TOO CLOSE FOR COMFORT: Hawaii’s federal judges say the proposed rail line passes too close to the Prince Jonah Kuhio Kalanianaole Federal Building, which includes the courthouse and federal building

by Malia Zimmerman  Watchdog.org   July 12, 2013 

HONOLULU — A proposed elevated rail line is a security risk and is neither prudent nor feasible, all 11 of Hawaii’s federal judges say in a letter.

Opponents of the rail line call the letter, to The Federal Transit Administration and the Honolulu Authority for Rapid Transportation, a bombshell and unprecedented.

U.S. District Chief Judge Susan Oki Mollway signed the four-page letter on behalf of the judges. The city plans to run the line alongside the Prince Jonah Kuhio Kalanianaole Federal Building, which includes the courthouse and federal building. (See the full Letter from Hawaii federal judges)

The proximity of the line to the federal building raises security concerns, the judges say.

The judges recommend the city re-route the 20 miles of rail away from the downtown and historic districts of Honolulu, as well as the shoreline and native Hawaiian burial sites.

The letter comes at a sensitive time for the city, federal government and rail proponents. Eight high-profile plaintiffs are challenging the city’s Environmental Impact Statement in federal court.

U.S. Chief District Judge Susan Oki Mollway

On Aug. 15, the Ninth Circuit Court of Appeals will consider a lawsuit filed by former Gov. Ben Cayetano, retired federal Judge Walter Heen, businessman Cliff Slater, University of Hawaii Law Professor Randall Roth and four others, including an education foundation and two environmental groups.

The plaintiffs won a partial victory in their initial federal lawsuit, as federal trial judge A. Wallace Tashima in November granted the plaintiffs an injunction and temporarily halted any construction activities on phase 4 of the rail project. But the judge also allowed the city to move forward with design, planning and engineering, and to continue with phases 1 through 3 of the rail construction. The plaintiffs opted to appeal parts of that ruling.

Meanwhile, all rail construction is on hold because of a state lawsuit challenging the impact of the rail line on native Hawaiian burial sites, but construction could resume as early as November, unless the federal plaintiffs are successful.

The judges’ letter, the plaintiffs say, supports their lawsuit and claims the city failed to properly consider other transportation alternatives, in violation of federal law.

“The letter eloquently and sharply criticizes the city on how it has approached this rail issue, and it frankly speaks volumes,” said Roth.

“From the beginning we have wanted the city to comply with the law, the environmental laws, laws designed to protect historic structures … Other laws, quite frankly, require that they don’t just make a political decision and then rush into spending billions of dollars. Instead, the law requires they rigorously and objectively vet all the reasonable alternatives, and I think this letter from all 11 federal judges here in Hawaii underscores that the city just has not done that,” Roth said.

Roth said the city’s EIS focused on three versions of heavy rail without considering options such as a tunnel, light rail, bus transit or managed lanes.

 Former Gov. Ben Cayetano, HonoluluTraffic.com’s Cliff Slater, UH Law Professor Randall Roth and Senate Minority Leader Sam Slom outside the U.S. District Court

The judges’ letter cites the Nov. 1, 2012, ruling from Tashima, which directed the city to consider in the EIS a Beretania Street route. The Honolulu Authority for Rapid Transportation issued a report last month that claimed the Beretania Street alternative would cost another $1 billion and take an addition two years to complete, making the already $5.2 billion project unfeasible.

The plaintiffs say they are not dissuaded by the authority’s analysis.

Slater, who heads HonoluluTraffic.com, said: “The judges are agreeing with us in this. The city just blatantly disregarded lots of alternatives that could have avoided the historic downtown area.”

Cayetano said he’s been a lawyer since 1971, and he can’t recall hearing of an instance in which judges, at any level, took a similar stand.

“The fact that the judges came out collectively speaks volumes about the credibility of this project,” Cayetano said. “You have judges coming out — judges who are well-versed in the law, including environmental law — and for them to come out like this in this unprecedented move boosts what we have been saying.”

State Senate Minority Leader Sam Slom runs the SBH Enterpreneurial Education Foundation, another plaintiff in the federal lawsuit. Slom called the letter “an elegant judicial smack down for both the Honolulu Authority for Rapid Transportation and the Honolulu City Council.”

 Former Gov. Ben Cayetano and retired Judge Walter Heen are both plaintiffs in the federal lawsuit against the city’s planned $5.2 billion rail project

The judges’ letter isn’t the first to the city warning of pending security issues with the rail project. Mollway has written on the project at least twice before, including in May 2012. She would not disclose that letter to Watchdog.org because it outlines specific security concerns.

The judges who wrote the letter have all recused themselves from overseeing the federal lawsuit in Honolulu’s U.S. District Court. Tashima agreed to fly to Hawaii from California to hear the case.

In the July 8 letter, the judges highlight other flaws in the city’s rail plan. They note the current route doesn’t serve the community as originally intended. Instead of running from West Oahu on a highly congested route to the University of Hawaii’s Manoa campus, it now heads to a popular shopping mall, Ala Moana Center.

Honolulu  Authority for Rapid Transportation, the agency charged with designing, building and operating the rail project, had little to say about the letter or about the comments from the federal plaintiffs.

Brennon Morioka, Honolulu Authority for Rapid Transportation deputy executive director, said: “All interested persons are encouraged to provide their comments and feedback on the Honolulu Rail Transit Project’s Draft Supplemental Environmental Impact Statement/Section 4(f) Evaluation. All comments received through July 22 as part of the process will be given full consideration, including Judge Mollway’s.”

The plaintiffs said they will look for a way to use the letter to help their case. “We think we are going to win our lawsuit and we think that this letter from 11 federal judges is a boost for us,” Roth said.

“We think this has been about big landowners and developers from day one, it has had nothing to do with traffic congestion, even though they have insisted that it did. I think they will be ordered to start over, and if they do they will end up with a project that really does alleviate the traffic congestion,” he said.

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