As a pivotal hearing on the city’s planned rail project approaches, the 9th U.S. Circuit Court of Appeals announced Thursday that it won’t consider a recent, eyebrow-raising letter from federal judges in Hawaii critical of the project.
Rail opponents had called the July 8 letter by Chief U.S. District Judge Susan Oki Mollway "astonishing." It criticized the planned rail route that passes by the federal court building on Halekauwila Street as the route cuts through Kakaako. It was penned on behalf of the federal District Court of Hawaii.
Shortly after the letter’s release last month, at a news conference held on the courthouse’s steps, rail opponents including former Gov. Ben Cayetano and University of Hawaii law professor Randy Roth said they would introduce the document in their appeal to stop the project before the 9th Circuit.
However, in an order released Thursday, the federal appeals court denied the rail opponents’ request that Mollway’s letter be given "judicial notice."
The court did not give a reason for the denial.
Mollway has said that the local District Court isn’t trying to affect the lawsuit or send a message about the project to the 9th Circuit. As the judges recused themselves from the case, "we are not speaking in a judicial decision-making role. We are speaking in an administrative role," she said previously.
Despite the setback Thursday, longtime rail opponent Cliff Slater said he and others looking to invalidate the $5.26 billion elevated rail project in court remain confident they’ll win.
"It was a nice try," he said of the request to include Mollway’s letter in the opponents’ appeal. "We think we’re going to prevail."
Slater, Cayetano, and Roth are joined by environmental groups The Outdoor Circle, Hawaii’s Thousand Friends and others appellants hoping to scuttle the project.
A hearing on their appeal is scheduled for Aug. 15 in San Francisco.
Mollway’s letter had urged local and federal transit officials, including Honolulu Authority for Rapid Transportation Executive Director Dan Grabauskas, to reconsider a tunnel path under Beretania Street as a "more prudent and feasible route" near the end of the planned 20-mile rail system.
Even though the letter isn’t part of the appeal, it’s related to the federal lawsuit looking to stop rail. It was submitted as public comment to a report drafted by local and federal rail officials after a judge ruled that they needed to reconsider whether the tunnel path would be a better alternative to the current route. which ends at Ala Moana Center.
