Image: Illustration by John Pritchett

The awaited Federal Court arguments over the Honolulu Rail, on August 21st, was like an operetta in which the audience was so large that it sat on the stage. People filled the fixed seating and then the jury box and then the floor of the court itself. The portable chairs between bench and bar gave new meaning to that old line, “The courtroom was packed.”

Because the federal judges in Hawaii previously had petitioned against building the elevated steel rail alongside the window of the Prince Kuhio Courthouse, Federal Ninth Circuit Court of Appeals Judge A. Wallace Tashima of Pasadena presided. Where the highly-paid lawyers said mostly predictable things for nearly two hours, it was Tashima’s few words that caused everyone to lean forward: What did he say?

With regard to the City’s legal obligation to analyze the modes, routes and impacts of a transit system, Judge Tashima said that the city’s lawyer presented only “bits and pieces” of comparisons but no convincing summation of an analysis of alternatives. Since this is what the case is most commonly understood to be about, this comment seemed significant. Tashima observed aloud that the City had eliminated alternatives at an early stage. The question left hanging–much argued by both sides –was whether the City legally could eliminate major alternatives before preparing an environmental impact statement [EIS], or whether it was obligated to conduct an EIS on the several most plausible options.

With regard to impacted cultural and historic sites, Judge Tashima said he was troubled by the City’s only identifying Chinatown at the outset, when many more sites were identified in the EIS process.

With regard to the city’s plan for mitigating potential impacts on Hawaiian burials, Judge Tashima questioned whether the idea of moving the Rail’s supporting columns credibly addressed the problem. He took note of the plaintiff’s contention that Kakaako burials have occupied thousands of square feet, making it either hard or impossible for the rail to dodge them.

Where the Judge was terse, the lawyers’ presentations could fill the entire Weekly.

The City’s Robert Thornton gamely belabored all the ways that the city, state and federal governments have gone through their prescribed paces. But although the suit is couched in big-picture environmental and transit law, discussion of modes and routes yielded to the question of Hawaiian bones. Could the City justify segmenting the twenty-mile project into four areas of archaeological study, when the four segments are really one project? Was the law fulfilled by initial studies of the first three segments–‘Ewa toward Honolulu? A Ninth Circuit ruling, North Idaho Community Network vs. the United States Department of Transportation, tightening the government’s obligation to explore all impacts before starting construction,suddenly loomed large.

Tashima obviously had read North Idaho and took it seriously. The defense strenuously argued the reasonableness and cost-effectiveness of addressing burials as the work progressed. From a slight distance, you could hear this was a debate over starting the Rail in the countryside and moving along the path of least resistance. It illuminated the fact that the city can lay out a route but doesn’t know where the columns will go without detailed engineering and design. And since the engineering and design cost is 10 per cent of total cost, why run out and dig a lot of archaeological test holes? The defense went so far as to say that native people are sometimes as offended by the tests as by the actual construction.

The arguments about bones refocused Governor Neil Abercrombie’s quick signoff on the EIS after taking office in 2010, accompanied by the signing of the Programmatic Agreement (PA), by William Aila, DLNR chief and State Historic Preservation Officer, allowing the project to proceed.

The PA put the state seal of approval on the four-segment archaeological plan, a point on which the city attorneys leaned heavily. They added that Mr. Aila is a native Hawaiian who previously had questioned the burial mitigation plan before assuming his new responsibilities.

The PA also stipulated that the route had to be restudied for Traditional Cultural Properties that might have been overlooked. This now-completed study has identified an additional 27 sacred or storied sites that might qualify for the National Historic Register. These wahi pana are on or near the Rail route, clustered above Pearl Harbor, once a populous Hawaiian settlement.

A defense intervener on behalf of Pacific Resources Partnership, William Meheula, said flatly that no new Cultural Properties have been identified. The plaintiff’s attorney, Matthew Adams, said vaguely that there were several new sites but did not seem to know what to make of this new information.

Near the close, Adams delivered a pungent line on the underlying principles of the city’s archaeology program: If you decide not to look, you won’t find anything.

Judge Tashima said he had not made up his mind about the case. In the discussion of “What did he say?” one of the plaintiffs, Walter Heen–himself a retired judge–cautioned strongly against second-guessing. In his only ruling of the day, Tashima rejected a plaintiff request to take notice that one of the plaintiffs, former Governor Ben Cayetano, had gotten the most votes in the August 11 mayoral primary. “The only issue here,” Tashima said, “is whether the Federal agency and the City have comported with the law.” As he writes his opinion, this noble principle may help him shut out the grinding sounds of other moving parts—the general election runoff between Cayetano and Caldwell, the columns that are being built each day in Ewa, the approximately $2 billion in contracts that the City has rushed to sign, and the Congressional battle over federal support for Rail.