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Judge deals rail setback but dismisses bulk of plaintiffs' claims

By Kevin Dayton

LAST UPDATED: 07:38 p.m. HST, Nov 01, 2012

A federal judge has dealt another legal setback to the $5.26 billion Honolulu rail project.

Federal Judge A. Wallace Tashima ruled today the city "failed to complete reasonable efforts to identify" traditional cultural properties along the 20-mile proposed rail line, and ordered the city to identify those properties.

"Before continuing with the project in any way that may use unidentified (traditional cultural properties) defendants must complete their identification of above-ground TCPs within the corridor," the ruling says.

The city also didn’t adequately consider building a Beretania Street tunnel as part of an alternative to a rail line and didn’t properly evaluate whether the rail project would constructively use a Mother Waldron Park in Kakaako, the judge ruled.

Tashima also ruled the Federal Transit Administration must supplement the record of decision for the rail line before work can resume.

The judge didn’t find problems with how the city has handled burial sites along the route. He also didn’t order the project to stop, though he said it may be appropriate to issue an injunction in the case. 

He scheduled a Dec. 12 hearing to hear arguments on issuing a permanent injunction in the project. The lawsuit was filed by a group of rail opponents, including former Gov. Ben Cayetano, who is running for mayor against rail supporter Kirk Caldwell.

City and the Honolulu Authority for Rapid Transportation officials noted that the judge dismissed most of the claims of the plaintiffs.

"We are confident that a reasonable remedy can address the remaining issues in a timely manner." Mayor Peter Carlisle said in a news release. "Today's ruling will require further analysis, but the bottom line is that the project can and should continue moving forward."

Daniel Grabauskas, executive director of HART, said the rail project "remains on course."

He said Tashima ruled in the city's favor on 20 of the 23 claims made by rail opponents, and "flatly rejected the vast majority of the plaintiff's claims."

"On all the major issues, we have successfully shown that the project properly conducted the required analyses and environmental studies," Grabauskas said in a written statement. "The ruling underscores the fact that the majority of alternatives were given proper consideration, including BRT, at-grade light rail and managed lanes. We will be carefully examining the ruling to determine what further course of action is needed."

All construction on the rail line was halted in August after the Hawaii Supreme Court ruled the city was required to complete an archeological survey of the entire 20-mile rail line before construction could begin. The city had been conducting the survey in sections, and still has not completed that work. 

The city estimates the Supreme Court ruling will cause $64 million to $95 million in delay costs.

Michael Green, an attorney for the plaintiffs, said the ruling was “a major victory.” 

“They’re going to go back to the drawing board, and that drawing board is going to cost millions and millions of dollars,” Green said. He said it was “unfair to the people” for the project’s supporters to deny this.


The Associated Press contributed to this report.


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MariaBetty wrote:
World War 3
on November 1,2012 | 03:52PM
Soledad wrote:
"Tashima ruled in the city's favor on 20 of the 23 claims made by rail opponents, and "flatly rejected the vast majority of the plaintiff's claims". That doesn't sound like a "major setback."
on November 1,2012 | 04:34PM
MKN wrote:
@Soledad: Actually it is a major setback because the judge is probably going to place a permanent injunction on the project halting all construction until all of the requirements for the ruling are met (identifying all cultural sites along the 20 mile rail route, conducting archeological surveys for burial sites, and a supplemental record of decision). This may mean that they might not be able to get congressional approval for the federal funding until next year at the earliest. Bottom line is the project is probably delayed for close to a year assuming that nothing else affects the project and it will cost more than the figure that they are stating in this article. If they didn't rush it, all of this extra cost would have been avoided. Now us taxpayers will have to eat the bill. Really sad.
on November 1,2012 | 04:49PM
Soledad wrote:
Looks like this article has been revised to remove the "major setback" words. Smart move. It isn't a setback until the Judge actually puts a halt to anything.
on November 1,2012 | 05:15PM
OldDiver wrote:
Losing 20 of the 23 counts is a major setback for Ben Cayetano.
on November 1,2012 | 06:42PM
OldDiver wrote:
After losing 20 out of 23 counts Ben Cayetano will declare victory. The remaining 3 counts will not stop rail so Ben will resort the plan B, a constant state of fuming for the rest of his life.
on November 1,2012 | 06:48PM
Venus1 wrote:
Good news!
on November 1,2012 | 06:55PM
NanakuliBoss wrote:
Try open the cayetano decision PDF...it's all garble. Like the FAST plan. Go open it.
on November 1,2012 | 09:39PM
Soledad wrote:
Looks like this article was revised and it no longer says "major setback". I think it is too early to call it a "setback". It's only a setback if it stops construction. And I don't think that will happen.
on November 1,2012 | 05:08PM
Soledad wrote:
Ooops. Didn't mean to double post.
on November 1,2012 | 05:42PM
Kalaheo1 wrote:
Soledad wrote: "I think it is too early to call it a "setback". It's only a setback if it stops construction. And I don't think that will happen."

NEWSFLASH!: Construction has been stopped for weeks.
on November 1,2012 | 06:23PM
Kalaheo1 wrote:
Soledad wrote: "Tashima ruled in the city's favor on 20 of the 23 claims made by rail opponents, and "flatly rejected the vast majority of the plaintiff's claims".

Hey! You left out this part: "said Daniel Grabauskas, executive director of HART"
on November 1,2012 | 05:50PM
Bumby wrote:
20 rights does not make 3 wongs okay. The city should have more right than wrong. Having 1 wrong on a major project of billions is 1 too much. The greed of making money has made many push this train to get on a crooked track.
on November 1,2012 | 11:19PM
kaupena wrote:
If these DELAYS are costing us 64-93 million dollars, how much would a charge order cost if the rail needed to be rerouted? 500 million???
on November 2,2012 | 12:07AM
loquaciousone wrote:
on November 1,2012 | 03:52PM
Infamous_Hawaii wrote:
on November 1,2012 | 03:55PM
Wazdat wrote:
WOW...now all we need is BEN to win and its 3 strikes and YOU ARE OUT RAIL....


on November 1,2012 | 03:58PM
lowtone123 wrote:
See what happens when you cut corners to try and push this project on everyone. The price of rail is going to go through the roof and then some.
on November 1,2012 | 03:59PM
pastormatt wrote:
But will these politicians and unions ever learn? Sadly, I don't think any of them will admit their mistake or change their mind. They are just hell-bent on getting the money funneled to their supporters and pushing their agenda.
on November 1,2012 | 05:08PM
al_kiqaeda wrote:
These unions ARE learning. That's the insidious and scary part.
on November 1,2012 | 06:46PM
enoughisenough wrote:
The City loses on THREE counts! Good luck finding a buyer for all that steel.
on November 1,2012 | 04:01PM
niimi wrote:
Steal, not steel.
on November 1,2012 | 04:09PM
Workingrl wrote:
NO the city did not lose the lawsuit. Read the article. It says "Tashima ruled in the city's favor on 20 of the 23 claims made by rail opponents, and "flatly rejected the vast majority of the plaintiff's claims." " The City prevailed on 20 counts!!!!!
on November 1,2012 | 04:25PM
Maneki_Neko wrote:
It takes only one to stop it.
on November 1,2012 | 04:39PM
NanakuliBoss wrote:
You mean to stall it.
on November 1,2012 | 07:52PM
gyang wrote:
Who's to blame now?
on November 1,2012 | 04:05PM
Graham wrote:
Shame, the people involved in rushing this project, Mufi, Caldwell, Carlisle, City Council, Inouye, cannot be held responsible for their...I can't find the right word to use.
on November 1,2012 | 04:06PM
pastormatt wrote:
Hold those responsible who are unapologetic and still pushing it forward, Caldwell, Hirono, Hanabusa, etc. http://www.hawaiireporter.com/latest-on-rail-controversy-mufis-lie-the-payoff-and-more/123
on November 1,2012 | 05:12PM
honokai wrote:
This pretty much confirms it --- this project has been absolute planning disaster. We can all euthanize it next Tuesday. hasta la vista, baby!
on November 1,2012 | 04:08PM
Infamous_Hawaii wrote:
Remember vote Ben next week. So we can put a end to all the crocks.
on November 1,2012 | 04:12PM
DPK wrote:
infamous: or is that crooks?
on November 1,2012 | 04:44PM
akuman808 wrote:
Millions in smear attack ads by PRP will not decide what is legal and right. They are guilty of illegally starting the rail project.
on November 1,2012 | 04:13PM
fairgame947 wrote:
Trite but true - "HASTE MAKES WASTE"!!!!!!
on November 1,2012 | 04:15PM
islandsun wrote:
Come on folks! Whats wrong with this picture? Everything. More change orders & delay claims because Horner cant say no to his friend at Kiewitt. And it gets much worse if cayetano doesnt convince filipinos to show some loyalty.
on November 1,2012 | 04:20PM
atilter wrote:
why put the onus on filipinos alone???...this rail thing will not affect filipinos alone...like it or not, we're all in this TOGETHER...see the big, big collusion PICTURE...wide-spread pain, small benefit (if any)...
on November 1,2012 | 05:55PM
niimi wrote:
If PRP spent $2.8 Million and the carpenters union has only 243 members, then that is $11,522.63 per member. What a dumb waste of their money. Ben is going to win and win big!
on November 1,2012 | 04:29PM
iwanaknow wrote:
So..............the plot thickens right before the elections..................get out da vote and no grumble!
on November 1,2012 | 04:32PM
Anonymous wrote:
Ha, all the Benners foaming at the mouth over this is hilarious. You guys realize if Kirk wins, we're still getting rail, but it will be more costly because they now have to do pointless studies to make Panos/Cliff/Ben (aka: the obstructionist) happy? Not even in office yet and he's already spending the tax payer's money! Please stay retired, Mr. Cayetano.
on November 1,2012 | 04:37PM
Kalaheo1 wrote:
Anonymous wrote: "You guys realize if Kirk wins, we're still getting rail, but it will be more costly because they now have to do pointless studies....

The Hawaii Supreme ruled unanimously that the City ignored the law by starting construction before completing the legally required archeological study.

Now a different judge has ruled that:

The city's decision to delay a full study of traditional cultural properties was "arbitrary and capricious."

There is evidence in the record that the impact on Mother Waldron Park "will be quite serious," yet the record of decision and EIS "glossed over these troubling observations."

The city did not explain its decision to also pass up a less expensive Beretania Street tunnel. The city must consider the prudence and feasibility of the Beretania tunnel alternative and supplement the EIS and Record of Decision.
on November 1,2012 | 06:14PM
atilter wrote:
of course!!!!...what else can the hart crew say?...are they going to say "okay, we'll can the project!"...they have to say what they said to bolster support and keep from losing more "face"...the trouble is - the leader(s) of hart do not know what the true meaning of "pono" or "face"...to acknowledge those principles would be to tatamount to capitulation to what they know to be correct for many more of our citizens, on many many more idealogical fronts, in stead of just the few who will reap untold billions...they'll never stop and it'll cost EVERYONE FAR INTO THE FUTURE!...it has already begun - the two city charter amendments proposed in this election...they will merely open the door for the council to redirect those funds to pay for the rail under the guise of "legal obligations" ,WHICH IS WHAT THE RAIL CONTRACTS ARE - LEGAL OBLIGATIONS!!!...VOTE NO ON THE CITY CHARTER AMENDMENTS!
on November 1,2012 | 04:37PM
atilter wrote:
on November 1,2012 | 05:00PM
Maneki_Neko wrote:
Asked for a comment, former Mayor Mufi Hanneman said, "Look, who cares....I only pushed this crazy train to help me get elected and when that back fired I could not care less. You think I actually would ride the rails?" He then left with his friends to eat at Halekulani and then play the back nine at Waialae.
on November 1,2012 | 04:42PM
sukebesan wrote:
Doesn't matter who is elected Honolulu mayor next Tuesday, the HART rail project will proceed in time and be completed in approximately 25 years and costing $50 billion to complete construction and $100 billion to operate and maintain for the folowing 25 years - so ordered Hawaii political mafioso, Don Inouye.
on November 1,2012 | 04:55PM
PCWarrior wrote:
Another fair and balanced SA story with no comment whatsoever from the rail opponents including those who filed this lawsuit.
on November 1,2012 | 04:55PM
Maneki_Neko wrote:
Peter Carlisle and Grabauskas are on TV news now spinning like dolphins to try and convince people that this slap at the rail is nothing to worry about but they have that look on their faces. Peter face is saying the voters through him out of office. Dan's face is saying he has already submitted his resume ans hey, his house was a rental anyway.

Guess what....the TV stations have not invited the anti-rail guys to give their views.

on November 1,2012 | 05:05PM
loquaciousone wrote:
Pete is demonstrating why he's is no longer relevant. He can't even lie with a straight face anymore because he knows DE RAIL IS DEAD.
on November 1,2012 | 06:40PM
niimi wrote:
It doesn't matter what the SA says because there is a movement afoot to get people to stop their star advertiser subscriptions after the holidays. It would be interesting to see thousands of people canceling their newspaper subscriptions.
on November 1,2012 | 05:19PM
al_kiqaeda wrote:
Hah? Explain?
on November 1,2012 | 06:48PM
kainalu wrote:
"The city estimates the Supreme Court ruling will cause $64 million to $95 million in delay costs" - and in the end, and think that's the only result.
on November 1,2012 | 05:09PM
Hullstown wrote:
It's comical to see the evolution of you pro-spenders! Not so long ago, you were all claiming this was a necessary transit alternative. Then people started to see this boondoggle for what it is - a huge money grab (for money we don't have). Now you're reduced to *this*? You're clamoring to spend BILLIONS and now you pretend to care about $95 million - it's hilarious.
on November 1,2012 | 05:28PM
niimi wrote:
Getting Ben elected and getting these injunctions to halt rail construction are the easy tasks. I'm certain it will be an immense legal battle to get the laws that were voted into city law which specified steel on steel rail and creating the transit oversight body known as HART.
on November 1,2012 | 05:17PM
PCWarrior wrote:
That may be true but the feds will never approve their part if an anti-rail candidate is elected mayor.
on November 1,2012 | 05:30PM
Lanikaula wrote:
Just on the KGMB news showing thousands of people LINED UP to do what? CATCH THE BUS TO WORK! YUP! Has anyone given an consideration/thought about the fact that a HUGE natural disaster like an EARTHQUAKE may TAKE OUT THE RAIL or like the MEGA-storm Sandy shut down rail in New York? Buses baby! They're lined up to take the bus in NY! Roads can be cleared, but try and re-align RAIL after a disaster of that magnitude!? RAIL a MAJOR NO-NO! We'll be paying for it or should i say our mo'opuna w/b paying for it!
on November 1,2012 | 05:20PM
atilter wrote:
brutally and sadly true!!!
on November 1,2012 | 06:10PM
ukuleleblue wrote:
Buses are good as a back-up in the event of an emergency. It is ridiculous to think that buses can replace the NYC rail transit on a daily basis.
on November 1,2012 | 11:55PM
Eagle156 wrote:
You do not just bore little slits in the ground to find bones. You need to expose 150 square feet which is the size of the footings. Just ask Kawaiahao Church. Rail is dead my friends
on November 1,2012 | 05:26PM
honokai wrote:
They changed the headline. Almost like someone has direct phone access to the editor in chief. Very strange.
on November 1,2012 | 05:36PM
Hullstown wrote:
The Pro-Spend crowd is elated - even double posting - over newspaper headline revisions, it's telling. They are more concerned with the PR (and the PRP) than the product. One thing is for sure, if this rail is built, it will siphon loads of money from taxpayer pockets in perpetuity. It will be an abject failure that bleeds money (by design) and at that point, you will not find many posters or politicians that rally behind the the idea of rail - but you and your children's children will still be forced to pay for it.
on November 1,2012 | 06:06PM
Kalaheo1 wrote:
So much for "We can't turn back now"

It's like my dad always said, "If you don't have time to do it right the first time, what makes you think you'll have the time to do it over?"
on November 1,2012 | 06:06PM
Maneki_Neko wrote:
The bottom line as I see it is that - at least - the city will have to redo its Final Environmental Impact Statement and issue another Record of Decision. That's a lot of work. Maybe 12 months? Of course when the parties go back to court on December 12 there may be a permanent injunction that would simply kill rail once and for all. But that, imho, is a bit of a long shot. But another delay, wrapped on top of the current delay, will mean no rail construction for at least through the Fall of next year and that should be enough to kill off the project. Certainly the Fed money said sayonara when this ruling came down. Tell Dan world war 3 has begun.
on November 1,2012 | 06:11PM
loquaciousone wrote:
Just like the Superferry debacle, narcissistic politicians and power brokers thought they were above the law and didn't bother to dot their i s and cross their t s. Greed caused them to force this rail down taxpayers throat without thought of consequences. Now taxpayer will be left holding the bag with nothing to show for it. All for what. Greedy politicians and Greedy unions.
on November 1,2012 | 06:56PM
Kalaheo1 wrote:
This is odd. I thought all the bad rail news came out at 5:30 on Fridays to avoid the news cycle.
on November 1,2012 | 06:16PM
loquaciousone wrote:
If you fire 23 bullets at the rail only one has to hit to kill it. If you don't believe me let's do a test and let me fire 23 bullets at you.
on November 1,2012 | 06:51PM
Ronin006 wrote:
And the winner is ------Kiewit Construction, which gets millions for doing nothing during the delay.
on November 1,2012 | 07:07PM
Maneki_Neko wrote:
I'll bet you a malasada their contracts have a metric crap-ton of clauses that compensate them handsomely if the project is terminated. Our City boys (who let the contracts when there was not even one person on staff with rail experience) were out classed and severely out gunned on the contract side of things.
on November 1,2012 | 07:21PM
mililanihi wrote:
All they need is one count to bury this rail project for good. Special interests are desperately spending millions of dollars of union dues to prevent Ben from getting elected. This has nothing to do about more local jobs or the magical rail that will make traffic disappear. It's all about the ohana making a killing while the taxpayer foots the bill. Obvious shibai. Rail will not go forward no matter who becomes mayor. Difference is Ben is for the people and can run the show without being a puppet. Corrupt fiasco with names to be uncovered in weeks to come. Too late to hide.
on November 1,2012 | 07:13PM
NanakuliBoss wrote:
Ben will be gone next week Tuesday. If the courts rule against rail, why vote Ben. He only ran to defeat Rail. He said it.
on November 1,2012 | 08:37PM
Ntuitive wrote:
Superferry County Style
on November 1,2012 | 07:43PM
traveld wrote:
The 3 claims the city should have lost on 1. Place the issue on the ballot for the voters 2. Launch an investigation into the 300% increase in property acquisitions for fraud. 3. Decide liability for illegally signing contracts to begin work before the project was ready.
on November 1,2012 | 09:22PM
cslater wrote:
If you are up on 23 counts of murder and you are convicted of three of them, it does allow you to claim a 20 to 3 victory -- on the way to the gallows.
on November 2,2012 | 02:14AM
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