FTA and HART Failed To Recognize Federal Judge Ruling On Rail Route TCP's
Hawaii Environmental Council: Articles IX and XII of the Hawaii State Constitution, other state laws, and the courts of the state require government agencies to promote and preserve cultural beliefs, practices, and resources of native Hawaiians and other ethnic groups. Chapter 343 also requires environmental assessment of cultural resources.
FTA and HART are not following the intent of State and Federal laws and the intent of Federal Judge Wallace Tashima’s ruling and instead following an arbitrary and capricious path that could lead to litigation. Civ. No. 11-00307 AWT, November, 2012.
Civ. No. 11-00307 AWT
ORDER ON CROSS-MOTIONS
FOR SUMMARY JUDGMENT
A. WALLACE TASHIMA
United States Circuit Judge
United States Circuit Judge
November, 2012.
Page 10-11
b. Traditional Cultural Properties
Section 4(f) also protects properties of traditional religious and cultural importance
to Native Hawaiian organizations if they are included in or eligible for inclusion in the
National Register. 23 C.F.R. § 774.17. National Register Bulletin 38 “provides the
recognized criteria for the . . . identification and assessment of places of cultural
significance.” Muckleshoot Indian Tribe v. U.S. Forest Serv., 177 F.3d 800 at 807 (9th
Cir. 1999). Bulletin 38 defines a TCP as a property that is eligible for inclusion on the
National Register because of its association with cultural practices or beliefs of a living
community that are (a) rooted in the community’s history, and (b) important in
maintaining the continuing cultural identity of the community. Bulletin 38 at 1. Plaintiffs
claim that Defendants have failed to make sufficient effort to identify TCPs that could be
used by the Project. Because TCPs are not necessarily subterranean, Plaintiffs argue,
Defendants cannot assert that they did not identify TCPs because they are hidden
underground or difficult to identify.
Although Defendants prepared a Cultural Resources Technical Report, it did not
decide the § 106 or Section 4(f) eligibility of the cultural resources identified, but instead
jumped ahead to focus on possible adverse effects to those resources. See AR 38098. In
the FEIS, Defendants identified only one TCP, Chinatown, and stated that the City would
conduct a study to evaluate the project area for the presence of other TCPs. AR 247 at
623, 632, 718. If the FTA determined that any of later-identified TCPs were eligible for
inclusion on the National Register, then the City would meet with the § 106 consulting
parties to identify measures to avoid, minimize, and mitigate adverse effects to those
properties. Id. at 623. The PA also stated that preliminary cultural resources research had
identified one TCP, Chinatown, and that, within 30 days of the ROD, the City would
undertake a study to determine the presence of unidentified TCPs. AR 30 at 91. Neither
the FEIS nor the PA explained why Defendants did not undertake a comprehensive study
to identify TCPs at an earlier time.
decide the § 106 or Section 4(f) eligibility of the cultural resources identified, but instead
jumped ahead to focus on possible adverse effects to those resources. See AR 38098. In
the FEIS, Defendants identified only one TCP, Chinatown, and stated that the City would
conduct a study to evaluate the project area for the presence of other TCPs. AR 247 at
623, 632, 718. If the FTA determined that any of later-identified TCPs were eligible for
inclusion on the National Register, then the City would meet with the § 106 consulting
parties to identify measures to avoid, minimize, and mitigate adverse effects to those
properties. Id. at 623. The PA also stated that preliminary cultural resources research had
identified one TCP, Chinatown, and that, within 30 days of the ROD, the City would
undertake a study to determine the presence of unidentified TCPs. AR 30 at 91. Neither
the FEIS nor the PA explained why Defendants did not undertake a comprehensive study
to identify TCPs at an earlier time.
There is no discussion in the record of the Section 4(f) eligibility of any identified
TCPs other than Chinatown, and the FEIS and PA suggest that only “preliminary” efforts
have been made to investigate whether meaningful cultural properties are situated within
the Project corridor. Because Defendants have presented no reason why it would have
been unreasonably difficult to identify such above-ground TCPs prior to issuance of the
ROD, this decision to delay full study of above-ground TCPs was arbitrary and
capricious.
TCPs other than Chinatown, and the FEIS and PA suggest that only “preliminary” efforts
have been made to investigate whether meaningful cultural properties are situated within
the Project corridor. Because Defendants have presented no reason why it would have
been unreasonably difficult to identify such above-ground TCPs prior to issuance of the
ROD, this decision to delay full study of above-ground TCPs was arbitrary and
capricious.
Before continuing with the Project in any way that may use unidentified TCPs,
Defendants must complete their identification of above-ground TCPs within the corridor.
See N. Idaho Cmty. Action Network, 545 F.3d at 1160-61 (construction need be delayed
during completion of Section 4(f) evaluation only for those phases of the project for
which such evaluation had not yet been completed). For any TCPs identified, Defendants
must conduct a complete Section 4(f) analysis. The ROD must be supplemented to
include any newly identified TCPs. The FEIS must also be supplemented to the extent
that this process requires changes that “may result in significant environmental impacts
‘in a manner not previously evaluated and considered.’” Id. at 1157 (quoting Westlands
Water Dist. v. Dep’t of Interior, 376 F.3d 853, 873 (9th Cir. 2004)).
Defendants must complete their identification of above-ground TCPs within the corridor.
See N. Idaho Cmty. Action Network, 545 F.3d at 1160-61 (construction need be delayed
during completion of Section 4(f) evaluation only for those phases of the project for
which such evaluation had not yet been completed). For any TCPs identified, Defendants
must conduct a complete Section 4(f) analysis. The ROD must be supplemented to
include any newly identified TCPs. The FEIS must also be supplemented to the extent
that this process requires changes that “may result in significant environmental impacts
‘in a manner not previously evaluated and considered.’” Id. at 1157 (quoting Westlands
Water Dist. v. Dep’t of Interior, 376 F.3d 853, 873 (9th Cir. 2004)).
Traditional Cultural Properties
Patricia Parker writes:
A “traditional cultural property” is a property, a place, that is eligible for inclusion on the National Register of Historic Places because of its association with cultural practices and beliefs that are (1) rooted in the history of a community, and (2) are important to maintaining the continuity of that community’s traditional beliefs and practices.
Tom King writes:
It is simply not rational to think that Congress created the national historic preservation program for the enjoyment of archaeologists, historians, and architects. If a place wasn’t something a “professional” could appreciate, it wasn’t eligible.
I’ve detailed elsewhere how our concern about these cases led to publication of National Register Bulletin 38. What’s important here is that we had a simple purpose in writing the thing: to get the federal government to attend as carefully to the cultural values of ordinary people as it did to the interests of historians, architects, and archaeologists.
"One key to the ultimate success of the Project is to involve the broader community, as well as the consulting parties, in the consultation process as a means of achieving and increasing approval and ‘buy-in’ from the public. After all, it is the community who will be utilizing this mass transit system." HART PA Best Practices Guide
