At the start of a hearing Wednesday that will likely determine the future of the city's $5.3 billion rail project, visiting federal Judge A. Wallace Tashima told rail planners to keep an "open mind" about changes to the proposed route through downtown Honolulu.
"I would just like to see the reconsideration of the federal defendants being made with as an open mind as possible," said Tashima, who serves on the U.S. Court of Appeals, Ninth Circuit in Pasadena, Calif.
In his Nov. 1 decision, Tashima ordered the city to mitigate impacts of the elevated rail line to Mother Waldron Park in Kakaako, and identify more culturally sensitive properties, or TCPs, in the city center. He also ruled the project must study the feasibility of placing a mile-long portion of the proposed route underground along Beretania Street.
Nicholas Yost, the attorney representing rail opponents Ben Cayetano, Cliff Slater and others, argued construction along the first three phases of the rail project should not be allowed to proceed. Yost said that would allow the city to change the scope of the project and divert funds to the city center portion of the rail line should the route be changed.
"Funding I think will be the critical issue when we get to Beretania," Yost told the judge. "The city can come up with the money; it's not dependent on the feds to do that."
However, the city's attorney Robert Thornton, argued halting construction would cost taxpayers $149 million in contract delay claims, and the first three phases of the project have no impact on Tashima's ruling last month.
Even more worrisome to the city, said Thornton, is the plaintiffs' demand that portions of the project's record of decision be thrown out. Issued Jan.18 of last year, the ROD states the project has met all of the necessary environmental clearances, and construction can begin. Without a record of decision, the project would not be eligible to receive a full funding grant agreement worth $1.55 billion, which is expected to be signed with the Federal Transit Administration as soon as next week.
"It would prevent the city from receiving the $450 million the Congress has authorized for this project (as part of the FFGA)," said Thornton.
Tashima also raised concern about the city's purchase of properties along the city center, saying it could lead to reluctance by rail planners to consider an alternative route. To date, the Honolulu Authority for Rapid Transportation has purchased six parcels along the city center at a cost of $17 million. HART has identified 16 properties in the final phase of the project that must be acquired.
At the end of the hour-and-a-half long hearing Tashima said he would issue his ruling in "short order." The judge's decision will likely come down in days, not weeks, since Congress' 30-day review of the FFGA will come to an end on Dec. 19. The FTA and the city can sign the grant any time after the review period ends.
Traditionally, judges with the Ninth Circuit have been extremely friendly to environmental concerns, and rail opponents remain optimistic about what Tashima's ruling might say.
"The judge was attentive to our issues," said Yost. "It is the most environmentally friendly circuit in the country."