The lawsuit against the Honolulu rail project is on track for a February showdown that will determine if the city can proceed with construction.

The first courtroom hearing for the lawsuit, filed by four rail opponents in May, heralded a collision that will come before the city reaches the point of no return for steel-on-steel.

Opponents want to stop construction in its tracks, before the city starts building footings and columns for the elevated fixed guideway in Leeward Oahu. They want to force the city to consider alternative transportation options before it’s too late.

“Anything that gives us the impression that the city is wedded to the project and there will have to be a preliminary injunction,” former Hawaii Gov. Ben Cayetano, one of the most vocal opponents and a plaintiff in the lawsuit, told Civil Beat after the hearing in Honolulu federal court Wednesday.

If the judge thinks the city might well have violated environmental law and approves the request for a delay, it would put the project on hold for months while the case is hashed out. More importantly, though, such an injunction would represent a major red flag just as the federal government is deciding whether to give the city $1.55 billion for construction.

Some rail supporters have gone so far as to say that any delay at this stage would be fatal, and city lawyers say they are working to wrap things up.

“I think we’re hopeful that we can proceed with the project as planned and also resolve this case in a timely manner and there won’t be a need for injunctive motions,” Deputy Corporation Counsel Gary Takeuchi told Civil Beat. “That’s our desire: To keep this project on schedule and resolve this case as quickly as we can.”

Cayetano and fellow plaintiffs Cliff Slater, a businessman who runs, and Randy Roth, University of Hawaii law professor, wore suits and ties to the hearing. Sam Slom, a Republican state senator and the force behind Small Business Hawaii, was also in court. The only missing plaintiff was retired Judge Walter Heen.

To date, those opponents have not tried to stop pre-construction activities like utility relocation and archaeological surveys.

But earlier this month, rail chief Toru Hamayasu told the Honolulu City Council that the plan is to start heavy construction in February 2012. The city would need to get a green light from the feds before starting any heavy construction.

The lawsuit will likely still be in its infancy when the city is ready to start that work, even if that approval doesn’t come until March, April or later.

The defendants — the City and County of Honolulu and the Federal Transit Administration — told visiting Judge Wallace Tashima Wednesday they’re now about 75 percent done compiling thousands of pages of documents for the case. The parties might not have a final set of documents until mid-February, and that’s only the beginning of procedural steps before the lawsuit is decided once and for all.

Tashima said the merits of the case likely won’t be argued until at least late summer or early fall 2012.

“My aim still is to move this case as expeditiously as possible,” he said. “I think a timely resolution is important.”

Tashima tried to feel out the rail opponents to figure out the likelihood of a motion for preliminary injunction, which would only delay things further. Tashima said he’d prefer to avoid having to rule on such a motion, but understands the construction calendar is proceeding faster than the lawsuit can.

“You don’t want even the first shovelful to be turned, is that right?” Tashima asked the rail opponents.

“A shovelful is not an issue,” answered Nicholas Yost, the California-based environmental attorney hired by opponents. What is an issue is any step that would “irreparably wed” the city to the steel-wheel-on-steel-rail system currently on the table.

Preliminary Motions Argued

The discussion of the calendar, and the possibility of a preliminary injunction, came after almost an hour of oral arguments. The city and federal governments had asked Tashima to dismiss some of the plaintiffs and some of their claims because they weren’t involved in the five-year-long process that led the city to its current rail conclusion.

Tashima said the request was “an attempt to streamline” the case. But he seemed to be of the mind that as long as the case is going to proceed — and it will, regardless of the decision on that particular request — there’s no benefit to be gained from excluding certain plaintiffs.

Though the issue is largely procedural in nature — for example: Are plaintiffs required to specify their Section 4(F) objections during the administrative process? — the debate turned to the merits of the underlying case.

“This case is a case that revolves around alternatives,” Yost said, mentioning buses, toll roads, light rail and monorail as possibilities that were discarded or not fully considered. “How can you tell if there’s a feasible and reasonable alternative if you didn’t even look at it?”

Tashima took the arguments under advisement and said he would issue a ruling soon.

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