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Sunday, December 30, 2012
Honolulu Rail Remedy - Phasers On Minimal
By Robert Thomas @ 2:40 PM :: 5647 Views :: Rail

Guest Post: Honolulu Rail Remedy - Phasers On Minimal


Our friend Paul Schwind has been keeping us up to date on the progress, vel non, of the federal legal challenge to the Honolulu rail project. Paul's most recent update was on the remedy hearing, and today he provides us with a breakdown of yesterday's short ruling on the remedy the court is imposing for the violations of section 4(f) of the Transportation Act Next step the Ninth Circuit?


Honolulu Rail Remedy - Phasers On Minimal

by Paul J. Schwind*

The multi-billion dollar Honolulu rail project has been only minimally stunned by the U.S. District Court for the District of Hawaii for its failure to adequately study the project’s possible effects on Chinatown and Mother Waldron Park (an old urban park/playground), and for its failure to articulate the reasons why a tunnel under Beretania Street (a major city arterial) was rejected.

Yesterday, the court issued its Judgment and Partial Injunction in v. Federal Transit Administration, No. 11-00307 (D. Haw. Dec. 27, 2012). In keeping with Ninth Circuit Judge A. Wallace Tashima’s previous ruling that "[e]ven assuming the issuance of an injunction is appropriate, it must be carefully tailored to provide a balanced remedy,” the court did just that: it issued a very carefully tailored injunction. See Order on Cross-Motions for Summary Judgment (D. Haw. Nov. 1, 2012), slip op. at 44-45 (emphasis added). (Judge Tashima is sitting by designation because the entire U.S. District Court bench recused itself from considering this case.)

As previously reported , Judge Tashima found in that order that the defendants failed to (1) complete a full study of above-ground "traditional cultural properties" (TCP) in the Chinatown area; (2) analyze noise impacts on Mother Waldron Park and mitigate other negative impacts on the park’s historic and artistic features; and (3) include a full analysis in the final environmental impact statement (FEIS) to support the conclusion that a tunnel under Beretania Street was not a feasible and prudent alternative to the elevated route selected.  As also reported here, Judge Tashima heard argument on December 12, 2012 regarding the appropriate remedy for these failures.

In yesterday’s judgment, Judge Tashima truly tempered justice with mercy. In entering his partial permanent injunction, he considered the well-recognized equitable factors that apply, see, e.g., Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743, 2756 (2010), and found that its four-factor test [(1) irreparable injury; (2) the inadequacy of monetary relief; (3) the balance of hardships; and (4) the public interest] favors the plaintiffs, but only to the extent that the defendants’ actions are actually enjoined.

The injunction against the defendants’ actions is in fact quite limited. In essence, it provides only that the defendants are

enjoined from conducting any construction activities and real estate acquisition activities in Phase 4 of [the rail project]. ... This injunction shall not prohibit, and [d]efendants may prepare, Phase 4 engineering and design plans, conduct geotechnical training, and conduct other preconstruction activities, including any activities that are appropriate to complete the additional analysis required by the Summary Judgment Order. This injunction shall not apply to Phases 1 through 3 of [the project].

The Phase 4 area encompasses the downtown area and its immediate environs, including Chinatown, Mother Waldron Park, and Beretania Street. The defendants are required to file periodic status reports on their compliance with the judgment, and the injunction shall terminate 30 days after defendants file a notice of final compliance, unless the plaintiffs object within that period.

Most importantly from the defendants perspective, Judge Tashima remanded the case to the Federal Transit Administration (FTA) without vacatur (setting aside) of the Record of Decision (ROD), which means that the Full Funding Grant Agreement (FFGA) to the City and County of Honolulu for $1.55 billion, executed on December 19, 2012 can now go forward without further obstruction.

That is, unless the plaintiffs decide to appeal Judge Tashima’s final judgment to the Ninth Circuit Court of Appeals. Stay tuned – we may not quite be done with this yet!


*voluntarily inactive member of the Hawaii Bar

Judgment and Partial Injunction, v. Federal Transit Admin., No. 11-0307 AWT (Dec. 27,...


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