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Tuesday, February 18, 2014
9th Circuit Court: Honolulu Rail Project On Track
By Robert Thomas @ 4:53 PM :: 4484 Views :: Rail

9th Cir: Honolulu Rail Project On Track

Update 2/19/14: the Honolulu Star-Advertiser has this report ("The appellate court decision was an 'overwhelming victory for the city from an ideologically diverse panel, said Robert Thomas, a Honolulu-and San Francisco-based attorney who attended the hearing in August. The panel comprised Judges Stephen Rein­hardt, Mary Schroe­der and Andrew Hur­witz. 'All three of them agreed. They made pretty short work of the challengers' arguments on the merits' while spending much of the decision on the panel's jurisdiction concerns, Thomas said."). The Star-Advertiser also reported that the one issue remaining before the District Court was also (coincidentally) resolved yesterday against the challengers. Here is the court's order (we will have a report on that issue shortly).

  *   *   *   *   *  

by Robert Thomas, InverseCondemnation, February 18, 2014

Okay, we've got the obligatory "rail" pun out of the way with the title. On to the opinion, which we posted earlier today, which we've now had a chance to review it in more depth.

In v. Federal Transit Admin., No. 13-15277 (9th Cir. Feb. 18, 2014), a three-judge panel of the Ninth Circuit unanimously concluded that the District Court entered an appealable final order, thus making the case ripe for Ninth Circuit review. On the merits, the panel held that the FTA and the City did not go wrong when it did not adopt the "Managed Lanes Alternative" or the "bus rapid transit" alternative. Moreover, the FTA and the City made a "good faith and reasonable" effort to identify known archaeological sites and came up with a plan to deal with anything found during construction.

We attended the oral arguments in San Francisco last year (see our coverage here and here), and we concluded that two of the three judges were "very skeptical about whether there was an appealable final order in the case." We noted that it was a "fool's errand" to predict the outcome based on how judges seem to react at oral argument, but that there was a good chance that two of the judges were hung up on jurisdiction.

Well, it looks like we were right about at least one thing (no jokes about who is the fool, please), and all three judges agreed that the court of appeals had jurisdiction. It was Judge Schroeder who authored the opinion, and we at least guessed right that she thought there was an appealable decision. Looks like she convinced her two colleagues. Luckily, we offered no prediction about how the court was leaning on the merits.

It's a relatively short opinion (only 9 pages devoted to nonjurisdictional issues) which tells us that once the judges got past the jurisdictional question, they didn't have much doubt about whether the district court got it right about environmental law. That might explain why during oral arguments, the majority of the time the court spent questioning the lawyers was on the jurisdictional issue.

The panel rejected the challengers' main argument that the rail EIS was a "foreordained formality" because the project's objectives had been defined too narrowly. To the contrary, held the court, the purposes of the project in the environmental review documents were defined consistent with the goals for the project set out in the planning documents (see pages 17-18 of the slip opinion), and was broad enough to both comply with the statutory requirements, and to allow for more than one way to accomplish those goals. If you had any question about the City's vision of what the rail project is supposed to accomplish, look no further than the 45:20 mark of the oral argument video, where the City's lawyer asserts the purpose of the rail is to "reduce reliance on the private automobile," "promote smart growth land use policies," and "provide an equitable alternative for low-income populations and transit-dependent communities." And here you thought the rail was to reduce traffic.

The court also rejected the argument that the defendants had an obligation to consider alternatives previously rejected in the "screening process."

On the historic sites issue, the panel made short work of the challengers' arguments, holding that it was not necessary to evaluate the entire proposed route in order to evaluate part of it:

In this case, Defendants did not conduct Archaeological Inventory Surveys (“AIS”) to identify undiscovered burial sites along the entire twenty-mile length of the Project prior to its approval, even though it is likely that construction may disturb some of such sites.

Slip op. at 24. Federal law only requires a "reasonable and good faith effort" to identify burial and other archaeological sites, and the panel concluded there was "good reason for Defendants' reluctance to conduct the surveys," since the "exact route and placement of the support columns had not yet been determined." Id. Compare this ruling with the Hawaii Supreme Court's earlier opinion that under state law, the State Historic Preservation Division wrongly "concurred in the rail project prior to the completion of the required archaeological inventory survey for the entire project." But different jurisdictions, different law.

What's next? With a short opinion and no dissent, we think it unlikely that the Ninth Circuit would rehear this case en banc. But what do we know, since we were wrong about the panel's leanings on the jurisdictional issue, and the plaintiffs in this case have been very tenacious.

FULL TEXT: v. Federal Transit Administration, No. 13-15277 (9th Cir. Feb. 18, 2014)


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