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Order on Cross-Motions for Summary Judgment, Honolulutraffic.com v. Federal Transit Admin., No. 11-00307 AWT (D. Haw. Nov. 1, 2012)

Order on Cross-Motions for Summary Judgment, Honolulutraffic.com v. Federal Transit Admin., No. 11-00307 AWT (D. Haw. Nov. 1, 2012)

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UNITED STATES DISTRICT COURTDISTRICT OF HAWAII
HONOLULUTRAFFIC.COM; CLIFFSLATER; BENJAMIN CAYETANO;WALTER HEEN; HAWAII’STHOUSAND FRIENDS; THE SMALLBUSINESS HAWAIIENTREPRENEURIAL EDUCATIONFOUNDATION; RANDALL W. ROTH;and DR. MICHAEL UECHI,Plaintiffs,vs.FEDERAL TRANSITADMINISTRATION; LESLIEROGERS, in his official capacity asFederal Transit Administration RegionalAdministrator; PETER M. ROGOFF, inhis official capacity as Federal TransitAdministration Administrator; UNITEDSTATES DEPARTMENT OFTRANSPORTATION; RAY LAHOOD,in his official capacity as Secretary of Transportation; THE CITY ANDCOUNTY OF HONOLULU; andWAYNE YOSHIOKA, in his officialcapacity as Director of the City andCounty of Honolulu Department of Transportation,Defendants,FAITH ACTION FOR COMMUNITYEQUITY; PACIFIC RESOURCEPARTNERSHIP; and MELVIN UESATO,Intervenors - Defendants.|||||||||||||||||||||||||||||||||||||Civ. No. 11-00307 AWT
ORDER ON CROSS-MOTIONSFOR SUMMARY JUDGMENT
Case 1:11-cv-00307-AWT Document 182 Filed 11/01/12 Page 1 of 45 PageID #: 8121
 
12345678910111213141516171819202122232425262728- 2 -|_________________________________|HonoluluTraffic.com, et. al (“Plaintiffs”), claim that the City and County of Honolulu (the “City”) and the Federal Transit Administration (“FTA”) (collectively,“Defendants”) have violated three federal statutes in the process of approving a twenty-mile elevated guideway rail transit project (the “Project”): (1) Section 4(f) of theDepartment of Transportation Act (“Section 4(f)”), 49 U.S.C. § 303; (2) the NationalEnvironmental Policy Act (“NEPA”), 42 U.S.C. §§ 4321-4370h; and (3) Section 106 of the National Historic Preservation Act (“NHPA”), 16 U.S.C. § 470f. Now pending beforethe court are the parties’ cross-motions for summary judgment, which have been fully briefed and argued. For the reasons set forth below, Plaintiffs’ motion is
granted in part
,with respect to three claims arising under Section 4(f). Defendants’ motion is
granted inpart
, with respect to all other claims.
I.Background
On December 27, 2005, the FTA published a Notice of Intent (“2005 NOI”) to prepare an Alternatives Analysis (“AA”) and an Environmental Impact Statement (“EIS”)for a transit project in Honolulu. AR 9700. The stated purpose of the Project was to provide improved mobility through the busy twenty-five-mile west-east transportationcorridor between Kapolei and the University of Hawaii at Manoa (“UH”) and Waikiki.
 Id.
The City undertook a scoping process and prepared an AA reviewing four alternatives: a no build alternative; improvements to the existing bus system (“thetransportation system management alternative”); an elevated express bus/carpool lanealternative (the “managed lanes alternative”); and a railway alternative (the “fixedguideway alternative”). AR 247 at 322. The AA concluded that the fixed guidewayalternative was the only one that satisfied the Project’s purpose and need.
 Id.
at 329. TheHonolulu City Council subsequently selected the fixed guideway transit system as thelocally preferred alternative.
 Id.
at 296, 323.
Case 1:11-cv-00307-AWT Document 182 Filed 11/01/12 Page 2 of 45 PageID #: 8122
 
12345678910111213141516171819202122232425262728- 3 -The FTA then published a second Notice of Intent to prepare an EIS on March 15,2007 (“2007 NOI”). AR 9696. The 2007 NOI requested public comment on five possible transit technologies: light-rail; rapid-rail (steel wheel on steel rail); rubber-tireguided; magnetic levitation; and monorail.
See id.
A five-member panel of expertsappointed by the City Council reviewed responses to that request, as well as twelveresponses from transit vehicle manufacturers and, in February 2008, on a vote of four-to-one, selected steel-wheel-on-steel as the technology for the Project. AR 247 at 331.Honolulu voters subsequently approved a City Charter amendment to establish a steel-on-steel rail system.
 Id.
 Defendants then prepared a Draft EIS (“DEIS”) and a Final EIS (“FEIS”).
See
AR 247; 7223. The DEIS and FEIS analyzed only four alternatives: the no build alternativeand three elevated, fixed guideway, steel-on-steel railway routings. AR 247 at 331-37.All three fixed guideway options ran down the twenty-mile corridor between Kapolei andAla Moana Center, but via slightly different routes.
 Id.
One fixed guideway option ranvia Salt Lake Boulevard, a second via the airport, and the third via both Salt LakeBoulevard and the airport.
 Id.
The FEIS selected the airport route as the preferredalternative.
 Id.
at 337-38. The FEIS also included an evaluation of the Project’s potentialuse of land from historic resources and public parks, pursuant to Section 4(f).
 Id.
at 680.The FEIS concluded that the Project would use some historic resources in downtownHonolulu, including the Chinatown Historic District, but found that there was no feasibleand prudent alternative to such use.
 Id.
at 718-27.The FTA’s Record of Decision (“ROD”) approving the Project was issued onJanuary 18, 2011. AR 30. The FTA, the City, the Advisory Council on HistoricPreservation, the Hawaii State Historic Preservation Officer (“SHPO”), and the UnitedStates Navy also entered into a Programmatic Agreement (“PA”) pursuant to § 106 of the NHPA, which was incorporated into the ROD. AR 30 at 30-42, 83-228. The Project is to be funded using local tax revenues and federal funding from the New Starts program,
see
Case 1:11-cv-00307-AWT Document 182 Filed 11/01/12 Page 3 of 45 PageID #: 8123

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