HONOLULU (CN) – A federal judge on Wednesday heard arguments on a challenge to Honolulu’s controversial High-Capacity Transit Corridor Project, a 20-mile elevated rail line that environmentalists and a small-business coalition say will spoil views and despoil protected cultural land.
Ninth Circuit Judge A. Wallace Tashima is sitting in on the case, after all nine judges in Hawaii recused themselves due to possible conflict of interest. In a packed courtroom, Tashima heard arguments from counsel for the defendant Federal Transportation Administration and City and County of Honolulu, and from lawyers for eight plaintiffs, led by HonoluluTraffic.com, the Small Business Hawaii Entrepreneurial Education Foundation and former Gov. Benjamin Cayetano.
Tashima himself requested the 90-minute hearing, after the defendants sought partial judgment.
Tashima called the motion “possibly premature,” said, “It will not make the case go away,” and indicated that he would rule on it soon.
Nicholas Yost, Matthew Adams and Michael Green represented the plaintiffs. Assistant U. S. Attorney Harry Yee and Robert Thornton represented the FTA, Secretary of Transportation Ray LaHood and the City and County of Honolulu.
The $5.3 billion rail project is planned as a 20-mile-long, elevated mass transit system to connect Honolulu’s densely populated historic and business districts to Kapolei, a growing suburban area in western Oahu. Other portions are planned to extend to the tourist area of Waikiki and elsewhere on the 30-mile-wide island.
Opponents claim the city and the FTA exceeded their jurisdiction and violated environmental law by failing to consider any more than two of 75 potential alignments, by selecting steel-on-steel technology, and by failing to conduct legally required historic preservation surveys.
They claim the 4-story-high rail line will be an eyesore, will take land from parks and schools and is bound to unearth Native Hawaiian human remains buried along the route.
One reason for the recusal of local judges is that a downtown section of the project would come within 45 feet of their chambers in the courthouse, which plaintiffs claim would make the building vulnerable to a terrorist attack.
State funding for the project is partially secured and piggybacked by $1.5 billion in federal money, set aside and expected by the end of 2012. Infrastructure for the rail is already being put in place, including utility line relocations.
The defendants say this preliminary work is focused on the western portion of the island, in the town of Kapolei. Work, if permitted, is expected to be limited to Kapolie throughout 2012. It is expected to be at least a year until work begins in the historic downtown that is of primary concern to the plaintiffs.
Tashima opened the hearing by saying he intended to render a decision on the case, which was filed in May, as soon as possible.
He said the case rested solely on whether all parties had exhausted the lengthy procedures under the Administrative Procedure Act.
Despite the 6 months that have elapsed since the lawsuit was filed, the FTA has made available only about 75 percent of its administrative record, which it estimates contains 500,000 documents.
The plaintiffs have requested it numerous times. In a Nov. 18 Joint Case Management Statement, the defendants said: “The Project approved by defendant Federal Transit Administration and challenged in this lawsuit is the product of many years of environmental and engineering studies conducted pursuant to the federal and state law. As a result, the administrative record in this matter is voluminous.”
But the FTA claims that four plaintiffs lack standing, as they have failed to prove they participated publicly and meaningfully in the 5-year scoping, planning and review process leading up to the final environmental impact statement (EIS) and the January record of decision on the project.
Former Gov. Cayetano wrote three opinion pieces about the project, which were published in the Honolulu Star-Advertiser. But the defendants said they could not confirm receipt of those documents.
Defendants’ attorney Thornton said: “If they thought it was important enough to bring a lawsuit, it should’ve been important enough for them to participate in the administrative process,” but that the plaintiffs at issue did not comment on the environmental impact statement, or attend meetings or write letters.
The plaintiffs said that without full inspection of the administrative record, only a preliminary injunction could stop what is certain to be more than “a shovel’s worth” of work.
They claimed that a project whose scope is greater than any yet undertaken in Hawaii could not be stopped once it is started. Not only would it be difficult to select alternative technologies and materials, it would be impossible to revert to any of the previously proposed alignments, or consider bus upgrades and light rail alternatives.
The defendants want no interruptions in the planned construction schedule, with construction to begin in February 2012. The plaintiffs said in the Joint Case Management Statement: “(I)f defendants (1) cannot finalize the administrative record so as to permit resolution of case by February 2012 and (2) refuse to adjust the construction schedule for the project, plaintiffs anticipate that it will be necessary for them to seek preliminary injunctive relief.”
Tashima sought clarification on technicalities of environmental law, particularly “Section 4F” properties, which, under the National Environmental Policy Act and National Historic Preservation Act, require the FTA to make findings and “constructive use” of properties according to stringent guidelines, especially when that use is so severe that the function is affected.
There are numerous Section 4F properties along the rail route.
The defense claimed that the plaintiffs’ burden for site-by-site critique of use should be stringent, unarbitrary and consistent with the U.S. Supreme Court’s Vermont Yankee and Public Citizen cases and the 9th Circuit’s Great Basin Minewash rulings. Just because some historic sites might be affected, umbrella claims cannot be made or the entire project derailed, the defendants said.
Since the initial filing, the defendants have called the plaintiffs’ claims “vague” and “unactionable,” and on Wednesday called them “cryptic.”
Plaintiffs’ attorney Yost denied that: “This is a case that revolves around alternatives,” he said, and public comments on in the draft EIS were limited to what the defendants narrowly presented.
Yost said that under the stringent Section 4F property-use requirements, if there is a prudent and reasonable alternative, it must be chosen, and all possible litigation must be applied.
Neither party argues that 32 historic, waterfront and park sites will be affected.
Tashima asked both parties to come up with a schedule for hearings, which he said he would prefer in San Francisco or Pasadena. But he said that any motion for preliminary injunction or summary judgment should come in Honolulu.
He said the FTA must produce the administrative record, because the case cannot proceed without it, and it must do so by January, before the February groundbreaking.
He said the plaintiffs must provide evidence of their standing, narrow certain claims and verify their participation in the public discourse process during the time the FTA and city were preparing the EIS and taking public comment.
He urged both parties to be open to mediation, asking: “Do you think you could ever compromise?”
Tashima said he hopes to render a decision no later than the summer or fall of 2012.
“I think it is obviously important that this case be decided on as timely a basis as possible,” Tashima said. “I would like to avoid, for instance, having to decide a motion for preliminary injunction.”
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