, the circuit court did not err in granting

summary judgment in favor of the City and State on Count 6 of

Kaleikini’s complaint.

E.    The circuit court did not abuse its discretion in denying
      Kaleikini’s HRCP Rule 56(f) motion

            Kaleikini argues that the circuit court should have

given her “a reasonable amount of time to pursue discovery.”                For

the reasons set forth below, this argument is without merit.

            HRCP Rule 56(f) permits a court to order a continuance

to allow a party opposing a motion for summary judgment to obtain

affidavits, depositions or discovery, where the party “cannot for

reasons stated present by affidavit facts essential to justify

the party’s opposition[.]”       A request for a continuance pursuant

to HRCP Rule 56(f) “must demonstrate how postponement of a ruling

on the motion will enable [the moving party], by discovery or

other means, to rebut the movant’s showing of absence of a

genuine issue of fact.”       Josue, 87 Hawai#i at 416, 958 P.2d at



      37
            Kaleikini also refers to provisions of HRS chapter 6E that concern
the public trust. However, she does not articulate a cognizable argument as
to how the public trust relates to her argument under HRS chapter 205A.
Accordingly, we do not address public trust principles.

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538 (brackets omitted).

          In the instant case, Kaleikini requested a continuance

in her opposition to the City’s motion to dismiss and/or for

summary judgment.    Kaleikini’s request stated, in its entirety,

as follows:
                [Kaleikini] agrees with the City that this Court
          should not convert the City’s motion to dismiss to one
          for summary judgment. If this Court were to consider
          the City’s motion as one for summary judgment, then
          this Court should give [Kaleikini] sufficient time to
          pursue discovery and obtain admissible evidence.

(Citations omitted).

          Accordingly, Kaleikini’s request did not demonstrate

how postponement of a ruling on the City’s motion would enable

her, “by discovery or other means, to rebut the movant’s showing

of absence of a genuine issue of fact.”         Josue, 87 Hawai#i at

416, 958 P.2d at 538.     Similarly, in her opening brief, Kaleikini

argues only that HRCP Rule 56(f) “should be liberally construed

particularly when the non-moving party has not had an adequate

opportunity to conduct discovery.”        (Citation omitted).

Kaleikini argues that a continuance was warranted because “the

[City’s] motion was filed a week after service” and she “could

not obtain any discovery responses until . . . the same day that

the hearing on the City’s motion for summary judgment was

scheduled.”   Again, however, Kaleikini did not explain how the

discovery responses would rebut the City’s showing of an absence

of a genuine issue of material fact.        See Josue, 87 Hawai#i at

416, 958 P.2d at 538.


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           Accordingly, because Kaleikini failed to meet this

burden, the circuit court did not abuse its discretion in denying

her HRCP Rule 56(f) request for a continuance.

                            IV.    Conclusion

           For the foregoing reasons, the circuit court erred in

granting summary judgment in favor of the City and State on

Counts 1 through 4 of Kaleikini’s complaint, because the rules

implementing HRS §§ 6E-8 and 6E-42 do not permit the SHPD to

concur in the rail project absent a completed AIS for the entire

project.   However, the circuit court properly granted summary

judgment in favor of the City and State on Counts 5 and 6 because

(1) the final EIS was sufficient under HRS chapter 343 and was

properly accepted by the Governor; and (2) the City and State

gave full consideration to cultural and historic values as

required under HRS chapter 205A.

           Accordingly, we vacate the circuit court’s judgment on

Counts 1 through 4, and remand for further proceedings.            However,

we affirm the circuit court’s grant of summary judgment in favor

of the City and State on Counts 5 and 6.

David Kimo Frankel and               /s/ Mark E. Recktenwald
Ashley K. Obrey for
petitioner                           /s/ Paula A. Nakayama
William J. Wynhoff for               /s/ Sabrina S. McKenna
State respondents
                                     /s/ R. Mark Browning
Robert C. Godbey, Don S.
Kitaoka, Gary Y. Takeuchi,           /s/ Fa#auuga To#oto#o
John P. Manaut and Lindsay N.
McAneeley for City respondents


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