PUSHING AHEAD: Construction on Oahu's 20 mile rail route started in the vacant fields in West Oahu but will cross into Oahu's most populated areas in Honolulu
Honolulu rail construction in Kapolei

BY ROBERT THOMAS – Our friend Paul Schwind has been keeping us up to date on the progress, vel non, of the legal challenge to the Honolulu rail project in the United States District Court for the District of Hawaii. We last reported on the status of this litigation on February 18, 2014, when the Ninth Circuit issued its opinion dismissing plaintiffs’ appeal of the judgment and partial injunction in Honolulutraffic.com v. Federal Transit Administration, No. 11-0307 (D. Haw. Dec. 27, 2012).

To our mild surprise, the Ninth Circuit concluded it had appelalte jurisdiction, even though there was a colorable argument that the judgment and partial injunction entered by the District Court was not an appealable order, since at the time of the appeal (May 2013) and oral argument (August 2013), the defendants still had not yet reported their compliance with the judgment, the plaintiffs had not, as a consequence, had time to object in district court. That process played out during the latter part of 2013 and into early 2014. Paul previously reported on the District Court’s judgment and partial injunction and the briefing in the Ninth Circuit.

Today, he returns to summarize what is probably Judge A. Wallace Teshima’s truly final order in the case: the Order on Objection to Notice of Compliance, which coincidentally (or perhaps not) was issued on the same day (February 18, 2014) as the Ninth Circuit opinion upholding his previous judgment in 2012. Although plaintiffs could, in theory, still seek Supreme Court review of this order and its accompanying Final Judgment, as a practical matter they appear to have little chance of prevailing in such an appeal.  Plaintiffs acknowledged as much in the local media when they indicated they would now call a halt to their attempts to derail — sorry, bad pun entirely intentional — the rail project.

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U.S. District Court’s Honolulu Rail Compliance Order – A Slam Dunk

by Paul J. Schwind*

The multi-billion dollar Honolulu rail project finally appears to have clear track ahead to proceed with construction and real estate acquisition throughout its proposed alignment, including Phase 4 within urban Honolulu.

On February 18, 2014, the U.S. District Court for the District of Hawaii (Ninth Circuit Judge A. Wallace Tashima presiding by designation) granted the defendants (Federal Transit Administration [“FTA”], U.S. Department of Transportation [“DOT”], and City and County of Honolulu [“City”]) summary judgment as to all remaining claims of the plaintiffs (Honolulutraffic.com, Cliff Slater, Benjamin J. Cayetano, Walter Heen, Hawaii’s Thousand Friends, Small Business Hawaii Entrepreneurial Education Foundation, Randall W. Roth, Dr. Michael Uechi, and the Outdoor Circle), and vacated the court’s judgment and partial injunction entered on December 27, 2012.

That judgment and injunction had constituted the remedy for the court’s previous Order on Cross-Motions for Summary Judgment (November 1, 2012), which had found that defendants had failed adequately to study the project’s possible effects on Chinatown and Mother Waldron Park (an old urban park/playground), and had failed to articulate the reasons why a tunnel under Beretania Street (a major city arterial) was rejected. The judgment had also specified that the injunction would terminate 30 days after defendants filed a notice of compliance with the summary judgment order, unless plaintiffs objected.

Subsequently, the defendants produced a draft Supplemental Environmental Impact Statement (“SEIS”) in May 2013, and filed their Notice of Compliance together with a Final SEIS and Amended Record of Decision (“AROD”) on October 8, 2013, together with separate Declarations in Support. The plaintiffs did, of course, timely file an Objection on November 7, 2013, followed by a Reply in support of their Objection on January 17, 2014, in effect a surrebuttal to the federal and city defendants’ and intervenor’s separate Responses (see here (City)here (FACE), and here (FTA)) filed on January 6.

By this point, however, plaintiffs had limited their objection to defendants’ determination that the Beretania Street tunnel alternative was not a feasible and prudent avoidance alternative under § 4(f) of the Department of Transportation Act, 49 U.S.C. §303 (2006) (“section 4(f)”).  Plaintiffs’ previous objections to defendants’ analyses of traditional cultural properties and constructive use of Mother Waldron Park having been withdrawn, and with the matter thus fully briefed, Judge Tashima heard oral argument on February 6, 2014, with the agreement of the parties that plaintiffs’ remaining objection regarding the tunnel alternative was a challenge to a final administrative action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706.

Plaintiffs’ argument, as presented by Nicholas C. Yost, centered on the standards set forth in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971), construing section 4(f) and 23 C.F.R. §774.17. That is, section 4(f) gives “paramount importance” to protecting parks and historic sites from being damaged by transportation projects. Public parks [and historic sites] are not to be lost unless alternative routes present “truly unusual factors” or “unique problems”, or the cost or community disruption of such alternatives reach “extraordinary magnitudes”; id. at 413. Public parkland [and historic sites] may not be used for a transportation project unless there is “no feasible and prudent alternative”, and “all possible planning” has been done to minimize harm; id. at 411 (emphasis added).  Under section 4(f), a feasible and prudent “avoidance alternative” is required that “avoids using Section 4(f) property and does not cause other severe problems of a magnitude that substantially outweighs the importance of protecting the Section 4(f) property”; 23 C.F.R. § 774.17 (emphasis added). Under the APA, a reviewing court must also find that the selection of an alternative was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law”; Overton Park, 401 U.S. at 416.

Within this framework, Mr. Yost argued, the rail project as proposed (with an elevated line past the downtown area and a final destination of Ala Moana Shopping Center) will alter historic buildings and views from the Chinatown Historic District (a nationally protected area). These impacts must be compared with the impacts of the Beretania Street Tunnel alternative (which would run underground through most of downtown) and would have a final destination of the University of Hawaii (“UH”) campus (bypassing Ala Moana Center), while affecting the “obviously unattractive” King Street Florist building downtown, and the site of a Pensacola Street Station on the McKinley High School campus (of which the main buildings but not the rest of the campus are on the National Register of Historic Places).  Both alternatives would impact the former Oahu Railway and Land (“OR&L”) terminus (a registered historic site), for construction of either a Ka`aahi Street Station or an Iwilei Station, or both.  Mr. Yost argued further that both the project as proposed as well as the tunnel alternative have the UH campus as the ultimate destination, for only a two percent (2%) difference in final cost, as calculated from defendants’ figures.  At this point Judge Tashima observed that with the tunnel alternative, there is no logical intermediate terminus (such as Ala Moana Center), and that there is no way to know the ultimate cost of reaching the UH campus without a lot more study.  Mr. Yost concluded that defendants must show by comparison of the impacts of each alternative that they have chosen the one that will do the “least overall harm”, otherwise their selection is “arbitrary and capricious” and illegal under Overton Park as a “post-hoc rationalization.”

Defendants’ argument, as presented first by Robert D. Thornton, for the City, began with the statement that there was no disagreement among experts in this case, as plaintiffs have none – instead, their attorney is “testifying” as to factual matters.  In response to a concern of Judge Tashima, Mr. Thornton said that the issue is not an “apples to apples” comparison of how the rail system will reach the ultimate goal of the UH campus, or an “apples to oranges” comparison of whether to reach UH or Ala Moana Center, but rather: whether the recommended alternative meets the “purpose and need” of the project. (As set forth in the Draft SEIS, the purpose is to provide high-capacity rapid transit in the highly congested east-west transportation corridor between Kapolei and UH Manoa, to meet the need for improved corridor mobility, travel reliability, access to planned development, and “transportation equity”.)

The Beretania tunnel alternative is not prudent because it would (1) require the demolition of buildings at the former OR&L terminus for construction of a Ka`aahi Street Station, which otherwise would require an impossibly steep grade alignment; (2) require the construction of a Pensacola Street Station within the grounds of the historic McKinley High School; and (3) impact the King Street Florist building, which (even though a very humble structure) meets the criteria for eligibility for the historic site registry. The bottom line is, when all 47 sites affected by the original project and the tunnel alternative were consistently evaluated by the defendants’ experts pursuant to the seven factors specified under 23 C.F.R. §774.3(c)(1) (including meeting purpose and need, magnitude of adverse impacts, and substantial differences in cost), the preferred alternative (original project) was found to cause the “least overall harm”. Therefore, the court must defer to the agency’s (FTA’s) interpretation of its own regulations.

David B. Glazer for the FTA and DOT added that the agencies are not constrained to look only at historic buildings formerly designated in the National Register; they may take a larger, “whole-parcel” view of a site. For example, in the case of McKinley High School, it was appropriate to consider the impact of the tunnel alternative (Pensacola Street Station) on the front lawn of the campus.

William Meheula for the intervenors (Faith Action for Community Equity [“FACE”], Melvin Uesato, and Pacific Resource Partnership [“PRP”] stated that it was in fact reasonable to compare the cost of reaching Ala Moana Center vs. UH Manoa as termini of the project.  Reaching Ala Moana meets the project’s purpose and need, whereas full build-out to UH Manoa is not funded, and there is no evidence that leaving the Beretania tunnel alternative short of the campus would meet purpose and need. It is therefore rational, and not arbitrary and capricious, that the defendants concluded as they did.

In rebuttal, Mr. Yost argued that a Pensacola Street Station would not be located on the McKinley High School grounds, and in any case there is a National Register boundary defined around the main school buildings, so the defendants do not have discretion to include the entire campus in their impact analysis.

Judge Tashima issued his Order (Honolulutraffic.com v. Federal Transit Administration, Civ. No. 11-0307 AWT (D. Haw. Feb. 18, 2014)) less than two weeks after oral argument.

First, he set forth the legal standard under which his order was reached. Given that the court’s review of agency actions under section 4(f) is governed by the APA, he looked to the relevant standard for “arbitrary and capricious” in Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (en banc) (e.g., a decision contrary to the evidence or so implausible as to be beyond differences of expert opinion). “An agency has discretion to rely on the reasonable opinions of its own qualified experts even if, as an original matter, a court might find contrary views more persuasive.” Marsh v. Or. Natural Res. Council, 490 U.S. 360, 378 (1989).

Next, Judge Tashima determined that the Beretania Street tunnel alternative was not a feasible and prudent avoidance alternative (to the use of section 4(f) property), inasmuch as it would require use of the historic OR&L terminal site for construction of a Ka`aahi Street Station, which for valid engineering reasons could not be relocated further away from the OR&L parcel. Thus it was reasonable, and not arbitrary and capricious, for defendants to reject the tunnel as an avoidance alternative on these grounds alone. He then turned to defendants’ determination that the original project as proposed (and approved) does the least overall harm, inasmuch as it would cost $960 million less than the tunnel alternative and would cause less severe harm to section 4(f) properties and less disruption to non-4(f) resources.

Again, he found these determinations not to be arbitrary and capricious. The relevant comparison of alternatives was between the approved project (elevated rail line to Ala Moana) and the Beretania tunnel alternative (rail line to UH Manoa), which the court had previously ordered defendants to consider further. The defendants were not obligated to consider other alternatives cherry-picked by the plaintiffs to yield more favorable comparisons.

Finally, it was not arbitrary and capricious of the defendants to determine that the original project will cause less overall harm by use of “non-contributing” elements of several section 4(f) properties in Chinatown and downtown, in contrast to the tunnel alternative, which would require the removal, relocation, or alteration of historic buildings on the OR&L property.  Additionally, the tunnel alternative would cause greater non-4(f) impacts in the form of construction-related disruption and delays due to roadway closures.

In sum, the defendants considered and balanced the relevant factors and important aspects of the problem, and did not offer implausible explanations contrary to the evidence; see N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1152-53 (9th Cir. 2008).

Before granting defendants summary judgment on all remaining claims and vacating the prior partial injunction, Judge Tashima took this parting shot at both the plaintiffs and his colleagues on the federal bench in Hawaii, who had recused themselves in opposition to the elevated rail line running past their doorstep:  “the [rail] Project would ‘not pose any additional threat to the Courthouse beyond that of surface traffic’ . . . Plaintiffs’ claim of increased safety risks to the U.S. Courthouse is unsupported by the record.”  Order at 12.

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*voluntarily inactive member of the Hawaii Bar

– See more at: http://www.inversecondemnation.com/#.dpuf

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