The remaining issues still before Judge Tashima:

From HonoluluTraffic August 6, 2013

For these issues the Judge ruled that the FTA and the City undertake the following:

Defendants must fully consider the prudence and feasibility of the Beretania tunnel alternative specifically, and supplement the FEIS and ROD to reflect this reasoned analysis in light of evidence regarding costs, consistency with the Project’s purpose, and other pertinent factors. See Citizens for Smart Growth , 669 F.3d at 1217. Should Defendants determine, upon further examination of the evidence, that their previous decision to exclude the Beretania alternative because it would be imprudent was incorrect, they must withdraw the FEIS and ROD and reconsider the project in light of the feasability of the Beretania tunnel alternative.

Before continuing with the Project in any way that may use unidentified [traditional cultural properties] (TCPs), Defendants must complete their identification of above-ground TCPs within the corridor … For any TCPs identified, Defendants must conduct a complete Section 4(f) analysis. The ROD must be supplemented to include any newly identified TCPs. The FEIS must also be supplemented to the extent that this process requires changes that “may result in significant environmental impacts ‘in a manner not previously evaluated and considered.’”

Before continuing with any part of the Project that may constructively use Mother Waldron Park, Defendants must reconsider their no-use determination, taking full account of evidence that the Project will significantly affect the park. If Defendants conclude that the Project will, in fact, constructively use Mother Waldron Park, they must seek prudent and feasible alternatives to such use, or otherwise mitigate any adverse impact from constructive use of the park… The ROD must be supplemented accordingly. The FEIS must also be supplemented, to the extent that this process affects its analysis or conclusions.

The real impact of Judge Mollway’s letter:

As we wrote earlier, Judge Mollway submitted comments to the FTA and the City, on behalf of all the Hawaii Federal District Court Judges, that was highly critical of the current rail Project. Technically these comments were the Judges’ formal joint comments on the Draft Supplemental EIS regarding the three issues still pending in the federal lawsuit, Honolulutraffic.com et al. v. Federal Transit Administration et al.

It has been confusing for many that the case is both being appealed in the Ninth Circuit Court of Appeals, and at the same time is also pending in Judge Tashima’s court. This happened when Judge Tashima made part of his ruling appealable, leaving the three items where his ruling favored Honolulutraffic et al. still to be ruled on. (See remaining issues below).

We asked the Ninth Circuit to allow the Mollway letter to be heard as part of our appeal. We thought it relevant and was worth a try; the Ninth Circuit demurred. However, the main impact of the Judges' letter is to Judge Tashima's consideration of the Beretania Street Tunnel Alternative. Here are the main points:

First, that it was concurred in by all the Hawaii Federal District Court Judges. They reside in the jurisdiction that would be most affected by the rail Project. On the other hand, Judge Tashima has never lived here.

Second, the Judges made the point that only the Beretania Street Tunnel Alternative met the definition of the Locally Preferred Alternative of UH Manoa to Kapolei approved by the City Council.

Third, the Judges used an exclamation mark to mock the idea of the rail line going to Ala Moana Center rather than UH Manoa. (Traffic congestion is all over by the time the shopping center opens at 9:30 AM). They detail the 20,000 commuters who travel to UH who would be poorly served by the current rail project. (As Professor Roth commented, pay attention whenever a judge uses an exclamation mark.)

Fourth, the Judges remind the City and the FTA that by going between UH and Kapolei now, the City would be not only saving money for the long term (HART estimates that the full project from Kapolei Transit Center to UH would cost $9 billion), but would be closer to meeting the original intent of the rail Project years before it might otherwise, if at all.

Fifth, the Judges' say they believe the Final EIS understates the impact on historic buildings and views for the current Project along the waterfront while overstating them for the Beretania Street Tunnel Alternative.

Sixth, they say, "In conclusion, the court urges you to recognize that the Beretania Street Tunnel Alternative, which is a more prudent and feasible route for the Project than the route presently proposed, has not been adequately considered in the DSEIS."

This is the importance of the Judges' letter; it puts the Beretania Street Tunnel in a whole new light. Above is just a brief summary of the Judges' points; it is better to read the whole document. The link is above.

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Thanks to Walt and Arla Harvey for a real effort on the rail issue:

For many years, until recently, Walt and Arla Harvey, prominent Hawaii Kai realtors, kept a running list of hundreds of various media news items online on their www.coastal-hawaii.com website. It has been very useful for researchers on the rail issue to have had access to all this information. They are now giving it up and we will host their collection here at www.honolulutraffic.com (see: "Media record") although any updates to it will be sporadic (unless we find a volunteer who will do the work).

When this saga is over, which we hope will be soon, this collection will be valuable to those writing on the issue particularly historians. Walt and Arla, thanks so much for all your efforts.