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SAN FRANCISCO » Federal judges weighing the appeal against Honolulu’s rail project spent most of a pivotal court hearing Thursday questioning whether they even have jurisdiction to make a final ruling on the matter.
The judges’ heavy focus during oral arguments on their own role in the case — rather than the merits of the lawsuit itself — could signal more challenges ahead for opponents of the $5.26 billion elevated-train project, attorneys watching the court battle say.
And the often murky discussion Thursday about whether a ruling is premature could prolong the legal saga on rail transit on Oahu, they add.
The arguments were heard by a three-member panel of the 9th U.S. Circuit Court of Appeals. Two of the three, Circuit Judges Stephen Reinhardt and Andrew D. Hurwitz, spent most of the hourlong session peppering Nicholas Yost, lead attorney for rail opponents Honolulutraffic.com, with questions about the court’s jurisdiction.
The two judges pondered whether last year’s ruling by federal Judge Wallace Tashima could really be considered a final decision for them to consider. Tashima’s ruling called for several additional studies on effects and alternatives of the rail project, and those reports haven’t been finalized or approved yet.
The studies, looking at a Beretania Street tunnel as an alternate route and impacts on Mother Waldron Park in Kakaako, could drastically change the transit project after the 9th Circuit judges make a final ruling, Reinhardt and Hurwitz said in their questioning Thursday.
Rail opponents filed an appeal of Tashima’s December ruling in February.
The jurisdictional question is the "technical point we’re stumbling over," Hurwitz said.
The panel’s third member, Senior Circuit Judge Mary Schroeder, did not generally focus her questions on those issues.
It’s typical for appellate judges to worry about making a decision prematurely and then have the record on that case change later, said Robert Thomas, a Honolulu- and San Francisco-based attorney who attended the hearing.
Many of the key rail opponents bringing the suit, including former Gov. Ben Cayetano, watched the hearing remotely at the federal courthouse in Honolulu.But a mix of 30 or so city officials, attorneys, consultants and project opponents attended in person.
"It looked like the court had some significant concerns on whether it should make a decision now," said Bill Meheula, an attorney representing Pacific Resource Partnership, an alliance of Hawaii construction workers and contractors, in the case.
Complicating the legal matters further, rail officials are poised to resume construction next month — and the appeals court judges wondered how that might affect any future arguments and decisions in court.
Tashima’s order last year halted construction on only the last of the rail line’s four sections to be built — the downtown stretch.A separate injunction by the Hawaii Supreme Court stopped the project’s construction entirely, but that order could be lifted in the coming weeks if state officials approve a report on the archaeological finds along the 20-mile route.
On Thursday the appellate judges wondered why the rail opponents hadn’t appealed to get a similar federal injunction halting all rail construction, not just downtown — instead of going straight to the argument to kill the project outright.
"We are appealing right now the entire thing," Yost said during the hearing.
"Any time (the judges) ask, ‘Why didn’t you do X, why didn’t you do Y?’ you always worry," Thomas said after the hearing of the injunction discussion.
Thomas, who also has represented the Star-Advertiser in a separate legal matter, said he has been following the federal suit since it was filed in 2011. "You can never predict what a court is going to do," he said.However, based on the judges’ volley of procedure-based questions, "it seems just slightly more likely than not that they’re going to dismiss for lack of jurisdiction."
Yost said it was too early to say what might come of the hearing.
"I just don’t know," he said afterward. "It was clearly a well-informed panel. We were very pleased with the attention that the court paid to this case."
Corporation Counsel Donna Leong, the city’s chief civil attorney, also watched the proceedings in Honolulu. Leong said she believes both the city and FTA attorneys were able to get across that the project is favored by residents.
The project was "totally vetted over the course of the last 10 years (and) reflects the will of the people," Leong said. "We want to reduce reliance on vehicles. We want to provide mobility opportunities for our low-income and aging populations."
Leong said she is optimistic that the court will rule it does not have appellate jurisdiction since Tashima has yet to issue a final judgment.
Cayetano, an attorney, said he liked the line of questioning by Reinhardt and Hurwitz about jurisdiction because it showed they understood that the city was trying to hastily move forward with the project so it could later argue that it was too late to stop.
Opponents never argued for a preliminary injunction to halt the project at Phase 1, in Kapolei, because it would have been difficult to prove irreparable harm when the project was being placed on vacant land and city officials said they could remove pillars constructed there if the court ruled against the city, Cayetano said.
Opponents who went to San Francisco for the hearing said they wished the judges dealt more with the arguments of the case than jurisdiction.
"They were more attentive to procedure and process than they were the factual deficiencies of the project," said Michelle Matson, representing Oahu Island Parks Conservancy.
"I’m not sure that they understood the whole issue, the cultural context" specific to Hawaii, said Donna Wong, executive director of the longtime local environmental advocacy group Hawaii’s Thousand Friends, a party to the lawsuit. "That’s the crux of the case."
In its 2011 lawsuit, Honolulutraffic.com — an alliance including Cayetano, longtime rail opponent Cliff Slater and various academics and environmental groups — argued that local and federal transit officials violated environmental and historic preservation with a rushed and shoddy approval process.
The city, the opponents argued, didn’t consider better ideas with lessimpact on Oahu’s delicate environment, as well as its cultural and historical sites.
The 2011 suit further suggested the project was conceived mainly to develop West Oahu. New, designated vehicle lanes for express buses, car pools and emergency vehicles would do more at a cheaper cost to curb increasing traffic congestion, it argued.
Tashima, however, sided with the city last year on all but three points of concern.The opponents then filed an appeal in February.
Local and federal transit officials selected the rail project "after a decade-long, exhaustive environmental process," Robert Thornton, an attorney for the city, told the judges Thursday."It was a well-reasoned decision, a well-reasoned policy choice."
"We’re not here on a policy difference," Yost countered before the judges.The opponents question whether the transit officials complied with federal law, he said.
Daniel Grabauskas, executive director of the Honolulu Authority for Rapid Transit, said that if the appeals panel sends the matter back to Tashima, "keeping it on those three areas, that’s a good sign that it’s headed toward its conclusion." Meanwhile, the court delays have added close to $3 million to the project’s cost, he said.
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Star-Advertiser reporter Gordon Y.K. Pang contributed to this report.
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