On the hook with rail

Oahu’s transit authority is only months away from creating the groundwork for its 20-mile rail system, but a federal judge has yet to turn the legal turnstile wide open.

The city and the newly created Honolulu Authority for Rapid Transportation have already signed nearly $3 billion in contracts with companies to construct the $5.17 billion project, and await a go-ahead by acting U.S. District Judge A. Wallace Tashima of California in an environmental lawsuit brought by rail opponents including former Gov. Ben Cayetano. Tashima, a 9th U.S. Circuit Court of Appeals judge, was named to hear the case because all nine Honolulu-based federal judges are conflicted by the nearness of the rail plan to their chambers.

The work on the elevated rail project so far has been preliminary, and actual construction activity is not scheduled to begin until February, acknowledged San Francisco environmental attorney Nicholas Yost, who represents the rail opponents.

"February is the target date, or plan date, where we’re going to get the federal clearance to start the heavy construction," said Toru Hamayasu, HART’s interim executive director. "At that point we start to place columns."

He said city attorneys have indicated that "all of this is going to be settled by summer."

HART has signed a dozen contracts with companies that have begun or will soon begin work on the project directly or through subcontractors, including three contracts totaling more than $1 billion assigned to the Kiewit national construction company.

When work is at its peak, the project is expected to create about 4,000 construction jobs and 6,000 nonconstruction jobs as early as 2013, Hamayasu said.

Of the nearly $3 billion in rail contracts signed, more than $360 million has been paid already to contractors for pre-construction chores such as design and other preliminary work.

Other primary contractors are Arizona-based InfraConsult, Massachusetts-based GEOLABS Inc., San Francisco-based Enovity Inc., HDR Engineering Inc., California-based AECOM Technical Services, global firm Parsons Brinckerhoff and Italian-backed Ansaldo Honolulu JV.

Kiewit Building Group, an arm of the national construction corporation based in Omaha, Neb., has signed three contracts with HART totaling more than $1 billion. It is the largest project ever involving Kiewit in Hawaii, where the company has been active for three decades.

In the event of a court directive affecting work on the rail by Kiewit or its more than 25 subcontractors, Kiewit will work with the city to go forward where possible, said Lance Wilhelm, Kiewit’s senior vice president.

"We would hope that not to happen," Wilhelm said. "We would hope that we could work with HART and the city to try to maintain some amount of momentum, and maintain some amount of forward progress on the various things we’re working on to the extent possible."

This legal battle over Oahu’s rail follows a major federal court victory by Yost in blocking the plan for a military firing range near an ancient settlement and cultural site in Guam, forcing the Navy to consider other locations.

The suit reminds city officials of the state’s lengthy struggle in building the H-3 freeway, originally proposed in 1971 to be built through Moanalua Valley. The late U.S. District Judge Samuel P. King approved the plan, but the 9th U.S. Circuit Court of Appeals overruled him in 1977, and the state moved the proposed path to Halawa Valley.

When King approved the Halawa route, the appellate court again overturned the judge’s decision.

"If they (state officials) weren’t such jerks, if they were willing to compromise just a little bit, the whole thing would have been solved," Stop H-3 Association attorney Boyce R. Brown Jr. said at the time. For more than a decade, a dead-end stretch of pavement laid dormant near Aloha Stadium.

As it turned out, Congress approved and President Ronald Reagan signed a bill authorizing environmental exemptions — part of a rider on a Department of Defense budget bill — for H-3 to be completed. It finally opened to traffic in 1997, costing $1.3 billion total instead of the initially projected $250 million.

Anti-rail attorney Yost said any activity that would have an adverse environmental effect or would not be reversible should be forbidden through a court injunction. He has yet to propose such a work stoppage while talks occur with city officials and the U.S. Department of Justice, since federal funding expected to total $1.5 billion is included in the project through the Federal Transit Administration, which is named as a defendant in the lawsuit.

In the event of such a court order, Hamayasu said, there may be disagreement about what constitutes an "adverse impact" on the environment.

"Building the columns in the green field out in the Ho’opili area, where we have no known archeological findings or anything, we would argue that doesn’t cause any adverse impact," he said.

Kiewit’s Wilhelm said he can envision a possibility where "work in certain areas might be affected versus all the areas that could be OK to continue on with design work … We would take direction from HART."

In the event of a brief court-ordered work stoppage, Hamayasu said, HART would ask contractors to "hold their resource while they stop working."

While the contracts would be active, he said, "Each delay like that is adding cost, both in installation and delay claims."