PROGRESS OR NOT? HART CEO Dan Grabauskas believes the city will prevail and the project will be built
Dan Grabauskas

The Honolulu Authority for Rapid Transportation’s board of directors met behind closed doors yesterday to determine how it would react to last Friday’s Supreme Court ruling that put the brakes on the city’s $5.2 billion rail project.

The 82-page ruling said the city and state violated the law when the city began construction on the elevated steel rail before completing archeological surveys on the entire 20-mile route.

HART Board Chairwoman Carrie Okinaga issued a statement yesterday defending the State and the City. “The State and the City followed the State Historic Preservation Division’s long‐standing interpretation of its rules to allow the subsurface AIS work to proceed by sections. The lower court agreed with that interpretation. The Supreme Court disagreed with this interpretation and past practice. They ruled that we should complete the AIS work for all four sections of the project. The HART Board is committed to fully comply with the Supreme Court ruling. The AIS work has already been completed in construction sections 1 and 2 and the AIS work in sections 3 and 4 will continue.”

But Okinaga warned the delays will have financial consequences: “The delay in construction will add costs, however we do have contingency funds to cover these costs.”

University of Hawaii Law Professor Randall Roth was skeptical that the city and state claimed they thought they were following the law when they started construction on the controversial project.

“As the state Supreme Court unanimously ruled, state law requires that an AIS be completed for the entire project before construction begins.  The purpose of this law is to avoid getting beyond a point of no return before burials can be identified, which, of course, is exactly what the City was trying to do.  Now the HART board says it’s shocked, shocked that the court would rule in this way.  Yeah, right,” Roth said.

Despite three pending lawsuits and a mayoral election that can substantially delay or stop the project, HART continues to issue contracts for the rail project.

More than $75 million in new rail related design and professional services contracts were awarded by the city in June and July of this year.

HART has also agreed to pay Kiewit Construction $22.2 million for change orders and delays including a $7.2 million change order approved yesterday by the HART board.

Roth, a plaintiff in a federal lawsuit filed against the rail project, said he believes it’s just a matter of time before the elevated heavy rail project is stopped permanently, yet the HART board continues to spend and commit ever increasing amounts of money.

“At some point bad judgment can start to look like negligence or bad faith,” Roth said.
From the city’s perspective, there were some bright spots in the Supreme Court ruling, Okinaga said, including upholding the 
project’s Environmental Impact Statement under State law.
The EIS is a major issue in the federal lawsuit brought by Roth and 7 other plaintiffs last Spring against the city and federal government. Oral arguments were presented in that case on August 21 before Ninth Circuit Court Judge Wallace Tashima. He is expected to rule in a matter of weeks.

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