HART Rail Fraud and Deceit: Requesting FTA and HART Abide By Intent Of Rail Programmatic Agreement
By John Bond, Kanehili Cultural Hui
RE: FTA-Honolulu Authority for Rapid Transportation
Programmatic Agreement
Immediate
harm to identified historic and cultural resources (TCP)
from construction
Kanehili
Cultural Hui and Michael Lee native Hawaiian cultural practitioner hereby
object to FTA’s May 14, 2015 decision on Traditional Cultural Properties. This
decision is clearly arbitrary and capricious and not the intent of Federal
Judge Wallace Tashima’s ruling.
Stipulation
IX Measures to Address Reasonably Foreseeable Indirect
and Cumulative Effects
Caused by the Project
Aloha
Secretary Anthony Foxx, Governor David Ige and Mr. Leslie Rodgers:
Kanehili Cultural Hui (KCH) is a consulting party to
the HART Programmatic Agreement (PA) for the Honolulu High Capacity Transit
Corridor Project (Project), and has identified significant direct, indirect and
cumulative effects on resources determined eligible for the National Register
of Historic Places that was not evaluated in the PA.
"A Traditional Cultural Property (TCP) can be a
site, an object, or even a place that has cultural significance. TCPs refer to “places that communities think are
important, because they—the places—embody or sustain values, character, or
cultural coherence” (King 2003:1)."
"TCP studies are a crucial component of
assessing the potential impact of a project or undertaking on historic
properties and culturally important areas. TCPs are not always obvious to the
uninformed. The presence of TCPs can only be determined through thorough
archival research and in-depth interviews with elders and cultural
practitioners of the areas under consideration."
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 (see more below).
The FTA and HART decision is fallacious because the
evidence provided by Kanehili Cultural Hui is well documented and includes many
reputable sources from the project’s publically accessible documents. The Programmatic Agreement’s manager (Kako’o)
recommended reasonable and fair resolution. FTA and HART’s credibility sinks to
ever new lows when they deny the community’s historic and cultural beliefs and
heritage. Every day it is increasingly apparent that the West Oahu community
doesn’t believe or trust a rail project rife with arrogance, political graft
and corruption. (See
more below)
The FTA and HART
rejected the reasonable recommendations of the
PA Kakoo (See below)
FTA and HART are using the Programmatic Agreement meetings
as merely a monthly Check Box and have no real intention of honestly dealing
with historic and cultural sites in the WOFH APE. FTA and HART believe that by
being arrogant, disingenuous and using unprincipled methods that they can avoid
and escape legal and programmatic agreement responsibilities.
"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
HART Station Cultural
Concrete paving tiles and Cultural Cartoon rail
pylon wraparounds.
Hoopili Station Meeting and public reaction,
Tuesday, June 2. The meeting attendees became especially angered by the
“Cultural Paving” slide near the beginning of the 6:30 PM meeting which implied
that Cultural Concrete Cartoons of killed off owls, destroyed cultural
properties and destruction of traditional farmlands and environmental open
space was an exciting mitigation they would fully support. The HART Hoopili presentation
was stopped at that point by numerous community complaints about the way the
rail project and stations weren’t reflecting community cultural values and
heritage. Hoopili” is a made up developer name. Owl habitats and amakua are
being wiped out. HART’s station is directly causing the farmland to be paved
over. These expressed views continued until 7:30 when the meeting ended.
Presiding HART official Brennon Morioka did promise that meeting minutes would
reflect what the community had said that evening. (See more below about Rail political
corruption and failed transit promises)
“Farmland Conversion
Impact Rating” (NRCS-CPA-106) form
(a Section 4f requirement)
The fraudulently scored Farmland Protection Policy
Act- “Farmland Conversion Impact Rating” (NRCS-CPA-106) form (a Section 4f
requirement) also remains as a major complaint issue that was voiced at the
HART Hoopili Station meeting by Dr. Kioni Dudley who with many others have fought
to retain critically important prime agricultural farm land. (See more
below)
RAIL DIRT – Huge
piles, 30-40 feet high blows dust onto Ewa farmlands and communities
EIS Rules define “impacts”/“effects” as including
“primary, secondary, or cumulative” effects. “Secondary impacts” are defined as
follows: "Secondary impact" or "secondary effect" or
"indirect impact" or "indirect effect" means effects which
are caused by the action and are later in time or farther removed in distance,
but are still reasonably foreseeable. Indirect effects may include growth
inducing effects and other effects related to induced changes in the pattern of
land use, population density or growth rate, and related effects on air and
water and other natural systems, including ecosystems.
Kanehili Cultural Hui has heard of many local dust complaints
and seen a major expansion of huge piles of rail construction site dirt at
Aloun Farms, on former Ewa Plantation and in the Kalo’i Honouliuli lands, at a Kiewit
construction dump site by the planned Hoopili rail station.
RAIL DIRT – Huge
piles, 30-40 feet high, could contain archeological remains and iwi (bones)
It appears very possible the piles could contain
archeological materials and even potentially human bones dug up from Hawaiian
habitation and subsurface burial sites. KCH has observed that nearly all of the
work done on the WOFH segment was at late night, in great secrecy and by
primarily all mainland hires who have little knowledge of Hawaiian culture and
customs.
In addition we have it
in writing to Michael Lee that Dan Grabaskus, Executive of HART, refused to
allow any cultural monitoring on this WOFH segment while this work was done.
It
would be nearly statistically impossible for construction not to
find bones
over two miles
It is well documented that the Ewa Honouliuli WOFH
segment had the largest pre-contact native Hawaiian population on Oahu. Family
members who died were very typically buried close to where they lived- usually in
their “back yards.” Native Hawaiians have a special regard for iwi kupuna – the
bones still contain the family essence. Native kalo farmers lived on the Kalo’i
lands for centuries and they and their families are still buried there in the
ground. FTA and HART had no interest in respecting these habitation and burial
areas because they were on rural farmland.
These huge piles of rail construction dirt could
contain archeological materials from the centuries old Kalo’i Honouliuli native
farmlands which was also the location of historically recorded mass sudden family
deaths after early Western contact. There was a place called the House of Bones
in the project area. There were many major invasion battles in this area and it
was common that defeated warriors had their bones used as tools and implements.
There was also a major cattle ranching activities and wild pig hunting in this
area. The Ewa Plain is widely known as a iwi burial area.
Ewa Plantation workers have described after heavy
rains native Hawaiian implements would turn up in the cane field furrows and
previously soil covered coral sinkholes would appear from draining rain water
that contained bones. Nothing was done with them other than just covering them
back up again.
The
net effect is that it would be nearly statistically IMPOSSIBLE for Kiewit rail
construction materials to NOT contain any bones AT ALL from human or animals
during the two mile WOFH construction. Obviously there was no
attempt to respect native Hawaiian iwi kupuna and this again illustrates the
arrogance and contempt the FTA HART rail project has West Oahu Traditional
Cultural Places and Properties.
Federal Judge Wallace
Tashima ruled that not all TCP’s were
identified
Federal Judge A. Wallace Tashima ruled the city
"failed to complete reasonable efforts to identify" traditional
cultural properties along the 20-mile proposed rail line, and ordered the city
to identify those properties. FTA and HART have never honestly and fairly
addressed this Federal ruling. (See more below)
Issue From Monthly
Meeting: (NRCS-CPA-106) “Farmland Conversion
Impact Rating”
Another ongoing issue is Kanehili Cultural Hui’s
continuous mentioning of the original FTA assessment of the Kalo’i farmland
(Hoopili) as poor farmland in order to meet a Section 4f checkbox. We sent a
letter to FTA Region 9 administrator, attention Leslie Rogers and Ted Matley
and have never received a response. (See more below)
FTA and HART
Programmatic Agreement Best Practices Guide (draft)
“The City and County of Honolulu (City) has embarked
on a project to construct an elevated rail system from Kapolei to the Ala Moana
Center in leeward O‘ahu, termed the Honolulu Rail Transit Project (HRTP). As a
governmental agency, the City is responsible and obligated to consider all
historical and cultural resources within the area proposed for rail development.”
The Honolulu Rail Transit Project is receiving
funding from the U.S. Department of Transportation Federal Transit
Administration (FTA). Because of this federal participation, the HRTP is
considered an undertaking as defined in 36 CFR 800.16(y).
According to the HART PA Best Practices Guide
(draft) it appears that rail stations, supporting piers, power stations and
parking lots will require a more intensive AIS than the overall fixed guide way
route and should bring in even more in depth consultation by Consulting Parties
or NEW CP's. When will this happen- a
more intensive AIS?
Stipulation II of the PA called for conducting a
study to determine the presence of any previously unidentified TCPs in the
project’s area of potential effect (APE).
The City and FTA, with consultation with consulting
parties is obligated to evaluate all potential TCPs for National register of
Historic Places (NRHP) eligibility and assess the potential the project might
have to adversely affect the identified TCPs.
TRADITIONAL CULTURAL
PROPERTIES
“A Traditional Cultural Property (TCP) can be a
site, an object, or even a place that has cultural significance. TCPs refer to
“places that communities think are important, because they—the places—embody or
sustain values, character, or cultural coherence” (King 2003:1). The National
Register Bulletin states the definition of a TCP more formally: A traditional
cultural property . . . can be defined generally as one that is eligible for
inclusion in the National Register because of its association with cultural
practices or beliefs of a living community that (a) are rooted in that
community’s history, and (b) are important in maintain the continuing cultural
identity of the community. “(National Register n.d.:1).
HART Programmatic
Agreement Kakoo recommended all four Kanehili Cultural Hui TCP’s
KĀKO‘O
FINDINGS
The KCH has raised the issue that there are four
potential Traditional Cultural Properties (TCP) in the Honouliuli area of West
O‘ahu that may be affected by the development of the Honolulu Rail Transit
Project (HRTP). The four potential TCPs
are:
Complex of Shark God
Caves and Channels
RECOMMENDED MITIGATION MEASURES TO CONSIDER
1. FTA
should recommend to SHPD that this complex of caves/channels associated with
traditional Hawaiian Shark Gods and Goddesses be recognized as a Traditional
Cultural Property (TCP). FTA should urge
SHPD to work with the KCH to determine if these TCPs are eligible for listing
on the NRHP
2. Archaeological
and cultural monitoring of those segments of the rail line and stations that
have the potential to directly cause effects to the complex of cave/channels.
3. Develop
and implement an interpretive and educational program focused on the traditions
and mo‘olelo of the shark gods and goddesses of this area. Educational and interpretive materials could
be incorporated into the stations from Ho‘opili to Aloha Stadium.
Leina a ka Uhane
RECOMMENDED MITIGATION MEASURES TO CONSIDER
1. FTA
should go on record recognizing the spiritual importance of the Leina a ka
Uhane to Native Hawaiians and recommend to the State Historic Preservation
Division that this spiritual pathway should be evaluated as a Traditional
Cultural Property.
2. Potential
cumulative effects to this can also be mitigated by developing interpretive and
educational materials to highlight this important spiritual pathway. Such
interpretive materials can be placed in selected stations as part of the
overall interpretive program being developed by HART.
Traditional Trail
System (aka the 1835 Malden Trails)
RECOMMENDED MITIGATION MEASURES TO CONSIDER
- FTA should go on record recognizing the cultural importance of the trail system in Honouliuli and recommend to the State Historic Preservation Division that this complex of trails should be evaluated as a Traditional Cultural Property.
- FTA should encourage SHPD, Na Ala Hele, and the Kanehili Cultural Hui to study the feasibility of developing these trails into a public trail system in Honouliuli. This public trail system could further general educational and interpretive aspects of Honouliuli.
‘Ewa Plain including
the ‘Ewa Plantation and the ‘Ewa Battlefield
RECOMMENDED MITIGATION MEASURES TO CONSIDER
- Ewa Plantation: The first thing that needs to be done is to have a concise definition of the boundaries and component properties of the ‘Ewa Plantation that still exist. It is recommended that the KCH work closely with the SHPD to explicitly define what now constitutes the remnants of the ‘Ewa Plantation This process will result in a determination regarding the eligibility of the ‘Ewa Plantation to be listed on the NRHP. Once the property has been defined and determined eligible for listing, a determination of the effects of the project can be better evaluated. Once the potential effects have been determined mitigation measures can be proposed.
- Battlefield: The first thing that needs to be done is to have a concise definition and demarcation of the boundaries and component properties of the ‘Ewa Battlefield that still exist. It is recommended that the KCH work closely with the SHPD to explicitly define what now constitutes the remnants of the ‘Ewa Battlefield. In some of the KCH documents, statements are made that the ‘Ewa Battlefield has been determined eligible to be listed on the NRHP, but independent confirmation has not been found. Once the property has been defined and determined eligible for listing, a determination of the effects of the project can be better evaluated. Once the potential effects have been determined mitigation measures can be proposed.
“Farmland Conversion Impact Rating”
(NRCS-CPA-106)
Five very qualified experts rated the Hoopili lands
as exceeding the requirements of the “Farmland Conversion Impact Rating”
(NRCS-CPA-106)
Rail contractor Parsons Brinkerhoff, who never consulted
any agriculture experts and never did a farmland site visit, rated the lands
(in their own self interest) as BELOW the Section 4f impact rating required to provide for
farmland preservation. The score arrived at, and thereafter used officially by
the City, HART and FTA to justify not evaluating alternative routes or
mitigation. The official FTA score on form NRCS-CPA-106 for the Rail project is
120. The threshold triggering required
alternative evaluation is 160. Five
independent third parties scored the impact rating at an average of 226.
Civ. No. 11-00307 AWT
ORDER ON CROSS-MOTIONS FOR SUMMARY
JUDGMENT
A. WALLACE TASHIMA 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.
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.
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)).
