Guest Post: Update On The Federal Court Challenge To The Honolulu Rail Project
Back in December, our old friend and colleague Paul Schwind gave us the details on the federal litigation challenging the $4+ billion Honolulu rail project, Honolulutraffic.com v. Federal Transit Admin, No. 11-00307 AWT (D. Haw. filed May 11, 2011) (all of the relevant legal documents are posted here on the Honolulutraffic.com web site). Paul 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 (The Rail)
by Paul J. Schwind*
Litigation continues over the adequacy of the final environmental impact statement (FEIS) for Honolulu’s rail rapid transit project. Supporters of rail got a bit of a boost recently in Hawaii District Court when Ninth Circuit Judge A. Wallace Tashima (assigned to hear the case because the entire District of Hawaii federal bench recused itself) granted most of the motions for partial summary judgment filed by the Defendants Federal Transportation Administration, the U.S. Department of Transportation, and the City and County of Honolulu. But the court’s ruling may contain a "poison pill" as a result of one part of the Defendants’ pleadings.
As last reported here, on November 30, 2011 Judge Tashima took under advisement the Defendants’ motion for partial judgment on the pleadings, noting that before the facts of the case could be decided, the full administrative record must be produced. On December 12, 2011 Judge Tashima issued an Order on Motion for Partial Judgment on the Pleadings denying the Defendants’ motion as premature on those grounds.
The Defendants then produced the administrative record, whereupon in February 2012, the City filed new and separate motions for partial summary judgment challenging the Plaintiffs’ standing to bring claims under section 4(f) at particular sites, and arguing that they waived the claims. "Section 4(f)" refers to section 4(f) of the Department of Transportation Act of 1966, 49 U.S.C. § 303(c), which 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.
The court's Order on Defendants’ Motions for Partial Summary Judgment (May 17, 2012), begins by noting that the Plaintiffs had already ceded their section 4(f) claims as to four sites (Pacific War Memorial, Hawaii Employers Council Building, DOT Harbors Division Building, and Tamura Building). The order disallows standing as to these four sites and one other site (Makalapa Navy Housing Historic District) because the Plaintiffs failed to mention them at any point in their testimony supporting their claim to standing. The court concluded that site-specific standing is required to bring each section 4(f) claim, citing Davis v. Fed. Election Conn’n, 554 U.S. 724, 734 (2008) (plaintiff must demonstrate standing for each claim he seeks to press); Laguna Greenbelt, Inc. v. U.S. Dep’t of Transp., 42 F.3d 517, 531-33 (9th Cir. 1994) (plaintiffs could not challenge a "no use" determination for eight particular section 4(f) sites on appeal, because they did not raise challenges regarding those specific sites before the district court); and Piedmont Envtl. Council v. U.S. Dep’t of Transp., 58 F. App’x 20, 24 (4th Cir. 2003) (because plaintiffs’ declarations did not mention two sites, plaintiffs failed to show that they would suffer any actual and imminent direct injury with respect to those properties).
The order also held that the Plaintiffs failed to demonstrate any injury in fact as to two other sites (Ke`ehi Lagoon Park and Queen Street Park), because Hawaii’s Thousand Friends Executive Director Donna Wong provided evidence only of "some day" or "vague" intention to use the two parks in the future, rather than specific mention of regular use or concrete plans for future use. To demonstrate standing to sue, an environmental plaintiff must demonstrate: (1) an injury in fact that is actual or imminent, and concrete and particularized; (2) a causal connection between that injury and the conduct challenged; and (3) a likelihood that the injury will be redressed by a decision favorable to plaintiff. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 & n.1 (1992); see also Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (a mere intention to visit national forests would be adequate to confer standing to challenge any government action as to those forests only if the requirement of concrete, particularized injury in fact were eliminated).
On those grounds, Judge Tashima concluded his analysis of standing by finding that only HTF member Michelle Matson, who frequents and enjoys downtown public parks (including Mother Waldron Park) and intends to continue doing so, provided sufficient evidence of tangible and repeated use of that site to establish standing. Accordingly, the court granted the City’s motion for summary judgment as to the Plaintiffs’ lack of standing to bring section 4(f) claims as to two of the park sites, but not for Mother Waldron Park, for which the court denied summary judgment.
The order turned to the City’s second motion for summary judgment on waiver for failure to exhaust administrative remedies. The court began by noting that, because of its rulings on the first motion as to standing, the dispute over waiver of claims had now narrowed to only two section 4(f) sites (Pearl Harbor National Historic Landmark and Merchant Street Historic District). The order reviewed the legal standards set forth in Vt. Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 519, 553 (1978), Dep’t of Transp. v. Public Citizen, 541 U.S. 752, 764-65 (2004), and Great Basin Mine Watch v. Hankins, 456 F.3d 955, 965 (9th Cir. 2006) in support of the proposition that before their claims can be considered in federal court, the plaintiffs must have participated in the administrative process to show the possible significance of agency error and to ensure that the agency has the opportunity to bring its expertise to bear to resolve the claims.
The court agreed with the Defendants that exhaustion principles apply in the section 4(f) context. Judicial review of section 4(f) is governed by the Administrative Procedures Act (see N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1152 (9th Cir. 2008)). Moreover, the Ninth Circuit has applied exhaustion principles quite expansively, and comments in general terms are enough (see Lands Council v. McNair, 629 F.3d 1070, 1074 (9th Cir. 2010)). But although the exhaustion requirement should be interpreted broadly, the issue must be raised with sufficient clarity for the decision maker to understand and rule on the issue (see Nat’l Parks & Conservation Ass’n v. Bureau of Land Mgmt., 606 F.3d 1058, 1065 (9th Cir. 2010)). On the other hand, even if the Plaintiffs did not sufficiently comment on the two sites in question, their claims might not be waived if the FEIS’ flaws were "so obvious" that there was no need for a commenter to point them out specifically (see Public Citizen, 541 U.S. at 765. If the agency had "independent knowledge" of the issues that concerned the Plaintiffs, then the "so obvious" exception would allow the Plaintiffs to bring a claim that they did not exhaust because they need only show that the agency was aware of the problem, not that the agency explicitly recognized the problem’s existence (see Barnes v. United States, 655 F.3d 1124, 1132-34 (9th Cir. 2011)).
In this case, however, Judge Tashima found that, with respect to the Pearl Harbor National Historic Landmark, Hawaii’s Thousand Friends did not suggest that it was concerned about any specific negative impact of the rail project, and the Defendants could show that they specifically responded to concerns of other non-party agencies for that site. With respect to the Merchant Street Historic District (which includes Mother Waldron Park), the court concluded that none of the Plaintiffs’ comments addressed the District by name, and therefore did not raise any issue of "use" with sufficient clarity that the agency could bring its expertise to bear to resolve the claim. Further, the Defendants’ notes indicated they tried to address public comments regarding the District, and thus could not be said to have had "independent knowledge" of issues to which they did not respond.
Accordingly, the court granted the City’s motion for summary judgment, and held that the Plaintiffs waived their section 4(f) claims as to Pearl Harbor National Historic Landmark and Merchant Street Historic District for failure to exhaust administrative remedies. However, because the Defendants made a catch-all request for summary judgment as to any section 4(f) claims involving sites not specifically identified by the Plaintiffs during the administrative proceedings, the court denied summary judgment as to such sites not specifically identified by the Plaintiffs during the notice-and-comment process and not specified by name in the City’s motion. The court reasoned that there was insufficient evidence to determine whether such section 4(f) claims, concerning unnamed sites, could be saved by the "so obvious" exception to the exhaustion requirement. However, this ruling may have created a loophole through which the Plaintiffs can still jam a monkey wrench into the rail project, if they can persuade the court to reopen the FEIS to address previously unspecified claims regarding previously unnamed sites.
Shortly after filing its memoranda in opposition to the City’s motions for partial summary judgment, the Plaintiffs filed their own motion for summary judgment, and the briefing on that motion is still in progress. A hearing on the cross-motions for summary judgment is set for August 21, 2012, at 10:00 a.m. before Judge Tashima, and we will report on the hearing at a later date.
It remains to be seen how the Court will dispose of the counts of the First Amended Complaint now that, at least with respect to section 4(f) concerns, the case appears to have been narrowed to one site (Mother Waldron Park). Unless, of course, the Plaintiffs are granted leave to raise previously unspecified claims regarding previously unnamed sites.
*voluntarily inactive member of the Hawaii Bar