Palmeira fires her attorneys

LIHU‘E — Waldeen K. Palmeira, plaintiff in a lawsuit against the state Department of Transportation, on Tuesday formally jettisoned her attorneys, Alan Murakami and Kimo Frankel of the Native Hawaiian Legal Corporation.

The move, a surprise to both Murakami and William Wynhoff, state deputy attorney general representing the DOT, leaves Palmeira without legal representation, a situation leading to a continuance on 5th Circuit Judge Kathleen Watanabe’s hearing of and ruling on three pending motions in the case where Palmeira is seeking an environmental impact statement be completed before the state is allowed to widen Kuhio Highway to four lanes from Kuamo‘o Road to the Kapa‘a bypass road.

Palmeira said in court she had not “received adequate representation” from Murakami and Frankel, that the attorneys did not disclose certain documents to her and failed to address some pertinent issues, and that they may have a conflict of interest in the case.

After the courtroom action, Palmeira would not elaborate on her decision to change counsel.

She requested a continuance so she could secure new counsel, and Watanabe continued the hearing to June 8.

Wynhoff said he is concerned about the delay for several reasons, including the fact that federal stimulus funds for the widening project must be used by Sept. 30, moved to another project or lost.

“I’m very concerned” about the timetable of the project, expected to go out to bid soon, said Wynhoff.

“Deadlines are starting to happen,” said Wynhoff, adding that he is scheduled to leave the state on the day of the new hearing date, but agreed to the continuance.

Watanabe said she will be unavailable the last week of May and the first week of June.

Lots of important information has not been provided to Palmeira and Watanabe, said Palmeira.

Watanabe ordered Murakami to prepare the order formally removing himself, Frankel and the NHLC from representing Palmeira in the case, and ordered Palmeira to inform Wynhoff when she gets a new lawyer.

Watanabe had scheduled Tuesday’s hearing on Palmeira’s motions for a preliminary injunction to stop the widening project from going forward until an EIS is prepared, and for summary judgment to stop the project permanently.

The state motion is to dismiss the lawsuit for lack of merit or, in the alternative, to grant summary judgment in favor of the state, either of which would effectively allow the project to proceed.

The suit, filed in Honolulu state court in October, seeks a preliminary injunction and declaratory judgment to stop any state work to either widen the highway between Wailua Beach and the Coco Palms resort property, or place underground utility wires there, until an EIS is completed and state officials get a burial treatment plan approved for known and suspected Native Hawaiian remains in the project area.

The suit was filed by the NHLC representing Wailua resident Palmeira, and names as defendants the DOT, DOT Director Brennon Morioka, the state Department of Land and Natural Resources, DLNR Chair Laura Thielen, and Pua Aiu of the DLNR’s State Historic Preservation Division.

Murakami, litigation director for the Native Hawaiian Legal Corporation on O‘ahu, had no comment on his ouster after the hearing.

Morioka has repeatedly said state officials feel the suit is without merit, that the DOT has met all state statutory requirements for proceeding with the project, and that information contained in the state environmental assessment shows all necessary due diligence was done and statutory requirements met.

Wynhoff was prepared Tuesday to argue those points, Morioka said, adding that the DOT plan is to proceed with planning for the highway widening and undergrounding of utilities as if the project is going to move forward and the state will prevail in court.

“We believe that we will be successful when all the discussions wrap up,” said Morioka.

The widening to alleviate traffic congestion on the Eastside is a “significant project” to address “a major quality-of-life issue” that will allow Kauaians to spend more time at home with their families and less time stuck in traffic in their vehicles, Morioka said.

Information and evidence presented in court will show the state not only met all statutory requirements, but went above and beyond in terms of conducting additional field surveys and community consultations, said Morioka.

Murakami has said he is unconvinced.

“The law is the law,” he said. “Follow the process, and maybe they (DOT) can get what they need.”

Murakami said Native Hawaiian testimony from 160 years ago states that known burial sites exist from the fishpond on the Coco Palms property down to the sea.

The state is obligated by its own laws not only to identify and protect such historically and culturally significant sites, but to get a burial treatment plan (either to inter in place or move the bones, known as iwi kupuna) approved by the Kaua‘i/Ni‘ihau Island Burial Council, Murakami said.

The suit seeks the EIS; claims violation of state laws to protect known burial sites; claims state failure to identify constitutionally protected cultural rights (proper identification and protection of burial sites); and asks the court to order no ground disturbance in conjunction with the highway widening or undergrounding of utility lines until the EIS and burial treatment plan are completed and approved.

“Construction on top of a burial site is inconsistent with preservation of it,” the suit states.

At least one burial site in the widening/undergrounding area was discovered by archaeologists hired by the state, and the DOT failed to inform the Kaua‘i/Ni‘ihau Island Burial Council and come up with an approved burial treatment plan, the suit states.

Murakami earlier said the state has been “artfully separating” the various phases and segments of the highway project through Wailua: the bike path, highway widening, bridge improvements and a potential realigned Kuhio Highway mauka of Coco Palms.