Honolulutraffic.Com v. City of U.S.

• Decision Date: 18 February 2014
• Docket Number: No. 13–15277.,13–15277.
• Citation: 742 F.3d 1222
• Parties: HONOLULUTRAFFIC.COM; Cliff Slater; Benjamin J. Cayetano; Walter Heen; Hawaii's Thousand Friends; The Small Business Hawaii Entrepreneurial Education Foundation; Randall W. Roth; Michael Uechi, Dr.; The Outdoor Circle, Plaintiffs–Appellants, v. FEDERAL TRANSIT ADMINISTRATION; Leslie Rogers, in his official capacity as Federal Transit Administration Regional Administrator; Peter M. Rogoff, in his official capacity as Federal Transit Administration Administrator; U.S. 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–Appellees, and Faith Action for Community Equity; The Pacific Resource Partnership; Melvin Uesato, Intervenor–Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

742 F.3d 1222

HONOLULUTRAFFIC.COM; Cliff Slater; Benjamin J. Cayetano; Walter Heen; Hawaii's Thousand Friends; The Small Business Hawaii Entrepreneurial Education Foundation; Randall W. Roth; Michael Uechi, Dr.; The Outdoor Circle, Plaintiffs–Appellants,

v.FEDERAL TRANSIT ADMINISTRATION; Leslie Rogers, in his official capacity as Federal Transit Administration Regional Administrator; Peter M. Rogoff, in his official capacity as Federal Transit Administration Administrator; U.S. 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–Appellees,andFaith Action for Community Equity; The Pacific Resource Partnership; Melvin Uesato, Intervenor–Defendants–Appellees.

No. 13–15277.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Aug. 15, 2013.

Filed Feb. 18, 2014.

Nicholas C. Yost (argued) and Matthew G. Adams, Dentons U.S. LLP, San Francisco, CA, for Plaintiffs–Appellants.

Robert G. Dreher, Acting Assistant Attorney General, Brian C. Toth, David Glazer, and David C. Shilton (argued), Attorneys, Kathryn B. Thomson, Acting General Counsel, Paul M. Grier, Assistant General Counsel for Litigation, Peter J. Plocki, Deputy Assistant General Counsel for Litigation, United States Department of Justice, Washington, D.C.; Timothy H. Goodman, Senior Trial Attorney, United States Department of Transportation, Washington, D.C.; Dorval R. Carter, Jr., Chief Counsel, Nancy–Ellen Zusman, Assistant Chief Counsel, Joonsik Maing and Renee Marler, Attorney–Advisors, Federal Transit Administration, Washington, D.C., for Defendants–Appellees Federal Transit Administration, et al.

Robert D. Thornton (argued), Special Deputy Corporation Counsel, City and County of Honolulu, Nossaman LLP, Irvine, CA; Edward V.A. Kussy, Special Deputy Corporation Counsel, City and County of Honolulu, Nossaman LLP, Washington, D.C.; John P. Manaut and Lindsay N. McAneeley, Special Deputies Corporation Counsel, City and County of Honolulu, Carlsmith Ball LLP, Honolulu, HI; Donna Y.L. Leong and Don S. Kitaoka, Deputy Corporation Counsel, City and County of Honolulu, Honolulu, HI, for Defendants–Appellees The City and County of Honolulu and Michael Formby.

Elizabeth S. Merritt, Deputy General Counsel, National Trust for Historic Preservation, Washington, D.C., for Amicus

Curiae National Trust for Historic Preservation.

Appeal from the United States District Court for the District of Hawaii, A. Wallace Tashima, Senior Circuit Judge, Presiding. D.C. No. 1:11–cv–00307–AWT.

Before: MARY M. SCHROEDER, STEPHEN REINHARDT, and ANDREW D. HURWITZ, Circuit Judges.

OPINION

SCHROEDER, Circuit Judge:

I. INTRODUCTION

This litigation represents a challenge to the construction of a 20–mile, high-speed rail system (the “Project”) from the western portion of Oahu through the downtown area of Honolulu, Hawaii. Honolulu has been unsuccessfully struggling to cope with traffic congestion since the mid1960s. That was when Congress passed the Urban Mass Transportation Act of 1964, later amended in the Federal–Aid Highway Act of 1978, which mandated the creation of Metropolitan Planning boards to develop long-range plans for efficient public transportation. See49 U.S.C. §§ 5303 and 5304. Honolulu is now reportedly the second-most congested metropolitan area in the nation. Courtney Subramanian, Top 10 U.S. Cities with the Worst Traffic, Time (May 7, 2013), newsfeed.time.com/2013/05/07/top-10-u-s-cities-with-the-worst-traffic/.

In earlier decades, Honolulu developed plans for a rail system and later for a bus system that never came to fruition. Its efforts are documented in the Environmental Impact Statement (“EIS”) that was prepared for the project we deal with in this case. A survey in 2004 showed broad public support for the concept of a rail system, and in 2005 the Legislature provided the funding mechanism for such a system. The construction of an elevated, high-capacity rail system from the University of Hawaii campus at Manoa, through downtown Honolulu, to an agricultural area known as Kapolei is now underway.

Plaintiffs are a consortium of interest groups and individuals opposing the Project. They filed the action in 2011 against the Federal Transit Administration (“FTA”), the U.S. Department of Transportation (“DOT”), the City and County of Honolulu, and various federal and local administrators. Plaintiffs raise challenges under the National Environmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321–4347, the National Historic Preservation Act (“NHPA”), 16 U.S.C. §§ 470 to 470x–6, and Section 4(f) of the Department of Transportation Act, 49 U.S.C. § 303. The litigation reflects the controversies that continue over the method and route of mass transit on Oahu.

The district court granted summary judgment to Defendants on the NEPA claims, the NHPA claims, and all but three of the Section 4(f) claims, thereby permitting construction to continue on the first three phases. Plaintiffs appeal. In addition, the court enjoined construction of the fourth phase of the Project pending a remand to the agency on the remaining Section 4(f) claims. There is no appeal with respect to Phase 4.

We first deal with Defendants' objection to appellate jurisdiction, and we then affirm on the merits.

II. BACKGROUND

Federal law requires long-range planning for a federally funded transportation system in order to identify local purposes and stating federal objectives.

On December 7, 2005, the FTA published its Notice of Intent (“2005 NOI”) to prepare an EIS and Alternatives Analysis (“AA”) for transit service in Oahu's corridor linking Kapolei with Waikiki and the University of Hawaii campus at Manoa. An AA is required for federal funding under the Department of Transportation's New Starts Program. See49 U.S.C. § 5309. The AA process proceeded in three steps.

First, on October 24, 2006, the City prepared an “Alternatives Screening Memo” identifying the Project's purpose and need as providing improved mobility in the highly congested east-west transportation corridor; providing faster, more reliable public transportation services in the corridor than those currently operating in mixed-flow traffic; providing an alternative to private automobile travel; improving mobility for travelers; improving transportation system reliability; and improving transportation equity for all travelers. It identified several alternatives to consider for meeting the City's objectives, including No Build, a Fixed Guideway alternative (public transportation using a separate right-of-way), Transportation Systems Management (improvements to the existing transportation system, including optimizing bus service), and a Managed Lanes Alternative (“MLA”) (a new roadway for buses and other high-occupancy vehicles), and several others.

Second, the City prepared an Alternatives Analysis Report for the Honolulu City Council. That report evaluated the alternatives that had survived the City's screening process, concluding that the Transportation Systems Management alternative would not offer community or environmental benefits. It also identified several concerns with the MLA, including the possibility of congestion on local roadways near entrances and exits to managed lanes, project costs and eligibility for federal funding, and integration of managed lanes with transit service. The Report concluded that the Fixed Guideway alternative was the most effective alternative in accommodating longer corridor transit trips and increased work commutes, reducing travel time, and consuming the least energy.

Third, the City Council formed a “Transit Advisory Task Force” to “review the AA and [ ] make findings and recommendations to assist the Council in the selection of a Locally Preferred Alternative.” 49 U.S.C. § 5309(d)(2)(A)(i) (requiring selection of a locally preferred alternative pursuant to NEPA). The City Council passed an ordinance in January 2007 selecting an elevated Fixed Guideway system as its preferred alternative, stating that “a fixed guideway system is the best selection for the long-term needs and demands of our growing island population.”

On March 15, 2007, the FTA published a Notice of Intent to prepare an EIS (“2007 NOI”). The NOI requested public comment on five possible transit technologies: light rail, rapid rail (steel-wheel-on-steel-rail), rubber-tire guided, magnetic levitation, and monorail. Experts appointed by the City Council reviewed responses to that request, as well as twelve responses from transit vehicle manufacturers, and selected steel-wheel-on-steel-rail as the technology for the Project. Honolulu voters subsequently approved a City Charter Amendment establishing such a system.

The City and the FTA then prepared a draft EIS and a final EIS (“FEIS”). The FEIS evaluated a No Build option and three development alternatives, including a Fixed Guideway option from Ala Moana Center to Kapolei via the airport, that was ultimately selected as the preferred alternative. The FEIS stated that other alternatives had been eliminated because Fixed Guideway best met the Project's purpose and need and because the City Council had selected it as the locally preferred alternativepursuant to 49 U.S.C. § 5309(d)(2)(A)(i).

The Project's proposed route would bring it close to several historic sites. The Project thus implicated Section 4(f) of the Department of Transportation Act, which requires that the use of land of a historic site may be approved only if “(1) there is no prudent and feasible alternative to using the land;” and (2) the project includes “all possible planning to minimize harm to the park, recreation area, wildlife and waterfowl refuge, or historic site resulting from the use.” 49 U.S.C. § 303(c). “Use” is construed broadly, applying not only to areas physically taken, but also to those ...