By Walter Heen, Ben Cayetano, Cliff Slater and Randall Roth
[The following commentary was submitted to the Star-Advertiser on July 17, 2013, and rejected by the Star-Advertiser on July 17, 2013.]
Star-Advertiser news coverage attributed solely to Chief Judge Susan Mollway the contents of a letter that Mollway wrote on behalf of all 11 members of the U.S. District Court for the District of Hawaii. (“Judge blasts city for ending rail route at Ala Moana, not UH,” July 11, 2013)
A subsequent Star-Advertiser editorial repeated that error and downplayed the letter’s significance by describing it as “no surprise.” The editorial also judged the letter’s criticism of the current rail project to be “impractical,” and declared the elevated heavy rail plan is “solid.” (“Rail tunnel isn’t worth the cost,” July 15, 2013)
We feel compelled to set the record straight.
First, it matters that Chief Judge Mollway wrote the letter on behalf of the entire court. Never before has an entire federal district court, here or elsewhere, made such a strong public statement about issues currently being litigated. Lawyers here and on the mainland have called it a “jaw-dropping” event.
Second, while none of the judges in question is officially involved in the federal rail lawsuit, all of them are people who have been entrusted to resolve legal controversies. They know the law and are widely regarded for their judgment.
Third, the Star-Advertiser’s description of this letter as a mere “echo” of prior statements from this court ignores a dramatic difference. The earlier letters focused exclusively on the security threat of trains running only a few feet from the federal courthouse. What makes the recent letter “jaw-dropping,” is that it only mentions the security issue once, and that is in a footnote. The body of the letter says nothing about the security issue.
Fourth, the Star-Advertiser missed completely the significance of the judges’ description of the current rail project as “neither prudent nor feasible.” These particular words are at the core of our federal lawsuit that is now in front of the Ninth Circuit Court of Appeals. Federal judges do not casually use the operative words of the controlling statute when making a public statement.
Fifth, the arguments used to support the judges’ bottom-line opinion are extremely well constructed and expressed. One small but fun example is the masterful use of an exclamation mark at this end of rock-solid reasoning:
“Remarkably, the Project’s proposed rail route fails to run along ‘the highly congested east-west transportation corridor between Kapolei and UH Manoa,’ the very corridor expressly identified as the route the Project is intended to serve. The Project’s proposed rail route does not go anywhere near the UH Manoa campus. Instead, it goes to the Ala Moana Shopping Center!”
Sixth, the Star-Advertiser failed the “laugh out loud” test when it defended the Ala Moana Shopping Center as the terminating station because that decision had been “vetted via community hearings and … improved the rail route.”
Seventh, the Star-Advertiser editorial betrays its bias by continuing to mention an extension of elevated rail to UH Manoa as a possibility, without noting the judges’ skepticism on this point: “given the economy, sequestration, the loss of Senator Inouye’s influence, and other intervening factors, it is realistic to question whether the extension to UH Manoa will ever be built.”
Eighth, the Star-Advertiser described the $960 million added cost of the Beretania tunnel as “overly expensive,” but failed to mention that it would cost more than $9 billion to build an elevated rail route that starts in Kapolei and ends at UH Manoa (according to HART’s Dan Grabauskas).
Ninth, the Star-Advertiser also fails to mention the irony of terminating a traffic-congestion relief project at a shopping center that does not open until rush hour has ended.
Finally, the judges’ letter helps the public see that the original plan to alleviate traffic congestion has morphed into an excuse to use eminent domain to clear the way for transit-oriented development. That change delights big landowners and developers, along with the politicians they finance, who evidently expect taxpayers to pick up the tab.
We respect the Star-Advertiser’s right to express its views on the editorial page, but we respectfully suggest that it cannot retain the trust of its readers if it continues to distort key facts and the opinions of others, as it recently did.
Walter Heen is a former state and federal judge, Ben Cayetano is former governor of Hawaii (D-1994-2002), Cliff Slater is founder of Maui Divers, and Randall Roth is a law professor at the University of Hawaii and author.