by Paul J. Schwind, Esq.* InverseCondemnation.com

Honolulu’s rail rapid transit project, more than 40 years in planning, twice terminated yet reborn a third time, is still mired in controversy and is now in litigation over the adequacy of its final environmental impact statement (FEIS). This is nothing new in Hawaii, where opponents of major transportation projects typically raise procedural challenges to the approval process rather than objections on the merits. Such challenges have been both unsuccessful, see, e.g., Stop H-3 Ass’n v. Dole, 870 F.2d 1419 (9th Cir. 1989) (affirming lifting of preliminary injunction which halted the H-3 freeway project, as the FEIS had previously been approved, and Congressional legislation rendered moot any Section 4(f) issues), and successful. See, e.g., Sierra Club v. State Dep’t of Transp., 120 Haw. 181, 202 P.3d 1226 (2009) (holding that legislative exemption from Hawaii EIS law for State land improvements on behalf of the Superferry project was not "general law" and was therefore unconstitutional). More on that case here.

The rapid transit project is to consist of a 20-mile fixed guideway rail system, to be built in four phases over ten years on exclusive and mostly elevated right-of-way, from Honolulu’s western suburbs to the Ala Moana Center just east of downtown.

A consortium of watchdog organizations on transportation, environmental, and small business issues, a former governor, a former Hawaii appellate judge, a university law professor, and a physician filed a complaint in U.S. District Court for the District of Hawaii on May 12, 2011, against the Federal Transportation Administration and the City and County of Honolulu for injunctive and declaratory relief from the "Honolulu High-Capacity Transit Corridor Project." The suit alleges that the project’s FEIS, evaluation of impacts on parks, recreation areas, historic/burial sites, and record of decision (ROD), were inadequate and in violation of the National Environmental Protection Act, section 4(f) of the Department of Transportation Act of 1966, the National Historic Preservation Act, and the Administrative Procedures Act.

The City's answer asserted that a programmatic agreement (PA) is in place to handle historic and burial properties that may be impacted, and that the plaintiffs’ policy or political disagreement with the project is not actionable. The FTA's answer asserted a host of affirmative defenses including lack of standing, waiver of claims, and failure to exhaust administrative remedies.

The City and the FTA moved for partial judgment on the pleadings in September on the grounds that certain of the claims were not raised during the administrative process and were therefore waived, and that some of the plaintiffs did not participate in the administrative process at all and therefore failed to exhaust their available remedies. In their supporting brief, the City and the FTA argued that the claimed violations of Section 4(f) with regard to 14 historical, recreational, and burial sites should be dismissed because the plaintiffs did not raise these claims during the administrative process.

In their memo in opposition, the plaintiffs argued: (1) the defendants failed to address the material allegations in the complaint and relied on evidence beyond its scope; (2) absent a full administrative record, the motion is premature; (3) the Section 4(f) claims were properly raised or otherwise known to the defendants; and (4) exhaustion and waiver requirements are not relevant to, and do not mandate, dismissal of the claims of certain of the plaintiffs. The City and the FTA's reply memo responded that incorporation by reference and judicial notice are appropriate means to establish an absence of evidence; the motion is not premature absent an administrative record; Section 4(f) claims are waived where plaintiffs failed to raise them as to specific sites; and parties who have not exhausted available remedies are later barred from asserting claims that should have been made during the administrative process.

On November 30, 2011, Ninth Circuit Court of Appeals Judge A. Wallace Tashima, hearing the case by designation (the entire Hawaii District Court bench could not consider the case, due to an interest in the location of the rail line), heard oral argument on the motion. Robert D. Thornton argued for the defendants, relying on Dep’t of Transp. v. Pub. Citizen, 541 U.S. 752 (2004) and Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519 (1978) to support his argument that the plaintiffs must have participated in the administrative process and cannot simply make "cryptic and obscure references" that ought to be considered during that process. As for the 14 Section 4(f) sites, Mr. Thornton argued that under Great Basin Mine Watch v. Hankins, 456 F.3d 955 (9th Cir. 2006), judicial review of NEPA actions must be conducted pursuant to the APA, so that administrative remedies for the plaintiffs’ claims are exhausted before suit is brought in federal court. Only one of the plaintiffs alleged any specific violation, at only one of the 4(f) sites. The plaintiffs’ otherwise generic comments during the environmental review were therefore not sufficient to alert the FTA to possible direct or constructive use of the other Section 4(f) sites.

Nicholas C. Yost argued for the plaintiffs, asserting that judicial economy is not served by limiting their standing; Section 4(f) does not specify how plaintiffs must structure their participation in the administrative (environmental review) process; the Ninth Circuit does not require all plaintiffs to exhaust their available remedies; and the standard of review to avoid arbitrary and capricious findings in a Section 4(f) context requires consideration whether reasonable and prudent alternatives exist, and whether mitigating measures were applied. Mr. Yost observed that absent the full administrative record, it cannot yet be known whether the FTA had "independent knowledge" of the impact issues raised elsewhere by one or more of the plaintiffs. In rebuttal, Mr. Thornton reiterated that available remedies should be exhausted by making specific comments on the administrative record.

During oral argument, Judge Tashima asked what difference it made whether some of the plaintiffs did not participate in the administrative process, if others did. He also asked what "arbitrary and capricious" means as a standard of review in the Section 4(f) process. At the conclusion of the arguments, he took the motion under advisement. Whatever he decides, however, will not make the case go away. He noted that before the facts can be tried, the full administrative record must be produced and agreed upon by the parties. Counsel indicated that may not happen until February 2012.

Judge Tashima further inquired whether a motion for preliminary injunction may be forthcoming that would burden the case. Mr. Yost expressed the plaintiffs’ concern that an "irrevocable commitment" of resources may occur if construction takes place, with significant impacts and no prudent alternatives, before the case is heard on the merits (which may not happen until later in 2012). Judge Tashima concluded the motion hearing by requesting the parties to draft a scheduling order.

Honolulutraffic.com,et al. v. Federal Transit Administration, et al.
(1:11-cv-00307-AWT; D. Haw., filed 5-12-2011)

*inactive member of the Hawaii Bar