Supporters and opponents of the city’s $5.26 billion rail project will be back in court this week for arguments in a lawsuit alleging city and Federal Transit Administration officials violated federal environmental law in the planning of Honolulu’s train system.
At one time the lawsuit represented rail opponents’ best hope to stall or stop the project, but the federal court case has become almost a sideshow this year as attention turned to former Gov. Ben Cayetano’s campaign for mayor.
Cayetano is the front-runner in the mayoral race, which will be decided in November, and has pledged to stop rail if elected. His campaign largely transformed the mayor’s race into a voter referendum on rail, and his election would likely be fatal to the project.
Participants in the lawsuit say the court case may still play a critical role in the outcome of the rail dispute.
"I believe in rule of law," said University of Hawaii law professor Randall Roth, who is part of the group that is suing to stop the project. "I believe that the law should be obeyed, especially by governmental agencies, and in my opinion and the opinion of our lead lawyers, the city and the FTA violated several very important laws."
Lawyers for the city counter that the voluminous record of the rail planning effort "demonstrates that FTA and the city rigorously followed the procedures required by federal law."
The rail opponents "resort to distortions, mischaracterizations and selected misrepresentations of discrete portions" of the record to try to make a case that the project was improperly approved, according to filings in the case by lawyers for the city.
The case will be heard Tuesday by Judge A. Wallace Tashima, a senior judge of the 9th U.S. Circuit Court of Appeals.
Tashima was assigned to the case after eight of the nine federal judges then serving in Hawaii signed a letter expressing concerns about the rail route because it passed within about 50 feet of the Honolulu Federal Building. The judges then recused themselves from hearing the lawsuit.
The suit filed last year by rail opponents makes an array of allegations:
» It alleges the city and federal governments violated federal historic preservation law, and claims the city should have surveyed the entire rail route before the project was approved to determine whether there are Native Hawaiian burials in the path of the project.
Lawyers for the city counter that "the FTA in fact studied the entire project corridor for potential burial and other archeological sites."
"No amount of pre-construction sampling or survey can reveal every resource underlying a twenty-mile corridor," but additional archaeological surveying is being done on each segment of the project before construction begins, city lawyers wrote.
» The suit alleges rail planners failed to obey federal law that requires the city to consider all reasonable alternatives to the steel-on-steel rail line the city is now building.
Lawyers for the city deny that, arguing an expert panel and the city’s alternatives analysis studied and eliminated potential traffic fixes such as managed lanes, light rail systems that run at ground level, and expanded bus service.
Those options were discarded because they did not meet the "purpose and need" of the project or were not preferable to the steel-wheel option, according to the city filings.
» The lawsuit also alleges planners failed to properly consider the impact the elevated rail project will have on historic features of Honolulu such as Aloha Tower and Mother Waldron Neighborhood Park in Kakaako.
Lawyers for the city replied that "extensive reviews" of potential impact to historic sites were done, and point out the rail line will be built on the median of the six-lane Nimitz Highway, almost 420 feet inland of Aloha Tower.
They contend the rail line "will not impact any of the historically significant views of Aloha Tower." The city makes a similar argument for Waldron Park.
» The suit contends the environmental impact statement for the project illegally excluded evaluations of Waikiki and University of Hawaii rail spur lines. The city doesn’t plan to build those lines until after 2030, but rail opponents say the spurs are actually part of the overall rail project because the city has been planning them for years.
City lawyers counter that federal law allows the 20-mile segment from East Kapolei to Ala Moana Center to be considered independent of the spurs.
Daniel Grabauskas, executive director of the Honolulu Authority for Rapid Transportation, said in a written statement that "the city’s position has always been that the city and the FTA conducted a comprehensive environmental evaluation of the rail project and has fully complied with the National Environmental Policy Act and other federal laws."
Rail opponent Roth disagrees.
"From the nonlawyer’s standpoint, we’re basically saying that the city decided that it wanted elevated heavy rail, and initiated a process that made that inevitable," Roth said. "The law doesn’t let them do that. The law requires that they take a detailed, objective look at each of the viable alternatives, and our lawsuit contends that the city simply didn’t do that."
The city court filings contend rail opponents such as Cliff Slater and others lost the policy debates over the rail project at the city level and are now improperly taking the same quarrel to federal court.
The state Legislature and the City Council voted to establish an excise tax surcharge to fund rail in 2005. Oahu voters in 2008 approved a City Charter amendment calling for a steel-wheel-on-steel-rail system, and voters amended the charter again in 2010 to create HART to build and operate the rail project.
"More than any project in Hawaii’s history, the public, through its elected representatives and through direct votes, has expressed its support for the project," city lawyers argued. They contend "it is not the role of the courts to resolve the policy dispute underlying plaintiff’s lawsuit."
