Federal Judge Wallace Tashima Ruled City Rail Must Identify Above-Ground TCPs Within The Rail Corridor
by John Bond Kanehili Cultural Hui
Another lawyer who has followed this case closely, said: "Whenever a judge finds that the government acted 'arbitrarily and capriciously' those are code words to lawyers: the government went way 'off the rails,' so to speak. It takes quite a bit of convincing to get a judge to reach that conclusion, so the arguments the plaintiffs put on must’ve really convinced Judge Tashima."
The Hawaii Supreme Court ruled in a unanimous 82-page opinion in Kaleikini v. Yoshioka, that the City did not comply with the State's historic preservation and burial protection laws when it failed to complete an archeological inventory survey for the 20-mile route before starting construction.
The lawsuit was brought by Paulette Kalekini, a native Hawaiian whose ancestors’ iwi or bones may be displaced by the rail. Her case, which was argued by the Native Hawaiian Legal Corporation on her behalf, brought the rail project to a halt on August 27, 2012. The court maintained "it is undisputed that the rail project has a 'high' likelihood of having a potential effect on archeological resources...."
There is no discussion in the record of the Section 4(f) eligibility of any identified TCPs other than Chinatown, and the FEIS and PA suggest that only “preliminary” efforts have been made to investigate whether meaningful cultural properties are situated within the Project corridor. Because Defendants have presented no reason why it would have been unreasonably difficult to identify such above-ground TCPs prior to issuance of the ROD, this decision to delay full study of above-ground TCPs was arbitrary and capricious.
Before continuing with the Project in any way that may use unidentified TCPs, Defendants must complete their identification of above-ground TCPs within the corridor.
For any TCPs identified, Defendants must conduct a complete Section 4(f) analysis. The ROD must be supplemented to include any newly identified TCPs. The FEIS must also be supplemented to the extent that this process requires changes that “may result in significant environmental impacts
‘in a manner not previously evaluated and considered.’”
Constructive Use Determinations
A Section 4(f) site is “used” when land is permanently incorporated into a transportation facility, when there is a temporary occupancy of land that is adverse in terms of the statute’s preservation purpose, or when there is a constructive use of land. 23 C.F.R. § 774.17; see also Adler, 675 F.2d at 1092 (noting that the term “use” is to be construed broadly to include areas that are significantly, adversely affected by a project but are not physically taken).
The regulations provide: A constructive use occurs when . . . 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. Substantial impairment occurs only when the protected activities, features, or attributes of the property are substantially diminished.
3. Analysis of Environmental Consequences
An EIS must contain a “reasonably thorough discussion” of a project’s environmental consequences and mitigation measures. Nat’l Parks & Conservation Ass’n, 606 F.3d at 1072-73; see also 42 U.S.C. § 4332(2)(C). The EIS must discuss the project’s direct effects and reasonably foreseeable indirect and cumulative effects, including growth-inducing effects.
C. NHPA
Plaintiffs argue that Defendants have failed to meet their duty to assess the indirect effects that historic resources other than Chinatown and Merchant Street located near the rail stations will suffer due to the project. The NHPA requires agencies to assess whether historic properties will suffer adverse effects, which occur when an undertaking may alter, directly or indirectly, any of the characteristics that qualify a property for inclusion in the National Register. 36 C.F.R. § 800.5(a)(1). The agency must then consult with relevant parties to develop and evaluate alternatives and modifications to the undertaking that could avoid, minimize, or mitigate those adverse effects. 36 C.F.R. § 800.6(a); Muckleshoot Indian Tribe, 177 F.3d at 805 (observing that § 106 is a “stop, look, and listen” provision requiring agencies to consider the effects of their programs). A PA can serve as evidence of the agency’s compliance with these requirements. 36 C.F.R. §
800.6(c).
III. Conclusion and Remedy
For the reasons set forth above:
A. The Court grants Plaintiffs’ Motion for Summary Judgment (Doc. 109) with respect to: (1) their Section 4(f) claims that Defendants arbitrarily and capriciously failed to complete reasonable efforts to identify above-ground TCPs prior to issuing the ROD;
/s/ A. Wallace Tashima
A. WALLACE TASHIMA
United States Circuit Judge
Sitting by Designation
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