City Denies Plaintiffs’ Allegations in Rail Lawsuit

The City filed its response yesterday to the lawsuit brought by several plaintiffs against the Honolulu rail project. Civil Beat has a link to a file sharing service where you, too, can read all 33 pages. We’ve extracted paragraphs relating to several key issues in the City’s answer as a time saver, but a complete reading also would provide a good summary of the project and its goals.

In General:

…Full public review, comment and responses were afforded throughout the process. Plaintiffs’ challenge here is essentially a policy or political disagreement that is not actionable under any statute, rule or regulation applicable to this Project as it pertains to environmental disclosure, mitigation and historical review processes….

…City Defendants affirmatively state that they have complied fully with all statutes, rules and regulations applicable to environmental review process for the Project….

…City Defendants aver (allege as fact) that final agency action was achieved in full compliance with all applicable laws, statutes, rules and regulations, and that Plaintiffs’ allegations to the contrary are based on mischaracterizations of facts and/or law and are otherwise unsupported or unsupportable….

HonoluluTraffic.com (Cliff Slater)

…City Defendants deny that the alternatives advocated by HonoluluTraffic.com in its comment letters were not evaluated in the FEIS in compliance with the National Environmental Policy Act and deny that HonoluluTraffic.com’s comments and proposed alternatives were not evaluated or given full consideration during the federal environmental review process. City Defendants further deny that the Project will affect environmental, aesthetic, natural, recreational, cultural and/or historical resources in any manner that does not comport with applicable laws, rules or regulations and would give rise to an actionable harm to HonoluluTraffic.com. City Defendants aver that Defendants fully complied with all laws, statutes, rules and regulations applicable to the environmental review process for the Project, including but not limited to properly reviewing, considering and responding to comments submitted by HonoluluTraffic.com and all other timely submitted public comments, and adequately disclosing environmental impacts of the alternatives considered in the FEIS. City Defendants further aver that HonoluluTraffic.com’s organizational and/or political reasons for opposing the Project, including its general disagreement with the alternative approved by the FTA, are not actionable…

…Moreover, City Defendants aver that the Project’s potential impacts on views and historic resources were fully considered as part of the environmental review process and disclosed in the FEIS, along with appropriate mitigation measures. Mr. Slater has been a long time, vocal critic of the City’s efforts to provide relief for traffic congestion in the primary transportation corridor along O‘ahu’s southern coast and most densely populated areas, and has continually opposed the promotion of public works projects to accomplish the objectives of the O‘ahu Metropolitan Planning Organization (“OMPO”). Mr. Slater’s personal and/or political differences of opinion about the desirability of the Project or the appropriateness of the decisions by DTS and the FTA in light of these disclosed impacts are not actionable…

Former Governor Benjamin Cayetano

…City Defendants aver that Mr. Cayetano did not submit public comments regarding his alleged concerns with the Project during the environmental review process, or otherwise participate in any manner with the administrative process, and thus failed to exhaust appropriate administrative remedies. Moreover, City Defendants aver that the Project’s potential impacts on views and the aesthetics were fully considered as part of the environmental review process and disclosed in the FEIS, along with appropriate mitigation measures. Mr. Cayetano’s personal and/or political differences of opinion about the desirability of the Project or the appropriateness of the decisions by DTS and the FTA in light of these disclosed impacts are not actionable…

OHA Member Walter Heen

…City Defendants aver that the Project’s potential impacts on views, aesthetics and Native Hawaiian culture (including the issues raised by [Office of Hawaiian Affairs] in its comment letter dated February 2, 2009) were fully considered as part of the environmental review process and disclosed in the FEIS, along with appropriate mitigation measures. Mr. Heen’s personal and/or political differences in opinion about the desirability of the Project or the appropriateness of the decisions by DTS and the FTA in light of these disclosed impacts are not actionable….

Hawaii Thousand Friends (HTF)

…City Defendants deny said allegations and that HTF has standing in this action. City Defendants aver that the Project’s potential impacts on lands and historic sites (including burials) were fully considered as part of the environmental review process and disclosed in the FEIS, along with appropriate mitigation measures. HTF’s organizational and/or political differences of opinion about the desirability of the Project or the appropriateness of the decisions by DTS and the FTA in light of these disclosed impacts are not actionable…

Re Historical, Cultural Resources

… City Defendants aver that the potential impact of the Project on any possible yet-to-be discovered historical, cultural and/or archaeological resources (including Native Hawaiian burials) was fully considered and disclosed in the FEIS and PA. Moreover, appropriate mitigation measures, and procedures for handling and protecting such resources were developed in consultation with SHPD, the Hawai‘i State Historic Preservation Officer (“SHPO”) and numerous other Section 106 consulting parties and are set forth in the FEIS, PA and other documents. In a prior lawsuit filed in the First Circuit Court, State of Hawai‘i pertaining to the Project’s disclosure of potential impacts to and plan for handling historical, cultural and/or archaeological resources, the court therein concluded that there was no violation of applicable Hawai‘i laws and that the City was entitled to summary judgment as a matter of law. That ruling should be entitled to deference or comity…

Re Project Phasing

… City Defendants aver that the PA, which was developed in consultation with and signed by Hawai‘i’s SHPO, expressly provides for a comprehensive phased approach to the identification and treatment of archaeological resources, as allowed under 36 CFR § 800.4. This phased approach to archaeological resources was incorporated by reference into the FEIS and ROD, and is proceeding as expressly provided for in the PA. These issues were resolved in favor of the City Defendants in a prior challenge under State law in State court…

The complaints of plaintiffs Small Business Hawaii, Randall Roth and Dr. Michael Uechi were similarly addressed in the City’s filing. The document includes this statement in numerous paragraphs regarding those plaintiffs:

City Defendants…affirmatively state that the Defendants’ actions with respect to the Project were taken in full compliance with all laws, statutes, rules and regulations applicable to the environmental review process...

The plaintiffs’ allegation that alternatives to a fixed guideway were not analyzed during the project also is denied by the City in its document. For a complete read, check out the link from Civil Beat.