Former Gov. Ben Cayetano and others who have joined in a lawsuit against the city’s rail transit project will be allowed to continue their court challenge, a federal judge ruled Monday.
U.S. District Judge A. Wallace Tashima refused a request by the city and the Federal Transit Administration to dismiss Cayetano, University of Hawaii Richardson School of Law professor Randy Roth, former Hawaii Democratic Party Chairman Walter Heen and the Small Business Hawaii Entrepreneurial Education Foundation from the case.
The city and the FTA argued Cayetano and the others should be dismissed because they failed to raise their concerns about the $5.27 billion rail project during years of administrative proceedings in the case, including the lengthy environmental impact statement process.
Tashima called that argument "premature" in his ruling, pointing out the city still has not produced a complete record of the administrative proceedings for the rail project.
Without that administrative record, Tashima wrote that it is impossible for him to determine whether Cayetano and the others participated in the administrative process.
The city has said it is compiling up to 500,000 pages of documents that make up the administrative record for the rail project, and is expected to deliver that record to the court and to rail opponents next month.
The city Department of the Corporation Counsel said in a written statement that Tashima’s ruling was expected given the judge’s remarks during a court hearing last month on the city’s motion.
The city intends to again seek to have Cayetano, Roth, Heen and the Small Business Hawaii organization removed from the case once the full administrative record for the case is compiled, according to the statement from the city’s lawyers. That record will confirm that the four did not raise their concerns when they should have during the administrative process, city officials said.
Cliff Slater, an outspoken rail opponent who is also participating in the lawsuit against the project, pointed out that the federal court case against the rail project will continue even if Cayetano and the other three are removed.
"Now it is very, very obvious that the city is trying to grind us down," Slater said. "There is no other reason to file in that manner." Slater has said the city is trying to delay the court case and run up legal fees for the critics while the city pushes ahead with the project.
Cayetano called the motion to dismiss him and the others from the lawsuit "a total waste of time."
"I think they knew as well as we did that they had little chance of winning that motion, and we had to spend attorneys’ fees just to rebut the motion," Cayetano said. "The way we look at it is, it was a waste of the taxpayers’ money because our money is raised from private sources. They’re being paid by the taxpayers."
Cayetano and the other rail opponents are asking the court to require that all construction on the project stop while the environmental impact statement is redone.
Rail opponents contend the city needs to address issues such as whether the route chosen for the 20-mile rail line is appropriate, or whether the steel-wheel-on-steel-rail technology the city selected will cause noise and other environmental problems that have not been considered.
The city and the FTA contend the city already studied those issues at length during the EIS process and other administrative proceedings
