- Special Projects
UPDATED 2/6/2012 5:15 p.m.
Opponents said later in the day that they do not intend to ask a judge to stop construction. They say they’ve received a promise from the city that if their lawsuit against the project prevails, any work undertaken between now and then will be torn down.
The Letter of No Prejudice (LONP) received from the FTA allows Honolulu to spend $184.7 million to start building the foundations and pillars along the first segment of the route. The letter permits the city to spend its own money before the $1.55 billion it hopes to receive from the federal government is approved. The letter was announced in a joint press release from Hawaii’s congressional delegation.
“This is great news for the rail project and for the community, and I would like to thank Senator (Daniel) Inouye and our congressional delegation for their strong support. I also appreciate the FTA’s willingness in working collaboratively with us to keep this project moving forward,” Honolulu Authority for Rapid Transportation Interim Executive Director and CEO Toru Hamayasu said in the release. HART put out its own press release Monday afternoon.
The city had requested the letter in late December, warning the FTA that any construction delays could cost $110 million. Hamayasu told Civil Beat Monday that an LONP is “not a routine practice.”
The city had requested approval to start construction on the West Oahu Farrington Highway section, including columns, segment fabrication and erection, installation of trackwork, third rail and other aspects of the fixed guideway. The city had asked for permission to spend $206.5 million.
The $21.8 million difference between the city’s request and the FTA’s approval is from the “precast yard,” which the FTA expressly said was not included in the LONP.
Hamayasu told Civil Beat the precast yard wasn’t included because rail planners haven’t settled on a location for it yet and the FTA wouldn’t sign off until a spot is picked. But the fixed guideway can still be built because it can be cast in place or at existing cast yards.
“We got everything we need. All the activities we planned to do for the next 12 months are in there,” Hamayasu said in the phone interview.
“This is a significant demonstration of FTA’s level of confidence, although there’s no risk for them. It’s our money, but they’re not going to put us out in the field, if they don’t think we’re going to proceed,” he said. “If the FTA thinks that there is a risk, they wouldn’t have given us the Letter of No Prejudice.”
The city is expected to soon issue a Notice To Proceed to its main contractor for the first segment of the line, Kiewit Pacific. Hamayasu told Civil Beat the Notice To Proceed could go out Monday or Tuesday. The contractor will mobilize its workers and equipment and could begin work within four to six weeks.
When rail opponents were in court in November for the lawsuit challenging the project’s compliance with environmental laws, they told Judge A. Wallace Tashima they’d ask for a preliminary injunction if rail planners took steps that would “irreparably wed” the city to the steel-wheel-on-steel-rail system currently on the table.
Monday, chief rail critic Cliff Slater put out a formal statement and then confirmed to Civil Beat that a preliminary injunction isn’t needed at this time because rail lawyers have made promises that they don’t plan on doing anything that would be irreparable.
“They will repair and replace everything that they will have done up to that point,” Slater said. That’s one of the reasons the city planned to start building the rail project on farmland in Kapolei, he said — to undercut preliminary injunction motions.
The classic test for a preliminary injunction is two-fold: plaintiffs must prove that allowing construction to proceed would cause permanent damage, and they must prove that they have a good chance to win the case on the merits.
Questions sent to HART and a city attorney about the promise of no permanent damage were not immediately answered.
“Strictly on the lawsuit side, it doesn’t make any difference,” Slater said of the LONP. “As a taxpayer, I am pissed. This is crazy, spending these millions and millions of dollars and risking it all just to gain a few months. It’s just crazy.”
Slater said the LONP could be attributed to the “heavy hand of Dan Inouye.”
“They’re issuing a LONP, which really implies that there’s federal funding behind the offer, and there isn’t any,” Slater said. “The fact (is) that the feds are going ahead with it when everything screams that they should wait until the back quarter of the year.”
Read the letter from the FTA: