New Secret Weapon in Federal Anti-Rail Lawsuit in Honolulu: University Law Students

Randall Roth
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Randall Roth is helping to organize the University of Hawaii law students who are reviewing the rail litigation and record

Plaintiffs in the federal lawsuit aiming to stop construction of the city’s $5.3 billion elevated steel on steel rail system have a new secret weapon in the fight against the project – energetic and enthusiastic law students.

Nine law students from the University of Hawaii have agreed to spend their Spring Break reviewing 155,000 pages of record the city and federal government turned over to the plaintiffs in recent weeks.


There are as many as 15,000 emails in the record, some of which were recently highlighted by former Gov. Benjamin Cayetano, one of 7 plaintiffs in the lawsuit challenging the validity of the city’s Environmental Impact Statement. Cayetano is running for mayor in 2012, and is critical of how his opponents, Honolulu Mayor Peter Carlisle, and former city Managing Director Kirk Caldwell, have overseen the project.

University of Hawaii Law Professor Randall Roth, Retired Businessman Cliff Slater of, Retired Judge Walter Heen, Sen. Sam Slom’s Small Business Hawaii Education Foundation, Dr. Michael Uechi and Hawaii’s Thousand Friends also are plaintiffs in the lawsuit, which challenges the claim in the city’s Environmental Impact Statement that elevated steel on steel rail is the most environmentally friendly and culturally sensitive choice to meet Honolulu’s transportation needs.

Roth has helped organize the law students. He said in a recent interview on Hawaii Reporter Television that with the 9 law students and 5 prominent Hawaii lawyers volunteering their time to help in the case, the plaintiffs should be able to review all of the record in about a matter of days rather than months, and will save the plaintiffs a considerable sum of money in legal fees.

The emails uncovered in the record, which are sent between 2006 and 2010, are a gold mine for the plaintiffs, said Slater, the lead plaintiff who organized the lawsuit filed last May, and he hopes the newly assembled legal team will help uncover more.

Cayetano revealed in a recent press conference five key emails between Federal Transit Administration officials that show the federal agency in charge of overseeing the federal approval of the 20-mile project was not as rosy as city officials made it seem.

In one email series, Timothy Mantych, who provides project management services for the Federal Transit Administration, corresponded with FTA officials about City & County of Honolulu officials attempts to prematurely gain federal approval for the construction of the city’s $5.3 billion elevated steel on steel rail system.

Mantych writes: “They (city officials) have put themselves in a ‘pickle’ with the West Oahu /Farrington Highway Contract by identifying unrealistic dates for the Notice to Proceed 3 for Final Design and Notice to Proceed 4 for the Construction Start.”

Mantych said if the city doesn’t listen, it could cost the taxpayers more for the rail project: “Currently they have told Kiewitt (Construction) to expect these Notices to Proceed in March 2011. We have warned them several times in the last couple of months that these dates are improbable, but they have not listened. We strongly feel that giving the contractor dates that are known to be impossible may magnify their delay claim.

Mantych was correct: The city was eventually fined $15,000 for delays in the project by Kewitt.

On October 12, 2006, an email from James Ryan at the FTA to other FTA officials said: ”We seem to be proceeding in the hallowed tradition of Honolulu rapid transit studies: never enough time to do it right, but lots of time to do it over.”

Another email from FTA’s Joseph Ossi to other FTA administrators on November 14, 2006, said: “This isn’t an FTA issue. Let the city deal with it. They have produced 3 failed projects and are well on their way to a fourth, so why is FTA wasting time on the City’s problems?”

The response from the FTA’s Raymond Sukys to his peers in the FTA said: “This is different. This time they have a huge cash flow, which will build something. It seems likely that we will get involved in litigation again especially since we have an erroneous NOI out there. I do not think the FTA should be associated with their lousy practices of public manipulation and we should call them on it.”

The FTA released this statement shortly after Cayetano’s press conference: “There is no question that this project has overcome early obstacles because of a much-improved Federal partnership with the City of Honolulu and State of Hawaii over the last several years.  The Federal Transit Administration believes that this project will bring much needed relief from the suffocating congestion on the H-1 Freeway and provide a real transportation alternative for the people of Oahu as gas prices rise.”

U.S. Department of Transportation Secretary Ray LaHood, who appeared at a hearing of the Senate Committee on Appropriations’ Subcommittee on Transportation, Housing and Urban Development on March 15, dismissed the emails. He told Hawaii’s Senior Senator Daniel Inouye the emails were exchanged under a prior administration and now the federal government is fully committed to the project.

But Cayetano maintains the emails are important because they echo the charges the plaintiffs made publicly against the City and in the pending lawsuit against the City and FTA.

“If anything, the emails will only increase the public’s disgust and disappointment with how the City has managed the rail project.  Recent polls show that currently 53% of the public now oppose rail. The tide of public opinion has turned against rail and we expect that trend to continue and the gap between pro-railers and anti-railers to widen further,” Cayetano said.