Rail lawsuit in the hands of federal judge

Published: Aug. 21, 2012 at 10:21 PM HST|Updated: Aug. 21, 2012 at 10:41 PM HST
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HONOLULU (HawaiiNewsNow) - Did the city break environmental laws in the planning of the rail project? A federal judge is considering that right now and his decision could affect the future of the rail.

The argument comes down to if the city properly researched alternatives to rail and if they did enough to bypass historical sites and burial grounds.

In court the city argued if alternatives do not meet the purpose and need of the project they can be screened out.  But Judge Wallace Tashima said that is too general and he said he can't find anything that pulls the city's argument together.  To which the city said it did robust research with the Federal Transit Administration in the alternatives analysis.

The judge said something else that bothered him was the traditional cultural properties (TCP) were not identified until after the record of decision was reached.  He added there was no effort to identify them before saying that's a failure of the city.

Opponents countered saying the city must avoid historical sites but can't meet that requirement if they don't identify them first.

"You've got to take a look in order to apply that standard and (the City) did not take a look and I think its because they were afraid of what they would find," said

Matthew Adams, rail opponent's attorney. "They eliminated all the alternatives before they did the EIS (Environmental Impact Statement) and said none of them would meet the purpose and need of the project. That is something you do in the EIS process. Its not something you do before hand so you have a predetermined outcome."

As for burial grounds, the city says there is no evidence the project will impact burials and the reason they weren't done earlier is because of cost and because the search for burials could do more damage than the project itself.

"We haven't run into any burials yet but if it does happen the Native Hawaiian community can rest assured that the city has committed that they are going to move the project," said Bill Meheula, attorney for the Pacific Resource Partnership and Faith Action for Community Equity, two groups that joined the lawsuit and share views of the city.

"What really happened here on the burials is that they refused to look for them and then they made the decision to proceed because nothing had been found," said Adams.

Judge Tashima did not make a decision today however his parting comment was if the plaintiff's prevail then both sides will have to discuss a remedy. That remedy could be as severe as starting the planning process over again.

"Well I think he might have mentioned that because that was raised in argument that there is an issue about remedies out there so he wanted to cover that possibility but he certainly didn't indicate how he was leaning," said Gary Takeuchi, deputy attorney with the City Corporation Counsel.

"If there was anything that was established clearly, there were some alternatives they kind of glossed over," said Ben Cayetano, plaintiff and Honolulu mayoral candidate who has vowed to stop rail if elected.

"Based on (Judge Tashima's) questions my feeling is we're going to get a good decision, but I am not making a prediction," said Retired Judge Walter Heen, plaintiff.

"I remain disappointed at some of the answers that the city gave because they're just not true but we'll see," said State Senator Sam Slom, (R) East Oahu, who is also a plaintiff in the case.

"I think it went well. It was good to be able to present our point of view and try to address the concerns the judge had and questions he had for both sides so I think it was a positive thing," said Takeuchi. "(Judge Tashima) is pretty careful not to show his hand so we don't know. We'll have to wait and see."

Rail opponents hired Nicholas Yost as their attorney, who wrote the environmental law, but he had complications from a surgery and wasn't able to make it to Hawaii.  His co-counsel Matthew Adams had to step in and argue the case.  Plaintiffs admit they were a bit concerned by Yost's absence but were happy with how Adams did today.  One of the arguments he made to the judge was that nothing has been done with rail that cannot be undone.

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