In a San Francisco courtroom Thursday, the decades-long push to create a public rail system on Oahu will face what could be its last major legal showdown.
It could be the last shot for opponents of the $5.26 billion elevated rail project to grind it to a permanent halt.
A three-judge panel from the 9th Circuit Court of Appeals will listen to arguments in the federal lawsuit claiming city and federal transportation officials violated environmental and historic preservation laws in planning the 20-mile, 21-stop rail line across Oahu’s southern shore.
"It is the final legal hurdle between starting construction," Jennifer Sabas, executive director of the pro-rail Move Oahu Forward organization, said Thursday. "It’s an important piece of the puzzle here."
Honolulutraffic.com — a consortium of politicians, academics and environmental groups — argued in its 2011 lawsuit that city and federal transit officials didn’t properly consider all the reasonable alternatives, such as an express bus system that could navigate Oahu’s worsening traffic using dedicated lanes. Last year, visiting U.S. District Judge A. Wallace Tashima sided with the city on all but three of 57 points of concern raised in the suit.
Honolulutraffic.com then appealed in February.
"I believe the case will end at the 9th Circuit," former Hawaii Gov. Ben Cayetano, a member of Honolulutraffic.com, said in an email last week. He said he doubts the U.S. Supreme Court would grant a hearing if either side filed an appeal because "there is no constitutional issue involved."
"Win or lose, I believe our group gave voice to a point of view shared by the majority of the people," Cayetano added.
The 9th Circuit judges have no deadline to issue a decision after the hearing Thursday.
However, earlier this year the court accepted Honolulutraffic.com’s request to expedite the hearing so it could listen to the case before rail construction resumes in September.
Cliff Slater, the longtime outspoken Honolulutraffic. com rail opponent, said the group hasn’t yet discussed whether it would appeal to the Supreme Court if it’s handed an unfavorable decision. But Slater says he doubts it would go that far.
The 9th Circuit, Slater said, is known to be generally favorable toward environmental arguments such as the one they’re making against the rail project. A losing verdict before that court would make it hard to take the case to the next level, he said.
University of Hawaii law professor Randy Roth, also a plaintiff, said the opponents would be "disappointed and surprised" if they lost their appeal.
"I expect the 9th Circuit to order (the city) to restart the process" for rail, Roth said in an email last week. "If that happens, I’m confident that it will mark the end of the current project."
In a statement Friday, Honolulu Corporation Counsel Donna Leong said it would be premature for the city to consider whether it would appeal an unfavorable 9th Circuit decision to the highest court in the land.
The Honolulu Authority for Rapid Transportation and the city "appreciate the opportunity to present our position to the 9th Circuit and to address any questions the court may have," Leong wrote. "We look forward to the court’s ruling."
Many invested in the case, including Slater and Cayetano, plan to watch the hearing live from Honolulu via a closed-circuit feed into a federal courtroom while their attorneys do the arguing in San Francisco.
HART Executive Director Dan Grabauskas doesn’t plan to watch live, according to HART spokeswoman Jeanne Mariani-Belding, but the HART staff plans to keep him updated.
"We look forward to presenting our case and responding to any questions the judges may have," Grabauskas said in a statement. "It’s important that we get the project moving again so that we can deliver an efficient transportation system on time and on budget for the people of Oahu."
There’s no guarantee rail won’t face other legal challenges. The nonprofit group Kanehili Hui says it will take legal action if its concerns over potential underground "karst" caves in the rail’s path aren’t resolved.
There are other possible roadblocks, too. As part of a separate suit that came before the Hawaii Supreme Court last year, the rail project must also acquire a new "special management area" permit from the city to build around sensitive coastal zones. The city’s Department of Planning and Permitting will eventually make a recommendation to the majority pro-rail City Council, which has final authority on that permit.
But with the Hawaii Supreme Court matter resolved, the rail opponents’ federal suit represents the last legal barrier before construction resumes.
It’s the latest in a decades-long drama over rail on Oahu. Former Mayor Frank Fasi supported and pushed the idea of a rail system as far back as the early 1970s and had strong support from federal transit officials, former Fasi aides say. But the idea hit the skids with several close City Council votes — including former Councilwoman Rene Mansho’s decisive swing vote that helped kill an earlier rail plan in 1992.
Sabas, former chief of staff to the late U.S. Sen. Daniel Inouye, watched the project unravel in 1992 from Washington, D.C., after the senator’s office had worked to build federal support. After that, Inouye vowed that any subsequent rail plans would need to get the necessary local support first.
"The silver lining was, there was enough political leadership and enough political weight to say we need to do this again," Sabas said Thursday. "It took awhile."
The Federal Transit Administration has agreed to fund the Honolulu rail project with $1.55 billion. If the project is defeated in court, federal budget constraints would make it nearly impossible to get such a commitment again, Sabas said.
She added that she thinks this is the last, best chance to build a rail system on the island.
