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Honolulu rail lawsuit
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Michael J. Green (HI Bar No. 4451) 841 Bishop Street, Suite 2201 Honolulu, HI 96813 Telephone: 808-521-3336 Facsimile: 808-566-0347 Email: [email protected] Nicholas C. Yost (CA Bar No. 35297) Matthew G. Adams (CA Bar No. 229021) Admitted pro hac vice SNR Denton US LLP 525 Market Street, 26th Floor San Francisco, CA 94105 Telephone: 415-882-5000 Facsimile: 415-882-0300 Email: [email protected] [email protected]
Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
HONOLULUTRAFFIC.COM; CLIFF SLATER; BENJAMIN J. CAYETANO; WALTER HEEN; HAWAII’S THOUSAND FRIENDS; THE SMALL BUSINESS HAWAII ENTREPRENEURIAL EDUCATION FOUNDATION; RANDALL W. ROTH; and DR. MICHAEL UECHI, Plaintiffs, v. FEDERAL TRANSIT ADMINISTRATION; LESLIE ROGERS, in his official capacity
Case No. 11-00307 AWT MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 1 of 86 PageID #: 6274
as Federal Transit Administration Regional Administrator; PETER M. ROGOFF, in his official capacity as Federal Transit Administration Administrator; UNITED STATES DEPARTMENT OF TRANSPORTATION; RAY LAHOOD, in his official capacity as Secretary of Transportation; THE CITY AND COUNTY OF HONOLULU; WAYNE YOSHIOKA, in his official capacity as Director of the City and County of Honolulu Department of Transportation. Defendants.
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TABLE OF CONTENTS
Page(s)
I. INTRODUCTION .........................................................................................1
II. FACTUAL BACKGROUND........................................................................2
III. LEGAL BACKGROUND.............................................................................6
A. Section 4(f) ..........................................................................................6
B. NEPA...................................................................................................8
C. NHPA ..................................................................................................9
IV. STANDARD OF REVIEW.........................................................................10
A. Summary Judgment...........................................................................10
B. NEPA, Section 4(f), NHPA, and the APA........................................10
V. ARGUMENT...............................................................................................12
A. Plaintiffs Have Standing....................................................................12
B. Defendants’ Approval Of The Project Is A Final Agency Action Subject To Review Under The APA.....................................12
C. Defendants Violated Section 4(f)......................................................13
1. Defendants Failed To Identify And Evaluate The Project’s Use Of Native Hawaiian Burials And Other Traditional Cultural Properties Before Approving The Project (Count 5) ...........................................14
a) Defendants Failed Fully To Identify And Evaluate Iwi Kupuna Prior To Issuing The ROD, Thereby Violating Section 4(f) ..........................15
b) Defendants Failed Fully To Survey, Identify, And Evaluate TCPs Prior To Approving The Project, Thereby Violating Section 4(f) ...................................................................19
2. Defendants Arbitrarily And Capriciously Evaluated The Project’s Use Of Section 4(f) Resources (Count 6)................................................................21
a) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Directly Use The Merchant Street Historic District ..........................................................................21
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b) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Constructively Use 4(f) Resources ...............................22
(i) Aloha Tower.......................................................23
(ii) Walker Park........................................................26
(iii) Merchant Street Historic District .......................28
(iv) Irwin Park ...........................................................30
(v) Mother Waldron Neighborhood Park.................32
c) Defendants’ Evaluation Of Makalapa Navy Housing Was Arbitrary And Capricious In Multiple Respects .........................................................34
d) Defendants’ Arbitrary And Capricious Use Determinations Were Not “Harmless Error”................37
3. Defendants Approved The Project In Violation Of Section 4(f) (Count 7) .............................................................37
a) Defendants Failed To Demonstrate The Absence Of Prudent And Feasible Alternatives To The Project’s Use Of 4(f) Resources ......................................................................38
(i) Managed Lanes Alternative ...............................41
(ii) Downtown Tunnel..............................................45
(iii) Alternative Transit Technologies .......................47
b) Defendants Failed To Include All Possible Planning To Minimize Harm........................................49
D. Defendants Violated NEPA ..............................................................51
1. Defendants Defined The Purpose And Need For The Project So Narrowly As To Preclude Consideration Of Reasonable Alternatives (Count 1) .............................................................................................51
2. Defendants Failed To Consider Reasonable Alternatives To The Project (Count 2) ...................................54
a) Defendants Impermissibly Relied On The City’s Early Planning Efforts .......................................56
b) Defendants Arbitrarily And Capriciously Refused To Consider The MLA ...................................59
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(i) The City’s Original Decision To Eliminate The MLA From Detailed Consideration Was Arbitrary And Capricious...........................................................59
(ii) Defendants’ Refusal to Reconsider The City’s Decision To Eliminate The MLA From Detailed Consideration Was Also Arbitrary And Capricious. .................62
c) Defendants Impermissibly Limited Their Consideration Of Alternatives To Steel Wheel On Steel Rail Technology .................................63
d) Defendants Impermissibly Refused To Consider Alternatives Requiring Action By The Honolulu City Council ..........................................65
3. Defendants Failed Properly To Evaluate The Environmental Consequences Of The Project And Alternatives Thereto (Count 3) ...............................................66
4. Defendants Impermissibly Segmented Their NEPA Analysis (Count 4) ..................................................................68
E. Defendants Violated NHPA..............................................................71
VI. CONCLUSION............................................................................................74
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TABLE OF AUTHORITIES
Page(s) FEDERAL CASES
‘Ilio’ulaokaokalani Coalition v. Rumsfeld 464 F.3d 1083 (9th Cir. 2006) ......................................................................54, 55
Adler v. Lewis 675 F.2d 1085 (9th Cir. 1982) ............................................................................22
Alaska Wilderness Recreation and Tourism Association v. Morrison 67 F.3d 723 (9th Cir. 1995) ....................................................................54, 58, 64
Alpine Lakes Protection Society v. Schalpfer 518 F. 2d 1089 (9th Cir. 1975) ...........................................................................68
Anderson v. Liberty Lobby 477 U.S. 242 (1986)............................................................................................10
Benton Franklin Riverfront Trailway And Bridge Committee v. Lewis 701 F.2d 784 (9th Cir. 1983) ........................................................................19, 20
Brooks v. Volpe 460 F.2d 1193 (9th Cir. 1972) ............................................................................22
California v. Block 690 F.2d 753 (9th Cir. 1982) ..............................................................................56
Celotex Corp. v. Catrett 477 U.S. 317 (1986)............................................................................................10
Citizens to Preserve Overton Park v. Volpe 401 U.S. 402 (1971)....................................................................................6, 7, 11
Corridor H Alternatives v. Slater 166 F. 3d 368 (D.C. Cir. 1999)...............................................................14, 19, 20
Daly v. Volpe 514 F.2d 1106 (9th Cir. 1975) ............................................................................68
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Davis v. Mineta 302 F.3d 1104 (10th Cir. 2002) ....................................................................51, 68
Friends of the Earth v. Laidlaw Environmental Services 528 U.S. 167 (2000)............................................................................................12
Friends of Yosemite Valley v. Kempthorne 520 F.3d 1024 (9th Cir. 2008) ......................................................................54, 55
Hammond v. Norton 370 F. Supp. 2d 226 (D.D.C. 2005)....................................................................69
Massachusetts v. E.P.A. 549 U.S. 497 (2007)............................................................................................12
Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co. 463 U.S. 29 (1983).......................................................................................passim
Muckleshoot Indian Tribe v. United States Forest Service 177 F.3d 800 (9th Cir. 1999) ..............................................................................66
Named Individual Members Of San Antonio Conservation Society v. Texas Highway Department 446 F.2d 1021 (5th Cir. 1971) ...............................................................19, 70, 71
National Parks & Conservation Association v. United States Department Of The Interior 606 F.3d 1058 (9th Cir. 2010) ...............................................................51, 52, 53
Natural Resources Defense Council v. United States Forest Service 421 F.3d 797 (9th Cir. 2005) ........................................................................54, 61
North Idaho Community Action Network v. United States Department of Transportation 545 F.3d 1147 (9th Cir. 2008) .....................................................................passim
Northern Plains Resource Council v. Surface Transportation Board 668 F.3d 1067 (9th Cir. 2011) ............................................................................10
Ocean Advocates v. United States Army Corps of Engineers 402 F.3d 846 (9th Cir. 2004) ..............................................................................11
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Oregon Natural Desert Association v. Bureau of Land Management 625 F.3d 1092 (9th Cir. 2010) ............................................................................12
San Carlos Apache Tribe v. United States 417 F.3d 1091 (9th Cir. 2005) ............................................................................10
Sausalito v. O’Neill 386 F.3d 1186 (9th Cir. 2004) ............................................................................11
Simmons v. United States Army Corps of Engineers 120 F.3d 664 (7th Cir. 1997) ..............................................................................52
Southeast Alaska Conservation Council v. Federal Highway Administration 649 F.3d 1050 (9th Cir. 2011) ................................................................54, 61, 62
Stop H-3 Ass’n v. Coleman 533 F.2d 434 445 (9th Cir. 1976) .......................................................................22
Thomas v. Peterson 753 F. 2d 754 (9th Cir. 1985) .............................................................................68
Valley Community Preservation Commission v. Mineta 373 F.3d 1078 (10th Cir. 2004) ....................................................................14, 20
FEDERAL STATUTES
5 U.S.C. § 704....................................................................................................12, 13
5 U.S.C. § 706....................................................................................................11, 13
16 U.S.C. § 470f.........................................................................................................9
23 U.S.C. § 139.................................................................................................passim
42 U.S.C. § 4332(2) ..........................................................................................passim
49 U.S.C. § 303(c) ............................................................................................passim
OTHER STATE STATUTES
Haw. Rev. Stat. § 13-300-21....................................................................................15
OTHER AUTHORITIES
23 C.F.R. § 771.135(i) ...............................................................................................8
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23 C.F.R. § 771.135(b) ..............................................................................................7
23 C.F.R. § 774.3 ..............................................................................................passim
23 C.F.R. § 774.7 .........................................................................................39, 40, 44
23 C.F.R. § 774.9 ...................................................................................13, 14, 20, 22
23 C.F.R. § 774.11 ............................................................................................passim
23 C.F.R. § 774.15 ............................................................................................passim
23 C.F.R. § 774.17 ............................................................................................passim
36 C.F.R. § 60.4 .......................................................................................................15
36 C.F.R. § 800.4 .....................................................................................................20
36 C.F.R. § 800.5 ...................................................................................10, 71, 72, 73
36 C.F.R. § 800.6 ...............................................................................................10, 73
36 C.F.R. § 800.8 .....................................................................................................20
36 C.F.R. § 800.16 ...................................................................................................71
40 C.F.R. § 1500.1 .................................................................................................8, 9
40 C.F.R. § 1505.2 ...................................................................................................13
40 C.F.R. § 1502.4 .............................................................................................68, 69
40 C.F.R. § 1502.10 ...................................................................................................9
40 C.F.R. § 1502.13 .......................................................................................8, 51, 52
40 C.F.R. §1502..14 ..........................................................................................passim
40 C.F.R. §1502.16 ....................................................................................8, 9, 66, 67
40 C.F.R. § 1506.1 .....................................................................................................9
40 C.F.R. § 1508.7 .....................................................................................................9
40 C.F.R. § 1508.8 .....................................................................................................9
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40 C.F.R. § 1508.25(a)(1) ............................................................................68, 69, 70
46 Fed. Reg. 18026, 18027 (Mar. 17, 1981)........................................................8, 66
73 Fed. Reg. 13368 (March 12, 2008) .........................................................23, 39, 44
Fed. R. Civ. P. 56 .....................................................................................................10
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I. INTRODUCTION
This is a case in which the law to be applied is as simple as the
administrative record is long. In enacting Section 4(f) of the Department of
Transportation Act (“Section 4(f)”), the National Environmental Policy Act
(“NEPA”), and the National Historic Preservation Act (“NHPA”), Congress
has clearly required that agencies must identify, evaluate, disclose, and, in
some cases, avoid the environmental impacts of major projects like the one at
issue in this litigation. But in their zeal to construct the Honolulu High-
Capacity Transit Corridor Project — an elevated heavy rail line1 considered to
be the largest public works project in the history of Hawaii — Defendants
have violated those requirements in an equally clear fashion.
Pursuing their ill-conceived course of conduct, Defendants managed to
violate three of the bedrock statutory embodiments of America’s system of
environmental protection:
• Defendants violated Section 4(f) by ignoring their responsibility to identify historic resources and parklands potentially affected by the
Project, by improperly evaluating the resources they couldn’t 1 The Project is no ordinary rail line. Its primary component is a concrete viaduct known as a “fixed guideway,” which is proposed to be approximately 35 to 50 feet tall (roughly the same height as a 3 or 4 story building). AR 000247 at 000338-64. The guideway would run through the historic waterfront core of downtown Honolulu and west to a small, agricultural community known as Kapolei, creating a massive concrete barrier along the entire route. Other components of the project include 21 new rail stations (each the height of a 6 story building), four “transit centers” (combined bus and train stations), approximately 40 acres of parking lots, and a 44-acre industrial facility for railcar maintenance and storage. Id.
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conveniently ignore, and by inaccurately, arbitrarily, and capriciously
concluding that they had no choice but impact highly sensitive historic
areas in Honolulu’s downtown core in direct contravention of Section
4(f)’s substantive mandate to avoid such sites if feasible and prudent
alternatives exist, which they do.
• Defendants’ violations of NEPA also center on alternatives: They structured their statement of project purpose so narrowly as to preclude
consideration of reasonable alternatives; they failed rigorously to
explore any of the scores of reasonable alternatives to the Project; they
failed properly to evaluate the environmental consequences of
alternatives; and they impermissibly segmented the Project into
smaller pieces so as to prevent an analysis of the true impacts of and
alternatives to Honolulu’s proposed rail system.
• Defendants violated NHPA by failing to address the possibility that the Project would indirectly affect historic resources by leading to the
demolition and/or redevelopment of historic areas near new rail
stations, a possibility that was well-known to them throughout their
consideration of the Project.
• With respect to all three statutes, the Federal defendants improperly abdicated their statutory responsibilities to the City.
Accordingly, for the detailed reasons set forth below, Plaintiffs are therefore
entitled to summary judgment.
II. FACTUAL BACKGROUND
The Project has been characterized by complex paperwork and strong
disagreement. But the underlying material facts are neither complicated nor
subject to dispute.
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The City has long sought to develop a rapid transit system linking the
historic core of Honolulu with a predominantly-agricultural area known as
Kapolei. AR 000247 at 000293-95. In 2003, the City and FTA issued an
Environmental Impact Statement evaluating different options for such a
system. AR 047927 at 047953-80. Ultimately, the City and FTA concluded
that a Bus Rapid Transit (or “BRT”) system would provide the best approach
to transit within the Honolulu-Kapolei corridor. Id.
Two years later, however, the City changed its focus to the development
of a different transit system. With that goal in mind, the City undertook an
Alternatives Analysis or “AA.” AR 000247 at 000295-96; AR 009434-
009555. The AA included a screening process designed to identify a range of
reasonable transit alternatives. Id.; 009556-683. The City identified a number
of feasible transit technologies as well as more than 75 possible transit routes.
Id.
The City then selected its preferred options from among the identified
alternatives. AR 000247 at 000296; AR 009434 at 009537-49. Options not
selected were eliminated from further consideration. Options eliminated from
consideration included bus rapid transit, a system of “managed lanes”
(essentially, express lanes for buses and high-occupancy vehicles), ferries, and
all but two of the 75 identified transit routes. AR 000247 at 000319-27.
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The City documented its analyses and conclusions in a series or reports,
memoranda, and technical studies. AR 009434-009555; AR 009556-009683;
AR 049484-731. These documents do not reflect any significant involvement
or guidance by the FTA. Id.
After eliminating from consideration most of the alternatives identified
in the AA, the City announced a plan to prepare (together with FTA) an
Environmental Impact Statement (“EIS”) pursuant to NEPA. AR 009696 -
009699. The announcement indicated that the EIS would evaluate three
alternatives: (1) an alternative consisting of an elevated fixed guideway transit
system following a route from East Kapolei to Ala Moana Center, (2) an
alternative consisting of an elevated fixed guideway transit system following
that same route except with a connection to the airport, and (3) a “no build”
alternative. AR 009696 at 9698. The announcement also noted that the Draft
EIS “would consider five distinct transit technologies: Light rail transit, rapid
rail transit, rubber-tired guided vehicles, a magnetic levitation system, and a
monorail system.” Id.
In 2008, the City convened a Panel of Experts to provide
recommendations for choosing among these five technologies. AR 000247 at
000331. By a four-to-one vote, the City’s experts “selected steel wheel
operating on steel rail as the technology for the Project to be considered in [the
City’s and FTA’s] EIS.” Id. In other words, the City eliminated the other
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transit technologies. There is no record of FTA having participated in the
vote.
After eliminating from all transit technologies except “steel wheel on
steel rail” from consideration, the City (now jointly with FTA) released a Draft
EIS for public review and comment. AR 000247 at 000331; AR 007223. The
Draft EIS evaluated four alternatives: (1) an elevated heavy rail (steel wheel
on steel rail) line following a route from East Kapolei to Ala Moana Center,
(2) an elevated heavy rail (steel wheel on steel rail) line following the same
route from East Kapolei to Ala Moana Center except with a detour to the
airport, and (3) an elevated heavy rail line from East Kapolei to Ala Moana
Center incorporating both of the first two routes, and (4) no action. See AR
000247 at 000331-337.
The City and FTA received hundreds of comments on the Draft EIS
(“DEIS”). AR 000247 at 000855 to 004076. Many commenters requested that
the agencies reconsider alternatives which had been eliminated from
consideration during the AA or by the City’s panel of experts. The City and
FTA did not reconsider those alternatives. See, e.g., AR 000247 at 002018-31
(requesting reconsideration of managed lanes), 002087-93 (no
reconsideration).
The City and FTA then prepared a Final EIS (“FEIS”). See AR 000247.
The FEIS contained the same alternatives as the DEIS. AR 000247 at 000331-
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338. Because the Project implicates the requirements of Section 4(f) of the
Department of Transportation Act (“Section 4(f)”), the FEIS also contained an
evaluation of the Project’s potential to take or “use” land from historic
resources and/or public parks (“4(f) Resources”). AR 000247 at 000680. The
4(f) Evaluation concluded that the Project would, in fact, use historic resources
in downtown Honolulu, including the Chinatown Historic District. AR
000247 at 000718-27. As part of their approval of the Project, FTA and the
City issued a finding declaring that there are no alternatives to the use of
downtown Honolulu’s 4(f) Resources. AR 000030 at 000041-42. Plaintiffs
then filed suit.2
III. LEGAL BACKGROUND
A. Section 4(f)
Section 4(f) declares a national policy that “special effort should be
made to preserve…public park and recreation lands…and historic sites.” See
Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 404-06 n.1-2 (1971)
(discussing policy and purpose of Section 4(f)). Under this policy, Section 4(f)
resources (including, as relevant here, both parks and historic sites) are “to be
2 Plaintiffs timely filed their original complaint on May 12, 2011. On December 30, 2011, Plaintiffs requested leave to file an amended complain. Plaintiffs’ First Amended Complaint would add as a party The Outdoor Circle, a non-profit environmental organization. The First Amended Complaint would not make substantive changes; therefore, the arguments in this Motion for Summary Judgment are equally relevant to either version of the complaint.
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given paramount importance.” Citizens to Preserve Overton Park, 401 U.S. at
412-13.
But Section 4(f) is not merely declaration of policy. It imposes a
substantive mandate on federal decisionmakers. See 49 U.S.C. § 303(c);
Citizens to Preserve Overton Park, 401 U.S. at 411; North Idaho Community
Action Network v. United States Department of Transportation, 545 F.3d 1147,
1158 (9th Cir. 2008).3 Specifically, Section 4(f) prohibits federal agencies
from funding or approving transportation projects requiring the use of a park
or historic site unless (1) there is “no prudent and feasible alternative” and (2)
the project includes “all possible planning to minimize harm.” 49 U.S.C. §
303(c). The Supreme Court has characterized this mandate as “a plain and
explicit bar” to the use of federal funds for project impacting Section 4(f)
resources. Citizens to Preserve Overton Park, 401 U.S. at 411.4
Federal agencies are required to implement Section 4(f) by surveying,
identifying, and evaluating parks and historic sites. See N. Idaho Community
Action Network, 545 F.3d at 1158. This evaluation must be undertaken during
the agency’s consideration of project alternatives. Id.; see also 23 C.F.R. §
771.135(b). And it must be completed before the agency issues a Record of
3 In this respect section 4(f) differs from NEPA and NHPA, which are primarily procedural. See North Idaho, 545 F. 3d at 1158. 4 It has also observed that “only the most unusual situations” will satisfy the two exemptions to that bar. Citizens to Preserve Overton Park, 401 U.S. at 411.
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Decision on the project. North Idaho, 545 F.3d at 1158-59; see also 23 C.F.R.
§ 771.135(i).
B. NEPA
NEPA is our nation’s “basic charter for the protection of the
environment.” 40 C.F.R. § 1500.1. It requires federal agencies prepare an
Environmental Impact Statements (“EIS”) on any “major Federal actions
significantly affecting the human environment.” 42 U.S.C. § 4332(2)(C).
Required elements of an EIS include a description of the proposed
Federal action; a detailed discussion of the proposed action’s environmental
consequences; and an analysis of alternatives to the proposed action (and the
environmental impacts of such alternatives). 42 U.S.C. § 4332(2)(C); 40
C.F.R. §§ 1502.13, 1502.14, 1502.16.
The analysis of alternatives is “the heart” of an EIS. 40 C.F.R. §
1502.14. Federal agencies have an affirmative obligation to “[r]igorously
explore and objectively evaluate all reasonable alternatives.” Id. (emphasis
added). According to the Council on Environmental Quality (“CEQ”), which
oversees NEPA compliance government-wide, Reasonable alternatives
“include those that are practical or feasible from the technical and economic
standpoint, rather than simply desirable from the standpoint of the applicant”
for a federal approval. 46 Fed. Reg. 18026, 18027 (Mar. 17, 1981) (emphasis
original). In evaluating the environmental impacts of “all reasonable
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alternatives,” federal agencies must consider each and every reasonably
foreseeable direct, indirect, and cumulative effect of a proposed action. 42
U.S.C. § 4332(2); 40 C.F.R. §§ 1502.10, 1502.14, 1502.16, 1508.7, 1508.8.5
All NEPA analyses must be “available to public officials and citizens
before decisions are made and before actions are taken.” 40 C.F.R. §
1500.1(b) (emphasis added). Indeed, NEPA imposes on Federal agencies an
affirmative responsibility to make sure no party takes any action that could (1)
adversely impact the environment or (2) limit the Federal agency’s choice of
reasonable alternatives until the entire NEPA process is complete. See 40
C.F.R. § 1506.1(a).
C. NHPA
NHPA requires all federal agencies to “take into account” the impact of
their actions on historic properties, including sites listed on or eligible for
listing on the National Register of Historic Places. 16 U.S.C. § 470f. When an
agency proposes to take an action that could adversely affect one or more
historic properties, the agency must “develop and evaluate alternatives or
5 Direct effects are “caused by the action and occur at the same time and place.” 40 C.F.R. § 1508.8. Indirect effects are “caused by the action” but are “later in time or farther removed in distance.” Id. Indirect effects “may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems.” Id. Cumulative effects refer to “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” 40 C.F.R. § 1508.7.
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modifications to the [action] that could avoid, minimize or mitigate [any]
adverse effects.” 36 C.F.R. § 800.6(a). This requirement applies equally to
direct adverse effects and to indirect adverse effects. 36 C.F.R. § 800.5.
IV. STANDARD OF REVIEW
A. Summary Judgment
Summary judgment is proper where no genuine issues of material fact
exist and the moving party is entitled to prevail as a matter of law. Fed. R.
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
materiality of a fact is determined by referring to applicable substantive law.
See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
B. NEPA, Section 4(f), NHPA, and the APA
The legal requirements at issue in this case are those imposed by NEPA,
Section 4(f), and NHPA. Claims under these three statutes are reviewed under
the Administrative Procedure Act (“APA”). See Northern Plains Resource
Council v. Surface Transportation Board, 668 F.3d 1067, 1074 (9th Cir. 2011)
(NEPA claims); North Idaho, 545 F.3d 1147, 1152 (9th Cir. 2008) (Section
4(f) claims); San Carlos Apache Tribe v. United States, 417 F.3d 1091, 1096
(9th Cir. 2005) (NHPA claims).
The APA provides that reviewing courts must “hold unlawful and set
aside agency action, findings, and conclusions found to be…arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with the
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law.” 5 U.S.C. § 706(2)(A). An agency’s action is arbitrary and capricious if
it is based on “factors which Congress has not intended [the agency] to
consider,” if the agency has “entirely failed to consider an important aspect of
the problem,” if the agency offers “an explanation for its decision that runs
counter to the evidence,” or if the agency’s actions are “so implausible that
[they] could not be ascribed to…agency expertise.” Motor Vehicle
Manufacturers Association v. State Farm Mutual Automobile Insurance Co.,
463 U.S. 29, 43 (1983); Sausalito v. O’Neill, 386 F.3d 1186, 1205-06 (9th Cir.
2004).
The “arbitrary and capricious” standard requires a “thorough, probing,
in-depth review” of agency decisionmaking. Citizens to Preserve Overton
Park v. Volpe, 401 U.S. 402, 415-16 (1971). Although a reviewing court
should not substitute its judgment for that of the agency, neither can it simply
“rubber stamp” agency decisions. See Ocean Advocates v. United States Army
Corps of Engineers, 402 F.3d 846, 859 (9th Cir. 2004). Indeed, judicial
review must be “searching and careful.” Overton Park, 401 U.S. at 416. And
reviewing courts “should not attempt to make up for deficiencies” in agency
decisions by “supply[ing] a reasoned basis for the agency’s action that the
agency itself has not given.” Motor Vehicle Manufacturers, 463 U.S. at 43.
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V. ARGUMENT
A. Plaintiffs Have Standing
In order to establish standing to sue, a plaintiff must demonstrate that (1)
he will suffer an “injury in fact” in the absence of judicial relief, (2) the injury
is “fairly traceable…to the challenged action of the defendant”, and (3) a
favorable judicial ruling will likely redress his injury. See Friends of the Earth
v. Laidlaw Environmental Services, 528 U.S. 167, 180-81 (2000). A case may
proceed so long as at least one plaintiff has standing. Massachusetts v. E.P.A.,
549 U.S. 497, 518 (2007).
Plaintiffs meet all three requirements. They have provided standing
affidavits demonstrating that they will suffer procedural, environmental,
aesthetic, recreational, and economic injuries in the absence of judicial relief.
Declaration of Matthew Adams (“Adams Dec.”), ¶ 2, Ex. A. Those injuries
are traceable to the challenged action of the Defendants —namely, the
approval of the Project. Id. A favorable ruling in this case would invalidate
Defendants’ approval of the Project, thereby redressing Plaintiffs’ injuries. Id.
Therefore, Plaintiffs have standing.
B. Defendants’ Approval Of The Project Is A Final Agency Action Subject To Review Under The APA
The APA provides for judicial review of “final agency action.” 5 U.S.C.
§ 704. A ROD is a final agency action. Oregon Natural Desert Association v.
Bureau of Land Management, 625 F.3d 1092, 1118 (9th Cir. 2010); see also
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40 C.F.R. § 1505.2 (ROD must memorialize final agency decision).
Defendants approved the Project by issuing a ROD. AR 000030-000246.
That approval is therefore subject to review under the APA. 5 U.S.C. §§ 704,
706.
C. Defendants Violated Section 4(f)
Section 4(f) prohibits the United States Department of Transportation
and its component agencies from approving a transportation project that uses
4(f) Resources unless (1) there is “no feasible and prudent alternative” and (2)
the project includes “all possible planning to minimize harm.” 49 U.S.C. §
303(c); 23 C.F.R. § 774.3.
Implicit in that mandate are three conceptually-distinct (though certainly
not unrelated) requirements:
• First, Department of Transportation agencies must identify all 4(f) Resources that could be used by a transportation project. 23 C.F.R. §§
774.9, 774.11.
• Second, Department of Transportation agencies must properly evaluate the potential for a transportation project to use 4(f) Resources. 23
C.F.R. §§ 774.9, 774.15, 774.17.
• Third, for any project that could use 4(f) Resources, Department of Transportation agencies must properly evaluate alternatives and
measures to minimize harm to ensure that (1) there are no feasible and
prudent alternatives and (2) all possible planning to minimize harm has
been adopted. 49 U.S.C. § 303(c); 23 C.F.R. § 774.3.
Here, Defendants failed at each of the three steps in this analytical process:
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• Defendants failed to identify (or even to look for) Native Hawaiian burials and Traditional Cultural Properties (“TCPs”), both of which are
4(f) Resources. See § V.C.1, below.
• Defendants failed properly to evaluate the Project’s potential to use numerous parks and historic sites, all of which are 4(f) Resources. See
§ V.C.2, below.
• Defendants approved the Project without properly considering (and selecting) feasible and prudent alternatives capable of avoiding the use
of 4(f) Resources and without including all possible planning to
minimize harm. See § V.C.3, below.
Therefore, Plaintiffs are entitled to summary judgment.
1. Defendants Failed To Identify And Evaluate The Project’s Use Of Native Hawaiian Burials And Other Traditional Cultural Properties Before Approving The Project (Count 5)
Section 4(f) requires Department of Transportation agencies to survey,
identify, and evaluate 4(f) Resources before approving a transportation project.
The Section 4(f) Regulations provide that such an analysis must be completed
prior to project approval. 23 C.F.R. § 774.9(a), (b); see also North Idaho, 545
F.3d at 1159, n.7 (4(f) Resources must be identified and evaluated prior to
project approval); Valley Community Preservation Commission v. Mineta, 373
F.3d 1078, 1087-88 (10th Cir. 2004) (same); Corridor H Alternatives v. Slater,
166 F. 3d 368, 372-74 (D.C. Cir. 1999) (same). Here, Defendants approved
the Project before identifying and evaluating iwi kupuna (Native Hawaiian
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burials) and other TCPs.6 Therefore, Plaintiffs are entitled to summary
judgment.
a) Defendants Failed Fully To Identify And Evaluate Iwi Kupuna Prior To Issuing The ROD, Thereby Violating Section 4(f)
In Hawaiian culture, burial is a process allowing an individual’s spiritual
power to become a spiritual resource for the entire community. AR 125000 at
125001. In this way, ancestral remains (iwi kupuna) provide an important
spiritual connection between the living, their ancestors, and the community as
a whole. Id. The Oahu Island Burial Council (“OIBC”), a state agency
charged with the protection of historic properties of importance to the Native
Hawaiian community,7 has characterized the disruption of iwi kupuna as “akin
to disrobing a living person and physically handling them against their will.”
Id.
Iwi kupuna are eligible for listing in the National Register of Historic
Places. See 36 C.F.R. § 60.4 (Register eligibility criteria and “criteria
considerations”); Adams Dec., ¶ 3, Ex. B at 1 (eligibility as TCP); see also AR
00030 at 000085 (Programmatic Agreement admits Register eligibility of
6 TCPs are resources “eligible for inclusion in the National Register because of [] association with cultural practices or beliefs of a living community that (a) are rooted in the community’s history, and (b) are important in maintaining the continuing cultural identity of the community.”6 Adams Dec., ¶ 3, Ex. B at 1. Iwi kupuna are a subset of TCPs. The fact that iwi kupuna are TCPs is one of the bases (but not the only basis) for their protection under Section 4(f). 36 C.F.R. § 60.4. 7 See Haw. Rev. Stat. § 13-300-21.
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archaeological sites). Therefore, they are 4(f) Resources. 23 C.F.R. §§
774.11(e), 774.17 (definition of historic sites includes Register-eligible
resources).
Defendants had ample notice of the importance of evaluating the
Project’s potential to damage or destroy (or, using the sanitized language of
Section 4(f), the potential to “use”) iwi kupuna. For example:
• The OIBC pointed out that the Project would traverse several areas known to contain significant concentrations of iwi kupuna, and noted
the City’s failure fully to investigate the impact of the Project on those
sites “has needlessly placed iwi kupuna in harm’s way and diminished
the ability of laws such as [Section] 4(f) to protect them.” AR 125000
at 125005.
• The National Park Service expressed concerns about Defendants’ failure to prepare a complete archaeological survey and asked
“wouldn’t it be prudent to complete the [survey] and know where
burials are located ASAP?” AR 125208 at 125210.
• The National Trust for Historic Preservation sent the City a letter expressing “extreme” concern regarding “the City’s decision to defer
detailed identification of historic properties” until after the ROD,
citing case law prohibiting such an approach. See AR 124858 at
124858-59.
• FTA’s own environmental staff expressed concerns about the “casual
treatment of burials in the [Section] 4(f) evaluation and the quick once-
over in the resources section [of the EIS].” AR 124645.
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It is important to note that the Defendants received each of these four
comments in October, 2009. AR 124645, 124858, 125000, 125208. The ROD
was not issued until January 18, 2011. AR 000030. In other words, after
receiving these comments, Defendants had more than a year in which to fully
survey, identify, and evaluate the Project’s potential to damage or destroy iwi
kupuna.
Instead, they did nothing.8 Rather than undertaking any additional
analysis, Defendants simply relied on a previously-prepared Archaeological
Inventory Survey (“AIS”) addressing the westernmost 7.4 miles of the Project.
AR 0059459 at 0059478-88 (scope of AIS). No such survey was prepared for
the other 15 or so miles of the rail line, despite the fact that burials were
deemed likely to exist there. Id.; see also AR 000030 at 000085, 000092-95
(phased approach to identification and evaluation of iwi kupuna); 000247 at
000691 (burials deemed likely). Defendants deferred that work until the
“construction phase” of the Project. AR 000030 at 000085 (“phased approach
to identification and evaluation”); see also AR 000247 at 000691 (final
Section 4(f) evaluation does not include analysis of iwi for entire Project). In
8 Actually, the City didn’t exactly do nothing. Upon receiving constructive feedback from four authoritative, interested parties (OIBC, the National Trust For Historic Preservation, the National Park Service, and the FTA) — and having more than enough time to use that feedback to identify and evaluate iwi kupuna — the City complained to Hawaii’s Congressional delegation about “unreasonable comments” from federal agencies (even going so far as to call out an individual National Park Service employee and the location of her office). AR 125190.
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other words, they deferred identification and evaluation of iwi kupuna until
after project approval.
The Ninth Circuit has squarely rejected Defendants’ “phased” approach
to surveying, identifying, and evaluating iwi kupuna. See North Idaho, 545
F.3d at 1158-59. In North Idaho, the court struck down the Federal Highway
Administration’s “phase-by-phase” approach to identifying and evaluating the
potential use of 4(f) resources by a four-phase highway project. North Idaho,
545 F.3d at 1158-59. The Federal Highway Administration (“FHWA”)
prepared a detailed evaluation of the first construction phase of the highway
project, but deferred its evaluation of the remaining three construction phases
until after the ROD has been issued. Id. The Ninth Circuit held that this
approach violates Section 4(f) because “an agency is required to complete the
§ 4(f) evaluation for the entire Project prior to issuing its ROD.” Id.9
The same rule applies here. Like the FHWA in North Idaho,
Defendants have broken the Project into multiple construction “phases.”
North Idaho, 545 F.3d at 1158-59; AR 059459 at 059478 (Defendants’
approach to phasing). Like the FHWA in North Idaho, Defendants conducted
9 The timing of the North Idaho litigation was such that the Ninth Circuit reached its decision on the basis of the previous version of the Section 4(f) Regulations. But the North Idaho court also evaluated the current version of the Section 4(f) Regulations, ultimately concluding that nothing in the current version would alter its holding. North Idaho, 545 F. 3d at 1158-59 n.7(current regulations “still provide that § 4(f) properties must be evaluated early while alternatives are under study, and that the § 4(f) approval should appear in the EIS or ROD”).
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some § 4(f) surveys (for iwi kupuna) on the first phase of the Project. North
Idaho, 545 F. 3d at 1158-59; AR 059459 at 059478-88 (scope of AIS). And
like the FHWA in North Idaho, Defendants issued a ROD without completing
detailed § 4(f) surveys on remaining phases of the Project. Id.; see also AR
000030 at 000085 (Programmatic Agreement).10
Accordingly, Plaintiffs are entitled to summary judgment on their fifth
cause of action. North Idaho, 545 F.3d at 1158-59; Corridor H Alternatives,
166 F.3d at 372-74 (D.C. Cir. 1999); see also Benton Franklin Riverfront
Trailway And Bridge Committee v. Lewis, 701 F.2d 784, 788-89 (9th Cir.
1983) (criticizing agency’s failure to identify and evaluate 4(f) resources prior
to release of FEIS).
b) Defendants Failed Fully To Survey, Identify, And Evaluate TCPs Prior To Approving The Project, Thereby Violating Section 4(f)
TCPs are resources “eligible for inclusion in the National Register
because of [] association with cultural practices or beliefs of a living
community that (a) are rooted in the community’s history, and (b) are
10 It is worth noting the close parallel between Defendants’ “phasing” of 4(f) compliance so as to avoid confronting certain difficult-to-deal-with historic resources and their “segmentation” of NEPA compliance so as to avoid confronting other Project impacts and alternatives (discussed in section V.D.4, below). A leading — and one of the earliest — 4(f) cases recognized that same connection. See Named Individual Members Of San Antonio Conservation Society v. Texas Highway Department, 446 F.2d 1021, 1023 (5th Cir. 1971) cert denied 406 U.S. 993 (1972) (segmentation of project for 4(f) purposes). As the Fifth Circuit put it: “The secretary’s approach to his section 4(f) responsibilities make[s] a joke of the feasible and prudent alternatives standard, and we not only decline to give such an approach our imprimatur, we specifically declare it unlaful.” Id.
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important in maintaining the continuing cultural identity of the community.”
Adams Dec., ¶ 3, Ex. B at 1. Such resources are protected by Section 4(f).
See id. (defining TCPs); see also 23 C.F.R. §§ 774.11(e) (Section 4(f)
applicable to historic sites), 774.17 (definition of historic sites includes
Register-eligible resources).
Defendants conducted “preliminary” research on TCPs. See AR 000030
at 000091. That research appears to have consisted of identifying a single TCP
(Chinatown). Id. Defendants deferred a more thorough “study to identify and
evaluate the [Project’s Area of Potential Effect] for the presence of traditional
cultural properties” until after approval of the Project. AR 000247 at 000623.
As explained above, this “phased” approach is not allowed under
Section 4(f).11 23 C.F.R. § 774.9(b); see also North Idaho, 545 F.3d at 1159,
n.7; Valley Community Preservation Commission, 373 F.3d at 1087-88;
Corridor H Alternatives, 166 F.3d at 372-74; 23 C.F.R. § 774.9(a). For this
reason, too, Plaintiffs are entitled to summary judgment on their fifth cause of
action.
11 Under some circumstances, such an approach might be permissible under the NHPA (a procedural statute). See, e.g., 36 C.F.R. §§ 800.4(b)(2), 800.8(a)(1). But Section 4(f)’s substantive mandate to avoid the impacts to historic resources (discussed in sections III.A, above, and V.C.3, below) means that all historic resources must be identified and evaluated before agency decisions are made. See North Idaho, 545 F. 3d at 1158-59.
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2. Defendants Arbitrarily And Capriciously Evaluated The Project’s Use Of Section 4(f) Resources (Count 6)
Section 4(f) requires Department of Transportation agencies to evaluate
the potential for transportation projects to “use” 4(f) Resources. In purported
compliance with that requirement Defendants prepared a “Final Section 4(f)
Evaluation,” which appears as Chapter 5 of the FEIS. See AR 000247 at
000680-753. Defendants’ evaluation was arbitrary, capricious, and in
violation of Section 4(f). Accordingly, Plaintiffs are entitled to summary
judgment.
a) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Directly Use The Merchant Street Historic District
A direct “use” occurs when land from a 4(f) Resource is incorporated
into a transportation project. See 23 C.F.R. § 774.17 (definition of “use”).
The Project involves the construction of a 3-story concrete guideway within
Nimitz Highway along the downtown Honolulu waterfront. A portion of that
route lies within the Merchant Street Historic District. AR 000030 at 000218
(description of district borders); Adams Dec., ¶ 4, Ex. C at 7 (map).
Defendants nonetheless failed to recognize or disclose that the Project will
directly use the district. AR 000247 at 000743-44. That failure was clearly
arbitrary and capricious.
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b) Defendants Arbitrarily And Capriciously Determined That The Project Will Not Constructively Use 4(f) Resources
Under Section 4(f), the term “use” is “construed broadly, not limited to
the concept of a physical taking.” Adler v. Lewis, 675 F.2d 1085, 1092 (9th
Cir. 1982); see also 23 C.F.R. § 774.17 (definition of “use”); Stop H-3 Ass’n v.
Coleman, 533 F.2d 434 445 (9th Cir. 1976) (finding “use” where freeway
would “pass near” a Native Hawaiian cultural site); Brooks v. Volpe, 460 F.2d
1193, 1194 (9th Cir. 1972) (“the word ‘use’ is to be construed broadly”).
In recognition of that principle, the Section 4(f) Regulations address
“constructive use” of 4(f) Resources. See 23 C.F.R. §§ 774.15; 774.17. A
constructive use occurs where “the transportation project does not incorporate
land from a Section 4(f) property, but the project’s proximity impacts are so
severe that the protected activities, features, or attributes that qualify the
property for protection under Section 4(f) are substantially impaired.” 23
C.F.R. § 774.15(a).
The potential for a transportation project to constructively use 4(f)
Resources must be evaluated prior to project approval. 23 C.F.R. §§ 774.9(a)-
(b) (timing of use determinations), 775.15(c) (constructive use). Such an
evaluation must include (at least) the following three factors: (1)
identification of the attributes of the 4(f) Resource subject to protection under
Section 4(f); (2) analysis of the impacts of the proposed project on the 4(f)
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Resource; and (3) consultation with the official(s) with jurisdiction over the
4(f) Resource. 23 C.F.R. § 774.15(d); 73 Fed. Reg. 13368, 13387 (March 12,
2008) (“FTA agree[s] that a determination of constructive use should always
be based upon the factors identified”).
In purported compliance with these requirements, Defendants’ FEIS
contains a discussion of constructive use. See AR 000247 at 000728-747.
But, for the reasons set forth below, Defendants’ constructive use evaluation
was arbitrary, capricious, and contrary to law.
(i) Aloha Tower
Aloha Tower is an Art Deco building on the downtown Honolulu
waterfront.12 It has been listed on the National Register of Historic Places
since 1976. It is also located in close proximity to several other historic
downtown resources, including the Dillingham Transportation Building, the
Merchant Street Historic District, the Chinatown Historic District, Irwin
Memorial Park, and Walker Park. See AR 000247 at 000689.
Defendants admit that Aloha Tower is historically-significant in several
respects, including as “an example of 1920’s Art Deco architecture in Hawaii”
and as “a local landmark [viewed] from the inland area.” AR 000247 at
000745-46. These historic attributes are protected under Section 4(f). 23
C.F.R. §§ 774.11(e), 774.15(a), 774.17.
12 A map showing the locations of the downtown Honolulu historic resources is
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Defendants concluded that the Project will not constructively use Aloha
Tower. AR 000247 at 000745-46. That conclusion is arbitrary and capricious
in two primary respects.
First, Defendants’ conclusion violates the Section 4(f) Regulations. The
Regulations provide that a constructive use occurs whenever “a proposed
transportation facility…obstructs or eliminates the primary views of an
architecturally significant historical building.” 23 C.F.R. § 774.15(e)(2). As
noted above, Aloha Tower is an architecturally-significant building and is
considered a “landmark” when viewed from inland. AR 000247 at 000745-46.
Defendants concede that the Project will, at the very least, “obstruct” those
same views of Aloha Tower:
• Defendants admit that “the Downtown Station and guideway will be dominant features in views” (AR 000247 at 512);
• Defendants admit that “the guideway structure will partially block a view of Aloha Tower” from the pedestrian mall on Fort Street (AR
000247 at 512);
• Defendants admit that the Project will “block portions of makai views”
toward Aloha Tower from at least four perspectives13 (AR 000247 at
540).
attached hereto as exhibit 1. 13 Those perspectives include views down Bethel, Fort, Bishop, and Richards streets. AR 000247 at 000540.
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Defendants found that these visual impacts will be “significant,” a term
they define as involving “substantial changes to existing views…resulting in a
greatly changed view.” AR 000247 at 000509-510. Under these
circumstances, the 4(f) Regulations required a finding of constructive use. 23
C.F.R. §§ 774.15(a) (constructive use where “substantial” impact occurs),
774.15(e)(2) (constructive use where views are obstructed).
Second, Defendants’ conclusion appears to be based on irrelevant
information. For example, Defendants suggest there will be no constructive
use of Aloha Tower because “the Project will not block views, although some
will be altered.” AR 000247 at 000746. But this purported distinction
between “altered” views and “blocked” views is not legally relevant; the
relevant question is whether the Project would “substantially impair” the views
of Aloha Tower. See 23 C.F.R. § 774.15(a). Defendants also claim that
“Aloha Tower will still be able to be viewed from many vantage points
without seeing the Project.” AR 000247 at 000746. This, too, is irrelevant.
Again, the relevant question is whether the Project would “substantially
impair” a significant attribute of Aloha Tower; the suggestion that Aloha
Tower will not be “used” in some other way is beside the point. See 23 C.F.R.
§ 774.15(a).
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(ii) Walker Park
Walker Park is a small public park in downtown Honolulu offering a
seating area, a fountain, a number of mature palm trees, and open views
toward Honolulu harbor and Aloha Tower. AR 000247 at 000731, 000744. It
is also eligible for listing on the National Register of Historic Places as “an
early example of a created greenspace” in downtown Honolulu. AR 000247 at
000744. Walker Park qualifies for protection under Section 4(f) on both bases.
The Project would place a 3-story elevated concrete rail line
approximately 50 feet from the edge of Walker Park. AR 000247 at 000744.
Defendants nonetheless concluded that the Project would not constructively
use the park. AR 000247 at 000731, 000744. With respect to Walker Park’s
historic attributes, Defendants simply conclude, without explanation, that the
Project would not “substantially impair the park’s historic associations.” AR
000247 at 000744. And with respect to Walker Park’s parkland attributes,
Defendants suggest that “the Project will not change views from within the
park” and therefore would not result in a constructive use. AR 000247 at
000731. Those conclusions were arbitrary and capricious in multiple respects.
First, none of the visual impact analyses in the Administrative Record
actually addresses the Project’s impacts on Walker Park. See, e.g., AR 000247
at 000511-12. For this reason alone, Defendants’ findings on that subject
should be rejected. Motor Vehicle Manufacturers, 463 U.S. at 43 (failure to
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consider “an important aspect of the problem” is arbitrary and capricious); 23
C.F.R. § 774.15(d) (requiring evaluation of impacts).
Second, to the extent that the visual impact analyses in the
Administrative Record can reasonably be extrapolated to Walker Park, those
analyses undermine Defendants’ conclusions. Defendants’ visual impact
analyses admit that the portion of the Project adjacent to Walker Park would
be “dominant in views,” would “contrast substantially” with park trees, would
“change the visual character of the streetscape,” would create “light and
glare,” and would be “prominent in [] views of Honolulu Harbor, partially
blocking views of the sky.” AR 000247 at 000512, 000540-41.14
Third, Defendants’ constructive use analysis for Walker Park fails to
address noise. AR 000247 at 000731, 000744. And the noise impact analyses
elsewhere in the Administrative Record are not at all consistent with
applicable FTA requirements.15
14 The analyses also note that these visual effects would be even “more noticeable” from viewpoints (like Walker Park) located close to the rail line. AR 000247 at 000512 (line 16). 15 The City prepared a technical report on noise in 2008 and an addendum to that report in 2009. FTA reviewed the 2008 report and determined that it was inadequate. AR 72929. Specifically, FTA found that the 2008 report (1) failed to disclose the noise caused by the Project and (2) did not provide any way to determine the effectiveness of mitigation. AR 072897 at 072929. The 2009 addendum purported to address the first issue by claiming that the Project’s “reference Sound Exposure Level” (or “SEL”) would be 82 decibels of noise within 50 feet of the rail line. AR 072897 at 072898. The rail line would be located 50 feet from Walker Park. AR 000247 at 000744. But, for reasons not explained in their noise analyses, Defendants estimate that the Project will only result in 65 decibels of additional noise in Walker Park. AR 072897 at 072926. This is not an insignificant difference. Ten decibels
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Fourth, the Administrative Record does not appear to contain any
evidence supporting Defendants’ conclusory assertion that the Project will not
“impair the park’s historic associations.” For example, there is no evidence
that Defendants ever evaluated the original (historic) plans for the park or
determined whether the Project might interfere with the park attributes
identified in those plans.
(iii) Merchant Street Historic District
As discussed in section V.C.2.b.i, above, Defendants arbitrarily and
capriciously concluded that the Project would not constitute a direct use of the
Merchant Street Historic District. In the alternative, Defendants arbitrarily and
capriciously concluded that the Project would not constitute a constructive use
of the Merchant Street Historic District.
The Merchant Street Historic District is a collection of nineteenth
century buildings at the core of historic downtown Honolulu. AR 000030 at
000217. It has been listed on the National Register of Historic Places since
1973. Adams Dec., ¶ 4, Ex. C. The Keeper of the National Register has
affirmed that the District represents “an incalculable asset as an historic record
of Honolulu’s past” and has recognized the need to preserve the District’s
represents a 100% change in noise level. In other words, Defendants may have under-estimated the Project’s noise impacts on Walker Park by more than 150%.
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“small scale human environment.” Id. at 3. This feature is therefore subject to
protection under Section 4(f).
The Project would place a 3-story elevated heavy rail line along the edge
of the Merchant Street Historic District. AR 000030 at 000214-18; AR
000247 at 000743-44; see also § V.C.2.b.i, above. Defendants nonetheless
concluded that the Project would not constructively use the Merchant Street
Historic District. AR 000247 at 000743-44. That conclusion is arbitrary and
capricious in two fundamental respects.
First, Defendants’ constructive use evaluation focuses exclusively on a
single building within the Merchant Street Historic District. AR 000247 at
000743-744. It does not evaluate whether the Project might substantially
impair any of the protected attributes of the District as a whole. Id. Such an
approach is inherently arbitrary and capricious. Motor Vehicle Manufacturers
Association, 463 U.S. at 43 (failure to consider “an important part of the
problem” is arbitrary and capricious). It is also directly contrary to applicable
FTA guidance. See AR 021938 at 021955 (“the district as a whole must be
carefully evaluated”).
Second, the Administrative Record demonstrates that the Project will, in
fact, substantially impair one of the protected features of the Merchant Street
Historic District. As noted above, part of the District’s historic significance is
tied to the neighborhood’s “small scale human environment.” Into that
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environment, the Project will introduce a massive, modern, 3-story concrete
viaduct — the very antithesis of a “small scale human” feature. Indeed,
Defendants essentially concede as much. They admit that the Project will
“reduce the open character of the streetscape, create shade and shadows, and
block portions of makai views” on multiple streets within the Merchant Street
Historic District. AR 000247 at 000540. They also concede these effects on
the area will be “significant,” a term which they define as involving
“substantial” changes to the environment. AR 000247 at 000509-510. For this
reason, too, it was arbitrary and capricious for Defendants to conclude that the
Project will not constructively use Merchant Street Historic District. See AR
000030 at 000217 (important features of historic district include “small scale
human environment”); 23 C.F.R. § 774.15(a) (“substantial” impact on historic
feature constitutes constructive use).
(iv) Irwin Park
Irwin Park is a 2-acre park located next to Aloha Tower, across the
street from Walker Park and the Dillingham Transportation Building, and
immediately adjacent to the Project. AR 000247 at 000689, 000723 (maps);
000247 at 000731, 000746-47 (description). It is an historic resource eligible
for listing in the National Register as (among other things) “an example of the
work of a leading local landscape architect.” AR 000247 at 000746-77. It is
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also a public park. AR 000247 at 000690. Both attributes are subject to
protection under Section 4(f). See 23 C.F.R. § 774.11.
Defendants concluded that the Project would not create adverse noise
impacts, would not interfere with the park’s historic attributes, and therefore
would not constructively use Irwin Park. AR 000247 at 000746-77. Those
conclusions are arbitrary and capricious.
Defendants claim that the Project would “have no adverse noise …
impacts at the park.” AR 000247 at 000747. But they never studied potential
noise impacts on Irwin Park; instead, they evaluated potential noise impacts on
the Aloha Tower Marketplace, a busy retail area located hundreds of feet
further away from the Project. AR 033642 at 033695; AR 072897 at 072919.
Moreover, Defendants’ noise analyses are not at all consistent with applicable
FTA requirements.16
Defendants also claim that the Project would not interfere with the
historic attributes of Irwin Park. Those attributes include “the work of a
16 The City prepared a technical report on noise in 2008 and an addendum to that report in 2009. FTA reviewed the 2008 report and determined that it was inadequate. AR 072929. Specifically, FTA found that the 2008 report (1) failed to disclose the noise caused by the Project and (2) did not provide any way to determine the effectiveness of mitigation. AR 072929. The 2009 addendum purported to address the first issue by claiming that the Project’s “reference Sound Exposure Level” (or “SEL”) would be 82 decibels of noise 50 feet from the guideway, as per FTA requirements. AR 072898. The Project would be located immediately adjacent to Irwin Park. AR 000247 at 000723. Defendants admit that Project noise of 70 decibels or above (12 decibels below the Project’s reference SEL) could cause severe noise impacts. AR at 033642 at 33695; AR 072897 at 072919. Therefore, it was arbitrary and capricious for Defendants to conclude that the Project will have “no adverse noise…impacts.” AR 000247 at 000746 (emphasis added).
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leading local landscape artist.” AR 000746. But they do not provide any
specific analysis of these protected landscape features, a failure which is
arbitrary and capricious in and of itself. See AR 000247 at 000746-47; 23
C.F.R. § 774.15(d) (required contents of constructive use analysis); Motor
Vehicle Manufacturers Association, 463 U.S. at 43 (failure to consider “an
important part of the problem” is arbitrary and capricious). Indeed, to the
extent Defendants address Irwin Park’s landscaping at all, it is to admit that (1)
the Project would “contrast substantially” with trees in the park and (2) the
overall effect of the Project on the Irwin Park area as a “substantial change” to
sensitive resources. AR 000247 at 000509 (“substantial change”), 000511
(Project would “contrast substantially with Irwin Park street trees”).
(v) Mother Waldron Neighborhood Park
Mother Waldron Neighborhood Park is a public park in downtown
Honolulu. It is also an historic resource eligible for listing in the National
Register for its historic architecture and landscape design. AR 000247 at
000747. The park qualifies for protection under Section 4(f) as parkland and
as an historic site. See 23 C.F.R. § 774.11.
The Project would place a 3-story elevated heavy rail line approximately
10 feet from the edge of Mother Waldron Neighborhood Park. AR 000247 at
000747. Defendants nonetheless concluded that the Project would not
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constructively use the park. AR 000247 at 000746-47. That conclusion was
arbitrary and capricious.
First, the Project will “contrast significantly with the scale and character
of Mother Waldron Neighborhood Park” and will block views of the park from
nearby residences. AR 000247 at AR 000512. While the City tried to
downplay these effects as “a new visual element,” FTA accurately
characterized them as “devastating.” AR 000247 at 000747 (City
characterization); AR 072988 at 072998 (FTA admits Project will have
“devastating effects on makai views of…the park”).
Second, Defendants’ Section 4(f) evaluation fails to address the
Project’s noise impacts on Mother Waldron Neighborhood Park. AR 000247
at 000732, 000747. That failure is arbitrary and capricious in and of itself.
Motor Vehicle Manufacturers Association, 463 U.S. at 43 (failure to consider
“an important part of the problem” is arbitrary and capricious). Moreover,
evidence found elsewhere in the Administrative Record indicates that the
Project’s noise impacts may, in fact, be severe. The Project will cause 82
decibels of noise at points within 50 feet of the rail line. AR 072898. The rail
line will be just 10 or so feet from the park (well within the 50-foot envelope).
AR 000247 at 000747 (10 feet from park). And Defendants’ technical report
admits that noise above 67 decibels would cause a severe impact. AR 072897
at 072920.
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c) Defendants’ Evaluation Of Makalapa Navy Housing Was Arbitrary And Capricious In Multiple Respects
Makalapa is a residential area containing a large number of historic
homes. AR 000247 at 000739-740. The area is eligible for listing in the
National Register as (among other things), an example of the work of a master
architect and as an example of the Navy’s historic “Garden City” planning
program. Id.
The problems with Defendants’ evaluation of Makalapa are so
fundamental that they defy easy characterization as “constructive use issues”
or “direct use issues.” Therefore, we address them in this separate subsection.
First, it is not at all clear which property or properties Defendants
evaluated. Makalapa is owned by the United States Navy, and the Navy
manages it as a single historic resource within a single set of boundaries. See
AR 060254-55. The FTA agreed with the Navy’s approach. AR 060254-55.
But the City (perhaps seeking to avoid the mandates of Section 4(f)) claims
that the area actually consists of two, smaller historic districts dubbed
“Potential Makalapa Housing Historic District” and “Potential Little Makalapa
Navy Housing Historic District.” Id. Maps created by the City and attached to
the ROD do, in fact, show a “Potential Makalapa Housing Historic District”
and a “Potential Little Makalapa Historic District.” AR 000247 at 000152.
But the text of Defendants’ Final Section 4(f) Evaluation only discusses a
“Potential Makalapa Navy Housing Historic District”; it makes no mention of
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any “Little Makalapa” district. AR 000247 at 000739-40; see also 000247 at
000692 (listing properties evaluated for 4(f) use). In short, it appears that
Defendants (1) failed to evaluate “Little Makalapa” under Section 4(f), (2)
used inconsistent definitions of the boundaries of the larger Makalapa area, or
(3) both.
Second, if Defendants did, in fact, carve up Makalapa into smaller
historic districts, they have not provided sufficient justification doing so. In
particular, they have not explained how and why specific boundary lines
between the two areas were drawn. AR 000247 at 000739-40. That failure is
arbitrary and capricious, particularly in light of evidence in the Administrative
Record suggesting that the Navy (the federal agency responsible for Makalapa)
manages the area as a single resource (an approach with which the FTA at one
point concurred). AR 0060254 at 0060254-55. As the Historic Hawaii
Foundation accurately noted, the City’s approach to Makalapa “appear[s] to be
a gerrymander….which suggests a motive of convenience rather than a
professional determination.” AR 059005 at 059007.
Third, Defendants’ Section 4(f) evaluation does not account for some of
Makalapa’s historic attributes. Makalapa’s setting is one of the aspects of its
eligibility for the National Register; therefore, setting is a feature protected
under Section 4(f). AR 039709 (importance of setting); 23 C.F.R. §§
774.11(e), 774.15(d) (protected features). The Administrative Record contains
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a technical report which found that the Project would “adversely affect”
Makalapa’s “integrity of setting.” AR 039555 at 039709. But Defendants’
Section 4(f) Evaluation does not address that issue. AR 000247 at 000739-
740.
Fourth, Defendants’ Section 4(f) Evaluation does not account for the
Project’s Pearl Harbor rail station and “traction power substation.” These are
significant omissions:
• The rail station would be a concrete structure 240 feet long, more than 100 feet wide, and approximately 55 feet high.17 AR 000247 at
000354; AR 0040003. Maps in the Administrative Record depict the
station within median of a roadway. See, e.g., AR 000247 at 000354.
But there is no mention of how the station will be built without using
the historic properties on both sides of the Highway. Id.18
• The traction power substation would be a 3,200 square foot steel building enclosed within a steel fence. AR 000247 at 000360. Maps
in the Administrative Record suggest that the substation would be
located immediately adjacent to the Pearl Harbor rail station (and
either within or on the border of the Makalapa historic district). See 17 Defendants’ EIS never actually discloses the height of the Project’s rail stations. But by combining the “conceptual” drawing presented in section 2 of the EIS (which show station rooflines extending above the top of each train) with the “typical section” drawings elsewhere in the Administrative Record (which show the top of each train approximately 50 feet above street level), it is possible to estimate that the total height of the Pearl Harbor rail station will be approximately 55 feet above street level. See AR 000247 at 000347-49 (“conceptual” drawing); AR 0040003 (“typical section”). 18 It also appears that buildings and infrastructure allowing passengers to access the station may be located within the Makalapa historic district(s). AR 000247 at 000354.
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AR 000030 at 000153; AR 033677.
None of these Project elements is addressed in Defendants’ Section 4(f)
evaluation of Makalapa. AR 000247 at 000739-740.
d) Defendants’ Arbitrary And Capricious Use Determinations Were Not “Harmless Error”
It is important to note that Defendants’ failure properly to evaluate the
Project’s use of 4(f) Resources was not a harmless mistake. As will be
discussed in the section V.C.3.a, below, there are feasible and prudent
alternatives to using the historic and parkland resources of downtown
Honolulu. Likewise, there are feasible and prudent alternatives to routing the
Project through Makalapa. See AR 060254 at 060255 (“the Center Drive
Alternative [] is a bit of a problem, but is prudent and feasible”). Had
Defendants properly evaluated 4(f) Resources, they would have been required
to implement such alternatives. See 49 U.S.C. § 303(c); 23 C.F.R. § 774.3.
3. Defendants Approved The Project In Violation Of Section 4(f) (Count 7)
Section 4(f) prohibits the approval of a transportation project that uses
4(f) Resources unless (1) there is no feasible and prudent alternative and (2)
the project includes all possible planning to minimize harm. 49 U.S.C. §
303(c); 23 C.F.R. § 774.3. If there is no prudent and feasible alternative that
would avoid the use of 4(f) Resources, only the alternative that (1) causes the
“least overall harm” to historic resources and (2) includes all possible planning
to minimize harm can be approved. 23 C.F.R. § 774.3(c).
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There is no dispute that the Project will use 4(f) Resources. AR 000247
at 000680-752 (4(f) evaluation). Therefore, Defendants were required to
comply with the requirements described above. They failed to do so.
Accordingly, Plaintiffs are entitled to summary judgment.
a) Defendants Failed To Demonstrate The Absence Of Prudent And Feasible Alternatives To The Project’s Use Of 4(f) Resources
Where, as here, a transportation project would use 4(f) Resources,
Department of Transportation agencies must determine whether there are
feasible and prudent alternatives capable of avoiding such use. 49 U.S.C. §
303(c); 23 C.F.R. § 774.3. The concepts of feasibility and prudence are
defined by the 4(f) Regulations. See 23 C.F.R. § 774.17.
An alternative is feasible if it is can be built “as a matter of sound
engineering judgment.” 23 C.F.R. § 774.17; see also AR 021938 at 021946
(4(f) Policy Paper guidance). In other words, “[a]n alternative is feasible if it
is technically possible to design and build that alternative.” AR 21938 at
21946.
The 4(f) Regulations define the concept of prudence by identifying six
situations in which an alternative may be considered imprudent. 23 C.F.R. §
774.17. Those situations include the following: (1) the alternative
“compromises the project to a degree that it is unreasonable to proceed with
the project”; (2) the alternative creates “unacceptable safety or operational
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problems”; (3) the alternative causes severe environmental or social impacts;
(4) the alternative results in additional costs “of an extraordinary magnitude”;
(5) the alternative causes “other unique problems”; and (6) the alternative
involves several of the five identified factors which, “while individually minor,
cumulatively cause unique problems or impacts of extraordinary magnitude.”
Id. The 4(f) Regulations do not identify any other permissible basis for
determining that an alternative is imprudent. See 23 C.F.R. § 774.17; AR
21938 at 21946 (guidance in “4(f) Policy Paper”).
The concepts of feasibility and (in particular) prudence require agencies
to balance a variety of engineering, historic preservation, environmental, and
economic factors. See 23 C.F.R. § 774.17 (identifying factors to be balanced).
The 4(f) Regulations require that this balancing process be conducted with “a
thumb on the scale on the side of avoiding [] Section 4(f) Property.” 73 Fed.
Reg. 13368, 13391 (March 12, 2008) (explaining 4(f) Regulations). In other
words, an alternative to the use of a 4(f) Resource should only be rejected as
infeasible or imprudent if it causes “severe problems of a magnitude that
substantially outweighs the importance of protecting the [4(f) Resource].” 23
C.F.R. § 774.17.
A Department of Transportation agency’s analysis of feasibility and
prudence must be documented in a written Section 4(f) Evaluation. 23 C.F.R.
§ 774.7(a). If the agency concludes that there is no feasible and prudent
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alternative, that conclusion must also be explained and supported in the 4(f)
Evaluation. Id. Indeed, the 4(f) Regulations explicitly provide that “a Section
4(f) Evaluation shall include sufficient supporting documentation to
demonstrate why there is no feasible and prudent avoidance alternative.” Id.
(emphasis added).
Defendants failed to satisfy these requirements. Instead, they
improperly rejected a number of alternatives to the Project’s use of 4(f)
Resources, including (1) Honolulutraffic.com’s managed lanes alternative (the
“MLA”), (2) a downtown tunnel, and (3) various alternative transit
technologies and alignments. Each of those alternatives is addressed below.
But before zooming in on the details of the individual alternatives, it is
important to consider a few aspects of the big picture:
• This is considered the largest public works project in the State of Hawaii.
• Even Defendants’ cramped, arbitrary and capricious 4(f) Evaluation admits that the Project will use 4(f) Resources in the historic core of
downtown Honolulu. See AR 000247 at 000718-27 (use of Chinatown
Historic District and Dillingham Transportation Building).
• Defendants also admit that those 4(f) Resources are extremely valuable. See, e.g., AR 072807 at 072811 (Dillingham Transportation
Building is “a very significant 4(f) property”), AR 039555 at 039837
(Chinatown “is one of the few areas of Honolulu which has maintained
a sense of identity over the years”).
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• To be feasible and prudent, a 4(f) alternative need only be “technically
possible to design” and not cause “severe problems of a magnitude that
substantially outweighs the importance of protecting” 4(f) Resources.
And yet Defendants claim that there is not a single feasible and prudent
alternative to the use of 4(f) Resources in Downtown Honolulu. AR 000247 at
000718-27.
How could that possibly be? As the following examples illustrate,
Defendants failed properly to apply the 4(f) feasibility and prudence criteria
(when they applied the criteria at all) and impermissibly relied on the results of
the City’s AA process. Both failures violate Section 4(f). And both require
that Plaintiffs be awarded summary judgment.
(i) Managed Lanes Alternative
Downtown Honolulu contains a very significant concentration of 4(f)
Resources. See AR 000247 at 000689. Although there is a dispute between
the parties as to the extent of the Project’s use of downtown 4(f) Resources,
there is universal agreement that the Project will use some of them. See AR
000247 at 000680-752 (4(f) Evaluation). Specifically, Defendants admit that
the Project would use the Chinatown Historic District and the Dillingham
Transportation Building. AR 000247 at 000718-27.
The use of 4(f) Resources in downtown Honolulu could be avoided by
implementing Honolulutraffic.com’s Managed Lanes Alternative (“MLA”).
The MLA would involve construction of a 2- or 3-lane roadway for use by
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express buses, vanpools, and carpools.19 The terminus of the MLA would be
located just west of downtown, thereby avoiding impacts to downtown 4(f)
Resources.20 AR 071958. Indeed, the MLA was designed to serve that
avoidance purpose. Id.
The City considered — and then rejected — a “straw man” version of
the MLA during its early planning process. See AR 000247 at 000321
(decision to reject MLA reached during Alternatives Analysis); AR 000247 at
002022-31 (version of MLA considered by City was “designed to fail”). That
decision was arbitrary, capricious, and in violation of Section 4(f).21
First, and most importantly, the City rejected the MLA without ever
determining that it was “infeasible” or “imprudent.” The FEIS admits that the
MLA was rejected during the City’s AA process. AR 000247 at 000321. The
documents prepared in support of that process do not find or conclude that the
MLA is “infeasible” or “imprudent” within the meaning of Section 4(f). See
19 Thus, the MLA is not an alternative to public transit. Rather, it is a piece of infrastructure to be used by public transit (buses, etc.). 20 The 4(f) Resources avoided by the MLA include the following: Chinatown Historic District, Merchant Street Historic District, Walker Park, Irwin Park, Aloha Tower, Dillingham Transportation Building, and Mother Waldron Neighborhood Park. AR 000247 at 000689 (map). Defendants admit that the Project would use the Chinatown Historic District and the Dillingham Tranportation Building. AR 000247 at 000718-27. Defendants have arbitrarily and capriciously denied that the Project will use Merchant Street Historic District, Walker Park, Irwin Park, Aloha Tower, and Mother Waldron Neighborhood Park. See § V.C.2, above. 21 Defendants’ (and, in particular, the City’s) treatment of the MLA also violated NEPA. See § V.D.2, below.
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AR 009434-009555 (AA Report); AR 009556-009683 (AA Screening Memo);
AR 049484-049731 (Definition of alternatives). In fact, none of the early
planning process documents even purported to apply the Section 4(f)
feasibility and prudence criteria to the MLA. Id.; 23 C.F.R. § 774.17 (listing
criteria).
Second, Defendants’ reliance on the City’s early planning process was
arbitrary and capricious in and of itself. SAFETEA-LU allows local agencies
to prepare certain NEPA analyses, but only subject to close oversight by
federal agencies. See 23 U.S.C. § 139(c)(3). The alternatives analysis
requirements of NEPA are not the same as those of Section 4(f). Compare,
e.g., 40 C.F.R. § 1502.14 (NEPA requires consideration of reasonable
alternatives) with 23 C.F.R. §§ 774.3, 774.17 (Section 4(f) requires adoption of
feasible and prudent alternatives capable of avoiding 4(f) Resources); see also
AR 021938 at 021946 (“It is important to point out that the standard for
evaluating alternatives under NEPA and the standard for evaluating
alternatives under Section 4(f) are different”). And FTA was not involved in
the City’s early planning process. See, e.g., AR 009434-554 (AA Report
makes no mention of FTA involvement). Therefore, Defendants were not
entitled to rely on the results of the City’s early planning process to satisfy
Section 4(f). See 23 U.S.C. § 139(c)(3).22
22 It is also worth noting that the 4(f) Regulations, promulgated three years
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Third, the MLA is not addressed in Defendants’ Section 4(f) Evaluation.
See 23 C.F.R. § 774.7(a) (4(f) evaluation required to demonstrate “why there is
no feasible and prudent avoidance alternative”).
Fourth, although not addressed in Defendants’ Final Section 4(f)
Evaluation, other evidence in the Administrative Record demonstrates that the
MLA is, in fact, prudent and feasible. The MLA is feasible to engineer and
build — in fact, there exists a similar facility in Tampa. See 23 C.F.R. §
774.17 (definition of feasibility); AR 071958 (MLA similar to Tampa facility).
The MLA is also prudent: it promotes transit (in the form of a network of bus
lanes) and is therefore consistent with the fundamental purpose of the Project;
it will not result in safety problems; it will not cause severe environmental
impacts; it is less costly than the Project; and there is no evidence that it
involves any other “unusual factors.” Id.; see also 23 C.F.R. § 774.17
(definition of prudence).
Fifth, there is no evidence that Defendants ever weighed the prudence
and feasibility of the MLA together with the importance of preserving 4(f)
Resources. The 4(f) Regulations explicitly require such an analysis. See 23
C.F.R. § 774.17; see also 73 Fed. Reg. 13368, 13391 (March 12, 2008) (4(f)
after SAFETEA-LU, require Department of Transportation agencies (rather than their local partners) to make determinations about feasibility and prudence. See 23 C.F.R. §§ 774.3, 774.7, 774.15; see also 23 C.F.R. § 774.17 (definition of “Administration” does not include local agencies acting pursuant to 23 U.S.C. § 139).
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Regulations require “a thumb on the scale on the side of avoiding [] Section
4(f) Property”).
Finally, it is worth noting that Plaintiff Honolulutraffic.com submitted to
Defendants a comment letter explaining, in detail, why its MLA is both
feasible and prudent. AR 071958. Defendants never sent Honolulutraffic.com
a response. That silence speaks volumes.
(ii) Downtown Tunnel
The Project’s use of 4(f) Resources could also be avoided by routing the
Project through a tunnel beneath Honolulu’s historic downtown core. See,
e.g., AR 000247 at 000719 (tunnel would completely avoid impacts on
Chinatown Historic District), 000721-22 (avoidance of impacts on Dillingham
Transportation Building); 000720 (map showing that tunnel would also avoid
impacts to Merchant Street Historic District, Walker Park, Irwin Park, Aloha
Tower, and Mother Waldron Community Park). Defendants admit that there
are at least two different locations where such a tunnel could be built: King
Street and Beretania Street. See AR 000247 at 000719. The King Street
alignment would require a longer tunnel than the Beretania Street alignment.
AR 000247 at 000719.
Defendants rejected the tunnel alternatives as too expensive. AR
000247 at 000719. Specifically, Defendants’ 4(f) Evaluation asserts, without
citation or detailed explanation, that that a tunnel “would increase the cost of
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the Project by more than $650 million (2006 dollars), which is beyond the
funding provided in the financial plan,” and, for that reason, “it would result in
additional construction cost of an extraordinary magnitude.” Id. That finding
was arbitrary and capricious in several respects.
First, Defendants’ conclusion appears to be based on a 2006 cost
estimate for the King Street tunnel. See AR 009434 at 009540. They never
evaluated the cost of the shorter (and presumably less expensive) Beretania
Street tunnel. Id. Nor did they update their cost estimates after 2006 (more
than four years prior to the approval of the Project). AR 000030 (ROD issued
in January, 2011).
Second, Defendants improperly relied on the fact that the tunnel
alternative does not appear in the Project’s financial plan. See AR 719 (tunnel
is “beyond the funding provided in the financial plan”). But the Project’s
financial plan was, by definition, prepared for the Project. Of course it did not
include line items for alternatives. That fact is not relevant to the question of
whether a tunnel would be too expensive.
Third, Defendants improperly relied on the raw cost of the (King Street)
tunnel. AR 000247 at 000719, 009434 at 0009540. The 4(f) Regulations
provide that an alternative may only be rejected as “too expensive” if it
requires an additional cost of “extraordinary magnitude.” 23 C.F.R. § 774.17.
To measure “extraordinary magnitude,” it is necessary to consider total project
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cost.23 The document from which Defendants pulled their $650 million
estimate for the (King Street) tunnel also forecasts a total Project cost of
approximately $4.2 billion. AR 009434 at 009540. In other words, the (King
Street) tunnel would increase the cost of the Project by 15%. Id. Defendants
did not consider whether 15% represents a cost increase of “extraordinary
magnitude.” See 23 C.F.R. § 774.17.
Fourth, regardless of the cost of the tunnel (whether expressed in raw
terms or as a percentage increase), Defendants were obligated to weigh that
cost against the value of preserving downtown’s 4(f) Resources. See 23 C.F.R.
§ 774.17. They failed to do so. AR 000247 at 000719. That failure is
particularly problematic in this case because the downtown tunnel alternatives
provide a way to avoid the use of (and other impacts to) an extraordinary
collection (both in number and in quality) of historic resources. See, e.g., AR
000689 (map of downtown resources); 072807 at 072811 (“very significant
4(f) property”).
(iii) Alternative Transit Technologies
The Administrative Record also contains evidence that alternative
transit technologies such as light rail or Bus Rapid Transit could avoid some or
all of the Project’s use of 4(f) Resources.
23 Otherwise, there could be no prudent alternatives to expensive projects.
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For example, light rail could be placed at grade for much of the Project’s
route, thereby preserving views of historic resources, maintaining the
aesthetics of historic districts, and significantly reducing the impact of
overhead rail stations on historic areas. See, e.g., AR 000247 at 000968 (EPA
questions exclusion of light rail from EIS); AR 072134 at 072138 (Honolulu
City Councilmen request consideration of light rail).
Alternatively, a Bus Rapid Transit program would reduce or eliminate
the need for new construction in historic areas and would be compatible with
infrastructure such as the MLA. Indeed, just months before its AA process
began, the City deemed Bus Rapid Transit an effective way to promote public
transit in the very same corridor within which the Project is now proposed.
See, e.g., AR 047927 at 047953-80 (summary of Bus Rapid Transit EIS).
Unfortunately, the City rejected these options (and others)24 during its
early planning process, before they could properly be evaluated under Section
4(f). That decision was arbitrary, capricious, and in violation of Section 4(f)
for many of the same reasons explained above:
• The City never formally found the alternative technologies infeasible or imprudent. See AR 009434-009555 (AA Report); AR 009556-
009683 (AA Screening Memo); AR 049484-049731 (Definition of 24 Transportation technologies eliminated from consideration during the early planning process included commuter rail, ferries, and (expansion of) the existing bus system. See AR 000247 at 000321. Other technology options improperly rejected (including by the 2008 Panel of Experts) include maglev, light rail, and monorail.
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alternatives).
• In any event, the City did not have authority to make Section 4(f) findings regarding feasibility, prudence, or the existence of feasible
and prudent alternatives without FTA’s participation. 23 U.S.C. § 139.
• Defendants failed to address the alternative technologies in their Final Section 4(f) Evaluation. AR 000247 at 000680-752.
• Defendants never weighed the feasibility and prudence of the
alternative technologies together with the importance of preserving
4(f) Resources, as required by the 4(f) Regulations. 23 C.F.R. §
774.17.
For each of these reasons, the rejection of alternative transit
technologies under Section 4(f) was arbitrary and capricious.
b) Defendants Failed To Include All Possible Planning To Minimize Harm
Section 4(f) prohibits the approval of any transportation project that uses
4(f) Resources unless the project includes all possible planning to minimize
harm. 49 U.S.C. § 303(c); 23 C.F.R. § 774.3. This requirement applies
whether or not there is a feasible and prudent alternative to the project. 23
C.F.R. § 774.3(c). Therefore, it provides an independent ground for
invalidating agency action. Id.
The “all possible planning” requirement mandates that reasonable
measures to minimize harm and/or mitigate impacts to 4(f) Resources be
“included in the project.” 23 C.F.R. § 774.17. With respect to impacts on
public parks, such measures may include replacement of land or facilities or
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monetary compensation to enhance park property. 23 C.F.R. § 774.17. With
respect to historic sites, measures to minimize harm “normally serve to
preserve the historic activities, features, or attributes of the site.” Id.
The Project would use 4(f) Resources. Therefore, Defendants were
obligated to “include all possible planning to minimize harm.” 49 U.S.C. §
303(c); 23 C.F.R. § 774.3. They failed to do so. For example:
• The Project involves construction of a 3-story concrete rail line through the Chinatown Historic District. In doing so, it would directly
use a corridor of land within the District. Defendants failed to evaluate
this aspect of the Project’s use of Chinatown and, as a consequence,
did not identify any reasonable measures to minimize its harm.25
• Chinatown’s connection to the Harbor is a component of its historic significance. AR 000247 at 000718; AR 039555 at 039837-39. In
directly using the waterfront portion of the Chinatown Historic
District, the Project would “partially block” and “substantially change”
views toward Honolulu Harbor. AR 000247 at 000512 (partially
block”), 000540 (“substantially change”); see also AR 039555 at
039837-39 (describing adverse effects). But the Project does not
include any measures to mitigate that impact.
• The Project would use Makalapa’s historic district (or districts). See § V.C.2.c, above. But it includes no measures to avoid or mitigate such
use.
25 Instead, Defendants suggest that the only direct use of the Chinatown Historic District would occur at the Chinatown rail station. AR 718-21. That is patently false, as demonstrated by the maps in Defendants’ own ROD. AR 000162 (showing rail line crossing through historic district).
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• The Project would constructively use Aloha Tower. See § V.C.2.b.i, above. But it includes no measures to avoid or mitigate such use.
For these reasons, too, Plaintiffs are entitled to summary judgment on their
seventh cause of action.
D. Defendants Violated NEPA
Defendants also violated NEPA in numerous ways. Their statement of
purpose and need for the Project was impermissibly narrow. See § V.D.1,
below. They failed to identify and evaluate reasonable alternatives to the
Project. See § V.D.2, below. They did not evaluate the Project’s reasonably
foreseeable environmental consequences. See § V.D.3, below. And they
improperly segmented the Project, thereby preventing a meaningful evaluation
of its environmental consequences and alternatives. See § V.D.4, below.
1. Defendants Defined The Purpose And Need For The Project So Narrowly As To Preclude Consideration Of Reasonable Alternatives (Count 1)
An EIS must “briefly specify the underlying purpose and need to which
the agency is responding.” 40 C.F.R. § 1502.13. While agencies enjoy some
discretion to define the purposes of their proposed actions, they cannot define
their objectives in unreasonably narrow terms. National Parks &
Conservation Association v. United States Department Of The Interior, 606
F.3d 1058, 1070 (9th Cir. 2010) cert denied 130 S. Ct. 1783 (2011); see also
Davis v. Mineta, 302 F.3d 1104, 1118-1120 (10th Cir. 2002) (invalidating
purpose and need drawn so narrowly as to mandate construction of a highway
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bridge); Simmons v. United States Army Corps of Engineers, 120 F.3d 664 (7th
Cir. 1997) (invalidating narrowly-drawn statement of purpose which excluded
reasonable alternatives from consideration). As the Ninth Circuit observed,
“[a]n agency may not define the objectives of its action in terms so
unreasonably narrow that only one alternative from among the
environmentally benign ones in the agency’s power would accomplish the
goals of the agency’s action.” National Parks & Conservation Association,
606 F.3d at 1070 (9th Cir. 2010). Otherwise, the results of an EIS “would
become a foreordained formality.” Id. Unfortunately, that is precisely what
Defendants have done in this case — they have defined the purpose of the
Project in terms so specific that only the Project can satisfy them, thereby
rendering the EIS a mere “formality.”
Defendants’ statement of purpose is hardly the sort of brief statement of
underlying objectives called for by NEPA.26 See 40 C.F.R. § 1502.13. Rather,
it is a long list of requirements and caveats, seemingly drafted with an eye
toward justifying the rejection of any option other than the construction of
Defendants’ preferred Project. See AR 000247 at 000312. For example, the
very first paragraph of Defendants’ statement of purpose stipulates no fewer
26 A reasonable statement might be something along the lines of “enhancing transportation and public transit between Honolulu and Kapolei” or “reducing traffic congestion in the Honolulu - Kapolei corridor” — statements of objectives which are broad enough to encompass a range of reasonable alternatives. 40 C.F.R. §§ 1502.13, 1502.14.
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than eight highly-specific requirements: (1) providing high-capacity rapid
transit, (2) providing transit that is faster than existing buses, (3) providing
transit that is more reliable than existing buses because it does not operate in
mixed traffic, (4) providing an alternative to private automobiles, (5) serving a
specific transportation corridor, (6) serving specific development areas within
that transportation corridor, and (7) increasing links between different forms of
transit within that corridor, and (8) serving specific areas and demographics.
Id.
By defining the purpose of Project in such a narrow way, Defendants
purported to eliminate from consideration anything that was not an elevated,
heavy rail system serving a very specific area of the southern portion of Oahu.
Indeed, the EIS claims that just three alternatives satisfy the Project’s various
objectives. AR 000247 at 000333-337. And those three alternatives use
identical technology (heavy rail), identical designs (elevated fixed guideways),
and virtually-identical routes (routes identical for approximately 16 of 20
miles). AR 000247 at 000333-37. The Ninth Circuit has squarely rejected this
means of “gaming” the NEPA process. See National Parks & Conservation
Association v. United States Department Of The Interior, 606 F.3d at 1070-72
(invalidating EIS where statement of purpose and need was so narrow that six
of seven alternatives would have resulted in the development of a landfill).
We respectfully submit that this Court should do the same.
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2. Defendants Failed To Consider Reasonable Alternatives To The Project (Count 2)
An EIS must identify, describe, and evaluate alternatives to a proposed
action. 42 U.S.C. § 4332(2)(C)(iii); 40 C.F.R. § 1502.14. A rigorous and
objective evaluation of all reasonable alternatives analysis is “the heart” of an
EIS. 40 C.F.R. § 1502.14.27 Failure to address a reasonable alternative
renders an EIS inadequate. See, e.g., Southeast Alaska Conservation Council
v. Federal Highway Administration, 649 F.3d 1050, 1056-57 (9th Cir. 2011);
Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024, 1038 (9th Cir.
2008); ‘Ilio’ulaokaokalani Coalition v. Rumsfeld, 464 F.3d 1083, 1095 (9th
Cir. 2006); Natural Resources Defense Council v. United States Forest
Service, 421 F.3d 797, 813 (9th Cir. 2005).
The availability of reasonable alternatives to a proposed action depends,
to a certain degree, on the breadth of the proposed action itself. See, e.g.,
Friends of Yosemite Valley, 520 F.3d at 1038 (range of reasonable alternatives
is “dictated by the nature and scope of the proposed action”);
27 Indeed, the analysis of alternatives is central to the very idea on which NEPA is based. As the Ninth Circuit has recognized on multiple occasions, “The goal of the statute is to ensure that federal agencies infuse in project planning a thorough consideration of environmental values. The consideration of alternatives furthers that goal by guaranteeing that agency decisionmakers have before them and take into proper account all possible approaches to a particular project…which would alter the environmental impact and the cost-benefit balance…Informed and meaningful consideration of alternatives - including the no action alternative - is … an integral part of the statutory scheme.” Alaska Wilderness Recreation and Tourism Association v. Morrison, 67 F.3d 723, 729 (9th Cir. 1995) quoting Bob Marshall Alliance v. Hodel, 852 F.2d 1223, 1228 (9th Cir. 1988) cert denied 489 U.S. 1066 (1989).
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‘Ilio’ulaokaokalani Coalition, 464 F.3d at 1097-98 (recognizing connection
between breadth of action and breadth of alternatives). In this case, the
fundamental purpose for government action was a broad one — to improve
transportation and transit (or, in agency-speak, “mobility”) in the corridor
stretching from Honolulu to Kapolei. AR 000247 at 000312-14.28 Therefore,
the range of available alternatives was also quite broad.
At minimum, the range of alternatives available to Defendants included
three categories of options: different transit technologies (bus, heavy rail, light
rail, etc.); different transit routes (linear alignments, station locations, etc.);
and different grade arrangements (elevated, tunnel, street level, etc.). Mixing
and matching the different options within those categories provided an
opportunity to consider hundreds of reasonable possibilities for improving
transportation and transit in Honolulu.
But Defendants’ FEIS contains a detailed evaluation of just three action
alternatives. AR 000247 at 000331-37. Worse still, the three alternatives are
essentially identical. In fact, the only difference between them is a short
(approximately 4 miles) segment where two of the alignments slightly diverge.
Id. That is facially unreasonable. See, e.g., Friends of Yosemite Valley, 520
F.3d at 1039 (range of alternatives unreasonable where five action alternatives
28 A fair reading of the EIS suggests that the purpose of government action here is simply to improve transit options in and around Honolulu.
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proposed similar outcomes); California v. Block, 690 F.2d 753, 765-69 (9th
Cir. 1982) (range of alternatives unreasonable where alternative forest plans
would preserve similar amounts of wilderness). If Honolulu’s transportation
problems are broad and complex enough to justify a 20-mile, $5.5 billion
elevated heavy rail line, they must also be broad and complex enough give rise
to a true range of reasonable alternatives.
Defendants’ failure to “[r]igorously explore and objectively evaluate all
reasonable alternatives” manifested itself in a number of different decisions,
each of which violated NEPA. 40 C.F.R. § 1502.14. As explained in greater
detail below, Defendants (1) impermissibly relied on the City’s AA to reject
reasonable alternatives before the NEPA process ever began; (2) arbitrarily
and capriciously refused to consider the MLA; (3) impermissibly limited their
consideration of alternatives to “steel wheel on steel rail” technology; and (4)
impermissibly refused to consider alternatives requiring action by the City
Council. Both the resulting EIS and the process for getting to that EIS are
legally inadequate.
a) Defendants Impermissibly Relied On The City’s Early Planning Efforts
SAFETEA-LU allows FTA and local governments to undertake early
planning efforts to analyze alternatives to proposed transit projects. See 23
U.S.C. § 139(f)(4). But there are two important limits on the use of such
alternatives analyses for NEPA purposes. First, SAFETEA-LU requires that
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the FTA guide the preparation of, independently evaluate, and approve any
document that will be used for compliance with NEPA. 23 U.S.C. § 139(c)(3).
Second, the Department of Transportation mandates that the results of an early
planning effort to analyze alternatives can only be carried forward into the
NEPA process for preparing an EIS if “those results [are] subjected to public
and interagency review and comment during the scoping of the EIS.” AR
022836 at 022850.
Defendants have identified the City’s early planning efforts to analyze
alternatives (referred to in the FEIS as “screening” and “alternatives analysis”)
as the basis for eliminating virtually all potential alternatives to the Project.
For example, they claim that the City’s AA precluded detailed consideration in
the EIS of alternatives involving the expansion of existing transit (largely bus)
service. See AR 000247 at 000321, 000323-24 (“transportation system
management” alternative). They claim that the City’s early planning efforts
precluded detailed consideration in the EIS of alternatives involving managed
lanes. AR 000247 at 000324-27. And they claim that the City’s early
planning efforts precluded detailed consideration in the EIS of more than 70
different transit routes, including numerous options for traversing the historic
portions of downtown Honolulu. AR 000247 at 000322 (claiming that 75
alignment options were evaluated during planning efforts); 000331-37 (FEIS
considers essentially-identical alignments).
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Defendants’ reliance on the City’s AA is improper. First, FTA did not
guide the preparation of, independently evaluate, or approve the City’s AA
process or the documents memorializing the results of that process. See, e.g.,
AR 009434-554 (AA Report), 009556- 683 (AA Screening Memo).
Therefore, those analyses and documents cannot be used as the basis for
subsequent actions and decisions under NEPA. 23 U.S.C. § 139(c)(3). And
they certainly cannot be used as the basis for Defendants to avoid “the heart”
of an EIS. Id.; see also 40 C.F.R. § 1502.14 (alternatives analysis is “the
heart” of an EIS); Alaska Wilderness, 67 F. 3d at 729 (explaining fundamental
importance of alternatives analysis under NEPA).
Second, the results of the City’s AA — that is to say, the series of
documents memorializing the City’s conclusions — were not “subjected to
public and interagency review during the EIS scoping process,” as required by
the Department of Transportation. See AR 009434-554 (AA Report), 009556-
683 (AA Screening Memo); AR 022836 at 022850. In fact, the Federal
Register notice announcing the preparation of the EIS explicitly discouraged
public comments on the results of the AA planning efforts by noting that
Defendants would not consider any Project alternatives “previously evaluated
and eliminated” by the City. AR 009696 at 009699. In other words, “no
comments on the AA documents, please.” Id.; see also AR 000247 at 002084-
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87(response to comments on DEIS refuses to reconsider alternatives
eliminated during City’s AA process).
b) Defendants Arbitrarily And Capriciously Refused To Consider The MLA
One of the Project alternatives improperly eliminated during the City’s
early planning efforts was Plaintiff Honolulutraffic.com’s MLA. AR 000247
at 000321. For the reasons explained above, Defendants’ reliance on the
City’s AA was arbitrary and capricious in and of itself. See § V.D.2.a, above.
But their decisionmaking with respect to the MLA also violated NEPA in two
additional respects: (1) the City’s original decision to eliminate the MLA from
detailed consideration was based on flawed information and arbitrary and
capricious analysis; and (2) Defendants’ subsequent refusal to reconsider the
City’s decision to eliminate the MLA from detailed consideration was also
arbitrary and capricious.
(i) The City’s Original Decision To Eliminate The MLA From Detailed Consideration Was Arbitrary And Capricious
Honolulutraffic.com proposed the MLA during the City’s AA process.
AR 016601 at 016715-27. The proposal involved a two-lane reversible
roadway between Pier 16 (just west of downtown Honolulu, outside the
historic downtown core) and Waikele (a few miles east of Kapolei). AR
016601 at 016720. Buses and vanpools would use the MLA for free, while
other vehicles would electronically pay a toll calculated to keep the roadway
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full but free-flowing. Id. Honolulutraffic.com submitted detailed information
about the performance of such a system (supported by a 3-page list of sources)
as well as a set of notes explaining that the MLA could be (1) expanded in
width to allow for three lanes and/or (2) expanded in length to the west. AR
016601 at 016720-27.
Honolulutraffic.com also noted with concern the City’s apparent efforts
to create a “straw man” version of the MLA. AR 016601 at 016722-23. As
Honolulutraffic.com pointed out, this approach seemed “designed to make the
rail transit line look good in comparison.” AR 016601 at 016723.
Honolulutraffic.com’s fears were well-founded. While claiming to
analyze the MLA, the City instead evaluated a very different alternative. For
reasons never fully explained, the City’s evaluation assumed the removal of
existing carpool lanes (thereby offsetting many of the benefits the MLA would
provide). See AR 017222 at 017223. Moreover, the City wildly over-
estimated the cost of managed lanes; refused to implement the
recommendations of its own Transit Task Force for developing a reasonable
managed lanes proposal; failed to consider the possibility (raised in
Honolulutraffic.com’s original MLA proposal) of building a three-lane
managed lanes facility; and incorrectly assumed that managed lanes would not
be eligible for federal funding. See AR 017157 at 017222-27 (detailing and
documenting errors in City’s analysis), 070839 at 070878-79 (Task Force
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recommendations). Put simply, the City’s “analysis” of the MLA was the very
definition of arbitrary and capricious decisionmaking. See, e.g., Motor Vehicle
Manufacturers, 463 U.S. at 43 (implausible decisions, failure to consider
important information, reliance on irrelevant information all arbitrary and
capricious); Southeast Alaska Conservation Council, 649 F.3d at 1057
(arbitrary and capricious to reject alternative based on questionable cost
estimates), Natural Resources Defense Council, 421 F.3d at 813-14 (arbitrary
and capricious to reject alternatives based on flawed economic analysis and
inaccurate interpretation of technical data).
Indeed, the City’s errors were so egregious that they attracted the
attention of the Tampa-Hillsborough County (Florida) Expressway Authority,
which had previously built a managed lanes facility. See AR 017157 at
017245. The Authority’s Director of Planning penned an extraordinary 4-page
open letter to the citizens of Honolulu, which began as follows:
“Recent comments in the Honolulu Advertiser by the
chief planner of Honolulu call into question the
objectivity of the City and its consultants in their
performance of a very expensive transportation
alternatives evaluation being mostly paid for by the
federal government. As the public official responsible
for planning Tampa’s elevated Reversible Express
Lanes project, I am astonished that a Hawaiian public
official would intentionally misrepresent the facts
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associated with the cost and operation of our project
and how a similar [managed] lane project might
provide true congestion relief for Honolulu at an
affordable price.
AR 017157 at 017245 (emphasis original). It bears repeating that this
statement came from the Planning Director of a public agency in another part
of the country, an accredited professional without any personal stake in the
feasibility of the MLA.
(ii) Defendants’ Refusal to Reconsider The City’s Decision To Eliminate The MLA From Detailed Consideration Was Also Arbitrary And Capricious.
The Federal Defendants then compounded the problem by refusing to
reconsider the City’s decision to exclude the MLA from detailed consideration
in the EIS. Honolulutraffic.com twice requested that the MLA be re-
considered. AR 071958; AR 000247 at 002018-31. Defendants refused to do
so, citing the City’s early planning efforts. AR 000247 at 002084-87.
However, the Administrative Record contains considerable evidence
that the MLA is, in fact, reasonable and should therefore have been fully
evaluated in the EIS. See 40 C.F.R. § 1502.14; Southeast Alaska, 649 F.3d at
1056-57 (failure to address a reasonable alternative renders an EIS
inadequate). For example:
• FTA staff concluded that the MLA “appears on its fact to be reasonable” and is the product of “substantial thought” (AR 151155);
• FTA recommended that the MLA be “fully considered…through the
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EIS” (AR 151149);
• FTA recognized that the MLA is supported by “the correct milestones and technical methodology” (AR 151052);
• FTA explicitly told the City that managed lanes “are eligibile for Federal-aid Highway funding” and “thus, they would fall within a
‘reasonable’ range of alternatives, as required by NEPA, absent any
physical or functional reason” (AR 150902); and
• The City’s own Transit Advisory Task Force provided detailed recommendations for addressing perceived “physical or functional”
aspects of the MLA, but those recommendations were never followed
(AR 070839 at 070878-79).
Under these circumstances, Defendants’ failure to reconsider the City’s
decision to exclude the MLA from the EIS was arbitrary and capricious.
c) Defendants Impermissibly Limited Their Consideration Of Alternatives To Steel Wheel On Steel Rail Technology
Defendants also violated NEPA by impermissibly limiting the range of
alternatives evaluated in the EIS to “steel wheel on steel rail” technology.
The City’s AA process identified several potentially-feasible
technologies to meet the Project’s purpose and need, including “steel wheel on
steel rail,” rubber-tired guided transit vehicles, magnetic levitation (or
“maglev”) systems, and monorails. See, e.g., AR 009434 at 009467 (listing
technologies), 009473 (Project “could use a range of fixed guideway
technologies”). There is evidence in the administrative record that
technologies such as maglev and monorail have fewer environmental impacts
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than “steel wheel on steel rail.” See, e.g., AR 022575 at 022682 (FTA noise
guidance reports maglev noise levels lower than steel wheel on steel rail).
But “steel wheel on steel rail” is the only technology alternative
evaluated in the EIS. AR 000247 at 000333-38. Defendants attribute the
absence of other technology alternatives in the EIS to the City’s 2008 Panel of
Experts. AR 000247 at 000283, 000331. Indeed, the FEIS explicitly states
that the 2008 Panel of Experts “resulted in the City establishing steel wheel
operating on steel rail as the technology to be evaluated for the Project.” Id.
Defendants’ approach to “evaluating” technology alternatives violates
NEPA. The 2008 Panel of Experts considered only performance, cost, and
reliability; it did not consider the environmental advantages and disadvantages
of different technologies. AR 000247 at 000331. But the very purpose of
evaluating alternatives under NEPA is to “present the environmental impacts
of the proposal and the alternatives in comparative form, thus sharply defining
the issues and providing a clear basis for choice among options by
decisionmakers and the public.” 40 C.F.R. § 1502.14; see also 42 U.S.C. §
4332(2)(C) (statutory alternatives analysis requirement); Alaska Wilderness,
67 F. 3d at 729 (fundamental purposes of alternatives analysis). A limited,
technical review conducted by a panel of appointed experts cannot substitute
for the rigorous, objective, agency-driven evaluation of environmental issues
NEPA requires. Id.
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d) Defendants Impermissibly Refused To Consider Alternatives Requiring Action By The Honolulu City Council
Defendants also violated NEPA by refusing to consider Project
alternatives requiring action by the Honolulu City Council, a violation best
exemplified by their failure to consider in the EIS any alternative to the
Project’s route past the Federal office building within which the United States
District Court for the District of Hawaii is located.
The EIS considers just one route through downtown Honolulu. AR
000247 at 000343, 000689 (maps). That route — which follows Nimitz
Highway to Halekauwila Street — requires that the Project be built within
approximately 45 feet of the third- and fourth-floor windows of the Federal
building. Id.; AR 000247 at 000931. During the public comment period on
the Draft EIS, eight of the nine federal judges then sitting in the United States
District Court for the District of Hawaii (joined by the United States Marshal
for the District of Hawaii) submitted a letter expressing significant concerns
about the Project and requesting that Defendants consider an alternative to the
Nimitz-to-Halekauwila route. AR 000247 at 000930-34; see also 000994-996
(GSA not notified of Project). Among other things, that letter reports a
conversation between the judges and the Chief of the City’s Rapid Transit
Division in which the City took the position that alternative alignments were
unlikely to be considered because they would require approval from the
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Honolulu City Council. AR 000247 at 000930-34. No alternative to the
Nimitz-to-Halekauwila route was ever added to the EIS. AR 000247 at
000333-38 (FEIS alternatives); 000937-38 (City’s response to comments calls
Nimitz-to-Halekauwila route “preferable,” refuses to add alternative to EIS).
Defendants had an obligation to “rigorously explore and objectively
evaluate all reasonable alternatives.” 40 C.F.R. § 1502.14(a). NEPA’s
implementing regulations explicitly provide that this obligation extends to
“reasonable alternatives not within the jurisdiction of the lead agency.” 40
C.F.R. § 1502.14(c); see also Muckleshoot Indian Tribe v. United States
Forest Service, 177 F.3d 800, 814 (9th Cir. 1999) (NEPA requires
consideration of reasonable alternatives outside lead agency’s existing legal
authority); “Forty Most Asked Questions Concerning NEPA Regulations,” 46
Fed. Reg. 18026 at 18027 (March 17, 1981) (alternative requiring change of
local law must be evaluated if reasonable). Therefore, it was arbitrary,
capricious, and a violation of NEPA for Defendants to rely on the (reported)
need for City Council action to avoid considering alternatives to the Nimitz-to-
Halekauwila route. Id.
3. Defendants Failed Properly To Evaluate The Environmental Consequences Of The Project And Alternatives Thereto (Count 3)
NEPA requires federal agencies to evaluate the environmental
consequences of their proposed actions. 42 U.S.C. § 4332(2)(C); 40 C.F.R. §§
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1502.16, 1508.8, 1508.27. This analysis must address direct impacts, indirect
impacts, and cumulative impacts and serves as the basis for comparing
alternative courses of action. 40 C.F.R. §§ 1502.16, 1508.8.
Defendants failed properly to account for the environmental impacts
associated with construction of the Project. For example, their EIS does not
account for the potential impacts on air quality associated with the fabricating
and installing the large sections of concrete needed for the guideway. AR
000247 at 000551-54. Nor does it account for the air emissions associated
with transporting material to the areas where the guideway will be built. Id.
Both of these impacts are reasonably foreseeable. Therefore, they should have
been identified, evaluated, and disclosed to the public. 42 U.S.C. §
4332(2)(C); 40 C.F.R. §§ 1502.16, 1508.8, 1508.27.
Defendants also failed properly to account for the indirect and
cumulative effects of the project on land use and growth. The Project is quite
explicitly designed to promote growth in the agricultural areas west of
Honolulu. AR 000247 at 000313. The EIS asserts that these areas are “less
likely to develop” without the Project. Id. The EIS also notes that the Project
will “influence the distribution, rate, density, and intensity of development.”
AR 000247 at 000657. But the document does not provide meaningful
information about how that influence will affect environmental resources. For
that reason, too, it fails to provide the “hard look” that NEPA requires. See,
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e.g., Davis v. Mineta, 302 F.3d 1104, 1122-23 (10th Cir. 2002) (failure to
consider effect of providing access to “unspoiled” areas).
4. Defendants Impermissibly Segmented Their NEPA Analysis (Count 4)
NEPA’s implementing regulations emphasize the importance of
“mak[ing] sure the proposal which is the subject of an [EIS] is properly
defined.” 40 C.F.R. § 1502.4(a). Among other things, they direct that
“[p]roposals or parts of proposals which are related to each other closely
enough to be, in effect, a single course of action, shall be evaluated in a single
impact statement.” Id. (emphasis added); see also 40 C.F.R. § 1508.25(a)(1).
The purpose of this requirement is to prevent agencies from artificially
“segmenting” their environmental analyses, thereby hiding the true impacts of
and alternatives to proposed actions. See Thomas v. Peterson, 753 F. 2d 754,
758 (9th Cir. 1985) (segmentation allows agencies to minimize environmental
impacts); Daly v. Volpe, 514 F.2d 1106, 1110 (9th Cir. 1975) (project must be
defined so as to assure adequate opportunity to consider alternatives); see also
Alpine Lakes Protection Society v. Schalpfer, 518 F. 2d 1089, 1090 (9th Cir.
1975) (“close scrutiny” required in order to “prevent the policies of NEPA
from being nibbled away by multiple increments”).
For many years, Defendants defined the Project as a 25- or 30-mile
network of rail lines connecting Kapolei, the University of Hawaii, and
Waikiki. See, e.g., AR 009700 (2005 Federal Register notice); AR 009556 at
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009566-68 (2006 Alternatives Screening Memo), AR 9696 (2007 Federal
Register notice); AR 033642 at 033654 (2008 technical report). But the EIS
evaluates only a subset of that network — a 20-mile section from East Kapolei
to Ala Moana Center, just east of downtown Honolulu — as “the Project.” See
AR 000247 at 000340-43 (Project maps).
In doing so, Defendants artificially and improperly segmented
environmental review of the Project. The entire network of rail lines is quite
clearly “related…closely enough to be, in effect, a single course of action.” 40
C.F.R. § 1502.4(a). Indeed, the University of Hawaii and Waikiki lines do not
have any independent utility; they only make sense as part of the Project. See,
e.g., Hammond v. Norton, 370 F. Supp. 2d 226, 247-53 (D.D.C. 2005)
(improper segmentation where one of two pipeline projects lacked independent
utility). Accordingly, the entire 25-mile rail network should have been
evaluated as a single project in a single EIS. Id.; see also 40 C.F.R. §
1508.25(a)(1)(iii) (“interdependent parts of a larger action that depend on the
larger action for their justification” should be discussed in the same impact
statement).
There is no reason to believe Defendants could not have done so. The
University of Hawaii and Waikiki lines have already been the subject of
detailed economic and engineering studies. Indeed, Defendants’ plans for
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those lines appear to be just as concrete and just as foreseeable as is the
Project.
By segmenting their environmental review of the Project, Defendants
understated the environmental consequences of the rail system. For example,
the EIS fails to evaluate air emissions and noise impacts associated with the
full rail network. See, e.g., AR 000247 at 000551-54 (air quality), 000554-64
(noise), 000655-78 (cumulative impacts). Similarly, while the EIS includes a
vague statement about the visual effects of the Waikiki extension being
“similar” to those of the Project, Defendants did not make a meaningful
attempt to disclose the visual impacts of the rail system as a whole. AR
000247 at 000501-551 (visual impacts analysis), 000670 (cumulative impacts
analysis). Indeed, that may well have been their intent. See, e.g., AR 072134
at 072137 (members of Honolulu City Council report that “the branch to
Waikiki was intentionally left out of the [EIS]…to avoid having to address the
negative environmental impacts”).
Defendants’ segmentation also impermissibly limited the range of
alternatives for linking the rail system’s proposed termini (Kapolei, University
of Hawaii, and Waikiki). Once an elevated heavy rail line has been built from
Kapolei to Ala Moana Center, there will not be any real alternative to using
elevated heavy rail for the remainder of the system. That is particularly
problematic for a transportation project like this one. See, e.g., Named
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Individual Members, 446 F. 2d at 1023 (artificial segmentation of highway
project “make[s] a joke of” the alternatives requirement).29 In essence,
Defendants have precluded any meaningful analysis of transit alternatives for
the University of Hawaii and/or Waikiki. Id.
E. Defendants Violated NHPA
NHPA applies to federal “undertakings,” defined as “a project, activity,
or program funded in whole or in part under the…jurisdiction of a Federal
agency, including…those carried out with Federal financial assistance.” 36
C.F.R. § 800.16(y). Defendants admit that the Project is an undertaking and is
therefore subject to NHPA. See AR 000030 at 000083.
The procedural requirements of NHPA prohibit federal agencies from
approving an undertaking without first (1) assessing the undertaking’s effects
on historic properties and (2) developing and evaluating “alternatives or
modifications to the undertaking that could avoid, minimize, or mitigate
adverse effects on historic properties.” See 36 C.F.R. §§ 800.5 (assessing
29 The Named Individual Members case addressed segmentation in the context of Section 4(f). Named Individual Members, 446 F.2d at 1023. The Fifth Circuit confronted the question “Whether the Secretary may take a single ‘project’ and divide it into ‘segments’” for purposes of securing regulatory approval. The Department of Transportation proposed to segment a highway project such that the road would be built in segments on either side of a 4(f)-protected park, leaving for a later day the “question” of how to connect the segments. Id. The same sort of logic is at work in this case. Defendants may pretend that they will consider a full range of alternatives to expanding elevated heavy rail to Waikiki. But just as the highway in the Named Individual Plaintiffs was clearly designed to go through a protected park, so too is the elevated heavy rail system at issue in this case clearly designed to extend to Waikiki.
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effects), 800.6 (avoiding, minimizing, or mitigating adverse effects). The
“adverse effects” to be accounted for include both direct effects and indirect
effects. 36 C.F.R. § 800.5(a).
The Project involves construction of a 20-mile, 3-story elevated heavy
rail line through historic areas of Honolulu. As Defendants admit, the
construction of the rail line will cause adverse effects on at least 33 historic
resources. AR 000030 at 000085.
The Project is also designed to induce “transit-oriented development”
and “transit-supportive development” at and near the 21 stations along the rail
line. AR 000247 at 000657-58 (development); AR 0000247 at 000340-42
(showing rail stations). Such development is expected to include “office space
and multi-story residential buildings” as well as new communities of “retail,
high-density residential, [and] mixed use” features. See AR 000247 at AR
000657. Thus, the Project will also have an indirect effect on historic
resources near rail stations. See id.; 36 C.F.R. §§ 800.5(a)(2)(ii) (adverse
effects include changes to an historic resource’s setting), 800.5(a)(2)(v)
(adverse effects include introduction of visual, atmospheric, or audible
elements).
In purported compliance with NHPA, Defendants prepared and
approved a Programmatic Agreement. See AR 000040, 000083-0000228. The
Programmatic Agreement and its appendices evaluate direct effects of the
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Project on historic properties. AR 000030 at 000166-185. And, in recognition
of the Project’s potential to indirectly effect historic resources, the Agreement
also includes a specific provision designed to avoid, minimize, or mitigate the
effects of Project-induced development within the Chinatown Historic District
and the Merchant Street Historic District. AR 000030 at 000086; 36 C.F.R. §
800.6 (avoiding, minimizing, or mitigating adverse effects).
But the Programmatic Agreement fails to include equivalent provisions
for other historic resources. AR 000030 at 000083-113. That is a significant
failure. There are sizable clusters of historic resources around the proposed
Pearl Harbor Naval Base, Kahili, Iliwei, Downtown, and Civic Center rail
stations. AR 000247 at 000687-88. The EIS concludes that considerable
Project-induced development is reasonably foreseeable likely in at least some
of those areas. AR 000247 at 000657-59 (Kahili, Iliwei, Civic Center). And
such development would have an adverse effect on historic resources. See id.
(development near rail stations); 36 C.F.R. § 800.5 (defining adverse effects).
Put simply, while Defendants have recognized that the Project-related
growth could have an indirect adverse effect on historic resources, they have
only sought to address that possibility for two of the 20-some historic
resources under threat. 000030 at 000083-113. Therefore, their approval of
the Project was arbitrary, capricious, and in violation of NHPA. 36 C.F.R.
§800.6 (requiring efforts to avoid or minimize adverse effects); Motor Vehicle
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Manufacturers Association, 463 U.S. at 43 (failure to consider “an important
part of the problem” is arbitrary and capricious).
VI. CONCLUSION
For the reasons set forth above, Plaintiffs respectfully request that this
Motion for Summary Judgment be granted.
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Dated: April 6, 2012
Respectfully submitted,
/s/ Michael J. Green Michael J. Green (HI Bar No. 4451) Attorneys for Plaintiffs HonoluluTraffic.com, Cliff Slater, Benjamin J. Cayetano, Walter Heen, Hawaii’s Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation, Randall W. Roth, and Dr. Michael Uechi.
/s/ Nicholas C. Yost Nicholas C. Yost (CA Bar No. 35297) Matthew G. Adams (CA Bar No. 229021) SNR Denton US LLP 525 Market Street, 26th Floor San Francisco, CA 94105-2708 Telephone: (415) 882-5000 Facsimile: (415) 882-0300 Attorneys for Plaintiffs HonoluluTraffic.com Cliff Slater, Benjamin J. Cayetano, Walter Heen, Hawaii’s Thousand Friends, The Small Business Hawaii Entrepreneurial Education Foundation, Randall W. Roth, and Dr. Michael Uechi.
Case 1:11-cv-00307-AWT Document 109-1 Filed 04/06/12 Page 85 of 86 PageID #: 6358
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitations set forth in the
Court’s Rule 16 Scheduling Order because the brief contains 17,117 words,
excluding the parts of the brief exempted by local rule. This brief complies
with the typeface requirements of LR10.2 (a) because this brief has been
prepared in proportionately spaced typeface using Microsoft Word 2003, in
14-point Times New Roman.
/s/ Nicholas C. Yost
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