-1- 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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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
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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
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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
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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.
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:
(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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