Former Division of Aquatic Resources Administrator to discuss "The things that keep me awake at night: Hawaii's looming aquatic resource challenges"

On Tuesday, September 6, 2011, the Natural Resources Section (NRS) will hold its monthly brown bag lunch meeting from 12:00 to 1:00 pm at the HSBA conference room.

NRS will host Dr. Dan Polhemus, formerly the Administrator for the Department of Land and Natural Resources Division of Aquatic Resources (DAR), and currently the Coastal Conservation Program Manager for the Pacific Islands Office of the U.S. Fish and Wildlife Service. Dr. Polhemus will reflect on his time as DAR Administrator, and will present: "The things that keep me awake at night: Hawaii's looming aquatic resource challenges."

Aquatic Resources is charged with managing freshwater and marine resources, including 410,000 acres of coral reef. More than 80 percent of the coral reefs located within the United States are found in Hawaii.  Its three main program areas include: commercial fisheries management; the protection of native and indigenous aquatic species and their habitats; and providing facilities and opportunities for recreational fishing.

Dr. Polhemus received his B.S. (1980) in Entomology from Colorado State University and Ph.D. (1984) in Biology from the University of Utah.  Since 1983, he has conducted research on aquatic ecosystems in countries throughout the Pacific region, including Indonesia, Australia, East Timor, Papua New Guinea, the Solomon Islands, Fiji, and French Polynesia. He has received particular recognition for his work on the evolution and conservation of native Hawaiian damselflies.  After working as a consultant to the Smithsonian Institution on an ecosystem modeling project in the Everglades, he joined the staff of the Bishop Museum in 1990, where he served as manager of externally-funded biological science programs, with a strong emphasis on Hawaiian limnology. In 1996 he accepted a research position with the Smithsonian Institution, where he worked for 10 years, including a term as Chairman of the Department of Entomology.  Dr. Polhemus has published more than 130 peer-reviewed articles in scientific books and journals, and has been the recipient of more than 25 research grant and contract awards totaling over $4 million.  In the course of his research he has described and named over 400 new species, including 63 from Hawaii.

Non-NRS members welcome on a space available basis.

NEPA Cumulative Analysis Spread Out through NEPA Document OK, To a Degree

Center for Environmental Law v. US Bureau of Reclamation, No. 10-35646, 9th Cir., Aug. 19, 2011, reminds National Environmental Policy Act (NEPA) preparers of the importance of keeping a good record and drafting organized environmental review documents, in addition to taking a “hard look” and genuinely scrutinizing the environmental consequences of a proposed action.

In Center for Environmental Law, the 9th Circuit Court of Appeals considered a NEPA challenge by environmental groups to a proposed incremental drawdown of water from Lake Roosevelt in eastern Washington.

Lake Roosevelt National Recreation Area

Lake Roosevelt in eastern Washington state serves a variety of purposes, including irrigation, navigation, flood control, power generation, recreation, and fish management.

According to the Court, Plaintiffs' most significant challenge on appeal was Reclamation's cumulative effects analysis in the environmental assessment (EA). The Court characterized this claim as form over substance, as follows:

The record includes extensive evidence that [Reclamation] considered the relevant prior . . . actions and took the requisite hard look before approving the drawdown project. Although this evidence is not presented in the cumulative effects section of the EA, it would impermissibly elevate form over substance to hold that Reclamation must replicate its entire analysis under the heading of cumulative effects.

While the Court agreed with Plaintiffs' argument that "the portion of the EA exclusively devoted to cumulative effects is conclusory and unenlightening," Reclamation's analysis was sufficient when "reading the EA as a whole."

In addition to upholding Reclamation's cumulative effects analysis, the Court also upheld its indirect effects and alternatives analysis. In short, the Court opined as follows:

• Indirect Effects. "Agencies need not account for potential growth effects that might be caused by a project if the project is exclusively intended to serve a much more limited need." In this case, "the causal tie between the project and growth is significantly . . . attenuated" with regard to Plaintiffs' claim that the project would cause additional future draw downs. The Court found it significant that "[t]he use of the expanded capacity remains both firmly in the control of Reclamation and is subject to review in a future EA or EIS." Consequently, any environmental effects from additional diversions were not, in the Court's opinion, indirect effects of the current drawdown project.

• Alternatives Analysis. Reclamation’s EA discusses two alternatives—the proposed drawdown and a no action alternative. Plaintiffs' challenged the selection of alternatives as "overly constrained." The Court opined that it has "previously recognized, there is no "numerical floor on alternatives to be considered." In addition, the Court noted prior case law where it previously held that “the absence of a more thorough discussion in [an] EIS of alternatives that were discussed in and rejected as a result of prior state studies does not violate NEPA." Consequently, the Court held that Reclamation's alternatives analysis complied with NEPA. In reaching this conclusion, the Court cited Native Ecosys. Council v. Dombeck, 304 F.3d 886, 897 (9th Cir. 2002), which held that an EA that discussed only the agency’s preferred alternative and a no-action alternative satisfied NEPA. Finally, the Court noted that Reclamation was not required to "consider the alternatives [Plaintiffs] prefer[ed]."

Although Reclamation's NEPA compliance was upheld, it is important to heed the Court's cautionary note, "[we do not] suggest that agency discussion of impacts can be so diffuse, scattered, or opaque that a court must play Humpty Dumpty to put the pieces together in a coherent fashion."

For more on NEPA and environmental assessment issues see, Environmental Law.

Honolulu Rail Transit Project Challenged in Federal Court -- Answer and Reply

Case Name: Honolulutraffic.com et al. v. Federal Transit Administration et al.

Case Number: 1:2011cv00307

Court: Hawaii District Court

Presiding Judge: A. Wallace Tashima

Rail Route Map from www.honolulutransit.org

Plaintiffs: The Plaintiffs are 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.

Defendants: The named Defendants are the Federal Transit Administration (“FTA”); Leslie Rogers, in his official capacity as FTA Regional Administrator; Peter M. Rogoff, in his official capacity as FTA Administrator; US 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 (this is an error by Plaintiffs—it should be Department of Transportation Services).

Complaint: Nicholas C. Yost, the California attorney representing the Plaintiffs, filed the complaint on May 12 , 2011, in Hawaii's federal district court challenging the Honolulu Rail Transit Project. Plaintiffs list the following counts in their complaint:

• Count 1: Defining the Purpose and Need so Narrowly as to Preclude Consideration of All Reasonable Alternatives (NEPA)
• Count 2: Failure to Consider all Reasonable Alternatives (NEPA)
• Count 3: Failure Properly to Analyze the Environmental Consequences of Alternatives (NEPA)
• Count 4: Improper Segmentation (NEPA)
• Count 5: Failure to Identify and Evaluate Use of Native Hawaiian Burials and Traditional Cultural Properties (Section 4(f))
• Count 6: Arbitrary and Capricious Evaluation of the Project’s Use of Section 4(f) Resources (Section 4(f))
• Count 7: Improper Project Approval (Section 4(f))
• Count 8: Failure to Account for Effects on Historic Properties (NHPA)

Plaintiffs are asking the court to issue an injunction to stop the project and attorneys’ fees.

Answer: The FTA filed its answer to the complaint on August 12, 2011. The complaint is the usual kind of “kitchen sink” approach used in environmental impact statement challenges to transportation projects. Consequently, the FTA’s answer is a standard format generally used in these cases—admissions, denials, affirmative defenses.

 
Next Steps: The other Defendants should be filling a reply at some point soon. All parties should be aware that these kinds of cases seldom go to trial. Whether the facts, as determined by the court, support Plaintiffs’ allegations will be more thoroughly briefed by the parties in summary judgment briefs. That’s when the case becomes interesting.

Update 08/16/2011: Civil Beat reports that City defendants filed their answer in September.

 
Visit Honolulu Rail Transit Project for more on this project.

Office of Planning Seeks Input on Greenways and Trails Report to Legislature

If you're interested in or have used greenway and trail related amenities in Hawaii, please take some time to fill out the following survey:

ACT 233 (2011) REPORT ON HAWAII GREENWAYS AND TRAILS PLANNING — SURVEY at http://goo.gl/smhkv.

The purpose of this survey is to seek stakeholder involvement as the Office of Planning generates a report to the State of Hawaii Legislature regarding the establishment of a statewide greenways and trails plan, pursuant to Act 233 (2011).  For more information, please visit http://goo.gl/6VwYc.

This survey will close on Monday, October 31, 2011.

Map of Waihee Ridge Trail
Na Ala Hele Trail and Access System

Hawaii Land Use Law and Policy Goes Mobile

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