On Thursday, we filed our complaint against the U.S. Secretary of Transportation, various executives of the Federal Transit Administration, and the City Transportation Director.
Plaintiffs are Honolulutraffic.com, former Hawaii Governor Benjamin J. Cayetano, the Small Business Hawaii Entrepreneurial Education Foundation, Judge Walter Heen, former chair of the Hawaii Democratic Party and former Trustee of the Office of Hawaiian Affairs, Dr. Michael Uechi MD, Hawaii non-profit corporation Hawaii’s Thousand Friends, UH Law Professor Randal Roth, and Cliff Slater.
In the Complaint we have listed the “Violations of Law” on three statutes, the National Environmental Policy Act (NEPA), the National Historic Properties Act (NHPA), and Section 4(f) of the U.S. Transportation Act of 1966:
- Count 1: defining the purpose and need so narrowly as to preclude consideration of all reasonable alternatives
- Count 2: failure to consider all reasonable alternatives (nepa)
- Count 3: failure properly to analyze the environmental consequences of alternatives (nepa)
- Count 4: improper segmentation (nepa)
- Count 5: failure to identify and evaluate use of native hawaiian burials and traditional cultural properties (section 4(f))
- Count 6: arbitrary and capricious evaluation of the project’s use of section 4(f) resources (section 4(f))
- Count 7: improper project approval (section 4(f))
- Count 8: failure to account for effects on historic properties (nhpa) Prayer for relief
We ask the court to rescind the Record of Decision (ROD), declare the Final EIS, 4(f) evaluation, and ROD as legally inadequate and find that the Defendants have violated these statutes and also the Administrative Procedure Act (APA). We ask the court that the City and the Federal Transit Administration revisit the environmental process and this time follow the law. We also ask that the City take no action that would have an adverse environmental impact, or take no action that would limit the choice of alternatives.
You may visit the Complaint and determine for yourself whether you believe these claims are reasonable.
Judge Tashima Appointed to Handle Rail Complaint
On Thursday, Judge Leslie Kobayashi was assigned the case. On Friday, Chief Judge Susan Oki Mollway declared that, “All of the judges in the United States District Court for the District of Hawaii having recused themselves from this case, this case is reassigned from Judge Leslie E. Kobayashi to Judge A. Wallace Tashima for all further proceedings.”
Our senior attorney, Nicholas Yost, tells us that he is delighted to have such a highly regarded judge handle the case. Judge Tashima is a senior judge of the United States Court of Appeals for the Ninth Circuit, headquartered in San Francisco.
The likely scenario – we should be in court by October or November.
The Federal Transit Administration now has 60 days to respond to our Complaint. During that time it must also assemble its draft of the Administrative Record, which includes not only documents already public but also any internal documents involving the Project, including even internal emails.
Once the Administrative Record is agreed to, we then have 45 to 60 days to reply to the FTA’s response to our complaint and file our motion for summary judgment based on that record. The FTA then has 30 days to respond to us and file its own motion for summary judgment, that is followed by us having 15 to 30 days to respond and then we are in court, say, October or November this year.
The Star-Advertiser Conducted a news poll and asked for HonoluluTraffic’s comments:
I said that it is rather strange poll, for example :
- 49 vs. 45 percent believe we should proceed with rail.
- 88 vs. 11 percent agree that rail will cost a lot more than currently estimated.
- 49 vs. 44 percent believe it will not be worth it.
- 53 vs. 40 percent agree that the reduction in traffic it is not worth the cost.
I said, “Now please make sense of that.”
I also said in the email that, “The fourth question implies that there will be traffic reduction, whereas the city says in the Final EIS that ‘traffic congestion in the future with rail will be worse than it is today.’ Had the Star Advertiser in the past ever told their readers this fact, the percentage in agreement would have been far higher.”
The latter statement was translated by the Star Advertiser as, “Slater also contends the final environmental impact statement indicates that traffic congestion is expected to get worse with the project. The city says his claim is based on selective information.”
Let’s see how “selective” I was.
The full and exact quote is, “You are correct in pointing out that traffic congestion will be worse in the future with rail than what it is today without rail, and that is supported by data included in the Final EIS.” (Page 1252 of Appendix A, Final EIS, response to Cliff Slater, Chair, Honolulutraffic.com, on his comments to the Draft EIS, from Wayne Yoshioka, Director, City Department of Transportation Services, in https://www.honolulutraffic.com/FinalEIS/AppendixA.pdf)
It’s enough to make you cry.