Green Aesthetic Ripped Paper Thesis Defense Presentation_20240311_111012_0000...
MEMORANDUM IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT
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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: michaeljgreen@hawaii.rr.com
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: nicholas.yost@snrdenton.com
matthew.adams@snrdenton.com
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 Case No. 11-00307 AWT
ENTREPRENEURIAL
EDUCATION FOUNDATION;
RANDALL W. ROTH; and DR. MEMORANDUM IN
MICHAEL UECHI, SUPPORT OF PLAINTIFFS'
MOTION FOR SUMMARY
Plaintiffs, JUDGMENT
v.
FEDERAL TRANSIT
ADMINISTRATION; LESLIE
ROGERS, in his official capacity
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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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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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