Honolulu Rail Motion for Partial Summary Judgment

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NOSSAMAN LLP ROBERT D. THORNTON (CA 72934) Admitted Pro Hac Vice [email protected] Special Deputy Corporation Counsel City and County of Honolulu 18101 Von Karman Avenue, Suite 1800 Irvine, CA 92612 Telephone: 949.833.7800 Facsimile: 949.833.7878 EDWARD V.A. KUSSY (DC 982417) Admitted Pro Hac Vice [email protected] Special Deputy Corporation Counsel City and County of Honolulu 1666 K. Street, NW, Suite 500 Washington, DC 20006 Telephone: 202.887.1400 Facsimile: 202.466.3215

CARLSMITH BALL LLP JOHN P. MANAUT (HI 3989) [email protected] LINDSAY N. MCANEELEY (HI 8810) [email protected] Special Deputies Corporation Counsel City and County of Honolulu ASB Tower, Suite 2200 1001 Bishop Street Honolulu, HI 96813 Telephone: 808.523.2500 Facsimile: 808.523.0842 ROBERT C. GODBEY (HI 4685) Corporation Counsel DON S. KITAOKA (HI 2967) [email protected] GARY Y. TAKEUCHI (HI 3261) [email protected] Deputies Corporation Counsel

Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 1 of 22 PageID #: 2006

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City and County of Honolulu 530 S. King Street, Room 110 Honolulu, HI 96813 Telephone: 808.768.5248/808.768.5240 Facsimile: 808.768.5105

Attorneys for Defendants

THE CITY AND COUNTY OF HONOLULU and WAYNE YOSHIOKA, in his official capacity as Director of the City and County of Honolulu Department of Transportation Services


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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

HONOLULUTRAFFIC.COM; CLIFF SLATER; BENJAMIN J. CAYETANO; WALTER HEEN; HAWAII'S THOUSAND FRIENDS; THE SMALL BUSINESS HAWAII ENTREPRENEURIAL EDUCATION FOUNDATION; RANDALL W. ROTH; and DR. MICHAEL UECHI,

Plaintiffs,

vs.

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; UNITED STATES 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 Services,

Defendants.

Civil No: 11-00307 AWT DEFENDANTS’ MEMORANDUM IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT RE PLAINTIFFS' STANDING FOR PARTICULAR SECTION 4(F) SITES (Presiding: The Honorable A. Wallace Tashima, United States Circuit Judge Sitting by Designation) Date Action Filed: May 12, 2011 Trial Date: None Set


TABLE OF CONTENTS Page

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I. INTRODUCTION. ...................................................................................... 2

II. BACKGROUND. ........................................................................................ 3

III. STATEMENT OF FACTS.......................................................................... 4

IV. SUMMARY JUDGMENT STANDARD. .................................................. 5

V. ARGUMENT............................................................................................... 7

A. Plaintiffs Have the Burden To Establish All Elements of Standing to Bring the Section 4(f) Claims. ....................................... 7

B. Plaintiffs Lack Standing to Assert Section 4(f) Challenges for Those Section 4(f) Sites They Failed to Identify in Their Standing Declarations. ...................................................................... 8

C. Plaintiffs Fail to Establish “Injury In Fact” Regarding Ke‘ehi Lagoon Park, Queen Street Park, and Mother Waldron Park................................................................................... 12

VI. CONCLUSION............................................................................................ 1


TABLE OF AUTHORITIES Page

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Cases

Anderson v. Liberty Lobby, Inc.

477 U.S. 242 (1986) .................................................................................................6

Ctr. for Biological Diversity v. Fed. Highway Admin.

290 F. Supp. 2d 1175 (S.D. Cal. 2003) ..................................................................10

Friends of Congaree Swamp v. Fed. Highway Admin.

786 F. Supp. 2d 1054 (D.S.C. 2011) ......................................................................10

Lujan v. Defenders of Wildlife

504 U.S. 555 (1992) ............................................................................................7, 12

Lujan v. National Wildlife Fed’n

497 U.S. 871 (1990) .................................................................................................6

N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp.

545 F.3d 1147 (9th Cir. 2008)..................................................................................9

Piedmont Envtl. Council v. U.S. Dep’t of Transp.

58 Fed. App’x 20 (4th Cir. 2003)......................................................................10, 11

Soremekun v. Thrifty Payless, Inc.

509 F.3d 978 (9th Cir. 2007). ...................................................................................6

Summers v. Earth Island Inst.

555 U.S. 488 (2009) ..............................................................................12, 13, 14, 15

The Laguna Greenbelt, Inv. v. U.S. Dep’t of Transp.

42 F.3d 517 (9th Cir. 1995) ....................................................................................10

Village of Los Ranchos de Albuquerque v. Barnhart

906 F. 2d 1477 (10th Cir. 1990)...............................................................................9


TABLE OF AUTHORITIES Page

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Wang Laboratories v. Mitsubishi Elecs.

860 F. Supp. 1448 (C.D. Cal. 1993).........................................................................5

Wilderness Soc., Inc. v. Rey

622 F.3d 1251 (9th Cir. 2010)................................................................................12

Statutes

23 United States Code section 138 .............................................................................. 9

49 United States Code section 303 ......................................................................... 1, 8

49 United States Code section 303 subsection (c)................................................... 4, 9

49 United States Code section 303 subsection (d)....................................................... 9

Rules

4th Circuit Rule 32.1..................................................................................................11

9th Circuit Rule 36-3..................................................................................................11

Federal Rules of Civil Procedure 56 subsection (b) ....................................................5

Federal Rules of Civil Procedures 56 subsections (a)-(d) ...........................................5


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MEMORANDUM IN SUPPORT OF MOTION

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendants, the

City and County of Honolulu, move for summary judgment on certain of Plaintiffs’

claims brought pursuant to Section 4(f) of the Department of Transportation Act

(“Section 4(f)”), 49 U.S.C. § 303, challenging the Federal Transit Administration’s

approval of the Honolulu High-Capacity Transit Corridor Project (otherwise

known as the Rail Project (“Project”)). Defendants request that the Court enter

summary judgment in Defendants’ favor that Plaintiffs lack standing to assert

Section 4(f) claims regarding the following sites subject to Section 4(f) (“Section

4(f) Sites”):

(1) Piers 10/11, the Pacific War Memorial Site, the Makalapa Navy

Housing Historic District, the Hawai‘i Employers Council, the

Tamura Building, Ke‘ehi Lagoon Park, Queen Street Park, and

Mother Waldron Park; and

(2) any other Section 4(f) Site not specifically identified in Plaintiffs’

standing declarations served on Defendants as of January 23, 2012.

As shown in further detail below, the undisputed facts in this case

demonstrate that Plaintiffs’ standing declarations fail to identify Piers 10/11, the

Pacific War Memorial Site, the Makalapa Navy Housing Historic District, the

Hawai‘i Employers Council, and the Tamura Building. Moreover, the Plaintiffs’

declarations do not demonstrate that the Plaintiffs will suffer an “injury in fact”


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regarding Ke‘ehi Lagoon Park, Queen Street Park, and Mother Waldron Park. For

these reasons, Defendants respectfully request this Court to find that Plaintiffs lack

standing to pursue their claims under Section 4(f) with regard to the above sites,

and enter judgment in favor of Defendants.

I. INTRODUCTION.

On December 30, 2011, the Court issued a Rule 16 Scheduling Order

(“Scheduling Order”) establishing an orderly procedure for the submission of

standing declarations, discovery regarding standing, and the Court’s consideration

of early dispositive motions, including challenges to Plaintiffs’ standing.

(Scheduling Order at 2, ¶ 4, Dec. 30, 2011, ECF No. 66.) The Scheduling Order

required Plaintiffs to, upon request, present affidavits evidencing that Plaintiffs,

including any proposed plaintiffs, satisfy Article III standing requirements

supporting motions for summary judgment. Defendants Federal Transit

Administration (“FTA”) and the City and County Defendants (collectively,

“Defendants”) requested Plaintiffs standing affidavits on January 10, 2012.

On January 23, 2012, Plaintiffs provided Defendants with eleven

declarations purportedly demonstrating that Plaintiffs satisfied Article III standing

requirements. These declarations briefly mention only thirteen sites subject to

evaluation under Section 4(f). Because Section 4(f) claims are site-specific,

Plaintiffs were required to demonstrate standing by asserting an interest with

respect to each Section 4(f) site for which they are asserting claims. Plaintiffs


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therefore lack standing to bring a Section 4(f) claim with regard to any Section 4(f)

site not specifically identified in their standing declarations.

Moreover, the averments regarding Plaintiffs’ interests in Ke‘ehi Lagoon

Park, Queen Street Park, and Mother Waldron Park do not demonstrate that the

Plaintiffs will suffer an “injury in fact,” and they therefore lack standing to

maintain Section 4(f) challenges with respect to these sites. Plaintiffs’ declarations

fail to demonstrate a concrete interest for these three sites.

II. BACKGROUND.

This case involves a challenge to the approval by the FTA of the Project.

The Project is a 20-mile fixed guideway rail transit project in the highly congested

transportation corridor between Kapolei and downtown Honolulu. The Project will

provide people living, working, and traveling in the corridor with reliable

transportation to areas now largely dependent on automobiles. The Project is

intended to vastly improve access to downtown Honolulu, as well as provide

service to key employment centers such as the Pearl Harbor Naval Base and the

Honolulu International Airport.

The Project is the result of several decades of environmental, economic, and

engineering study and analysis of many alternative solutions to the area’s mobility

challenges by the City, the State of Hawai‘i, FTA, and other agencies. The City

and FTA provided extensive opportunities for public review and comment on the


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Project during the lengthy administrative process. The FTA issued its Record of

Decision (“ROD”) for the Project on January 18, 2011.

III. STATEMENT OF FACTS.

Plaintiffs filed their Complaint on May 12, 2011, claiming that FTA’s

approval of the Project violates, inter alia, Section 4(f) with regard to the Project’s

alleged impacts to fourteen specific Section 4(f) sites. (Complaint, ¶ 107, ECF

No. 1.) Section 4(f) requires the FTA to make certain findings in order to approve

a project that “uses” a publicly owned park, recreation area, or wildlife or

waterfowl area, or an historic site of national, state, or local importance. 49 U.S.C.

§ 303(c).

On December 30, 2011, the Court issued the Scheduling Order providing,

inter alia, that Defendants had until January 12, 2012 “to request that Plaintiffs

present necessary affidavits evidencing that Plaintiffs (including any proposed

Plaintiffs) satisfy standing requirements to support Plaintiffs’ motion for summary

judgment.” (Scheduling Order at 2, ¶ 4, ECF No. 66.) The Scheduling Order

provides that “Plaintiffs shall present such affidavits to Defendants not later than

ten days after Defendants’ request.” (Scheduling Order at 2, ¶ 4, ECF. No. 66.)

Defendants requested Plaintiffs’ standing affidavits on January 10, 2012.

On January 23, 2012, Plaintiffs provided declarations from Cliff Slater, Benjamin

Cayetano, Walter Heen, Donna Wong, Victoria Cannon, Carl Christensen,

Michelle Matson, Samuel M. Slom, Robert Loy, Randall W. Roth, and Dr. Michael


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Uechi in response to Defendants’ request. (Declaration of Robert Thornton

(“Thornton Decl.”), Exhs. A-M). Plaintiffs’ declarations identified the following

twelve Section 4(f) Sites: (1) Walker Park; (2) Irwin Park; (3) Mother Waldron

Park; (4) Queen Street Park; (5) United States Naval Base Pearl Harbor National

Historic Landmark; (6) Merchant Street Historic District; (7) DOT Harbors

Division Building; (8) Aloha Tower, (9) Ke‘ehi Lagoon Park; (10) Chinatown

Historic District; (11) Dillingham Transportation Building; and (12) Halekauwila

Street kamani trees. (Thornton Decl., Exhs. C-J, L, M.) Additionally, the

declaration of Robert Loy, submitted on behalf of proposed plaintiff The Outdoor

Circle, identifies a thirteenth site, the Dillingham Boulevard kamani trees.

(Thornton Decl., Exh. K.) Plaintiffs submitted no other declarations to support

standing.

IV. SUMMARY JUDGMENT STANDARD.

“A party against whom relief is sought may move, with or without

supporting affidavits, for summary judgment on all or part of the claim.” Fed. R.

Civ. P. 56(b). A motion for partial summary judgment, like a motion for summary

judgment, is appropriate where there is no genuine issue of material fact, and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a)-(d);

see also Wang Laboratories v. Mitsubishi Elecs., 860 F. Supp. 1448, 1450-51

(C.D. Cal. 1993) (citing text of rule and noting that the standards and procedures

for partial summary judgment are the same as for summary judgment). “A party


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seeking summary judgment bears the initial burden of informing the court of the

basis for its motion . . . .” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984

(9th Cir. 2007). Where, as here, movant seeks summary judgment on an issue on

which the non-movant bears the burden of proof, the movant “can prevail merely

by pointing out that there is an absence of evidence to support the nonmoving

party’s case.” Id. “If the moving party meets its initial burden, the non-moving

party must set forth, by affidavit or as otherwise provided in Rule 56, ‘specific

facts showing that there is a genuine issue for trial.’” Id. (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). “Conclusory, speculative

testimony in affidavits and moving papers is insufficient to raise genuine issues of

fact and defeat summary judgment.” Soremekun, 509 F.3d at 984; Lujan v.

National Wildlife Fed’n, 497 U.S. 871, 888-89 (1990). Plaintiffs failed to meet

this burden by submitting adequate standing declarations in accordance with the

Court’s Scheduling Order and providing evidence of injury in fact as required by

Article III of the U.S. Constitution.

As demonstrated below, there are no material facts in dispute, and Plaintiffs

are entitled to summary judgment on these issues as a matter of law.


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V. ARGUMENT.

A. Plaintiffs Have the Burden To Establish All Elements of Standing to Bring the Section 4(f) Claims.

Standing is “an essential and unchanging part of the case-or-controversy

requirement of Article III [of the Constitution].” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). To establish a “case or controversy” within the meaning

of Article III, Plaintiffs must show, as an irreducible minimum: (1) they will suffer

an “injury in fact” which is concrete and nonconjectural; (2) a causal connection

between the injury and the Project; and (3) a likelihood that Plaintiffs’ injury will

be redressed by a favorable decision. Id. at 560-61. Plaintiffs have the burden of

proving all elements of standing. Id. at 561. Because the elements required to

support standing “are not mere pleading requirements but rather an indispensable

part of the plaintiff’s case,” Plaintiffs must establish standing with greater

specificity at successive stages of the litigation. Id. At the summary judgment

stage, Plaintiffs “must ‘set forth’ by affidavit or other evidence ‘specific facts,’

which for purposes of the summary judgment motion will be taken to be true.” Id.

(citation omitted).

Plaintiffs therefore have the burden, through the averments of facts in their

declarations, to establish each element of standing. See Lujan v. Defenders of

Wildlife, 504 U.S. at 561. As discussed below, they have failed to do so with


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regard to eight specific Section 4(f) Sites and a number of other unidentified

Section 4(f) Sites.

B. Plaintiffs Lack Standing to Assert Section 4(f) Challenges for Those Section 4(f) Sites They Failed to Identify in Their Standing Declarations.

Plaintiffs’ complaint alleges that FTA’s approval of the Project violates

Section 4(f) with respect to fourteen specific sites. (Complaint ¶ 107, ECF No. 1.)

Additionally, Plaintiffs’ Motion for Leave to File First Amended Complaint refers

generally to, but does not identify, “more than 30” historic resources and “land

from parks and schools” that would be affected by the Project. (Pls.’ Mot. for

Leave to File First Am. Compl. at 2, ECF No. 59-1.) As detailed below, Section

4(f) sites are analyzed on a site-specific basis, thereby obligating a party

challenging a multitude of 4(f) sites to allege injury in fact for each site. Because

Plaintiffs’ standing declarations have failed to allege any injury whatsoever to any

Section 4(f) sites beyond the thirteen sites, this Court should find that Plaintiffs

lack standing to pursue claims involving any Section 4(f) sites not identified in the

standing declarations.

Section 4(f) of the Department of Transportation Act, codified at 49 U.S.C.

§ 303, provides in pertinent part:

Subject to subsection (d), the Secretary may approve a transportation program or project . . . requiring the use of publicly owned land of a public park, recreation area, or wildlife and waterfowl refuge, of national, State or local significance, or land of an historic site of national, State or local significance (as determined by the Federal,


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State, or local officials having jurisdiction over the park, area, refuge or site), only if -- (1) there is no prudent and feasible alternative to using that land; and (2) the program or 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); accord 23 U.S.C. § 138. Subsection (d) provides that the

requirements of Section 4(f) “shall be considered to be satisfied” if the FTA

determines that the Project will have a de minimis impact on the area. 49 U.S.C.

§ 303(d).

Section 4(f) applies only to federally funded transportation projects. See,

e.g., Village of Los Ranchos de Albuquerque v. Barnhart, 906 F. 2d 1477, 1485

(10th Cir. 1990). If the FTA concludes that a project will use a Section 4(f) site, it

is required to either make the findings required by Section 4(f) or determine that

the project will have a de minimus impact on the applicable Section 4(f) site.

For this reason, Section 4(f) claims are site specific, as the plain language of

the statute refers to “any land from a park . . .” or “an historic site . . . .”: 49

U.S.C. § 303(c) (emphasis added). In accordance with Section 4(f), Courts

therefore evaluate the “use” of Section 4(f) sites on a site-specific basis. See, e.g.,

N. Idaho Cmty. Action Network v. U.S. Dep’t of Transp., 545 F.3d 1147, 1158-60

(9th Cir. 2008) (holding that, where the DOT failed to investigate all Section 4(f)

properties for all phases of the project, it nevertheless did not act arbitrarily or

capriciously in determining that no “use” of a particular Section 4(f) site would


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occur); The Laguna Greenbelt, Inv. v. U.S. Dep’t of Transp., 42 F.3d 517, 530-33

(9th Cir. 1995) (reviewing DOT’s Section 4(f) evaluation of 1.7 acres of reserve

and 23 individual park properties on a site-specific basis); Friends of Congaree

Swamp v. Fed. Highway Admin., 786 F. Supp. 2d 1054, 1075 n.21 (D.S.C. 2011)

(“Plaintiffs do not challenge the adequacy of the evaluation prepared with regard to

the Bates Bridge Landing; instead, Plaintiffs argue that the evaluation should have

also addressed the potential impact of the Project on Congaree National Park

lands.”); Ctr. for Biological Diversity v. Fed. Highway Admin., 290 F. Supp. 2d

1175, 1191-93 (S.D. Cal. 2003) (finding that the Federal Highway

Administration’s (“FHWA”) alternatives analysis adequately evaluated the impacts

of the proposed alternatives on various Section 4(f) sites). Because courts evaluate

the “use” of Section 4(f) Sites on a site-specific basis, and because Plaintiffs

cannot seek relief unless they can demonstrate that they are under the threat of

suffering “injury in fact” that is concrete and particularized, Plaintiffs must

demonstrate standing with respect to each individual Section 4(f) Site. See

Piedmont Envtl. Council v. U.S. Dep’t of Transp., 58 Fed. App’x 20, 23-24 (4th

Cir. 2003) (unpublished) (finding that plaintiffs lacked standing under Section 4(f)

to raise challenges with respect to specific Section 4(f) sites that they had failed to

identify in asserting the basis of their standing).1

1 The rules of the Fourth Circuit and Ninth Circuit do not prohibit citation to unpublished


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In the instant case, Plaintiffs’ standing affidavits do not assert any use of or

impacts to Piers 10/11, the Pacific War Memorial Site, the Makalapa Navy

Housing Historic District, the Hawai‘i Employers Council, and the Tamura

Building. Rather, the declarations, taken together, specifically identify only the

Plaintiffs’ “use” and the Project’s impacts to the following Section 4(f) sites:

(1) Walker Park; (2) Irwin Park; (3) Mother Waldron Park; (4) Queen Street Park;

(5) United States Naval Base Pearl Harbor National Historic Landmark;

(6) Merchant Street Historic District; (7) DOT Harbors Division Building;

(8) Aloha Tower, (9) Ke‘ehi Lagoon Park; (10) Chinatown Historic District;

(11) Dillingham Transportation Building; and (12) Halekauwila Street kamani

trees. Proposed plaintiff The Outdoor Circle also identifies the Dillingham

Boulevard kamani trees. Plaintiffs do not assert the use of or impact to any other

Section 4(f) Sites. Moreover, except for the thirteen Section 4(f) Sites identified

above, Plaintiffs’ declarations do not even mention any other Section 4(f) Sites.

Plaintiffs therefore lack standing to assert Section 4(f) claims related to any

Section 4(f) Site other than the thirteen specifically identified in their standing

affidavits. See Piedmont Envtl. Council, 58 Fed. App’x at 23-24.

opinions of the Fourth Circuit. See 9th Cir. R. 36-3; 4th Cir. R. 32.1.


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C. Plaintiffs Fail to Establish “Injury In Fact” Regarding Ke‘ehi Lagoon Park, Queen Street Park, and Mother Waldron Park.

Though Plaintiffs submitted declarations alleging injury based on use of

Ke‘ehi Lagoon park, Queen Street Park, and Mother Waldron Park, the submitted

declarations are insufficient to establish “injury in fact” with respect to these sites.

Accordingly, this Court should find Plaintiffs lack standing to pursue claims under

Section 4(f) challenging the use of these sites.

The “injury in fact” test “requires that the party seeking review be himself

among the injured.” Lujan v. Defenders of Wildlife, 504 U.S. at 563 (internal

quotations omitted). Where plaintiffs assert an aesthetic or recreational injury and

plaintiffs’ use of a particular area “has been extensive and in close proximity to the

plaintiff, [the Ninth Circuit] ha[s] held that an affiant’s expressed intention to

continue using the land is sufficiently concrete to underwrite an injury-in-fact.”

Wilderness Soc., Inc. v. Rey, 622 F.3d 1251, 1256 (9th Cir. 2010). “[A] vague

desire to return to the area ‘without any description of concrete plans, or indeed

any specification of when the some day will be’ does not support a finding of

actual or imminent injury.” Id. (citing Summers v. Earth Island Inst., 555 U.S.

488, 496 (2009) (emphasis original).

In Summers, 555 U.S. 488, the Court reiterated prior precedent that, where a

plaintiff is not himself the object of the government action or inaction at issue,

standing is substantially more difficult to establish. Id. at 493. There, the Court


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found that plaintiff Earth Island lacked standing to challenge implementation of

certain regulations because it failed to identify an “application of the invalidated

regulation that threatene[d] imminent and concrete harm to the interests of [its]

members.” Id. at 495. The Court elaborated that neither the vague desire to use

forest land in the future, nor the procedural harm “in vacuo” of being denied the

right to comment on the Forest Service’s actions, was sufficient to confer Article

III standing. Id. at 496. The affidavit allegedly supporting the member’s standing

identified a series of projects in the Alleghany National Forest that were subject to

new regulations, but it did not assert any firm intention to visit the locations of the

projects. Id. Instead, the affidavit provided merely that the declarant wanted to

visit the sites. Id. at “Such ‘some day’ intentions – without any description of

concrete plans, or indeed any specification of when the some day will be” – do not

support standing. Id. (quoting Lujan, 504 U.S. at 564). The Court found Earth

Island’s claim of standing insufficient because it was “not tied to application of the

challenged regulations, because it [did] not identify any particular site, and because

it relate[d] to past injury rather than imminent future injury that is sought to be

enjoined.” Id. at 495.

Plaintiffs’ standing affidavits fail to allege a concrete interest sufficient to

satisfy the “injury in fact” requirement with respect to Ke‘ehi Lagoon Park, Queen

Street Park, and Mother Waldron Park. Plaintiffs submitted only one declaration,

that of Donna Wong, to support standing for a claim challenging the use of Ke‘ehi


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Lagoon Park. (Thornton Decl., Exh. F, at ¶ 4.) Ms. Wong’s declaration, however,

fails to aver past use of Ke‘ehi Lagoon Park, and does not contain any averments

regarding plans to visit that particular Section 4(f) site in the future. Rather,

Ms. Wong states that Hawai‘i’s Thousand Friends (“HTF”) “supports the

preservation of existing public parks such as Keehi Lagoon park,” and that the

Project will “impact the aesthetic, recreational, and historic values of existing parks

used by HTF members.” (Thornton Decl., Exh. F, at ¶ 4.) The failure to establish

a past use of in a particular site or concrete plans to visit a site in the future is fatal.

See Summers, 555 U.S. at 496.

Plaintiffs likewise lack standing to assert Section 4(f) claims regarding

Queen Street Park. The declaration of Donna Wong is the sole declaration that

mentions Queen Street Park. Ms. Wong merely states that “I believe that HTF

members would visit such additional parks [in the urbanized portion of Honolulu]

if they were available,” citing Queen Street park as an example. (Thornton Decl.,

Exh. F, at ¶ 4 (emphasis added).) Such speculation clearly falls well short of the

“concrete plans” necessary to demonstrate an “injury in fact.” See Summers, 555

U.S. at 496. As the sole declarant identifying an interest in Queen Street Park, her

failure to establish standing leaves Plaintiffs with no standing to assert a Section

4(f) claim with regard to Queen Street Park.

Finally, Plaintiffs lack standing to maintain their Section 4(f) claims

regarding Mother Waldron Park. To support standing to bring a claim challenging


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the use of Mother Waldron Park, Plaintiffs submitted only the declaration of

Michelle Matson. Ms. Matson’s declaration fails to sufficiently allege a concrete

interest in Mother Waldron Park. Accordingly, the Court should find that

Plaintiffs lack standing to bring a Section 4(f) claim regarding this site.

The averments in Ms. Matson’s standing affidavit fall well short of

demonstrating a concrete interest in that Section 4(f) site. In her declaration,

Ms. Matson States that she regularly attends meetings and activities in downtown

Honolulu, and that she plans to continue doing so. (Thornton Decl., Exh. I, at ¶ 3.)

Additionally, she claims that she “frequent[s] and enjoys the outdoor open space

and gathering place opportunities of the public parks in the downtown area, such

as . . . Mother Waldron park.” (Thornton Decl., Exh. I at ¶ 3.) While she alleges

that she frequently attends meetings and activities in the general downtown area,

and plans to continue doing so, she does not specifically document any past use of

Mother Waldron Park, nor does she identify any concrete future plans to visit

Mother Waldron Park.

Ms. Matson’s general intention to visit downtown Honolulu does not

document that she will suffer injury in fact regarding Mother Waldron Park in

particular. Her averments fall short of even the “some day” intentions to visit a

particular site that were found to be insufficient in Summers. See Summers, 555

U.S. at 496 (“Such ‘some day’ intentions – without any description of concrete

plans, or indeed any specification of when the some day will be – do not support a


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finding of the ‘actual or imminent’ injury that our cases require.” (internal

quotations omitted)). Because Ms. Matson’s declaration is the only declaration

submitted by Plaintiffs evidencing any interest in Mother Waldron Park, Plaintiffs

lack standing to maintain Section 4(f) claims regarding this Section 4(f) site.

VI. CONCLUSION.

For the above-stated reasons, Defendants respectfully request that the Court

find that Plaintiffs do not have standing (1) to assert Section 4(f) claims with

regard to Piers 10/11, the Pacific War Memorial Site, the Makalapa Navy Housing

Historic District, the Hawai‘i Employers Council, the Tamura Building, Ke‘ehi

Lagoon Park, Queen Street Park, and Mother Waldron Park, and (2) to assert

Section 4(f) claims regarding any other Section 4(f) site not specifically identified

in Plaintiffs’ standing declarations provided to Defendants as of January 23, 2012.

DATED: February 17, 2012 /s/ Robert D. Thornton ROBERT D. THORNTON

EDWARD V. A. KUSSY JOHN P. MANAUT LINDSAY N. MCANEELEY ROBERT C. GODBEY DON S. KITAOKA GARY Y. TAKEUICHI Attorneys for Defendants CITY AND COUNTY OF HONOLULU AND WAYNE Y. YOSHIOKA, IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE CITY AND COUNTY OF HONOLULU DEPARTMENT OF TRANSPORTATION SERVICE


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Honolulu Rail Motion for Partial Summary Judgment