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Rail arguments before appeals court in San Francisco wrap up

By Marcel Honoré and Gordon Y.K. Pang

LAST UPDATED: 3:47 p.m. HST, Aug 15, 2013

SAN FRANCISCO >> A panel of three federal judges spent much of today's oral arguments in the appeal against Honolulu's $5.26 billion elevated rail project questioning whether it was too early for them to make a decision in the case.

Circuit Judges Stephen Reinhardt and Andrew D. Hurwitz spent most of the hour-long hearing peppering Nicholas Yost, the lead attorney for rail opponents, with questions about the appeal court's jurisdiction.  

The two judges pondered whether last year's ruling by visiting federal Judge Wallace Tashima could stand as a final decision for them to consider. Tashima's ruling called for several additional key studies on impacts and alternatives to the rail project, and those reports haven't been finalized or approved yet.

Those studies, looking at a Beretania tunnel as an alternative route and impacts to Mother Waldron Park as well as "traditional cultural properties" along the 20-mile line, could drastically change the public transit project after the 9th Circuit judges make a final ruling, Reinhardt and Hurwitz said Thursday.

"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 in the case.

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."

The lawsuit by against the city and Federal Transit Administration alleges that city and federal transit officials violated environmental and historic preservation laws in planning the 20-mile rail line.

At the crux of the 2011 lawsuit by -- a consortium of politicians, academics and environmental groups -- is the charge that the city and federal transit officials failed to properly consider all reasonable alternatives, including using an express bus system along dedicated lanes.

In December, Judge Tashima sided with the city on all but three of 57 points of concern raised in the lawsuit, thus allowing the city to proceed with construction of the project. But he also required the city to further study rail's impact on Mother Waldron Park in Kakaako, the feasibility of an alternative route under Beretania Street and the project's effects on cultural sites along the route.

Also serving on the panel with Reinhart and Hurwitz is Senior Circuit Judge Mary Schroeder. With arguments finished, the judges will now weigh the case but there's no fixed timeline for a decision on the matter.   

During this morning's proceedings, Yost told the panel that the city had failed to properly consider alternatives to a heavy rail system, calling its rejection of Bus Rapid Transit “arbitrary and capricious” and noting that the city should also have considered light rail. 

Attorney David Shilton, who represents the Federal Transit Authority, countered that Judge Tashima ruled that alternative technology need not be considered if it is not feasible and does not serve the stated needs. He added that the city is complying with Judge Tashima's decisions. 

As the arguments wrapped up, Judge Hurwitz suggested that the panel ask Judge Tashima about the intent of his order. filed its appeal in February.

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