Pricey Honolulu rail project faces more legal hurdles

by Malia Zimmerman, Watchdog.org, August 13, 2013

HONOLULU — A multi-billion-dollar rail system faces another legal hurdle Thursday before the Ninth Circuit Court of Appeals in San Francisco.

HonoluluTraffic v. FTA, filed in May 2011 by eight plaintiffs, including a former governor and a retired federal judge, asks a three-judge panel to essentially put an end to Honolulu’s plans to construct a 20-mile, $5.2 billion elevated steel rail system by forcing the city to redo its costly environmental impact statement.

Appellants, who are appealing a judgment and partial injunction issued in Hawaii’s U.S. District Court last December, argue the rail violates the National Environmental Protection Act’s requirement to evaluate all reasonable alternatives. They maintain, among other claims, the proposed rail would negatively impact Oahu’s historic Chinatown and downtown Honolulu districts and an area park.

“From the beginning we have wanted the city to comply with the law, the environmental laws, laws designed to protect historic structures and 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,” said University of Hawaii law school professor Randy Roth, one of the appellants.

 WAITING ON A RULING: 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 eight appellants argue the environmental impact statement prepared by the Federal Transit Administration and City of Honolulu failed to consider any alternatives to the city’s “locally-preferred” elevated heavy rail system, “despite evidence that reasonable, feasible, prudent, and less-damaging alternatives including Managed Lanes, bus rapid transit, and light rail exist.”

They also claim the FTA violated federal law by approving the rail project “without identifying and evaluating potential impacts on Native Hawaiian burial sites, despite unambiguous regulatory requirements (and case law from this Court) requiring that such evaluations be completed in advance of project approval.”

Ninth Circuit Court Judge Wallace Tashima, who oversaw the initial federal case after all seven of Hawaii’s U.S. district judges recused themselves, agreed in his initial November 2012 ruling the city failed to consider traditional cultural properties, the impact of the rail on Mother Waldron Park and whether the Beretania Tunnel is an option to alleviate traffic.

 PROGRESS OR NOT? HART CEO Dan Grabauskas believes the city will prevail and the project will be built

Hawaii attorney Paul Schwind said the appellants’ brief directly attacks Tashima’s reasoning.

“Recall that Judge Tashima, who is a senior circuit judge on the Ninth Circuit and some of whose brothers and sisters will be considering this appeal, heard this case in Honolulu sitting by designation, as all the local judges had recused themselves,” Schwind said.

Rail proponents and advocates across the country are watching this case closely, said Cliff Slater, founder of HonoluluTraffic.com, who organized the federal challenge.

Should the rail be halted at this stage, Slater said “this would be the first time a heavy rail project in the country has gotten this far along, and was stopped.”

Costly project already on hold

Though Honolulu erected a dozen or so support pillars for the rail in the vacant fields in West Oahu last year, the project is currently on hold.

The Hawaii Supreme Court ruled in a unanimous 82-page opinion in Kaleikini v. Yoshioka that Honolulu didn’t comply with the state’s historic preservation and burial protection laws when it failed to complete an archaeological inventory survey for the 20-mile route before starting construction.

The lawsuit was brought by Paulette Kaleikini, a native Hawaiian whose ancestors’ remains may be displaced by the rail. Her case brought the rail project to a halt last year. City officials hope the project will resume by the end of the year, pending the latest legal challenge.

 KALEKINI: Filed the state lawsuit that put the rail project on hold for more than a year.

City officials and supporters in construction unions want the rail line to be extended into a system that could cost taxpayers as much as $12 billion.

When then-Honolulu mayor Mufi Hannemann first proposed the project in 2004 its proposed cost was less than $3 billion for a 34-mile route from West Oahu to Waikiki.

Voters narrowly approved an amendment in the 2008 election to build the rail system although the city admitted the cost had grown to $4.6 billion for a shorter, 20-mile path.

Last summer, the Honolulu Authority for Rapid Transportation submitted its final application to the FTA, which estimated the cost for the 20-mile route at $5.17 billion. HART said the full 34-mile path would cost more than $9 billion.

UH engineering professor Panos Prevedouros, who also serves as a consultant on transportation projects, said it’s important to understand how much costs escalate in “megaprojects.”

Prevedouros said if the city applies IDG’s estimate with the original plan to build a 34-mile system, it would cost $12.6 billion, considerably higher than Honolulu’s original cost estimate of $3.6 billion.

“All these costs in bond-financed public projects are to be borne by the taxpayer,” Prevedouros said. “Oahu has fewer than 400,000 taxpayers so the possibility of a $12 billion bill for a long rail line presents a staggering liability — over $30,000 per taxpayer.”

Slater estimates the city has already spent as much as $700 million on the rail project.

Thursday’s hearing will be broadcast live at the Honolulu District Court house at 11 a.m. Judges aren’t expected to rule until September.

Benjamin Cayetano, who served as Hawaii governor from 1994 to 2002 and joined the lawsuit, told Watchdog.org, “If the judges apply the law I believe we will win.”

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