The Ward Village Shops project in Kaka'ako has been cleared to continue construction after a state Circuit Court judge yesterday denied a preliminary injunction seeking to stop it after human burials were unearthed there.

Paulette Kaleikini and her family, recognized cultural descendants of remains found in the area, sought to stop the project contending that developer General Growth Properties and the State Historic Preservation Division has dealt improperly with iwi, or human remains, that have been found on the site.

About 35 sets of remains have been removed and housed in an air-conditioned trailer nearby on the construction site.

Development plans for the 6-acre site include a Whole Foods store, other retail space and a residential tower at a cost of $150 million.

Circuit Judge Glenn Kim made his decision after three days of testimony on the preliminary injunction motion last week. Kim said he believed any remains found are being kept in a safe place and that he did not believe there would be irreparable harm done to them. Kim said he was not happy with needing to decide between "apples and oranges" since one party's interest is "almost purely economic while the other obviously is not."

He also said he did not believe it likely that the Kaleikinis would prevail on the merits of the case.

Further, Kim said he did not believe public interest was a factor that weighed heavily in favor of either General Growth or the Kaleikinis, although he believed the public might have a "general interest."

Moses Haia, an attorney with the Native Hawaiian Legal Corp. that is representing the Kaleikinis, said they will proceed with the case and hope to get a jury trial.

Haia said if any future sets of iwi are found on the site, "the way I see it, if they're going to interfere with GGP's plans for that project, they're going to get disinterred and relocated. And the thing about it is, they will, for the most part, get discovered through construction, earth-moving, ground-grinding activity. They're going to take some abuse and then they're going to get taken out of the ground."

Haia said one of the issues that will come up during trial is the lack of expertise among the staff at the State Historic Preservation Division.

Thomas Dye, president of the Society for Hawaiian Archaeology, said there may be more than 300 sets of iwi on the site.

General Growth Vice President Jan Yokota said the company is sensitive to the situation and will continue to work with Kaleikini's family. Construction has continued on the site.

"Treating the iwi in the most sensitive manner is really the most important thing for us so we've tried to work with the families and we will continue to do so," she said.

Yokota said there has been some delay as a result of the iwi finds but "only when we have found discoveries have we stopped work according to state law," Yokota said. She also acknowledged that an injunction would have posed an economic issue for General Growth.

The state ordered that about 30 other sets of iwi found on the 'ewa side of the property, at the site of the planned residential tower, be preserved in place. General Growth is "continuing to explore all of our options for that portion of that site," Yokota said. "We do intend to work with the cultural descendants as we explore the various options."

Deputy Attorney General Vince Kanemoto said "the court's ruling vindicates the state's position that the state all along has complied with the law and has performed its duties and responsibilities to the best of its capabilities throughout this entire process."

After yesterday's proceeding, Kaleikini said she was going to the site to pay her respects to her ancestors.

Reach Gordon Y.K. Pang at gpang@honoluluadvertiser.com.