Citizens Challenging Rail Project May Have to Wait a Year for Case Resolution Because of City’s Delays

Patience and a lot more money – that’s what the seven plaintiffs who filed a lawsuit against the city and Federal Transit Administration will apparently need to get through what is now expected to be another year of litigation over the city’s choice of an elevated heavy steel on steel rail system.

HonoluluTraffic.com founder Cliff Slater, who teamed up with several powerful allies in the lawsuit including former Gov. Benjamin Cayetano, retired Judge Walter Heen, University of Hawaii Law Professor Randal Roth, Sen. Sam Slom’s Small Business Hawaii Education Foundation, Dr. Michael Uechi and Hawaii’s Thousand Friends, have raised an estimated $250,000 to challenge the city’s project.

But yesterday in U.S. District Court at their first hearing, Judge A. Wallace Tashima of the Ninth Circuit Court, outlined the calendar for the administrative hearing ending in the summer or fall of 2012.

Much of the delay is coming from the city and federal government. Despite being required to do so, the defendants have not turned over some 500,000 pages of record.

Nicolas Yost, the nation’s top environmental lawyer, represents the citizens challenging the project. He said the city has not turned over the documents for 6 months – something he has never seen before in all his years of practicing law.

Cliff Slater said because the city and FTA have a weak case, they are intentionally “dragging their feet” to defeat the plaintiffs out of court by raising the cost of the lawsuit through delays.

Meanwhile the city officials so far have all the money they need to pay private attorneys to represent them because they are using taxpayer funds.

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There are two other aspects of the federal lawsuit against the city and FTA that were addressed in court yesterday.

The city is still moving forward with the construction of the rail project, issuing the $1.4 billion contract for the rail cars to the Italian based Ansaldo this week and relocating utility lines and grading certain areas along the route. The plaintiffs may have to file an injunction against the city to stop the work on the project.

Defendants yesterday also tried to have four of seven plaintiffs disqualified saying they had not voiced concerns about the project before filing the lawsuit. The city is targeting Cayetano, Heen, Roth and the SBH Foundation.

Outside the courtroom, the plaintiffs refuted these claims.

Head of the SBH Foundation, Sen. Sam Slom, said he testified at public hearings on several occasions against the rail project and his organization published a report critical of the rail’s negative impact on the environment.

Gov. Cayetano said he spoke out in public against the rail since the beginning and wrote several opinion pieces in the that were critical of the project, which he forwarded to council members.

But Yost needs to review the 500,000 documents that the city and FTA so far has refused to turn over to prove the plaintiffs did in fact voice their concerns on the record or that other people who submitted comments cited the plaintiffs concerns.

The judge will likely decide in the next few days whether the plaintiffs can stay.

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