Kaleikini v. Yoshioka. Motion for Reconsideration, filed 09/04/2012. , 128 Haw. 53 ( 2012 )


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  •     ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
    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
    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
    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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    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
    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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    ***FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER***
    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
    -82-
    

Document Info

Docket Number: SCAP-11-0000611

Citation Numbers: 128 Haw. 53, 283 P.3d 60, 2012 WL 3644820, 2012 Haw. LEXIS 277

Judges: Recktenwald, Nakayama, McKenna, Browning, Acoba, Duffy

Filed Date: 8/24/2012

Precedential Status: Precedential

Modified Date: 10/19/2024

Authorities (27)

Sousaris v. Miller , 92 Haw. 505 ( 2000 )

Wilderness Society v. United States Bureau of Land ... , 822 F. Supp. 2d 933 ( 2011 )

State v. Ontai , 84 Haw. 56 ( 1996 )

First Insurance Co. of Hawaii v. a & B Properties, Inc. , 126 Haw. 406 ( 2012 )

Pub. Access Shoreline v. HAWAII CTY PLANNING COMMISSION , 903 P.2d 1246 ( 1995 )

International Brotherhood of Electrical Workers, Local 1357 ... , 68 Haw. 316 ( 1986 )

Office of Hawaiian Affairs v. Housing & Community ... , 121 Haw. 324 ( 2009 )

Lujan v. Defenders of Wildlife , 112 S. Ct. 2130 ( 1992 )

Camara v. Agsalud , 67 Haw. 212 ( 1984 )

Josue v. Isuzu Motors America, Inc. , 87 Haw. 413 ( 1998 )

NORTH IDAHO COMMUNITY v. US Dept. of Transp. , 545 F.3d 1147 ( 2008 )

Citizens for the Protection of the North Kohala Coastline ... , 91 Haw. 94 ( 1999 )

Ka Pa'akai O Ka'Aina v. Land Use Commission , 94 Haw. 31 ( 2000 )

Kahoohanohano v. State , 162 P.3d 696 ( 2007 )

State v. Matavale , 115 Haw. 149 ( 2007 )

Nuuanu Valley Ass'n v. City & County of Honolulu , 119 Haw. 90 ( 2008 )

State v. Wheeler , 121 Haw. 383 ( 2009 )

Hui Alaloa v. Planning Commission of the County of Maui & ... , 68 Haw. 135 ( 1985 )

Association of Apartment Owners of Wailea Elua v. Wailea ... , 100 Haw. 97 ( 2002 )

Kaleikini v. Thielen , 124 Haw. 1 ( 2010 )

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