Federal judge orders new studies on Honolulu rail project

By Kim Murphy

Nov. 2, 2012 12 AM PT

Honolulu’s $5.2-billion rail project, which already launched construction earlier this year, has been dealt another setback with a court order requiring substantial new studies — including the possibility of a tunnel underneath parts of downtown to avoid the disruptions of a highly visible elevated guideway.

U.S. Circuit Judge A. Wallace Tashima also said the city would have to reexamine the “quite serious” impacts the rail project might have on historic Mother Waldron Park, and also try harder to identify traditional cultural sites that might be affected along the rail route.

But the judge in a ruling late Thursday dismissed all of the other big challenges in a suit filed by Ben Cayetano, who is running for mayor on an anti-rail platform, and several other plaintiffs, and it was not clear whether he would order a halt to the project while the additional studies are done.

“We are confident that a reasonable remedy can address the remaining issues in a timely manner,” Mayor Peter Carlisle said in a statement. “Today’s ruling will require further analysis, but the bottom line is that the project can and should continue moving forward.”

Dan Grabauskas, executive director of Honolulu Area Rapid Transit, said the project “remains on course” and emphasized that the court “flatly rejected the vast majority of the plaintiffs’ claims.”

But Honolulu Traffic, the stop-rail group that joined Cayetano in filing the lawsuit, said the new studies will result at least in “further months of delay” to the controversial project.

“The city is claiming victory with a win of 20 claims to our three. However, this is not a football game,” the group said in a statement. “A better analogy is that of someone charged with 23 counts of murder and found guilty of three of them.”

Construction already has been halted as a result of a state court order, affirmed by the state Supreme Court in August, requiring the city to do additional surveys of archaeological sites, especially Native Hawaiian burials. HART officials have said they do not expect the new evaluations will take very long.

A bigger question is whether Cayetano, Hawaii’s former governor, will win Tuesday’s election. He had pledged to halt the project if he is elected, and most political analysts agree he would have the power to do so. Candidate Kirk Caldwell, a former state representative and ex-general manager of the city, is a strong supporter of the rail project.

Tashima, who sits in Los Angeles, took on the Honolulu rail case after most federal judges in Hawaii recused themselves from an issue that has in recent years been one of the highest-profile political issues in the state. Part of the rail line would run within 30 feet of the federal courthouse and some judges have seen it as a terrorism threat.

Tashima concluded that the city had adequately evaluated alternatives to the rail line, including an expanded bus system and technologies other than the wheel-on-steel-rail system that is part of the project.

But plaintiffs’ attorney Matthew Adams said the issues that were ordered for additional reviews are substantial.

“It’s extremely significant. We had claims that the city of Honolulu and the Federal Transit Administration violated section 4(f) of the Department of Transportation Act in three different ways, and the judge agreed on all three,” Adams said in an interview.

The judge did not immediately order a halt to construction to conduct the additional studies. While an injunction “may be appropriate,” he said, it “does not automatically follow,” and he scheduled a hearing for Dec. 12 to decide the issue.

[Update, 6:33 p.m., Nov. 4: An earlier version of this post said the ruling was issued by U.S. District Judge A. Wallace Tashima. Judge Tashima is a judge with the U.S. 9th Circuit Court of Appeals, sitting by designation as a district judge.]

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