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?
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Honolulu Rail Remedy – Phasers On Minimal
by Paul J. Schwind*
The multi-billion dollar Honolulu rail project has been onlyminimally stunned by the U.S. District Court for the District of Hawaii for itsfailure to adequately study the project’s possible effects on Chinatown and MotherWaldron Park (an old urban park/playground), and for its failure to articulatethe reasons why a tunnel under Beretania Street (a major city arterial) wasrejected.
Yesterday, the court issued its Judgment and Partial Injunction in Honolulutraffic.comv. 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]venassuming the issuance of an injunction is appropriate, it must be carefullytailored 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 , JudgeTashima found in that order that the defendants failed to (1) complete a fullstudy of above-ground “traditional cultural properties” (TCP) in the Chinatownarea; (2) analyze noise impacts on Mother Waldron Park and mitigate othernegative impacts on the park’s historic and artistic features; and (3) includea full analysis in the final environmental impact statement (FEIS) to supportthe conclusion that a tunnel under Beretania Street was not a feasible andprudent alternative to the elevated route selected. As also reported here, Judge Tashima heard argument on December 12, 2012 regarding the appropriateremedy for these failures.
Inyesterday’s judgment, Judge Tashima truly tempered justice with mercy. Inentering his partial permanent injunction, he considered the well-recognizedequitable factors that apply, see, e.g., Monsanto Co. v. Geertson Seed Farms,130 S. Ct. 2743, 2756 (2010), and found thatits four-factor test [(1) irreparable injury; (2) the inadequacy of monetaryrelief; (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. Inessence, it provides only that the defendants are
enjoined from conducting anyconstruction activities and real estate acquisition activities in Phase 4 of [therail project]. … This injunction shall not prohibit, and [d]efendants mayprepare, Phase 4 engineering and design plans, conduct geotechnical training,and conduct other preconstruction activities, including any activities that areappropriate to complete the additional analysis required by the SummaryJudgment Order. This injunction shallnot apply to Phases 1 through 3 of [the project].
The Phase 4 area encompasses thedowntown area and its immediate environs, including Chinatown, Mother Waldron Park, and Beretania Street. The defendants are required to file periodicstatus reports on their compliance with the judgment, and the injunction shallterminate 30 days after defendants file a notice of final compliance, unlessthe plaintiffs object within that period.
Mostimportantly from the defendants perspective, Judge Tashima remanded the case to the Federal Transit Administration (FTA) without vacatur (setting aside) of the Record ofDecision (ROD), which means that the Full Funding Grant Agreement (FFGA) to theCity and County of Honolulu for $1.55billion, executed on December 19, 2012 can now go forward without furtherobstruction.
That is, unless theplaintiffs decide to appeal Judge Tashima’s final judgment to the Ninth CircuitCourt of Appeals. Stay tuned – we maynot quite be done with this yet!
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*voluntarily inactive member of the Hawaii Bar