Honolulu Rail Federal Appeal: Dismissed For Lack Of Appellate Jurisdiction?

by Robert Thomas, InverseCondemnation August 15, 2013

We just finished up with the oral arguments at the Ninth Circuit courthouse in San Francisco. We'll have a more detailed report later today, but our initial reaction is that it looks like at least two of the three judges are very skeptical whether there was an appealable final order in the case, and thus may be ready to dismiss the appeal for lack of jurisdiction. One judge seemed to understand and accept the appellants' jurisdictional arguments, so if the court dismisses, we may see a dissent.

Of course, with appellate arguments it's always a fool's errand to predict the outcome based on oral argument (but that doesn't stop us from doing it, does it?), so we may be totally off the mark. But when the court spends 95% of the time talking jurisdiction and not the merits, if you are the appellants' lawyer, you must have your doubts.

More to follow soon.

(Yes, the above photo accurately reflects that we were sitting on the courthouse steps while writing up this post.)

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Some Further Thoughts About The 9th Circuit's Oral Arguments In Honolulu Rail Appeal 

by Robert Thomas, InverseCondemnation August 16, 2013

Courts, as "temples of justice" can be intimidating places, especially for the advocates who appear there. And when you make it a federal court, the level goes up. And when you are in a storied courthouse such as the Ninth Circuit's headquarters in San Francisco surrounded by Corinthian columns, cherub statues, and a ceiling full of stained glass, it certainly can be a heady experience.

Today was no different as a three-judge panel of the Ninth Circuit heard oral arguments in the federal environmental challenge to Honolulu's multi-billion-dollar heavy rail project. The panel, comprised of Judges Stephen Reinhardt and Andrew Hurwitz, and Senior Judge Mary Schroeder, was "hot," and for the most part kept firing questions at the three advocates over the course of the nearly hour-long arguments. As we noted in our initial post-argument report, the panel spent the overwhelming majority of its time on the jurisdictional issue (see here for Paul Schwind's detailed preview of the arguments, which includes a section on why the federal agencies and the City and County of Honolulu assert that this appeal is premature). And although we cautioned that it's hard to predict the outcome of an appeal based on the questions judges ask at oral argument, we threw caution to the wind and surmised that the appeal had a good chance of being dismissed for lack of appellate jurisdiction, with perhaps Judge Schroeder dissenting.

What drove us to that conclusion was not only the amount of time the court spent on the jurisdictional questions, but the fact that whenever one of the advocates attempted to shift away to the substantive issues of whether the EIS was adequate, the judges' questions seemed to dwindle, and they eventually circled back to the jurisdictional issue. To us, this indicated the question on the judges' minds was whether there was a final, appealable decision by the District Court. We concluded that at least two of them were not convinced there was.

We won't do a blow-by-blow of the arguments because the Ninth Circuit has done us a favor by posting the video on YouTube. But here are what we see as the highlights:

• The appellants' attorney started off strongly with his basic theory of the case. "This case is the very paradigm of how not to do 4(f) under NEPA." It wasn't long, however, before the judges started in with their jurisdictional inquiry. As we noted above, they didn't seem all that interested in the substantive merits of the case, in our view. Each time the appellants' attorney tried to get them off that subject, it seemed they didn't want to leave.

• While there was some back-and-forth discussion about whether the practicalities of the posture of the case would overwhelm the legal issues -- the appellants' lawyer repeatedly argued that the court should review the issues on appeal because if it does not, the city will move forward with construction on the other phases of the project and thus render any future decision on the issues fait accompli -- Judges Reinhardt and Hurwitz didn't seem to be particularly bothered by that aspect. As presumably left-leaning judges (Reinhardt is reputed to be the most "liberal" judge on the federal appellate bench, and Hurwitz is a fairly recent Obama appointee), we'd guess they are quite willing to take the City and the federal appellees at their word when they said that there's little danger of such an argument being made in the future. Trust in government seemed high from those two judges. They also seemed a bit bothered by the fact that the appellants had not sought some kind of relief pendente lite, to prevent the other parts of the project not on appeal from moving forward while this part (maybe) is resolved. And it seemed to satisfy them that the declaratory-ruling-that's-not-quite-an-injunction issued by the Hawaii Supreme Court in the state court challenge to another aspect of the project means that there's no rush to build.

• For the City's theory of the case, fast forward to the 42:45-mark of the video, where the City's lawyer asserts that the appellants "flatly mischaracterized the record" when they assert that the City has not looked any any alternatives other than steel-on-steel heavy rail.

• If you had any questions about what the City views the purposes of the rail project are, look no further than the statement by the City's lawyer at the 45:20 mark, where he asserts that purpose of the rail is to "reduce reliance on the private automobile," "promote smart growth land use policies," and "provide an equitable alternative for low-income populations and transit-dependent communities." And here you thought the rail was to reduce traffic.

• One more factor to add in: this is an unusual case in that the District Court decision was made by another Ninth Circuit judge, A. Wallace Tashima, who is hearing the case at the district court level because the entire Hawaii District Court bench recused itself because the rail is planned to run by the courthouse. Will the fact that Judge Tashima's colleagues are reviewing his decision make them more or less likely to defer to it? We're not sure, but it does add an interesting twist on the deliberations.

Now we wait. When the court decides what to do -- whether its an order dismissing the appeal or an opinion on the merits -- we'll bring it your way.

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CB: Will Court Delays Let Honolulu Argue Rail is Past Point of No Return?

SA: In raising jurisdiction and procedure, the judges cast doubt on a ruling in the case