Hawaii Judges Cannot Be Impartial About Rail Project

by Purna Nemani Courthouse News

(CN) HONOLULU - All nine federal judges in Hawaii have recused themselves from hearing the latest complaint, of a long string, that challenges a major transportation project in Honolulu.

With each judge stepping back from the case, 9th Circuit Judge A. Wallace Tashima will step in, according to an order filed Friday.

Chief Judge Helen Gillmor; U.S. District Judges Susan Oki Mollway, Samuel King, Alan Kay, David Ezra and J. Michael Seabright; and U.S. Magistrate Judges Barry Kurren, Kevin Chang and Leslie Kobayashi have each recused themselves on the basis of possible conflict of interest.

Tashima, who assumed senior status with the federal appeals court in 2004, has sat on other cases in Hawaii. He takes the reins from Judge Kobayashi, originally assigned to the case.

An attorney for the plaintiffs on the case, Nicholas Yost of San Francisco, took the change in stride during an interview with ABC News' Honolulu affiliate, KITV.

"I understand why the Court has taken the action that it has, and could not be more delighted at having as distinguished a judge, as Judge Tashima, appointed to hear the case," Yost told KITV.

The plaintiffs, a group of concerned Hawaii citizens and former state legislators, argue that the city and county of Honolulu, the Federal Transit Administration and Department of Transportation have exceeded their jurisdiction and violated environmental policy by failing to consider alternative technology, allow independent review and conduct legally required historic preservation surveys along the route that would span at least 20 miles of the 44-mile-long, 30-mile-wide island of Oahu.

The complaint alleges that the completed project will obstruct scenic views at the Prince Jonah Kuhio Kalanianaole Federal Building and U.S. District Courthouse - the seat of the federal government in Hawaii.

Hawaii's U. S. Marshal, Mark Hanohano, who serves as general administrator of the building, was not consulted on the project, according to the complaint.

A letter from the state's federal judges further alleges that transit planners have failed to consult any court security representatives. Judge Ezra did not sign the letter, addressed to FTA Regional Administrator Leslie Rogers in San Francisco, noting that he had recused himself from the issue.

Should the project proceed as planned in the immediate vicinity of the federal building, within feet of judges' chambers, visitors to the court could face increased terrorism vulnerability, according to the letter.

Hanohano co-signed the letter, originally posted by KITV News and shockingly dated November 2008, and writes separately to say that the proposed Halekauwila Street route "presents a severe security risk to the Federal Court Building," echoing the concern expressed by the main letter.

The main letter also states that "none of the security specialists who participated in preparing its analysis was familiar with security standards for Federal Courthouses," a fact allegedly admitted by a city security committee.

Although an attack from the proposed rail may be improbable, the judges say they remain concerned that a terrorist could use a cellphone to detonate explosives left on a train. They point to similar domestic tragedies in Oklahoma City and the World Trade Center, and note that bombs also destroyed the court building in Lebanon and the Madrid trains.

The proximity of the portion of the proposed rail to the federal building, along the narrow adjacent Halekauwila Street, is outlined in the complaint:

"The Nimitz Highway-to-Halekauwila Street alignment through downtown Honolulu (the only downtown alignment in the Project) requires that the Project be built within 45 feet of the third- and fourth-floor windows of the federal office building in which the United States District Court for the District of Hawaii is located, raising significant concerns about public safety, the possibility of terrorism, and excessive noise, vibration, and construction-related impacts," according to the complaint.

It also quotes from the letter, which reports how the city told judges that it was unlikely to alternatives, since they would require the approval of the Honolulu City Council.

"The FTA claims that more than 75 potential alignments for the project were considered; however, the FEIS presents just two," according to the complaint, referring to the final environmental impact statement. "The EIS also failed to consider an alignment in which the elevated fixed guideway would not cross downtown Honolulu, but rather would begin west of downtown and its historic sites (allowing other transportation improvements to be made downtown)."

The judges note in their letter: "We disagree that there are no reasonable alternatives."

---30---