A standing room only crowd packed a courthouse inside the Prince Kuhio Federal Building Tuesday as U.S. District Judge A. Wallace Tashima heard oral arguments in a lawsuit filed by opponents of the city's $5.3 billion rail project.
Tashima was brought in from the Ninth Circuit Court of Appeals to hear the case, after federal judges in Honolulu raised concerns about the proximity of the elevated train to the federal courthouse.
Tashima began the hearing by quickly ruling against a plaintiff's motion that sought to identify anti-rail candidate Ben Cayetano as the top vote getter in the Aug. 11 primary election for Honolulu mayor.
"Who wins the election is not going to be determined in court," said Tashima.
During the proceedings, each side had a half-hour to present their arguments, as well as fifteen minutes for rebuttal.
Plaintiffs in the lawsuit include Cayetano, Cliff Slater of HonoluluTraffic.com, former U.S. District Judge Walter Heen, University of Hawaii law professor Randall Roth and state Sen. Sam Slom.
The plaintiffs allege the city violated the National Environmental Policy Act by not properly studying alternatives to rail. They also claim an archeological inventory survey must be done along the entire 20-mile route, not in four separate phases.
Matthew Adams, who argued the case on behalf of the plaintiffs, said the city's 2006 Alternative Analysis did not properly scrutinize viable options that could accomplish many of the same goals as an elevated train. He said under NEPA, the proper venue for the vetting of alternatives is the project's environmental impact statement.
"They eliminated all of the alternatives before they did the EIS, and they said none of them would meet the purpose and need of the project," Adams told reporters after the hearing. "That is something you do in the EIS process, that's not something you do beforehand so you have a pre-determined outcome."
However, the city claims alternatives to rail are mentioned throughout the EIS, in addition to the project's voluminous administrative record.
"Looking at the record as a whole, there's certainly enough information to support what was decided and it's not arbitrary and capricious," said city attorney Gary Takeuchi. "The procedure that's provided for by law allows you to do an alternative analysis followed by an EIS (and) that's what we did."
The city also maintains it followed federal guidelines when it divided an archeological inventory survey into four phases. Three of the phases have already been completed, and no native Hawaiian burials have been found.
Under a programmatic agreement between the city and the Oahu Island Burial Council, burials that are located during construction can be relocated, or, columns that support the elevated train can be moved so as not to disturb them.
"That's what the native Hawaiian organizations wanted (and) that's what the city agreed to do," said William Meheula, an attorney representing the group FACE and Pacific Resource Partnership, two groups acting as interveners on behalf of the city.
Cayetano, however, said moving columns that are 8 feet in diameter could pose a financial challenge to the city, which has stated repeatedly the rail project will come in on budget.
"They're going to talk to the burial council and say, 'Where can we put these bones, because we're not going to move this column because it's too expensive,'" said Cayetano.
The city also argued that alternatives to rail, like bus rapid transit or managed lanes, don't provide transportation equity for those on the lower end of Oahu's socio-economic scale.
"That means making transit affordable and accessible to the people who will use it," said David Glazer, a U.S. Department of Justice attorney who argued on behalf of the Federal Transit Administration.
Still, the lawsuit counters that in 2003 rail planner Parsons and Brinkerhoff called bus rapid transit the best option for Oahu's mass transportation needs. Slater said BRT would actually benefit low-income earners the most, since it frees up city buses on dedicated lanes of travel.
"Buses and van pools would have priority on them," said Slater. "They would be the greatest beneficiaries of that whole thing."
At the conclusion of the hearing, Judge Tashima provided a glimmer of hope to rail opponents when he said a discussion of potential remedies would have to take place if the plaintiffs' lawsuit is successful.