9th Circuit Court panel livestreamed its hearing for Honolulu viewers
9th Circuit Court panel livestreamed its hearing for Honolulu viewers

HONOLULU — To build, or not to build, the most expensive per mile heavy rail line in the country. It’s a sticky question.

Three members of the 9th Circuit Court of Appeals in San Francisco were asked during oral arguments Thursday to put a stop to the construction of the city’s planned $5.2 billion, elevated steel rail project that runs along a 20-mile corridor from West Oahu to Honolulu.

Nicholas Yost, an attorney representing eight plaintiffs in HonoluluTraffic v. FTA who are challenging the legality of the City & County of Honolulu’s selection process for rail, maintained during his 15 minutes before the judges that the city did not properly study transportation alternatives such as a Bus Rapid Transit System and managed lanes in its environmental impact statement.

Yost, who authored the National Environmental Policy Act, asked the judges to stop to the rail project and force the city to redo the official Environmental Impact Statement and Record of Decision.

Robert Thornton, the city’s attorney, maintained the selection of the rail was a political and policy choice, and one that would “reduce reliance on the private automobile … promote smart growth land use policies … (and) … provide an equitable alternative for low-income populations and transit-dependent communities.”

The three-judge panel — Judges Stephen Reinhardt, Andrew Hurwitz and Senior Judge Mary Schroeder — rapidly fired questions at Yost, Thornton and David Shilton, the attorney representing the Federal Transit Administration, over whether the court had jurisdiction in the case. The FTA was included in the federal lawsuit because the agency approved the city’s rail construction plans and is helping to fund it.

The hour-long hearing was held in San Francisco and broadcast live for the public and media inside Honolulu’s U.S. District Court at the request of HawaiiReporter.com.

Outside the Hawaii U.S. District Court, Ben Cayetano, Hawaii’s former governor and one of the eight plaintiffs, said their position is clear.

“The failure to consider bus rapid transit and managed lanes to me was arbitrary and capricious because nowhere in the EIS is there a reasonable explanation as to why these things weren’t considered,” he said.

In 2003, former Mayor Jeremy Harris’ administration selected BRT as the best system for the island, and the company that made the recommendation for BRT and then rail, Parsons Brinkerhoff, was the same.

Robert Thomas, a Hawaii attorney who attended oral arguments in San Franscisco, wrote on his legal blog that the appeal “had a good chance of being dismissed for lack of appellate jurisdiction,” because there are still outstanding issues in the Honolulu District Court.

The plaintiffs said they hope the 9th Circuit will rule in a matter of weeks because the city is planning to resume construction on the rail project as early as Sept. 16.

The project has been on hold for a year since the Hawaii Supreme Court ruled the city violated state law when it began construction without completing an Archeological Inventory Survey on the entire four segments.

For extended coverage and analysis and a video of the hearing, log onto http://www.inversecondemnation.com/