A federal judge has concluded there were flaws in some of the environmental and cultural reviews done for the city’s $5.26 billion Honolulu rail project, and ruled the city must fix those problems by producing a new supplement to the federal environmental impact statement for the project.
Judge A. Wallace Tashima ruled Thursday that the city "failed to complete reasonable efforts to identify" traditional cultural properties along the 20-mile proposed rail line, and ruled the city must now identify those properties.
» Federal Transit Administration
The judge also ruled the city must reconsider the possibility of constructing a tunnel under Beretania Street as an alternative to a portion of the elevated rail line, and that the city must reconsider the impact the rail line will have on Mother Waldron Park in Kakaako.
The park is on the National Register of Historic Places, and Tashima concluded "there is a great deal of evidence that the project’s impacts on Mother Waldron Park will be quite serious."
Tashima’s ruling also requires the Federal Transit Administration to produce a new supplement to the record of decision for the rail line that incorporates at least some of the additional work the city must now do.
Mayor Peter Carlisle described the ruling as a victory for the city because only three counts remain out of the 57 claims contained in the original federal lawsuit filed in 2011 that challenged the rail project. Carlisle added that "we are confident we can resolve the remaining issues."
"This ruling does not stop the rail project that is so critical to our island’s future," Carlisle said. "In fact, the court dismissed the bulk of the plaintiff’s accusations and upheld the project’s environmental impact statement."
Daniel Grabauskas, executive director of the Honolulu Authority for Rapid Transportation, said the rail project "remains on course."
"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."
Bus rapid transit, or BRT, and a street-level light rail system are options that are often cited by rail opponents as more desirable alternatives than the planned elevated rail project.
Grabauskas said the court "flatly rejected the vast majority of the plaintiff’s claims."
Cliff Slater, a longtime rail opponent who is part of the group that filed the federal lawsuit, said the rail opponents will use Tashima’s ruling as the basis for a request for a permanent injunction to stop the rail project at a hearing before Tashima on Dec. 12.
"The city’s comments tonight are just nonsense," Slater said after Carlisle’s news conference Thursday night. "They’d like to pretend like this is nothing at all, and the judge is having a hearing on a permanent injunction on Dec. 12."
"I don’t think they should take that lightly," Slater said. "If they’ve won everything, then why the hell are we having this hearing?"
Slater said Tashima’s ruling requires the city to undertake detailed studies and research on three separate issues: the Beretania Street tunnel, the cultural survey and Mother Waldron Park.
Grabauskas said his reading of the ruling is the city deliberations that ruled out a possible tunnel under Beretania Street tunnel were actually "quite complete," adding, "It just hadn’t been completed and placed within the EIS record, and that’s something that now we’ll have an opportunity to do."
"What we’re really talking about here is supplementing some of the work that was included in the record of decision and the environmental impact statement," Grabauskas said. "Some of that work is already ongoing."
For example, Grabauskas said, the traditional cultural properties assessment the city must complete is already in progress, and the city hopes to complete it in the next several months for the downtown area. The cultural properties assessment of the other segments of the rail line from East Kapolei to Middle Street are already complete, he said.
The federal lawsuit challenging the rail project was filed by Slater and others including former Gov. Ben Cayetano, law professor Randy Roth and former Judge Walter Heen.
Michael Green, an attorney for the plaintiffs who challenged the rail project, 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.
Cayetano is also running for Honolulu mayor, and has promised to stop the rail project if elected. A spokes
man for Cayetano said the former governor and other campaign officials were still studying the ruling and were not ready to comment.
Carlisle said the ruling should not influence the upcoming election.
"We’re allowed to move forward because it wasn’t stopped, and this isn’t the end of rail like Gov. Cayetano and his lawyer want to tell you. It’s not. Therefore, don’t let that influence your vote," Carlisle said. "It’s politics at the 11th hour, which is not a good thing."
Former City Managing Director Kirk Caldwell, who is running against Cayetano, said the "very good news" of the ruling is the EIS was done properly, and options such as managed lanes and light rail were properly considered and dismissed.
Caldwell, who supports the rail project, said he plans to address the remaining issues cited by Tashima if he is elected mayor.
This is the second significant legal snag the city has encountered in recent months.
All construction on the rail line was halted in August after the Hawaii Supreme Court ruled the city was required to complete an archaeological 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 delays that are expected to result from the Supreme Court ruling will cost $64 million to $95 million. The city hopes to complete the archaeological survey in the first part of next year.
Grabauskas said one advantage to the timing of Thursday’s ruling is it allows the city to undertake the work that Tashima has ordered at the same time as the city completes the archaeological survey ordered by the state Supreme Court.
"It’s going to be done with the greatest speed that we can attach to it," Carlisle said of the work.
The Associated Press contributed to this report.