Update on the Lawsuit Challenging the Honolulu Rail Project in Federal Court

WAITING ON A RULING: Former Gov. Ben Cayetano, HonoluluTraffic.com’s Cliff Slater, UH law professor Randall Roth and Senate Minority Leader Sam Slom outside the U.S. District Court.
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Former Gov. Ben Cayetano, HonoluluTraffic.com’s Cliff Slater, UH Law Professor Randall Roth and Senate Minority Leader Sam Slom outside the U.S. District Court


The real impact of Judge Susan Oki Mollway’s letter:


As we wrote earlier, Judge Mollway submitted comments to the FTA and the City, on behalf of all the Hawaii Federal District Court Judges, that was highly critical of the current rail project. Technically these comments were the Judges’ formal joint comments on the Draft Supplemental EIS regarding the three issues still pending in the federal lawsuit, Honolulutraffic.com et al. v. Federal Transit Administration et al.

It has been confusing for many that the case is both being appealed in the Ninth Circuit Court of Appeals, and at the same time is also pending in Judge Tashima’s court. This happened when Judge Tashima made part of his ruling appealable, leaving the three items where his ruling favored Honolulutraffic et al. still to be ruled on. (See remaining issues below).

We asked the Ninth Circuit to allow the Mollway letter to be heard as part of our appeal. We thought it relevant and was worth a try; the Ninth Circuit demurred. However, the main impact of the Judges’ letter is to Judge Tashima’s consideration of the Beretania Street Tunnel Alternative. Here are the main points:

First, that it was concurred in by all the Hawaii Federal District Court Judges. They reside in the jurisdiction that would be most affected by the rail Project. On the other hand, Judge Tashima has never lived here.

Second, the Judges made the point that only the Beretania Street Tunnel Alternative met the definition of the Locally Preferred Alternative of UH Manoa to Kapolei approved by the City Council.

Third, the Judges used an exclamation mark to mock the idea of the rail line going to Ala Moana Center rather than UH Manoa. (Traffic congestion is all over by the time the shopping center opens at 9:30 AM). They detail the 20,000 commuters who travel to UH who would be poorly served by the current rail project. (As Professor Roth commented, pay attention whenever a judge uses an exclamation mark.)

Fourth, the Judges remind the City and the FTA that by going between UH and Kapolei now, the City would be not only saving money for the long term (HART estimates that the full project from Kapolei Transit Center to UH would cost $9 billion), but would be closer to meeting the original intent of the rail Project years before it might otherwise, if at all.

Fifth, the Judges’ say they believe the Final EIS understates the impact on historic buildings and views for the current Project along the waterfront while overstating them for the Beretania Street Tunnel Alternative.

Sixth, they say, “In conclusion, the court urges you to recognize that the Beretania Street Tunnel Alternative, which is a more prudent and feasible route for the Project than the route presently proposed, has not been adequately considered in the DSEIS.”

This is the importance of the Judges’ letter; it puts the Beretania Street Tunnel in a whole new light. Above is just a brief summary of the Judges’ points; it is better to read the whole document. The link is above.

The remaining issues still before Judge Tashima:

For these issues the Judge ruled that the FTA and the City undertake the following:

Defendants must fully consider the prudence and feasibility of the Beretania tunnel alternative specifically, and supplement the FEIS and ROD to reflect this reasoned analysis in light of evidence regarding costs, consistency with the Project’s purpose, and other pertinent factors. See Citizens for Smart Growth , 669 F.3d at 1217. Should Defendants determine, upon further examination of the evidence, that their previous decision to exclude the Beretania alternative because it would be imprudent was incorrect, they must withdraw the FEIS and ROD and reconsider the project in light of the feasability of the Beretania tunnel alternative.

Before continuing with the Project in any way that may use unidentified [traditional cultural properties] (TCPs), Defendants must complete their identification of above-ground TCPs within the corridor … For any TCPs identified, Defendants must conduct a complete Section 4(f) analysis. The ROD must be supplemented to include any newly identified TCPs. The FEIS must also be supplemented to the extent that this process requires changes that “may result in significant environmental impacts ‘in a manner not previously evaluated and considered.’”

Before continuing with any part of the Project that may constructively use Mother Waldron Park, Defendants must reconsider their no-use determination, taking full account of evidence that the Project will significantly affect the park. If Defendants conclude that the Project will, in fact, constructively use Mother Waldron Park, they must seek prudent and feasible alternatives to such use, or otherwise mitigate any adverse impact from constructive use of the park… The ROD must be supplemented accordingly. The FEIS must also be supplemented, to the extent that this process affects its analysis or conclusions.

Hawaii court to have live video feed of Ninth Circuit Appeals Court hearing:

A message from the court re our Ninth Circuit Appeals Court hearing that will last about one hour or less::

“The U.S. District Court will be receiving a live video feed of the Circuit Court’s hearing in Honolulutraffic.com v. FTA. The hearing is scheduled for Thursday August 15, 2013 at 11:00AM Hawaii time and it will be broadcast in Aha Nonoi [Judge Kobayashi’s courtroom], 4th floor of the U.S. District Court. The matter will be published on the court’s calendar and open to the public.”

Our comments on the Draft Supplemental EIS filed:

On Monday, our attorneys filed comments on the Draft Supplemental EIS (DSEIS) on behalf of the plaintiffs in our lawsuit and Cliff Slater also filed his personal comments on it also.

The DSEIS was required by Judge Tashima in his ruling against the City and FTA on the three issues of  their needing to a) justify their disqualification of the Beretania Street Tunnel Alternative as not being preferable to the current Project, b) justify their conclusion that the rail Project would not have a significant effect on Mother Waldron Park, and c) document the envrironmental effects on Traditional Cultural Properties.