US District Court - Hawaii
US District Court – Hawaii

HONOLULU – All 11 of Hawaii’s federal judges have submitted a letter to The Federal Transit Administration and the city’s Honolulu Authority for Rapid Transportation that opponents of the city’s elevated steel rail project are calling a “bombshell” and “unprecedented.”

The 4-page letter, signed by U.S. District Chief Judge Susan Oki Mollway on behalf of all of Hawaii’s federal judges, notes there are security concerns related to the city’s rail line, which currently the city plans to route along side the Prince Jonah Kuhio Kalanianaole Federal Building, which includes the courthouse and federal building. (see Judge Mollway letter)

Mollway said the rail route is “neither prudent or feasible, particularly with respect to still unresolved serious security risks to the U.S. District Court building presented by the proposed route of the Honolulu Rail Transit Project.”

The judges recommend the city route the 20-mile rail, which is now running from an open field in west Oahu to Ala Moana Shopping Center, through Beretania Street located several blocks back from the federal building, out of the downtown and historic districts of Honolulu and away from the shoreline and native Hawaiian burial sites.

The letter comes at a sensitive time for the city, federal government and rail proponents because 8 high profile plaintiffs are challenging the city’s Environmental Impact Statement in federal court.

U.S. Chief District Judge Susan Oki Mollway

On August 15, the Ninth Circuit Court of Appeals will consider an appeal filed by former Gov. Ben Cayetano, retired federal Judge Walter Heen, businessman Cliff Slater, University of Hawaii Law Professor Randall Roth, and four other plaintiffs including an education foundation and two environmental groups.

The plaintiffs say the judges’ letter backs up their lawsuit and their claims that the city hasn’t properly considered other transportation alternatives in violation of federal law.

“The letter eloquently and sharply criticizes the city on how it has approached this rail issue and it frankly speaks volumes,” said Roth.

“From the beginning we have wanted the city to comply with the law, the environmental laws, laws designed to protect historic structures and other laws quite frankly require that they don’t just make a political decision and then rush into spending billions of dollars. Instead, the law requires they rigorously and objectively vet all the reasonable alternatives and I think this letter from all 11 federal judges here in Hawaii underscores that the city just has not done that,” Roth said.

Roth said the city’s Environmental Impact Statement focused on three versions of heavy rail and no other option including a tunnel, light rail, bus rapid transit system, or managed lanes, which is the focus of their lawsuit.

The judges’ letter also cites a November 1, 2012, ruling from federal trial judge A. Wallace Tashima, which directed the city to consider the Beretania route in its Environmental Impact Statement. The Honolulu Authority for Rapid Transportation agency issued a report last month that claimed the Beretania Street alternative would cost another $1 billion and take another 2 years to complete so is not feasible. The $5.2 billion project is already the most expensive mass transit project per mile in the country.

Former Gov. Ben Cayetano, HonoluluTraffic.com’s Cliff Slater, UH Law Professor Randall Roth and Senate Minority Leader Sam Slom outside the U.S. District Court

But the plaintiffs are not dissuaded – in fact, they are stunned by the judges’ letter.

“We never imagine such a thing would happen. It is just astonishing,” said Slater, who heads the organization HonoluluTraffic.com. Slater noted the judges even included exclamation marks in the letter.

“They obviously are very concerned with the way the city has gone about examining alternatives and of course that is at the heart of our appeal to the Ninth Circuit. The judges are agreeing with us in this. The city just blatantly disregarded lots of alternatives that could have avoided the historic downtown area,” Slater said.

Former Gov. Cayetano said he’s been a lawyer since 1971 and has never heard of judges taking a stand like this either locally or nationally.

“The fact that the judges came out collectively speaks volumes about the credibility of this project,” Cayetano said. “You have judges coming out – judges who are well versed in the law including environmental law – and for them to come out like this in this unprecedented move boosts what we have been saying.”

State Senate Minority Leader Sam Slom, who runs the SBH Enterpreneurial Education Foundation, another plaintiffs in the federal lawsuit, called the letter “an elegant judicial smack down for both the Honolulu Authority for Rapid Transportation and the Honolulu City Council.”

The letter from the federal judges isn’t the first to the city warning of pending security issues with the rail project because of its close proximity to the federal building. Mollway has written at least twice before, including a May 2012 letter she would not release to HawaiiReporter.com because it outlines specific concerns about security.

The judges’ correspondence with the FTA and city about the rail project led them each to recuse themselves from overseeing the federal lawsuit in Honolulu’s U.S. District Court in 2012. Ninth Circuit Judge A. Wallace Tashima agreed to fly to Hawaii from California to hear the case, something the rail plaintiffs also call “unprecedented.”

Former Gov. Ben Cayetano and retired Judge Walter Heen

In the July 8 letter, the judges highlight other flaws they see in the city’s rail plan. They note the current route doesn’t serve the community it originally intended to because instead of going from West Oahu on a highly congested route to the University of Hawaii’s Manoa campus, it now goes to a popular shopping mall, Ala Moana Center.

Currently the rail construction is on hold because of a state lawsuit challenging its impact on native Hawaiian burial sites, but construction could resume as early as November unless the federal plaintiffs are successful in their appeal.

Honolulu  Authority for Rapid Transportation, the agency charged with designing, building and operating the rail project had little to say about the letter from the judges or comments by the federal plaintiffs.

Honolulu  Authority for Rapid Transportation Deputy Executive Director Brennon Morioka said: “All interested persons are encouraged to provide their comments and feedback on the Honolulu Rail Transit Project’s Draft Supplemental Environmental Impact Statement/Section 4(f) Evaluation. All comments received through July 22 as part of the process will be given full consideration, including Judge Mollway’s.”

The plaintiffs said they will look for a way to use the letter to help their August 15 appeal: “We think we are going to win our lawsuit and we think that this letter from 11 federal judges is a boost for us,” Roth said.

“We think this has been about big landowners and developers from day one, it has had nothing to traffic congestion even though they have insisted that it did. I think they will be ordered to start over and if they do, they will end up with a project that really does alleviate the traffic congestion,” Roth added.

 

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