Our friend and colleague Paul Schwind has been keeping us up to date with the latest in the dual legal challenges to the Honolulu rail project. His last post focused on the state court happenings.
Here’s the latest on the federal court action, now awaiting oral argument in the coming weeks in the Ninth Circuit. Here’s Paul’s most recent update in the federal lawsuit, when in December 2012 the court imposed a remedy for the defendants’ violations of section 4(f) of the Transportation Act. Paul now provides us with a preview of the arguments in the Ninth Circuit.
Programming notes. We’ll most likely be attending the arguments in San Francisco, and will have a report following. Also, Paul and I will be presenting a session on the latest in the rail project (including happenings in both state court and the Ninth Circuit) at the upcoming Eminent Domain and Condemnation Law Conference (Honolulu, Aug. 21, 2013). Hope you can join us.
The video about is courtesy ReasonTV, and gives some background on the project. No, it’s not a balanced view, but it does help explain the why’s of the legal challenges.
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Ninth Circuit Rail Appeal
by Paul J. Schwind*
The multi-billion dollar Honolulu rail project was only minimally stunned bythe U.S. District Court for the District of Hawaii for its failure toadequately study the project’s possible effects on Chinatown and Mother WaldronPark (an old urban park/playground), and for its failure to articulate thereasons why a tunnel under Beretania Street (a major city arterial) wasrejected. But bumpy track still loomsahead.
As we anticipated last December, the plaintiffs Honolulutraffic.com (now appellants) did appeal Judge Tashima’s December 27, 2012 Judgment & Partial Injunction to the Ninth Circuit on February 12, 2013. On May 3, the court granted appellants’motion to expedite the briefing and hearing, which is now calendared for Thursday, August 15, 2013 at the San Francisco courthouse. In the same Order,the court denied the defendants’ (now appellees) Federal Transit Administration(FTA) and City and County of Honolulu (City) motion to dismiss the appealfor lack of jurisdiction, without prejudice to renewing the arguments in theanswering briefs.
Appellants’ Opening Brief
The Opening Brief presents the following by-now familiar issues:
1. Didthe final EIS prepared by the FTA and the City violate the NationalEnvironmental Protection Act’s (“NEPA”) requirement to evaluate all reasonablealternatives, where
- Therange of alternatives evaluated in detail in the FEIS was limited to three virtually-identicalversions of the City’s “preferred” elevated heavy rail project;
- The City andthe FTA excluded managed lanes from detailed consideration in the FEIS despitethe recommendations of the City’s own Transit Advisory Task Force; and
- TheCity and the FTA excluded light rail from detailed consideration in the FEISdespite its apparent feasibility?
2. Did the FEISprepared by the FTA and the City violate NEPA by defining the purpose and needfor the project in terms so narrow as to preclude consideration of alternatives,where every alternative to the City’s “locally preferred” elevated heavy railproject was eliminated from consideration for (alleged) inconsistency with thepurpose and need?
3. Didthe FTA violate Section 4(f) of the Transportation Act’s substantive mandateprohibiting the approval of transportation projects that will damage historicresources unless there is no feasible and prudent alternative, where
- It is undisputedthat the FTA approved an elevated heavy rail line that will cause permanent damage to the historic Dillingham Transportation Building and theChinatown Historic District;
- The City andthe FTA entirely failed to address the possibility of developing a bus rapidtransit system despite the fact that they had recently issued an EIS concludingthat bus rapid transit (a) is the best transit alternative for Honolulu and (b)will not damage historic resources; and
- The City andthe FTA claim that a system of high-occupancy and toll lanes would be imprudentwithout (a) applying the regulatory definition of “imprudence”or (b) addressing recommendations from the City’s own TransitAdvisory Task Force?
4. Did the FTAviolate Section 4(f) by approving the elevated heavy rail line prior to completing its evaluation of therail line’s potential impacts on Native Hawaiian burial sites, where
- Section 4(f)’simplementing regulations and controlling circuit case law require thatall potentially-historic resources be fully evaluated prior to projectapproval;
- The City and theFTA issued a technical report which found that comprehensiveArchaeological Inventory Studies (“AIS’s”) are necessary to properly evaluatepotential impacts on burial sites; and
- It is undisputedthat the City and the FTA approved the elevated heavy rail line withoutcompleting AIS’s for more than half of the Project?
Obviously, appellants’ argument is that the answer to theirfour fundamentally rhetorical questions is “yes” – appellees violated NEPA andSection 4(f). Their summary of argumentreads as follows:
The FTA and the City prepared an “EnvironmentalImpact Statement/Section 4(f) Evaluation” that failed toconsider any alternatives to the City’s”locally-preferred” elevated heavy railsystem, despite evidence that reasonable, feasible, prudent, and less-damagingalternatives (including Managed Lanes, BRT [bus rapid transit], and light rail)exist. The FTA also violated Section4(f) by approving the Project without identifying and evaluating potentialimpacts on Native Hawaiian burial sites, despite unambiguous regulatoryrequirements (and case law from this Court) requiring that such evaluations becompleted in advance of project approval.
The more interesting part of the openingbrief is that part in which appellants directly attack Judge Tashima’sreasoning. Recall that Judge Tashima, whois a Senior Circuit Judge on the Ninth Circuit and some of whose brothers andsisters will be considering this appeal, heard this case in Honolulu sitting by designation, as all thelocal judges had recused themselves.
Appellants’ specific attack on Judge Tashima’sreasoning focuses on four points regarding the identification and evaluation ofNative Hawaiiana burials. First, appellantsargue that the district court failed to apply the Section 4(f) regulations,which (they allege) require that potentially historic resources be identifiedand evaluated prior to project approval. Second, they argue that the court’s decision is contrary to the NinthCircuit’s ruling in North IdahoCmty. Action Network v. U.S. Dep’t of Transp. 545 F.3d 1147, 1158-59 (9th Cir. 2008) (all Section 4(f) resources must be identified prior toproject approval; 36 C.F.R. § 800.4 does not authorize “phased” Section 4(f)compliance). Third, they argue that thecourt erroneously suggested that North Idaho may be distinguishedbecause “in contrast to North Idaho … Defendants here have not deferred allSection 4(f) site identification to a later date.” Fourth, even if the court’s focus on“appropriate levels of effort” were proper, its conclusion on that issue was erroneous.
Appellees’ Answering Briefs
The federal appellees’ Answering Brie responds with their take on the issues presented:
1. Whether the final EIS for the HonoluluHigh-Capacity Transit Corridor Project (the “Project”) satisfied therequirements of NEPA to describe the Project’s purpose and need and to evaluatealternatives in light of that purpose and need.
2. Whether it was arbitrary and capricious for defendants to determinethat neither a managed lanes alternative nor a bus rapid transit alternativefulfilled the Project’s purpose and need, and therefore were not “prudent”alternatives to the use of certain historic properties within the meaning ofSection 4(f), 49 U.S.C. §303.
3. Whether defendants’ efforts prior to Project approval toidentify unknown burials and other potential archaeological resources along theProject route, including plans to avoid burial sites that may be laterdiscovered, satisfied the requirements of Section 4(f).
Just as obviously,federal appellees’ argument is that the answers to their rhetorical questionsare “yes”, “no”, and “yes” – the FEIS satisfied NEPA requirements (the range ofalternatives considered was reasonable in light of Project purposes and needs,such that managed lands and light rail were not reasonable); the exclusion ofimprudent alternatives (such as bus rapid transit and other non-fixed guidewayrail alternatives) was not arbitrary and capricious; and the efforts toidentify unknown burials and other archaeological resources satisfied Section4(f). Their summary of argument readsas follows:
1. The EIS properly stated the purpose and needfor the Project, as developed and refined through a lengthy and public localplanning process. The purpose and need includedproviding high-capacity transit in a congested corridor, providing faster, morereliable public transportation than could be achieved by buses operating intraffic, providing reliable mobility in areas where people of limited incomeand an aging population live, advancing planning goals by serving rapidly developingareas to the west of the City, and providing an alternative to privateautomobile travel and improved transit links. The defendants followed a process authorized by governing statutes andregulations to screen out alternatives that would not serve the project’spurpose or need. The Managed Lane Alternative (“MLA”) supported by plaintiffswas reasonably determined in this process to not serve the purpose and need forseveral reasons: it would create significantnew congestion near the entrances and exits to the managed lanes; it would notsubstantially improve access to transit for transitdependent communities; itwould not support the City’s land-use planning objectives; and it would haveother drawbacks such as a high cost.
Plaintiffswaived any claim that a light rail alternative required additionalconsideration by not clearly raising the argument in the district court. In any event, the EIS adequately explained whya light rail system would not fulfill project purpose and need because of limitationson such a system’s capacity and speed, and because it would add to congestionand safety problems by occupying existing travel lanes.
2. The MLA was properly found not to be a“prudent” alternative to the use of historic resources in downtown Honolulu under the terms ofSection 4(f), 49 U.S.C. §303(c). TheDepartment of Transportation’s (“DOT”) 2008 regulations implementing Section4(f) make clear that an alternative is not prudent if it “compromises theproject to a degree that it is unreasonable to proceed with the project inlight of its stated purpose and need.” 23 C.F.R. §774.17. The MLA failed to meet several components ofProject purpose and need and it was reasonably determined not to be “prudent.” This Court’s cases make clear that an alternative’sfailure to meet project purpose and need is sufficient, without additionalanalysis, to render it imprudent under Section 4(f), and DOT’s regulationsembody that case authority.
BusRapid Transit (“BRT”) similarly failed to fulfill project purpose and need. BRTwould have done little to relieve congestion and improve travel reliabilitysince buses would still have to operate at times in mixed traffic, and such asystem would have been contrary to the City’s smart growth land use policiesdesigned to focus transit oriented development in the Project corridor anddiscourage urban sprawl. Defendants werenot required to make more particularized findings about the drawbacks of theMLA and BRT alternatives and weigh those drawbacks against the value ofspecific Section 4(f) properties. Becausethe administrative record strongly supports the conclusion that neither ofthese alternatives was prudent, the FTA’s approval of the Project was consistentwith Section 4(f) and not arbitrary or capricious.
3. The City’s and FTA’s efforts to identifyunknown archaeological sites such as Native Hawaiian burial locations and toprovide for the protection of any such sites found during constructionsatisfied Section 4(f). While Section4(f) itself does not speak to the issue of undiscovered archeological sites,DOT’s 4(f) regulations specifically contemplate the use of identificationprocedures found in regulations promulgated pursuant to Section 106 of the NationalHistoric Preservation Act (“NHPA”), as well as the use of ProgrammaticAgreements to afford protection to sites found during construction that may beeligible for inclusion on the National Register of Historic Places (“National Register”). As the district court found, thedefendants followed the relevant procedures and met the requirements for areasonable good faith effort to carry out appropriate identification efforts byconducting a thorough Archeological Resources Technical Report and by entering intoa highly protective Programmatic Agreement that covered the entire Project. The district court correctly concluded thatdefendants had not improperly deferred compliance with Section 4(f), but ratherhad fulfilled their statutory responsibilities in a way that protected potentialundiscovered sites.
All the foregoing notwithstanding, federalappellees’ most potent counterpunch may well be that the Ninth Circuit does notcurrently have appellate jurisdiction, because Judge Tashima’s judgment and partialinjunction last December may not be final for the purposes of appeal. Since in May the Court denied withoutprejudice defendants’ motion to dismiss the appeal for lack of jurisdiction,the jurisdictional question may now be ripe for consideration. Here is federal appellees’ argument onjurisdiction:
…. On December 27, 2012, thedistrict court issued an order, entitled “Judgment and Partial Injunction,”partially remanding the matter for additional studies and analyses,establishing a process for resolving any subsequent challenges to the adequacyof supplemental environmental documents produced during the remand, andenjoining construction activities and real estate acquisition activities inPhase 4 of the Project (downtown Honolulu). … On February 11, 2013, plaintiffs filed theinstant appeal.
Thefederal appellees submit that the district court’sjudgment resolving some issues in favor of defendants but remanding others toFTA for further consideration and decision is not a final judgment for purposesof 28 U.S.C. §1291, as that statute has been interpreted by this Court’s caselaw. While plaintiffs have asserted 28 U.S.C. §1292(a)(1) (appeals frominterlocutory orders granting or denying injunctive relief) as an alternativebasis for appellate jurisdiction …, they have not presented any argumentquestioning the propriety of the district court’s partial injunction. Accordingly, Section 1292(a)(1) cannot serveas a basis for appellate jurisdiction.
Afinal judgment is one that “ends the litigation on the merits and leavesnothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). Inthis case, litigation on the merits has not ended. … Significant issues remainregarding FTA’s compliance with Section 4(f) of the Department ofTransportation Act, 49 U.S.C. §303. Theseremanded issues are not ministerial in nature. They will, at the very least, require FTA tosupplement its decision and the Environmental Impact Statement …, andthey could require FTA to “reconsider the project”. We agree with defendants-appelleesCity and County of Honolulu,et al., that it is likely that FTA’s determinations on remand will be challenged,and that this challenge could easily result in a second appeal.
Forthese reasons, the rule that “remand orders are generally not ‘final’ decisionsfor purposes of section 1291,” PitRiver Tribe v. U.S. Forest Service, 615 F.3d 1069, 1075 (9th Cir.2010) (citing Chugach Alaska Corp. v.Lujan,915 F.2d 454, 457 (9th Cir. 1990)), shouldapply here. The policy behind thatrule—avoidance of multiple, duplicative appeals in the same case—is stronglyimplicated where, as here, the issues remanded are intertwined with the issuesthat were not remanded, and on which the present appeal focuses. … Plaintiffs should have nodifficulty in obtaining review of all issues at the end of the case.Accordingly, the Court should dismiss the instant appeal for lack of appellatejurisdiction. (Footnotes andcitations to the record on appeal omitted.)
The City Appellees’ Answering Brief includes a summary of argument similar to the Feds’ brief:
1. This Court lacks jurisdiction under 28 U.S.C. § 1292(a)(1) because HonoluluTraffic’sOpening Brief failed to include any substantive argument challenging thescope of the injunction in the December Order, thereby waiving any suchchallenge. This Court also lacks jurisdiction under 28 U.S.C. § 1291 becausethe December Order is not a “final decision.” The December Order includes a partial remand andreturn process that does not (1) conclusively resolve a separable legal issue,(2) force the agency to apply a potentially erroneous rule which may result ina wasted proceeding, and (3) foreclose review if an immediate appeal wereunavailable.
2. TheProject purpose and need complied with NEPA. The purpose and need reflects the statutorycontext of the approval of new transit projects. The Lead Agencies developed the purpose andneed through a NEPA – compliant process mandated by statute – one, thatprovided numerous opportunities for public participation and comment.
3. FTAevaluated a reasonable range of alternatives. The alternatives evaluated in detail in theFinal EIS met the Project’s purpose and need and were selected through awell-documented process with extensive public participation.
4. TheFinal EIS fulfilled the requirements of NEPA to “briefly discuss” the MLA [managed lanes alternative] andlight rail alternative. After studyingMLA for several years, the Lead Agencies reasonably determined that it wouldnot achieve Project purpose and need, would not result in substantially fewerenvironmental impacts, and would not be financially feasible. Two configurations of light rail – throughoutthe Project corridor and in the downtown area – were considered and did notmeet purpose and need. They failed toprovide high-capacity rapid transit and failed to ensure mobility andreliability.
5. TheLead Agencies determined, and the record supports the finding, that the MLA andBRT [bus rapid transit] alternatives did not meet the purpose andneed of the Project and were therefore imprudent under Section 4(f). Thus, the Lead Agencies were not required toconsider these alternatives further under Section 4(f).
6. TheLead Agencies did not improperly defer evaluation of unknown Native Hawaiianburials in violation of Section 4(f). Therecord demonstrates that the Lead Agencies conducted a detailed evaluation toidentify all archaeological resources along the entire Project corridor, andcommitted to avoid the “use” of any Section 4(f) eligible burials.
The City’s brief also elaborated additionalreasons why the Ninth Circuit does not yet have appellate jurisdiction in this case:
Renewal of the jurisdictional argument isparticularly appropriate in this case, as the facts have changed.HonoluluTraffic’s opposition to the prior motion asserted that the Court wouldhave jurisdiction under 28 U.S.C. § 1292(a)(1), which establishes jurisdictionover district court orders granting or refusing injunctions. … However, HonoluluTraffic’s Opening Brief makes no arguments challengingthe injunction and they have, therefore, waived jurisdiction under 28 U.S.C. §1292(a)(1).
“On appeal, arguments not raised by a partyin its opening brief are deemed waived.” Smithv. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999); Autotel v. Nev. Bell Tel. Co., 697 F.3d 846, 857 n.9 (9th Cir.2013) (“conclusory statement in its opening brief, unaccompanied by argument orcitation to the record, is insufficient to preserve the issue for appeal”).HonoluluTraffic’s Opening Brief fails to include any substantive argumentchallenging the scope of the injunction in the December Order.
The jurisdictional argument is now limited tothe single issue of the applicability of 28 U.S.C. § 1291, which providesjurisdiction over “final decisions of the district courts.” Because the December Order’s partial remand isnot a “final decision,” this Court lacks jurisdiction.
When, as here, a remand order is notchallenged by an administrative agency, controlling precedent requires theapplication of a three-factor test to determine if the order is “final” forpurposes of appeal. See, e.g., Williamson v. UNUM Life Ins. Co.,160 F.3d 1247, 1251 (9th Cir. 1998) (“Williamson”)(quoting Chugach Alaska Corp. v. Lujan,915 F.2d 454, 457 (9th Cir. 1990) (“Chugach”)). If the order fails to satisfy just one ofthese factors, the decision will not be considered “final.” SeeWilliamson, 160 F.3d at 1251 (remand appealable “only when” all threefactors satisfied); Chugach,915 F.2d at 457; Alsea, 358F.3d at 1184 (remand order not “final” because single factor not satisfied); Rendleman v. Shalala, 21 F.3d 957,959 (9th Cir. 1994) (“order remanding case to Secretary is final where threecriteria met”); Shapiro v. ParadiseValley Unified Sch. Dist. No. 69, 152 F.3d 1159, 1161 (9th Cir. 1998) (“Shapiro”). This test applies regardless ofthe label employed by the district court, because the substance of the order iscontrolling. Sullivan v. Finkelstein,496 U.S. 617, 628 n.7 (1990) (label “cannot control the order’sappealability”); Eluska v. Andrus,587 F.2d 996, 997 (9th Cir. 1978) (decision labeled “judgment” not a “final decision”).
A partial remand order will be considered“final” only if: “(1) the orderconclusively resolved a separable legal issue, (2) the remand order forces theagency to apply a potentially erroneous rule which may result in a wasted proceeding,and (3) review would, as a practical matter, be foreclosed if an immediateappeal were unavailable.” Williamson, 160 F.3d at 1251(internal quotations omitted) (quoting Chugach,915 F.2d at 457). In this case, thepartial remand will not force the agency to apply a potentially erroneous rule,thereby resulting in a wasted proceeding. Nor will it foreclose review. Thus, the District Court’s order is not a“final decision.”
HonoluluTraffic cannot credibly argue thatthe reconsideration required by the District Court will require the Appelleesto apply a potentially erroneous rule. During the District Court proceedings HonoluluTraffic argued that thelaw mandates that the three issues must be accompanied by studies and analyses. … The governing regulations guarantee public participation in thisprocess. 23 C.F.R. §§ 771.130(d), 771.123(g) (requiring drafts to be madeavailable to the public for comment). [IN] The District Court-required process issubstantive and demanding, not a “waste of time”:
(1) IfTCPs are identified and adversely affected by the Project, Defendants mustconduct a complete Section 4(f) analysis. They must also supplement the ROD andFinal EIS, if changes “may result in significant environmental impacts in amanner not previously evaluated and considered.” …
(2) Defendantsmust also “fully consider the prudence and feasibility of the Beretania StreetTunnel Alternative, and supplement the Final EIS and ROD to reflect thisanalysis. If Defendants determine thattheir previous decision to exclude the Beretania alternative as imprudent wasincorrect, they must withdraw the Final EIS and ROD and reconsider the project”. …
(3) Defendants are ordered to “reconsidertheir no-use determination” for Mother Waldron Park.If they conclude that the Project willconstructively use” Mother Waldron Park, they must seek prudent and feasiblealternatives, or otherwise mitigate any adverse impact, supplement the ROD, andsupplement the Final EIS to the extent that this process affects its analysisor conclusions. …
On May 30, 2013, FTA circulated a draftSupplemental Environmental Impact Statement/Section 4(f) Evaluation (“DraftSEIS”) for public review. 78 Fed. Reg.34377 (June 7, 2013); 23 C.F.R. § 771.123(g).
After circulation, FTA must consider thecomments received and prepare a final SEIS that “discuss[es] substantivecomments received on the draft EIS and responses thereto, summarize[s] publicinvolvement, and describe[s] the mitigation measures that are to beincorporated into the proposed action.” 23 C.F.R. § 771.125(a). FTA retains the ultimate discretion to approveor not approve the studies and analyses. Significant substantive steps must becompleted before changes to the Project can be ruled out.
The December Order is not a “final”appealable decision because denying “an immediate appeal does not, as apractical matter, foreclose review.” Alsea,358 F.3d at 1184. The December Ordergrants HonoluluTraffic the right to file an objection to any finding ofcompliance, and the injunction remains in effect pending resolution of theobjection. . . . .
HonoluluTraffic, of course, may challengeFTA’s determinations in the District Court and in this Court. The history of HonoluluTraffic’s opposition tothe Project makes it highly likely that they will do so. (Footnotes, citations to therecord on appeal, and internal captions omitted.)
In short, the federal and citydefendants/appellees have their work cut out for them, even if the instantappeal is dismissed.
Faith Action for Community Equity, Malvin Uesato, and Pacific Resource Partnership intervened, and also filed an Answering Brief, which incorporatesthe statement of issues presented in the federal partys’ brief, and focuses on two issues:
(1) Wasit arbitrary and capricious for the Federal Transit Administration (“FTA”) to determine that the ManagedLane Alternative (“MLA”) and theBus Rapid Transit Alternative (“BRT”)would not accomplish the purpose and need of the Project and were also “notprudent” for the purposes of 49 U.S.C. § 303 (“Section 4(f)”)?; and
(2) Wasthe Lead Agencies’ approach to the evaluation ofunknown and unidentified below ground archaeological resources arbitrary andcapricious?
Appellants’ Reply Brief
Appellants had the option to reply to the answering briefs within 14days of June 19, i.e., by July 3.As of this post, the Ninth Circuit’s public documents website does not have the reply, if one was filed. [Barista’s note: we’ll try and track down a copy of the reply brief, or confirm that one was not filed.]
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*voluntary inactive member of the Hawaii Bar