Federal Judge A. Wallace Tashima heard two hours of arguments Tuesday in a lawsuit that seeks to stop work on the city’s $5.26 billion rail project, but gave no clear indication of how he will rule in the case or when.
Tashima told the packed courtroom at the end of the hearing that if he reaches a decision favoring the rail opponents, participants in the lawsuit will need to have a discussion about what remedies or next steps would be appropriate.
Tashima quickly added that he hadn’t reached that point, but his comment pleased rail opponents including former Gov. Ben Cayetano.
"It gave us some hope," Cayetano told reporters in an interview outside the federal courthouse. Cayetano is part of a group of rail opponents who sued to try to block the project, and is also running for mayor. He has said he will stop the rail project if elected.
About 100 spectators packed the second-floor courtroom, and more than a dozen people stood throughout the hearing at the rear of the courtroom to listen to arguments.
Spectators included representatives of the Outdoor Circle and Hawaii’s Thousand Friends, which have joined in the suit against rail, as well as Mayor Peter Carlisle’s staff and at least one activist with the League of Women Voters of Honolulu.
The suit accuses city and Federal Transit Administration officials of an array of violations of federal environmental law in the planning of the 20-mile rail line.
Lawyers for the city counter that the voluminous record of the rail planning effort demonstrates the FTA and city rigorously followed the requirements in the National Environmental Policy Act and other federal laws.
Tashima told the lawyers in the case that "we could be here all day" if they argued each point made in the court filings.
Instead, Tashima urged them to focus on "crucial issues," including whether the rail environmental impact statement considered all reasonable alternatives to the steel-wheel-on-steel-rail transit line the city is building from East Kapolei to Ala Moana Center.
NEPA requires federal agencies to rigorously explore and objectively evaluate all "reasonable alternatives" to federally funded projects that will have environmental impacts.
Nicholas Yost, lead lawyer for the rail opponents, was recently hospitalized and underwent emergency surgery, and arguments Tuesday were presented for the rail opponents by attorney Matthew G. Adams.
Adams argued that the EIS failed to consider obvious alternatives to rail such as a Bus Rapid Transit system, an option the city itself selected as the best transit plan for Honolulu in a 2003 study.
The city later dropped the BRT project and pursued rail instead, but the BRT option "was certainly reasonable enough to consider" in the 2010 EIS, Adams said. Instead, the lawsuit alleges the EIS considered just three similar rail lines and no BRT option.
The city argues that it considered and discarded the BRT option in an alternatives analysis that was completed in 2006. That analysis was done before the city began the EIS, which the city argues is legal and proper.
David Glazer, a U.S. Department of Justice lawyer representing the FTA, said the alternatives analysis screened out many other transit possibilities "after extensive analysis" because they did not meet the purpose and need of the project.
Other transit options ruled out in the alternatives analysis included potential traffic fixes such as managed lanes and light rail systems that run at ground level.
Glazer said the alternatives analysis was almost an EIS in itself, and said the public was given many opportunities to comment on the document. That description of the alternatives analysis prompted laughter from the courtroom audience, which appeared to be made up largely of rail opponents.
The rail opponents’ lawsuit also 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 studied the project corridor for potential burial and other archaeological sites, and that additional archaeological surveying is being done on each segment of the project before construction begins.
William Meheula, lawyer for Pacific Resource Partnership and Faith Action for Community Equity, said the city has committed to move the project if necessary to avoid burials. PRP and FACE filed to intervene in the case in support of rail.
"We haven’t run into any burials yet, but if it does happen, the Native Hawaiian community can rest assured that the city has committed that they are going to move the project," Meheula said.
Participants in the lawsuit have suggested it may be weeks or months before Tashima issues a decision in the case.
Tashima is a senior judge of the 9th U.S. Circuit Court of Appeals. He was assigned to hear the rail 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 Hawaii judges then recused themselves from hearing the lawsuit.
