A federal judge from California is now the central figure in a legal fight that could decide the fate of the controversial $5.26 billion rail project and perhaps even determine who will be Honolulu’s next mayor.

On Tuesday, U.S. District Court Judge A. Wallace Tashima heard what might be the final arguments in a federal lawsuit that aims to stop the contentious transit project.

But aside from the laborious posturing of the legal teams on both sides, the most interesting aspect of Tuesday’s proceeding has to do with what didn’t happen.

Tashima, who presided over the case after most of Honolulu’s federal judges recused themselves, did not make a decision. He also didn’t give an indication of when he would finally rule.

Both the decision and when it comes down are key to the future of Honolulu rail.

If Tashima sides with the anti-rail plaintiffs, it could significantly delay and even kill the project.

Tashima’s timing matters too. If he rules before the Nov. 6 election he could sway the race for Honolulu mayor, which pits former Hawaii Gov. Ben Cayetano against the city’s former managing director Kirk Caldwell.

Cayetano, who is a plaintiff in the federal lawsuit, is anti-rail and is pushing his candidacy as a referendum on the project. Caldwell, on the other hand, is a supporter of rail but wants to reconsider its design and reduce its visual impacts.

Following Federal Law

Tuesday’s hearing brought dozens of people to Honolulu’s federal courthouse. Every seat was filled, including those in the jury box and those that were brought in to deal with the overflow. Some people still were forced to stand.

Much of the back and forth between the attorneys centered on whether the city and FTA followed processes laid out in federal law to evaluate the rail project and its alternatives.

The main laws at issue are the National Environmental Policy Act, the National Historic Preservation Act and the Department of Transportation Act.

In the most general sense, the plaintiffs’ attorney, Matthew Adams, argued the city and FTA didn’t follow the guidelines in these laws related to studying various alternatives and accounting for historical resources, such as Native Hawaiian burial grounds.

Adams said the city and FTA erred in the planning process by eliminating some transportation options from consideration while preparing certain project documents, such as a federally-required environmental impact statement. Some of the alternatives that should have been included in that process, the plaintiffs contend, are bus rapid transit, downtown tunnels at Beretania and King streets and a managed lane alternative, which essentially is an elevated highway for buses and high-occupancy vehicles.

“All we’re asking is that they follow the schedule and the path that’s laid out in the regulations,” Adams said.

But the defense, which included attorneys representing the city, the FTA and outside groups such as the Pacific Resource Partnership and Faith Action for Community Equity, countered these arguments by saying there have been years of studies and analyses done on the rail project and its alternatives.

“This project has been debated and discussed more than any project in the state’s history,” said Robert Thornton, the California attorney representing the city in the case. At one point, Thornton even likened the plaintiffs’ continual and ever-evolving challenges to the project as a form of the street-hustle game “Three Card Monte.”

Hawaiian Burials

A major point of contention between the two sides has to do with archaeological resources, specifically those related to Native Hawaiian burial grounds in downtown Honolulu.

The city and FTA argued it had satisfied the requirements of federal law to account for and protect these historic and sacred sites. Their attorneys also said that if burial sites are encountered when project construction reaches downtown that rail columns can be moved or adjusted so there won’t be an impact.

Adams attacked this idea Tuesday, saying some of the burial sites are much too large to simply move a column five feet one way or 10 feet another. In fact, he said there’s one site that is 230 feet by 640 feet. The city should have looked for all the potential burial grounds that could have been affected by the project, even those in the downtown corridor, he said, before choosing to move ahead with rail.

“Essentially what the defendants are doing is they’re refusing to look (for burial sites), and they’re continuing on the basis that nothing has been found,” Adams said.

Bill Meheula, an attorney, representing PRP, FACE and other intervenors, countered this argument by saying that doing extensive digging in downtown before knowing the exact layout of the project would have been more damaging than the project itself.

The Judge’s Reaction

How Judge Tashima took Tuesday’s arguments was a hot topic outside the courtroom after the hearing, and attorneys from both sides seemed optimistic.

Tashima, who asked questions of attorneys from each camp, seemed particularly interested in Native Hawaiian burial grounds.

But there were two statements Tashima made that stuck out more than any others.

One came at the beginning of Tuesday’s hearing when he tossed out a request by the plaintiffs to acknowledge Cayetano as the top vote-getter in the Aug. 11 primary election. He said elections will have no bearing on what happens in his courtroom.

Tashima’s final statements also caught the attention of those in the audience, particularly the plaintiffs. He said he has not yet decided which way he is leaning in the case, but that if he sides with the plaintiffs that there will have to be future discussions about remedies.

While vague, this could include everything from Tashima forcing the city to undergo some paperwork adjustment while the project proceeds to requiring the city to undertake an entirely new review of the alternative transit options that were disqualified from the process early on. Should a lengthy review occur, the plaintiffs hope the end result steers the city away from rail.

In the meantime, there’s an election to consider.

“If I get elected there’s an obvious remedy,” Cayetano said after Tuesday’s proceeding. “But as far as the impact of this court ruling on the election it’s up in the air. I have no idea what the court will rule on that.”

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