Note from IC Editor Robert Thomas: Earlier this year, our old friend and colleague Paul Schwind gave us an update on the details of the federal litigation challenging the $5+ billion Honolulu rail project, Honolulutraffic.com v. Federal Transit Admin., No. 11-00307 AWT (D. Haw. filed May 11, 2011). Most if not all of the relevant legal documents in the federal case are posted on Honolulutraffic.com here. Paul attended the recent hearing in federal court, and once again has graciously agreed to update us with the latest developments in the case.

Update on the Federal Court Challenge to the Honolulu High Capacity Transit Corridor Project

by Paul J. Schwind*, InverseCondemnation September 10, 2012

Litigation continues over the adequacy of the final environmental impact statement (FEIS) for Honolulu’s rail rapid transit project. As last reported here, supporters of the rail got a bit of a boost in U.S. District Court on May 17, 2012, when Ninth Circuit Judge A. Wallace Tashima (assigned to hear the case because the entire District of Hawaii bench recused itself), on standing and exhaustion/waiver grounds granted most of the motions for partial summary judgment filed by Defendants the Federal Transportation Administration (FTA), the U.S. Department of Transportation (DOT), and the City and County of Honolulu (City). See Order on Defendants’ Motions for Partial Summary Judgment.

On August 21, 2012, Judge Tashima heard argument on cross-motions for summary judgment filed by both sides.The general outlines of the parties’ positions at the hearing have been reported in the print and broadcast media, so rather than repeat those details here, we're going to focus on several of the legal arguments that may be dispositive in the case.

At the outset of the hearing, Judge Tashima disposed of two requests for judicial notice. the plaintiffs asked the court to note that one of their number, former Governor Benjamin J. Cayetano, had received a plurality of votes in the recent primary election for Mayor of the City and County of Honolulu. The request was denied as irrelevant, the only issue before the court being whether the defendants have comported with the law as to reasonableness and adequacy of alternatives to the rail project. [Barista's note: recall that the major plank in Gov. Cayetano's platform in his campaign for mayor is his promise to stop the rail project; indeed, the upcoming vote in November can be viewed as an informal referendum on rail. That undoubtedly was the reason for the request for judicial notice, to remind the judge that as a political matter, if Gov. Cayetano is elected, the legal challenges may be mooted.]

The intervenors (Faith Action for Community Equity, Melvin Uesato, and Pacific Resource Partnership) also asked the court to note an appellant’s reply brief filed in the record of North Idaho Community Action Network v. U. S. Dep’t of Transp., 545 F.3d 1147 (9th Cir. 2008). Judge Tashima was not sure why notice was required [Barista's note: nor are we], given the voluminous record and his familiarity with the issues; he cautioned counsel to stick to the main issues, 30 minutes each.

Plaintiffs' Arguments

Matthew Adams (SNR Denton US LLP, San Francisco, California, appearing pro hac vice) opened his argument for the plaintiffs by focusing on the two issues mentioned in the previous day’s instruction from the court:

• Whether, under Section 4(f) of the Transportation Act, Defendants gave sufficient consideration to the Beretania Tunnel alignment as a feasible and prudent alternative. Section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(c), provides that the Secretary of Transportation may approve a transportation program or project requiring the use of a publicly owned park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance, or land of an historic site of national, State, or local significance, only if there is no prudent and feasible alternative to using that land; and the program or project includes all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use (emphasis added).

• Whether, under the National Environmental Protection Act, the EIS sufficiently considered all of the reasonable alternatives to the proposed action.

Judge Tashima reminded all present that some alternatives were eliminated before the EIS was finalized, namely by the Alternatives Analysis (AA) for the rail project.

On the first issue, Mr. Adams argued that the defendants did not give sufficient consideration to a King/Beretania tunnel alignment for the rail project. Although tunneling under Beretania Street would cost $650 million more according to the Administrative Record (AR 65-336), that would increase the total project cost by only 3-4%, which makes tunneling a prudent alternative to elevated rail, based on Stop H-3 Ass’n v. Dole, 870 F.2d 1419, 1433-34 (9th Cir. 1989) (which upheld Congressional exemption of H-3 from further administrative review of its alignment under Section 4(f)).

In addition, the added expense has to be weighed against the impact of the preferred alternative on historic sites under Section 4(f). Therefore, dismissal of the tunnel alternative was arbitrary and capricious, even though the AA was completed two years before the regulations implementing Section 4(f) were amended in 2008 to include the "substantial increase in impact" and "substantial reduction in harm" tests (23 C.F.R. § 774.9(c)(3)), requiring a separate Section 4(f) approval after the EIS or Record of Decision (ROD) has been processed.

On the second issue, Mr. Adams acknowledged that alternatives were eliminated based on the "purpose and need" of the project, but pursuant to "SAFETEA-LU" (23 U.S.C. § 139(c)(3), (f)(4)), the standard under NEPA still requires "all reasonable" alternatives to be considered in the EIS. Although the defendants argue for deference in this case, it is not warranted because the AA eliminated Bus Rapid Transit (BRT) that was the "best" option in 2003 when analyzed by the same agencies for the same considerations; BRT should have been reconsidered now. Other alternatives, such as the managed lane alternative (MLA) requested by the sitting judges of the court and that would have required City Council approval, were not considered in the subsequent Section 4(f) analysis.

Mr. Adams concluded his argument by stating that the treatment of potential burial sites is governed by the North Idaho case (see supra). The Section 4(f) analysis is incomplete, the ROD protocol requires more than merely "moving columns" for the elevated rail line (AR 377-69/72), and the line will be only 10 feet from Mother Waldron Park. The failure to complete the identification of traditional cultural properties (TCP) for future segments of the rail line has not been explained. Under North Idaho, 545 F.3d at 1159, phasing of the project cannot be justified, and the section 4(f) evaluation must be completed before an agency issues its ROD; see also note 7 (new 23 C.F.R. § 774.9(a) and (b) (Apr. 11, 2008) ("still provide that § 4(f) properties must be evaluated early while alternatives are under study, and that the § 4(f) approval should appear in the EIS or ROD"). Although construction has begun, federal funds have not yet been committed, so that it is "time to halt the project."

City's and U.S. DOT's Arguments

Robert D. Thornton (Nossaman LLP, Irvine, California, appearing pro hac vice) for the City, and David B. Glazer (U.S. Department of Justice, Washington, DC) for the FTA and DOT, presented the defendants’ arguments. Mr. Thornton began by asserting that the plaintiffs mischaracterized the record by citing minute portions of it. The EIS process has gone on for six years; the policy questions have been decided, and are not for the court. The defendants’ experts found that a King/Beretania tunnel alignment would have fewer riders, at higher cost, and with greater impact on cultural resources than the preferred alternative that was selected. Under Marsh v. Or. Natural Resources Council, 490 U.S. 360, 376, 378 (1989), the defendants have a right to rely on their experts, and the court may not substitute its judgment for that of the City and federal agencies.

Further, the FTA’s interpretation of its own regulations (the "feasible and prudent avoidance alternative" under 23 C.F.R. § 774.17) is entitled to deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 866 (1994). When Judge Tashima asked where is the analysis, if not in the final EIS, Mr. Thornton replied that the background data are incorporated in the AA and referenced in the EIS. NEPA regulations, he said, do not require that all the data be included in the EIS. The 4(f) sites are only in Chinatown and the Dillingham Transportation Building, and there will be no impact on those sites.

Mr. Glazer continued the defendants’ argument. The federal agencies proceeded under "SAFETEA-LU," 40 C.F.R. § 1506.2(b), and Laguna Greenbelt v. U.S. Dep’t of Transp., 42 F.3d 517, 524 n.6 (9th Cir. 1994) (EIS may incorporate state studies). The FTA and DOT cooperated, as required, to the fullest extent possible so as to reduce duplication, and relied, as federal agencies are allowed to do, on the City (as project sponsor) to develop the "purpose and need" statement, range of alternatives to be further analyzed, and level of detail for the analysis. Accordingly, alternatives that did not meet the purpose and need of the project were screened out during the planning and alternatives analysis process; for example, the managed lane alternative (MLA) did not provide the required "transportation equity" required under the Federal New Starts program. Judge Tashima then commented that under North Idaho, TCP’s must be included – but when were they identified? Mr. Glazer responded that there was only one TCP, in Chinatown, and the other historic properties were not TCP’s as defined. Extensive analysis on this issue was done prior to issuance of the ROD.

Intervenors' Arguments

William Meheula (Meheula & Devens, LLP) argued for the intervenors against the plaintiffs. First, the plaintiffs have waived their objection that the City failed to give sufficient consideration to a King/Beretania tunnel alignment by not so stating in the administrative record. Second, the State Historic Preservation Division (SHPD) and other agencies agreed to the testing protocol for burials in a Programmatic Agreement which foresees less impact if ground disturbance is deferred until the column locations have been determined (in the design phase). This rational reason for deferral comports with North Idaho, 545 F.3d at 1159 and note 8, citing City of Alexandria v. Slater, 198 F.3d 862, 873 (D.C.Cir.1999), in which the agency (as here) identified historic properties along the entire project corridor, and documented its findings in a memorandum of agreement and a Section 4(f) evaluation.

Judge Tashima asked, what if large burial sites are discovered that cannot be avoided? Mr. Meheula replied that the Oahu Island Burial Council (OIBC) will govern the disposition of such sites, and the City will abide by the Council’s determination regarding any burials in place. The City has already agreed to redo the historical studies, and so far no new TCP’s have been found.

Rebuttal

Judge Tashima then allowed the parties time for rebuttal. Mr. Adams began for the plaintiffs by admitting that the defendants did a detailed study of burial sites prior to issuance of the ROD, and specific column locations are noted in the AR, so the burial sites could have been further surveyed, since the methodology requires test pits, not extensive disruption. The NHPA allows no deference to rely on disruption as a reason to defer.

In the City of Alexandria case, only ancillary construction activities were deferred. The City’s April 2012 historical study did identify new TCP’s. The plaintiffs did object that the City failed to give sufficient consideration to the King/Beretania tunnel alignment, but the alternatives analysis was done outside the NEPA process and not coordinated with other agencies. The EIS for BRT did consider transportation equity. The final EIS for this project should cover at least a few alternatives – not necessarily all, but more than one.

Mr. Thornton responded for the defendants that the current rail project is part of the Oahu program planning process [Oahu Metropolitan Planning Organization – (OMPO)]. The plaintiffs did not mention the King/Beretania alignment in the administrative record – the MLA was extensively analyzed, yes, but not the tunnel. Plaintiff Cliff Slater was in fact a key opponent of BRT as well as this project. The plaintiffs’ opposition now is a classic example of the "late hits" problem (see, e.g., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978)). Federal regulations require "reasonable and good faith effort to carry out appropriate identification efforts" (36 C.F.R. § 800.4(b)(1)), and the City has done that here in consultation with SHPD and OIBC. The Programmatic Agreement provides for disturbance of burial sites after final design because it is too costly to do final design engineering before project approval has been achieved. The City is committed to move column locations if something is found then. Moreover, the plaintiffs have not met their burden under 23 C.F.R. § 774.15 to show that the project’s impacts on historic properties would be so severe as to substantially diminish their historical attributes; accordingly, the FTA’s finding of "no constructive use" of these properties is not arbitrary and capricious.

Mr. Glazer, for the defendants, added that the MLA was eliminated as lacking transportation equity because the vehicle charges of $4.00 to $7.50 per vehicle would be far higher than transit fare.

Mr. Meheula, for the intervenors, followed by stating that burial site testing before final design of Phase 4 (in town) would be destructive of a ten-fold larger area than after project approval. In City of Alexandria, 198 F.3d at 873, the court held that agencies are not required under Section 4(f) regulations to precisely identify sites dependent on the substantial design stage engineering work which normally follows acceptance of the FEIS and ROD, particularly where the sites postponed are ancillary to the project and the planning process is rational. The plaintiffs also have not sustained their burden of proving a balance of harm in their favor (their loss of enjoyment of historical and cultural resources, versus the intervenors’ continued hardship from traffic delays and loss of jobs), to establish any entitlement to injunctive relief under Monsanto Co. v. Geertson Seed Farms, 130 S.Ct. 2743, 2756 (2010).

Mr. Adams had the last word, in surrebuttal for the plaintiffs: the defendants’ are proceeding on the basis that "nothing was found" – that is arbitrary and capricious.

Judge Tashima then announced that he has not decided, and he took the matter under submission. If a remedy is required on some substantial point, he noted, the court will reconvene the parties at a later date to consider that.

Some Thoughts

But what about Kaleikini v. Yoshioka, No. SCAP-11-0000611 (Haw. Aug. 24, 2012), the recent opinion by the Hawaii Supreme Court holding that under Hawaii law, the impacts of the rail project on archaeological sites must be evaluated as a whole project? In reaction, the City voluntarily stood down, but has asked the Hawaii Supreme Court to reconsider its ruling. Suffice it to say that something happened on the way to the train station so to speak, and the impact of the Hawaii court's ruling on the federal case is not yet clear. While the parties in Honolulutraffic.com v. Federal Transit Admin. have focused entirely on federal law, it is Hawaii state law (in particular HRS chapter 6E and its implementing rules) that, at least for the time being, has derailed the rail project. The Hawaii court accorded little or no deference to the less restrictive provisions of federal law regarding phasing of the project.

There also may be doubt as to whether the City and its federal partners have considered enough alternatives or dug enough trenches before building columns – much will turn on Judge Tashima's reading of North Idaho and City of Alexandria. But there can be no doubt that in their reliance on assurances from the State that they could move forward based on the Programmatic Agreement regarding burial sites, the City and the Feds have been grievously betrayed. For the Hawaii Supreme Court has now said clearly, unambiguously, and unanimously: thou shalt not move forward in violation of State environmental and historic preservation law. Specifically, a Programmatic Agreement is not an "interim protection plan," and thou shalt not begin sequential, phased construction before completion of an archaeological inventory survey and the historic preservation review process for the entire project. In a different context, this is Hawaii Superferry revisited – déjà vu all over again, and perhaps another lesson illustrating my favorite aphorism, "the shortest path between A and B is not necessarily the shortcut."

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*voluntarily inactive member of the Hawaii Bar