Honolulu Rail Motion for Partial Summary Judgment

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Honolulu Rail Motion for Partial Summary Judgment

Honolulu Rail Motion for Partial Summary Judgment

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  • 1. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 1 of 22 PageID #: 2006 NOSSAMAN LLP ROBERT D. THORNTON (CA 72934) Admitted Pro Hac Vice rthornton@nossaman.com 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 ekussy@nossaman.com 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) jpm@carlsmith.com LINDSAY N. MCANEELEY (HI 8810) lmcaneeley@carlsmith.com 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) dkitaoka@honolulu.gov GARY Y. TAKEUCHI (HI 3261) gtakeuchi@honolulu.gov Deputies Corporation Counsel -1-
  • 2. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 2 of 22 PageID #: 2007 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 -2-
  • 3. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 3 of 22 PageID #: 2008 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII HONOLULUTRAFFIC.COM; CLIFF Civil No: 11-00307 AWT SLATER; BENJAMIN J. CAYETANO; WALTER HEEN; HAWAIIS THOUSAND FRIENDS; THE SMALL BUSINESS HAWAII DEFENDANTS’ MEMORANDUM IN ENTREPRENEURIAL EDUCATION SUPPORT OF MOTION FOR FOUNDATION; RANDALL W. ROTH; PARTIAL SUMMARY JUDGMENT and DR. MICHAEL UECHI, RE PLAINTIFFSSTANDING FOR PARTICULAR SECTION 4(F) SITES 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 (Presiding: The Honorable A. Wallace Administrator; UNITED STATES Tashima, United States Circuit Judge DEPARTMENT OF Sitting by Designation) TRANSPORTATION; RAY LAHOOD, in his official capacity as Secretary of Date Action Filed: May 12, 2011 Transportation; THE CITY AND Trial Date: None Set COUNTY OF HONOLULU; WAYNE YOSHIOKA, in his official capacity as Director of the City and County of Honolulu, Department of Transportation Services, Defendants. -3-
  • 4. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 4 of 22 PageID #: 2009 TABLE OF CONTENTS Page 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 -i-
  • 5. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 5 of 22 PageID #: 2010 TABLE OF AUTHORITIES Page 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 -ii-
  • 6. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 6 of 22 PageID #: 2011 TABLE OF AUTHORITIES Page 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 -iii-
  • 7. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 7 of 22 PageID #: 2012 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” -1-
  • 8. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 8 of 22 PageID #: 2013 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 -2-
  • 9. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 9 of 22 PageID #: 2014 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 -3-
  • 10. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 10 of 22 PageID #: 2015Project during the lengthy administrative process. The FTA issued its Record ofDecision (“ROD”) for the Project on January 18, 2011.III. STATEMENT OF FACTS. Plaintiffs filed their Complaint on May 12, 2011, claiming that FTA’sapproval of the Project violates, inter alia, Section 4(f) with regard to the Project’salleged impacts to fourteen specific Section 4(f) sites. (Complaint, ¶ 107, ECFNo. 1.) Section 4(f) requires the FTA to make certain findings in order to approvea project that “uses” a publicly owned park, recreation area, or wildlife orwaterfowl 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 Plaintiffspresent necessary affidavits evidencing that Plaintiffs (including any proposedPlaintiffs) satisfy standing requirements to support Plaintiffs’ motion for summaryjudgment.” (Scheduling Order at 2, ¶ 4, ECF No. 66.) The Scheduling Orderprovides that “Plaintiffs shall present such affidavits to Defendants not later thanten 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, BenjaminCayetano, Walter Heen, Donna Wong, Victoria Cannon, Carl Christensen,Michelle Matson, Samuel M. Slom, Robert Loy, Randall W. Roth, and Dr. Michael -4-
  • 11. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 11 of 22 PageID #: 2016Uechi in response to Defendants’ request. (Declaration of Robert Thornton(“Thornton Decl.”), Exhs. A-M). Plaintiffs’ declarations identified the followingtwelve Section 4(f) Sites: (1) Walker Park; (2) Irwin Park; (3) Mother WaldronPark; (4) Queen Street Park; (5) United States Naval Base Pearl Harbor NationalHistoric Landmark; (6) Merchant Street Historic District; (7) DOT HarborsDivision Building; (8) Aloha Tower, (9) Ke‘ehi Lagoon Park; (10) ChinatownHistoric District; (11) Dillingham Transportation Building; and (12) HalekauwilaStreet kamani trees. (Thornton Decl., Exhs. C-J, L, M.) Additionally, thedeclaration of Robert Loy, submitted on behalf of proposed plaintiff The OutdoorCircle, identifies a thirteenth site, the Dillingham Boulevard kamani trees.(Thornton Decl., Exh. K.) Plaintiffs submitted no other declarations to supportstanding.IV. SUMMARY JUDGMENT STANDARD. “A party against whom relief is sought may move, with or withoutsupporting 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 summaryjudgment, is appropriate where there is no genuine issue of material fact, and themoving 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 proceduresfor partial summary judgment are the same as for summary judgment). “A party -5-
  • 12. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 12 of 22 PageID #: 2017seeking summary judgment bears the initial burden of informing the court of thebasis 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 onwhich the non-movant bears the burden of proof, the movant “can prevail merelyby pointing out that there is an absence of evidence to support the nonmovingparty’s case.” Id. “If the moving party meets its initial burden, the non-movingparty must set forth, by affidavit or as otherwise provided in Rule 56, ‘specificfacts showing that there is a genuine issue for trial.’” Id. (quoting Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). “Conclusory, speculativetestimony in affidavits and moving papers is insufficient to raise genuine issues offact 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 meetthis burden by submitting adequate standing declarations in accordance with theCourt’s Scheduling Order and providing evidence of injury in fact as required byArticle III of the U.S. Constitution. As demonstrated below, there are no material facts in dispute, and Plaintiffsare entitled to summary judgment on these issues as a matter of law. -6-
  • 13. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 13 of 22 PageID #: 2018V. 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-controversyrequirement 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 meaningof Article III, Plaintiffs must show, as an irreducible minimum: (1) they will sufferan “injury in fact” which is concrete and nonconjectural; (2) a causal connectionbetween the injury and the Project; and (3) a likelihood that Plaintiffs’ injury willbe redressed by a favorable decision. Id. at 560-61. Plaintiffs have the burden ofproving all elements of standing. Id. at 561. Because the elements required tosupport standing “are not mere pleading requirements but rather an indispensablepart of the plaintiff’s case,” Plaintiffs must establish standing with greaterspecificity at successive stages of the litigation. Id. At the summary judgmentstage, 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 theirdeclarations, to establish each element of standing. See Lujan v. Defenders ofWildlife, 504 U.S. at 561. As discussed below, they have failed to do so with -7-
  • 14. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 14 of 22 PageID #: 2019regard to eight specific Section 4(f) Sites and a number of other unidentifiedSection 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 violatesSection 4(f) with respect to fourteen specific sites. (Complaint ¶ 107, ECF No. 1.)Additionally, Plaintiffs’ Motion for Leave to File First Amended Complaint refersgenerally to, but does not identify, “more than 30” historic resources and “landfrom parks and schools” that would be affected by the Project. (Pls.’ Mot. forLeave to File First Am. Compl. at 2, ECF No. 59-1.) As detailed below, Section4(f) sites are analyzed on a site-specific basis, thereby obligating a partychallenging a multitude of 4(f) sites to allege injury in fact for each site. BecausePlaintiffs’ standing declarations have failed to allege any injury whatsoever to anySection 4(f) sites beyond the thirteen sites, this Court should find that Plaintiffslack standing to pursue claims involving any Section 4(f) sites not identified in thestanding 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, -8-
  • 15. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 15 of 22 PageID #: 2020 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 therequirements of Section 4(f) “shall be considered to be satisfied” if the FTAdetermines 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, itis required to either make the findings required by Section 4(f) or determine thatthe 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 ofthe statute refers to “any land from a park . . .” or “an historic site . . . .”: 49U.S.C. § 303(c) (emphasis added). In accordance with Section 4(f), Courtstherefore 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 orcapriciously in determining that no “use” of a particular Section 4(f) site would -9-
  • 16. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 16 of 22 PageID #: 2021occur); 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 reserveand 23 individual park properties on a site-specific basis); Friends of CongareeSwamp 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 tothe Bates Bridge Landing; instead, Plaintiffs argue that the evaluation should havealso addressed the potential impact of the Project on Congaree National Parklands.”); Ctr. for Biological Diversity v. Fed. Highway Admin., 290 F. Supp. 2d1175, 1191-93 (S.D. Cal. 2003) (finding that the Federal HighwayAdministration’s (“FHWA”) alternatives analysis adequately evaluated the impactsof the proposed alternatives on various Section 4(f) sites). Because courts evaluatethe “use” of Section 4(f) Sites on a site-specific basis, and because Plaintiffscannot seek relief unless they can demonstrate that they are under the threat ofsuffering “injury in fact” that is concrete and particularized, Plaintiffs mustdemonstrate standing with respect to each individual Section 4(f) Site. SeePiedmont Envtl. Council v. U.S. Dep’t of Transp., 58 Fed. App’x 20, 23-24 (4thCir. 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 toidentify in asserting the basis of their standing).11 The rules of the Fourth Circuit and Ninth Circuit do not prohibit citation to unpublished -10-
  • 17. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 17 of 22 PageID #: 2022 In the instant case, Plaintiffs’ standing affidavits do not assert any use of orimpacts to Piers 10/11, the Pacific War Memorial Site, the Makalapa NavyHousing Historic District, the Hawai‘i Employers Council, and the TamuraBuilding. Rather, the declarations, taken together, specifically identify only thePlaintiffs’ “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 kamanitrees. Proposed plaintiff The Outdoor Circle also identifies the DillinghamBoulevard kamani trees. Plaintiffs do not assert the use of or impact to any otherSection 4(f) Sites. Moreover, except for the thirteen Section 4(f) Sites identifiedabove, Plaintiffs’ declarations do not even mention any other Section 4(f) Sites.Plaintiffs therefore lack standing to assert Section 4(f) claims related to anySection 4(f) Site other than the thirteen specifically identified in their standingaffidavits. 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. -11-
  • 18. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 18 of 22 PageID #: 2023 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 ofKe‘ehi Lagoon park, Queen Street Park, and Mother Waldron Park, the submitteddeclarations are insufficient to establish “injury in fact” with respect to these sites.Accordingly, this Court should find Plaintiffs lack standing to pursue claims underSection 4(f) challenging the use of these sites. The “injury in fact” test “requires that the party seeking review be himselfamong the injured.” Lujan v. Defenders of Wildlife, 504 U.S. at 563 (internalquotations omitted). Where plaintiffs assert an aesthetic or recreational injury andplaintiffs’ use of a particular area “has been extensive and in close proximity to theplaintiff, [the Ninth Circuit] ha[s] held that an affiant’s expressed intention tocontinue 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] vaguedesire to return to the area ‘without any description of concrete plans, or indeedany specification of when the some day will be’ does not support a finding ofactual 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 aplaintiff 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 -12-
  • 19. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 19 of 22 PageID #: 2024found that plaintiff Earth Island lacked standing to challenge implementation ofcertain regulations because it failed to identify an “application of the invalidatedregulation 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 useforest land in the future, nor the procedural harm “in vacuo” of being denied theright to comment on the Forest Service’s actions, was sufficient to confer ArticleIII standing. Id. at 496. The affidavit allegedly supporting the member’s standingidentified a series of projects in the Alleghany National Forest that were subject tonew regulations, but it did not assert any firm intention to visit the locations of theprojects. Id. Instead, the affidavit provided merely that the declarant wanted tovisit the sites. Id. at “Such ‘some day’ intentions – without any description ofconcrete plans, or indeed any specification of when the some day will be” – do notsupport standing. Id. (quoting Lujan, 504 U.S. at 564). The Court found EarthIsland’s claim of standing insufficient because it was “not tied to application of thechallenged regulations, because it [did] not identify any particular site, and becauseit relate[d] to past injury rather than imminent future injury that is sought to beenjoined.” Id. at 495. Plaintiffs’ standing affidavits fail to allege a concrete interest sufficient tosatisfy the “injury in fact” requirement with respect to Ke‘ehi Lagoon Park, QueenStreet 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 -13-
  • 20. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 20 of 22 PageID #: 2025Lagoon 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 avermentsregarding plans to visit that particular Section 4(f) site in the future. Rather,Ms. Wong states that Hawai‘i’s Thousand Friends (“HTF”) “supports thepreservation of existing public parks such as Keehi Lagoon park,” and that theProject will “impact the aesthetic, recreational, and historic values of existing parksused by HTF members.” (Thornton Decl., Exh. F, at ¶ 4.) The failure to establisha 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 regardingQueen Street Park. The declaration of Donna Wong is the sole declaration thatmentions Queen Street Park. Ms. Wong merely states that “I believe that HTFmembers 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, 555U.S. at 496. As the sole declarant identifying an interest in Queen Street Park, herfailure to establish standing leaves Plaintiffs with no standing to assert a Section4(f) claim with regard to Queen Street Park. Finally, Plaintiffs lack standing to maintain their Section 4(f) claimsregarding Mother Waldron Park. To support standing to bring a claim challenging -14-
  • 21. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 21 of 22 PageID #: 2026the use of Mother Waldron Park, Plaintiffs submitted only the declaration ofMichelle Matson. Ms. Matson’s declaration fails to sufficiently allege a concreteinterest in Mother Waldron Park. Accordingly, the Court should find thatPlaintiffs lack standing to bring a Section 4(f) claim regarding this site. The averments in Ms. Matson’s standing affidavit fall well short ofdemonstrating a concrete interest in that Section 4(f) site. In her declaration,Ms. Matson States that she regularly attends meetings and activities in downtownHonolulu, 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 spaceand gathering place opportunities of the public parks in the downtown area, suchas . . . Mother Waldron park.” (Thornton Decl., Exh. I at ¶ 3.) While she allegesthat 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 ofMother Waldron Park, nor does she identify any concrete future plans to visitMother Waldron Park. Ms. Matson’s general intention to visit downtown Honolulu does notdocument that she will suffer injury in fact regarding Mother Waldron Park inparticular. Her averments fall short of even the “some day” intentions to visit aparticular site that were found to be insufficient in Summers. See Summers, 555U.S. at 496 (“Such ‘some day’ intentions – without any description of concreteplans, or indeed any specification of when the some day will be – do not support a -15-
  • 22. Case 1:11-cv-00307-AWT Document 86-1 Filed 02/17/12 Page 22 of 22 PageID #: 2027finding of the ‘actual or imminent’ injury that our cases require.” (internalquotations omitted)). Because Ms. Matson’s declaration is the only declarationsubmitted by Plaintiffs evidencing any interest in Mother Waldron Park, Plaintiffslack 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 Courtfind that Plaintiffs do not have standing (1) to assert Section 4(f) claims withregard to Piers 10/11, the Pacific War Memorial Site, the Makalapa Navy HousingHistoric District, the Hawai‘i Employers Council, the Tamura Building, Ke‘ehiLagoon Park, Queen Street Park, and Mother Waldron Park, and (2) to assertSection 4(f) claims regarding any other Section 4(f) site not specifically identifiedin 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 -1-