Robert Thomas
Robert Thomas

BY ROBERT THOMAS – Will the multi-billion dollar Honolulu rail project be halted by a federal court over a failure to adequately study the project’s possible effects on Chinatown and an old urban park/playground, or a failure to articulate the reasons why a tunnel under a major city street was rejected?

It might, but not just yet.

Today’s Order on Cross-Motions for Summary Judgment inHonolulutraffic.com v. Federal Transit Administration, No. 11-00307 (D. Haw. Nov. 1, 2012) gave some clues about whether the court would conclusively halt the project, but deferred a ruling until December.

Ninth Circuit Judge A. Wallace Tashima is hearing the case because the entire Hawaii district court bench is recused (see page 39 of the slip opinion for the reason why). In today’s order, he rejected most of the plaintiffs’ challenges to the project under three federal statutes (the Transportation Act, the Natonal Environmental Policy Act, and the National Historic Preservation Act), and granted the defendants summary judgment on what appear to have been the most significant claims in the case.

The court concluded that there were no problems with the cultural studies for Native Hawaiian burial sites, or evaluations of the possible impacts of the project on Aloha Tower and a pair of downtown parks. The court also held the defendants considered and properly rejected most of the alternatives to the plan they eventually settled on (an elevated railway with steel wheels-on-steel track), including managed lanes, a downtown tunnel, bus rapid transit, and at-grade light rail.

However, the court agreed with several of the plaintiffs’ arguments under section 4(f) of the Transportation Act, and granted them summary judgment on three claims:

  • The defendants did not complete a full study of a “traditional cultural property” — in this case, the Chinatown area — before issuing the Record of Decision. The court held that as an above-ground cultural resource, in contrast to burial sites, these resources should be easy to identify and study. Since the defendants had made only preliminary efforts to determine whether there are any cultural resources within the project corridor in Chinatown with a full determination to come later, and “[n]either the FEIS nor the PA explained why Defendants did not undertake a comprehensive study to identify TCPs at an earlier time,” the decision to delay a full study was “arbitrary and capricious” and violated the section 4(f). Slip op. at 11.
  • The court also concluded that there was a “great deal of evidence” that the impact of the project on Mother Waldron Parkin Kakaako “will be quite serious.” Slip op. at 19. Thus, the project might “constructively use” the park and “because there was no analysis of the noise impacts on the park and because the project will have negative impacts on the park’s historic and artistic features,” the defendants violated section 4(f). Slip op. at 19.
  • The court also agreed with the plaintiffs that the FEIS failed to articulate any reasons to support the rejection of a tunnel under Beretania Street as imprudent. In court, the defendants offered “justifications that could have provided support for a decision to reject the Beretania Tunnel alternative,” but the FEIS didn’t spell out these reasons. Slip op. at 26. “Defendants’ explanations appear to be post hoc rationalizations for their decision to reject the Beretania route. Defendants’ failure to include full analysis of whether the Beretania option was a prudent and feasible alternative during the DEIS, FEIS, and ROD process was arbitrary and capricious.” Slip op. at 27.

But did these rulings in their favor deliver the knockout blow the plaintiffs were hoping for?

We’ll have to wait at least until December 12, 2012 to find out, when the court scheduled a follow-up hearing to consider whether to issue an injunction or a declaratory judgment. So for the time being, each side can claim a partial victory: the defendants can correctly assert that the order took away the high-profile arguments in the case, while the plaintiffs can claim that today’s order contained some hints the court may well halt the project:

Before continuing with any part of the Project that may constructively use Mother Waldron Park, Defendants must reconsider their no-use determination taking full account of evidence that the Project will significantly affect the park. If Defendants conclude that the Project will, in fact, constructively use Mother Waldron Park, they must seek prudent and feasible alternatives to such use, or otherwise mitigate any adverse impact from constructive use of the park.

Slip op. at 20-21. The court also concluded:

Defendants must fully consider the prudence and feasibility of the Beretania tunnel alternative specifically, and supplement the FEIS and ROD to reflect this reasoned analysis in light of evidence regarding costs, consistency with the Project’s purpose, and other pertinent factors. Should Defendants determine, upon further examination of the evidence, that their previous decision to exclude the Beretania alternative because it would be imprudent was incorrect, they must withdraw the FEIS and ROD and reconsider the project in light of the feasability of the Beretania tunnel alternative.

Slip op. at 27 (citation omitted).

Thus, even though the court in today’s order rejected the plaintiffs’ most significant claims, the three they won might give them enough to convince the court that construction can’t go forward until these problems are rectified. And what did the court mean by the phrase “[b]efore continuing with any part of the Project that may constructively use Mother Waldron Park,” given the current construction activity is 20 miles away, in Kapolei? Does this mean that until construction gets closer to town, it can continue? What does “fully consider the prudence and feasibility of the Beretania tunnel alternative” mean? That all the defendants must do is take the reasons they set forth in their pleadings for rejecting the tunnel alternative and put them in the FEIS, and then think about it more?

We’re asking a lot of questions rather than providing analysis because we really should wait until the further briefing on these issues the court requested has been completed (the court ordered the parties to “file concurrent briefs on whether a declaratory judgment and/or permanent injunction should issue and, if so, the scope of any such judgment or injunction” by November 20, 2012). We will post those briefs as they become available.

Thus, for the time being, the Honolulu Rail Project has been stunned but not delivered a fatal blow. Stay tuned for December 12.

Order on Cross-Motions for Summary Judgment, Honolulutraffic.com v. Federal Transit Admin., No. 11-00307 AW…

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Robert H. Thomas is one of the preeminent land use lawyers in Hawaii. He specializes in land use issues including regulatory takings, eminent domain, water rights, and voting rights cases. He has tried cases and appeals in Hawaii, California, and the federal courts. Robert received his LLM, with honors, from Columbia Law School where he was a Harlan Fiske Stone Scholar, and his JD from the University of Hawaii School of Law where he served as editor of the Law Review. Robert taught law at the University of Santa Clara School of Law, and was an exam grader and screener for the California Committee of Bar Examiners. He currently serves as the Chair of the Condemnation Law Committee of the American Bar Association’s Section on State & Local Government Law. He is the Hawaii member of Owners’ Counsel of America, a national network of the most experienced eminent domain and property rights lawyers. Membership in OCA is by invitation only, and is limited to a single attorney from each state. Robert is also the Managing Attorney for the Pacific Legal Foundation Hawaii Center, a non-profit legal foundation dedicated to protecting property rights and individual liberties. Reach him at rht@hawaiilawyer.com He is also a frequent speaker on land use and eminent domain issues in Hawaii and nationwide. For a list of upcoming events and speaking engagements.