City's rail rendering
City’s rail rendering

By Paul J. Schwind – The multi-billion dollar Honolulu rail project was only minimally stunned by the U.S. District Court for the District of Hawaii for its failure to adequately study the project’s possible effects on Chinatown and Mother Waldron Park (an old urban park/playground), and for its failure to articulate the reasons why a tunnel under Beretania Street (a major city arterial) was rejected.  But bumpy track still looms ahead.

As we anticipated last December, the plaintiffs Honolulutraffic.com (now appellants) did appeal Judge Tashima’s December 27, 2012 Judgment & Partial Injunction to the Ninth Circuit on February 12, 2013.

On May 3, the court granted appellants’ motion to expedite the briefing and hearing, which is now calendared for Thursday, August 15, 2013 at the San Francisco courthouse. In the same Order, the court denied the defendants’ (now appellees) Federal Transit Administration (FTA) and City and County of Honolulu (City) motion to dismiss the appeal for lack of jurisdiction, without prejudice to renewing the arguments in the answering briefs.

Appellants’ Opening Brief

The Opening Brief presents the following by-now familiar issues:

1.  Did the final EIS prepared by the FTA and the City violate the National Environmental Protection Act’s (“NEPA”) requirement to evaluate all reasonable alternatives, where

  • The range of alternatives evaluated in detail in the FEIS was limited to three virtually-identical versions of the City’s “preferred” elevated heavy rail project;
  • The City and the FTA excluded managed lanes from detailed consideration in the FEIS despite the recommendations of the City’s own Transit Advisory Task Force; and
  • The City and the FTA excluded light rail from detailed consideration in the FEIS despite its apparent feasibility?

2. Did the FEIS prepared by the FTA and the City violate NEPA by defining the purpose and need for the project in terms so narrow as to preclude consideration of alternatives, where every alternative to the City’s “locally preferred” elevated heavy rail project was eliminated from consideration for (alleged) inconsistency with the purpose and need?

3.  Did the FTA violate Section 4(f) of the Transportation Act’s substantive mandate prohibiting the approval of transportation projects that will damage historic resources unless there is no feasible and prudent alternative, where

  • It is undisputed that the FTA approved an elevated heavy rail line that will cause permanent damage to the historic Dillingham Transportation Building and the Chinatown Historic District;
  • The City and the FTA entirely failed to address the possibility of developing a bus rapid transit system despite the fact that they had recently issued an EIS concluding that bus rapid transit (a) is the best transit alternative for Honolulu and (b) will not damage historic resources; and
  • The City and the FTA claim that a system of high-occupancy and toll lanes would be imprudent without (a) applying the regulatory definition of “imprudence” or (b) addressing recommendations from the City’s own Transit Advisory Task Force?

4.  Did the FTA violate Section 4(f) by approving the elevated heavy rail line prior to completing its evaluation of the rail line’s potential impacts on Native Hawaiian burial sites, where

  • Section 4(f)’s implementing regulations and controlling circuit case law require that all potentially-historic resources be fully evaluated prior to project approval;
  • The City and the FTA issued a technical report which found that comprehensive Archaeological Inventory Studies (“AIS’s”) are necessary to properly evaluate potential impacts on burial sites; and
        • It is undisputed that the City and the FTA approved the elevated heavy rail line without completing AIS’s for more than half of the Project?

Obviously, appellants’ argument is that the answer to their four fundamentally rhetorical questions is “yes” – appellees violated NEPA and Section 4(f). Their summary of argument reads as follows:

The FTA and the City prepared an “Environmental Impact Statement/Section 4(f) Evaluation” that failed to consider any alternatives to the City’s”locally-preferred” elevated heavy rail system, despite evidence that reasonable, feasible, prudent, and less-damaging alternatives (including Managed Lanes, BRT [bus rapid transit], and light rail) exist.  The FTA also violated Section 4(f) by approving the Project without identifying and evaluating potential impacts on Native Hawaiian burial sites, despite unambiguous regulatory requirements (and case law from this Court) requiring that such evaluations be completed in advance of project approval.

The more interesting part of the opening brief is that part in which appellants directly attack Judge Tashima’s reasoning.  Recall that Judge Tashima, who is a Senior Circuit Judge on the Ninth Circuit and some of whose brothers and sisters will be considering this appeal, heard this case in Honolulu sitting by designation, as all the local judges had recused themselves.

Appellants’ specific attack on Judge Tashima’s reasoning focuses on four points regarding the identification and evaluation of Native Hawaiian burials.  First, appellants argue that the district court failed to apply the Section 4(f) regulations, which (they allege) require that potentially historic resources be identified and evaluated prior to project approval.

Second, they argue that the court’s decision is contrary to the Ninth Circuit’s ruling in North Idaho Cmty. Action Network v. U.S. Dep’t of Transp. 545 F.3d 1147, 1158-59 (9th Cir. 2008) (all Section 4(f) resources must be identified prior to project approval; 36 C.F.R. § 800.4 does not authorize “phased” Section 4(f) compliance).

Third, they argue that the court erroneously suggested that North Idaho may be distinguished because “in contrast to North Idaho … Defendants here have not deferred all Section 4(f) site identification to a later date.” Fourth, even if the court’s focus on “appropriate levels of effort” were proper, its conclusion on that issue was erroneous.

Appellees’ Answering Briefs

The federal appellees’ Answering Brie responds with their take on the issues presented:

1.  Whether the final EIS for the Honolulu High-Capacity Transit Corridor Project (the “Project”) satisfied the requirements of NEPA to describe the Project’s purpose and need and to evaluate alternatives in light of that purpose and need.

2. Whether it was arbitrary and capricious for defendants to determine that neither a managed lanes alternative nor a bus rapid transit alternative fulfilled the Project’s purpose and need, and therefore were not “prudent” alternatives to the use of certain historic properties within the meaning of Section 4(f), 49 U.S.C. §303.

3. Whether defendants’ efforts prior to Project approval to identify unknown burials and other potential archaeological resources along the Project route, including plans to avoid burial sites that may be later discovered, satisfied the requirements of Section 4(f).

Just as obviously, federal appellees’ argument is that the answers to their rhetorical questions are “yes”, “no”, and “yes” – the FEIS satisfied NEPA requirements (the range of alternatives considered was reasonable in light of Project purposes and needs, such that managed lands and light rail were not reasonable); the exclusion of imprudent alternatives (such as bus rapid transit and other non-fixed guideway rail alternatives) was not arbitrary and capricious; and the efforts to identify unknown burials and other archaeological resources satisfied Section 4(f). Their summary of argument reads as follows:

1.  The EIS properly stated the purpose and need for the Project, as developed and refined through a lengthy and public local planning process.  The purpose and need included providing high-capacity transit in a congested corridor, providing faster, more reliable public transportation than could be achieved by buses operating in traffic, providing reliable mobility in areas where people of limited income and an aging population live, advancing planning goals by serving rapidly developing areas to the west of the City, and providing an alternative to private automobile travel and improved transit links.  The defendants followed a process authorized by governing statutes and regulations to screen out alternatives that would not serve the project’s purpose or need. The Managed Lane Alternative (“MLA”) supported by plaintiffs was reasonably determined in this process to not serve the purpose and need for several reasons:  it would create significant new congestion near the entrances and exits to the managed lanes; it would not substantially improve access to transit for transitdependent communities; it would not support the City’s land-use planning objectives; and it would have other drawbacks such as a high cost.Plaintiffs waived any claim that a light rail alternative required additional consideration by not clearly raising the argument in the district court.  In any event, the EIS adequately explained why a light rail system would not fulfill project purpose and need because of limitations on such a system’s capacity and speed, and because it would add to congestion and safety problems by occupying existing travel lanes.

2.  The MLA was properly found not to be a “prudent” alternative to the use of historic resources in downtown Honolulu under the terms of Section 4(f), 49 U.S.C. §303(c).  The Department of Transportation’s (“DOT”) 2008 regulations implementing Section 4(f) make clear that an alternative is not prudent if it “compromises the project to a degree that it is unreasonable to proceed with the project in light of its stated purpose and need.” 23 C.F.R. §774.17.  The MLA failed to meet several components of Project purpose and need and it was reasonably determined not to be “prudent.”  This Court’s cases make clear that an alternative’s failure to meet project purpose and need is sufficient, without additional analysis, to render it imprudent under Section 4(f), and DOT’s regulations embody that case authority.

Bus Rapid Transit (“BRT”) similarly failed to fulfill project purpose and need. BRT would have done little to relieve congestion and improve travel reliability since buses would still have to operate at times in mixed traffic, and such a system would have been contrary to the City’s smart growth land use policies designed to focus transit oriented development in the Project corridor and discourage urban sprawl.  Defendants were not required to make more particularized findings about the drawbacks of the MLA and BRT alternatives and weigh those drawbacks against the value of specific Section 4(f) properties.  Because the administrative record strongly supports the conclusion that neither of these alternatives was prudent, the FTA’s approval of the Project was consistent with Section 4(f) and not arbitrary or capricious.

3.  The City’s and FTA’s efforts to identify unknown archaeological sites such as Native Hawaiian burial locations and to provide for the protection of any such sites found during construction satisfied Section 4(f).  While Section 4(f) itself does not speak to the issue of undiscovered archeological sites, DOT’s 4(f) regulations specifically contemplate the use of identification procedures found in regulations promulgated pursuant to Section 106 of the National Historic Preservation Act (“NHPA”), as well as the use of Programmatic Agreements to afford protection to sites found during construction that may be eligible for inclusion on the National Register of Historic Places (“National Register”).  As the district court found, the defendants followed the relevant procedures and met the requirements for a reasonable good faith effort to carry out appropriate identification efforts by conducting a thorough Archeological Resources Technical Report and by entering into a highly protective Programmatic Agreement that covered the entire Project.  The district court correctly concluded that defendants had not improperly deferred compliance with Section 4(f), but rather had fulfilled their statutory responsibilities in a way that protected potential undiscovered sites.

All the foregoing notwithstanding, federal appellees’ most potent counterpunch may well be that the Ninth Circuit does not currently have appellate jurisdiction, because Judge Tashima’s judgment and partial injunction last December may not be final for the purposes of appeal.  Since in May the Court denied without prejudice defendants’ motion to dismiss the appeal for lack of jurisdiction, the jurisdictional question may now be ripe for consideration. Here is federal appellees’ argument on jurisdiction:

…. On December 27, 2012, the district court issued an order, entitled “Judgment and Partial Injunction,” partially remanding the matter for additional studies and analyses, establishing a process for resolving any subsequent challenges to the adequacy of supplemental environmental documents produced during the remand, and enjoining construction activities and real estate acquisition activities in Phase 4 of the Project (downtown Honolulu). … On February 11, 2013, plaintiffs filed the instant appeal.The federal appellees submit that the district court’s judgment resolving some issues in favor of defendants but remanding others to FTA for further consideration and decision is not a final judgment for purposes of 28 U.S.C. §1291, as that statute has been interpreted by this Court’s case law. While plaintiffs have asserted 28 U.S.C. §1292(a)(1) (appeals from interlocutory orders granting or denying injunctive relief) as an alternative basis for appellate jurisdiction …, they have not presented any argument questioning the propriety of the district court’s partial injunction. Accordingly, Section 1292(a)(1) cannot serve as a basis for appellate jurisdiction.

A final judgment is one that “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). In this case, litigation on the merits has not ended. … Significant issues remain regarding FTA’s compliance with Section 4(f) of the Department of Transportation Act, 49 U.S.C. §303.  These remanded issues are not ministerial in nature. They will, at the very least, require FTA to supplement its decision and the Environmental Impact Statement …, and they could require FTA to “reconsider the project”. We agree with defendants-appellees City and County of Honolulu, et al., that it is likely that FTA’s determinations on remand will be challenged, and that this challenge could easily result in a second appeal.

For these reasons, the rule that “remand orders are generally not ‘final’ decisions for purposes of section 1291,” Pit River Tribe v. U.S. Forest Service, 615 F.3d 1069, 1075 (9th Cir. 2010) (citing Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990)), should apply here. The policy behind that rule—avoidance of multiple, duplicative appeals in the same case—is strongly implicated where, as here, the issues remanded are intertwined with the issues that were not remanded, and on which the present appeal focuses. … Plaintiffs should have no difficulty in obtaining review of all issues at the end of the case. Accordingly, the Court should dismiss the instant appeal for lack of appellate jurisdiction. (Footnotes and citations to the record on appeal omitted.)

The City Appellees’ Answering Brief includes a summary of argument similar to the Feds’ brief:

1.  This Court lacks jurisdiction under 28 U.S.C. § 1292(a)(1) because HonoluluTraffic’s Opening Brief failed to include any substantive argument challenging the scope of the injunction in the December Order, thereby waiving any such challenge. This Court also lacks jurisdiction under 28 U.S.C. § 1291 because the December Order is not a “final decision.” The December Order includes a partial remand and return process that does not (1) conclusively resolve a separable legal issue, (2) force the agency to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) foreclose review if an immediate appeal were unavailable.

2.  The Project purpose and need complied with NEPA.  The purpose and need reflects the statutory context of the approval of new transit projects.  The Lead Agencies developed the purpose and need through a NEPA – compliant process mandated by statute – one, that provided numerous opportunities for public participation and comment.

3.  FTA evaluated a reasonable range of alternatives.  The alternatives evaluated in detail in the Final EIS met the Project’s purpose and need and were selected through a well-documented process with extensive public participation.

4.  The Final EIS fulfilled the requirements of NEPA to “briefly discuss” the MLA [managed lanes alternative] and light rail alternative.  After studying MLA for several years, the Lead Agencies reasonably determined that it would not achieve Project purpose and need, would not result in substantially fewer environmental impacts, and would not be financially feasible.  Two configurations of light rail – throughout the Project corridor and in the downtown area – were considered and did not meet purpose and need.  They failed to provide high-capacity rapid transit and failed to ensure mobility and reliability.

5.  The Lead Agencies determined, and the record supports the finding, that the MLA and BRT [bus rapid transit] alternatives did not meet the purpose and need of the Project and were therefore imprudent under Section 4(f). Thus, the Lead Agencies were not required to consider these alternatives further under Section 4(f).

6.  The Lead Agencies did not improperly defer evaluation of unknown Native Hawaiian burials in violation of Section 4(f).  The record demonstrates that the Lead Agencies conducted a detailed evaluation to identify all archaeological resources along the entire Project corridor, and committed to avoid the “use” of any Section 4(f) eligible burials.

The City’s brief also elaborated additional reasons why the Ninth Circuit does not yet have appellate jurisdiction in this case:

Renewal of the jurisdictional argument is particularly appropriate in this case, as the facts have changed. HonoluluTraffic’s opposition to the prior motion asserted that the Court would have jurisdiction under 28 U.S.C. § 1292(a)(1), which establishes jurisdiction over district court orders granting or refusing injunctions. … However, HonoluluTraffic’s Opening Brief makes no arguments challenging the injunction and they have, therefore, waived jurisdiction under 28 U.S.C. § 1292(a)(1).“On appeal, arguments not raised by a party in its opening brief are deemed waived.” Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999); Autotel v. Nev. Bell Tel. Co., 697 F.3d 846, 857 n.9 (9th Cir. 2013) (“conclusory statement in its opening brief, unaccompanied by argument or citation to the record, is insufficient to preserve the issue for appeal”). HonoluluTraffic’s Opening Brief fails to include any substantive argument challenging the scope of the injunction in the December Order.

The jurisdictional argument is now limited to the single issue of the applicability of 28 U.S.C. § 1291, which provides jurisdiction over “final decisions of the district courts.” Because the December Order’s partial remand is not a “final decision,” this Court lacks jurisdiction.

When, as here, a remand order is not challenged by an administrative agency, controlling precedent requires the application of a three-factor test to determine if the order is “final” for purposes of appeal. See, e.g., Williamson v. UNUM Life Ins. Co., 160 F.3d 1247, 1251 (9th Cir. 1998) (“Williamson”) (quoting Chugach Alaska Corp. v. Lujan, 915 F.2d 454, 457 (9th Cir. 1990) (“Chugach”)). If the order fails to satisfy just one of these factors, the decision will not be considered “final.” See Williamson, 160 F.3d at 1251 (remand appealable “only when” all three factors satisfied); Chugach, 915 F.2d at 457; Alsea, 358 F.3d at 1184 (remand order not “final” because single factor not satisfied); Rendleman v. Shalala, 21 F.3d 957, 959 (9th Cir. 1994) (“order remanding case to Secretary is final where three criteria met”); Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 152 F.3d 1159, 1161 (9th Cir. 1998) (“Shapiro”).  This test applies regardless of the label employed by the district court, because the substance of the order is controlling. Sullivan v. Finkelstein, 496 U.S. 617, 628 n.7 (1990) (label “cannot control the order’s appealability”); Eluska v. Andrus, 587 F.2d 996, 997 (9th Cir. 1978) (decision labeled “judgment” not a “final decision”).

A partial remand order will be considered “final” only if: “(1) the order conclusively resolved a separable legal issue, (2) the remand order forces the agency to apply a potentially erroneous rule which may result in a wasted proceeding, and (3) review would, as a practical matter, be foreclosed if an immediate appeal were unavailable.” Williamson, 160 F.3d at 1251 (internal quotations omitted) (quoting Chugach, 915 F.2d at 457). In this case, the partial remand will not force the agency to apply a potentially erroneous rule, thereby resulting in a wasted proceeding. Nor will it foreclose review. Thus, the District Court’s order is not a “final decision.”

HonoluluTraffic cannot credibly argue that the reconsideration required by the District Court will require the Appellees to apply a potentially erroneous rule.  During the District Court proceedings HonoluluTraffic argued that the law mandates that the three issues must be accompanied by studies and analyses. … The governing regulations guarantee public participation in this process. 23 C.F.R. §§ 771.130(d), 771.123(g) (requiring drafts to be made available to the public for comment). [IN] The District Court-required process is substantive and demanding, not a “waste of time”:

(1) If TCPs are identified and adversely affected by the Project, Defendants must conduct a complete Section 4(f) analysis. They must also supplement the ROD and Final EIS, if changes “may result in significant environmental impacts in a manner not previously evaluated and considered.” …

(2) Defendants must also “fully consider the prudence and feasibility of the Beretania Street Tunnel Alternative, and supplement the Final EIS and ROD to reflect this analysis.  If Defendants determine that their previous decision to exclude the Beretania alternative as imprudent was incorrect, they must withdraw the Final EIS and ROD and reconsider the project”. …

(3)  Defendants are ordered to “reconsider their no-use determination” for Mother Waldron Park. If they conclude that the Project will constructively use” Mother Waldron Park, they must seek prudent and feasible alternatives, or otherwise mitigate any adverse impact, supplement the ROD, and supplement the Final EIS to the extent that this process affects its analysis or conclusions. …

On May 30, 2013, FTA circulated a draft Supplemental Environmental Impact Statement/Section 4(f) Evaluation (“Draft SEIS”) for public review. 78 Fed. Reg. 34377 (June 7, 2013); 23 C.F.R. § 771.123(g).

After circulation, FTA must consider the comments received and prepare a final SEIS that “discuss[es] substantive comments received on the draft EIS and responses thereto, summarize[s] public involvement, and describe[s] the mitigation measures that are to be incorporated into the proposed action.” 23 C.F.R. § 771.125(a). FTA retains the ultimate discretion to approve or not approve the studies and analyses. Significant substantive steps must be completed before changes to the Project can be ruled out.

The December Order is not a “final” appealable decision because denying “an immediate appeal does not, as a practical matter, foreclose review.” Alsea, 358 F.3d at 1184.  The December Order grants HonoluluTraffic the right to file an objection to any finding of compliance, and the injunction remains in effect pending resolution of the objection.  . . . .

HonoluluTraffic, of course, may challenge FTA’s determinations in the District Court and in this Court.  The history of HonoluluTraffic’s opposition to the Project makes it highly likely that they will do so. (Footnotes, citations to the record on appeal, and internal captions omitted.)

In short, the federal and city defendants/appellees have their work cut out for them, even if the instant appeal is dismissed.

Faith Action for Community Equity, Malvin Uesato, and Pacific Resource Partnership intervened, and also filed an Answering Brief, which incorporates the statement of issues presented in the federal partys’ brief, and focuses on two issues:

(1)  Was it arbitrary and capricious for the Federal Transit Administration (“FTA”) to determine that the Managed Lane Alternative (“MLA”) and the Bus Rapid Transit Alternative (“BRT”) would not accomplish the purpose and need of the Project and were also “not prudent” for the purposes of 49 U.S.C. § 303 (“Section 4(f)”)?; and

(2)  Was the Lead Agencies’ approach to the evaluation of unknown and unidentified below ground archaeological resources arbitrary and capricious?

Appellants’ Reply Brief

Appellants had the option to reply to the answering briefs within 14 days of June 19, i.e., by July 3. As of this post, the Ninth Circuit’s public documents website does not have the reply, if one was filed. [Barista’s note: we’ll try and track down a copy of the reply brief, or confirm that one was not filed.]

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*voluntary inactive member of the Hawaii Bar

– See more at: http://www.inversecondemnation.com/#sthash.lb2ex6eP.dpuf

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