Honolulutraffic.com et al v. Federal Transit Administration et al

Filing 227

ORDER RE MOTION TO MODIFY PARTIAL INJUNCTION 215 202 . Signed by JUDGE A. WALLACE TASHIMA on 4/22/2013. ~ For the forgoing reasons, the court concludes that it is without jurisdiction to grant City Defendants' motion. The motion is therefore DENIED. This denial, however, is without prejudice to the further proceedings set forth below. Plaintiffs have made it known that, if this court had jurisdiction, they would not oppose certain of the modifications sought by City Defendan ts. The court thus hereby indicates that if City Defendants can obtain a Crateo remand from the Ninth Circuit, this court would look favorably on City Defendants' motion to modify the partial injunction to the extent that: (1) it is not oppos ed by Plaintiffs; and (2) City Defendants and Plaintiffs can reach agreement on the language of such modifications. ** Motions terminated: 215 . (ecs, )CERTIFICATE OF SERVICEParticipants registered to rec eive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

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UNITED STATES DISTRICT COURT

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DISTRICT OF HAWAII

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HONOLULUTRAFFIC.COM; CLIFF |
SLATER; BENJAMIN CAYETANO; |
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WALTER HEEN; HAWAII’S
THOUSAND FRIENDS; THE SMALL |
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BUSINESS HAWAII
ENTREPRENEURIAL EDUCATION |
FOUNDATION; RANDALL W. ROTH; |
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DR. MICHAEL UECHI; and THE
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OUTDOOR CIRCLE,
Plaintiffs,

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vs.

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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; and
MICHAEL FORMBY, in his official

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capacity as Director of the City and County
of Honolulu Department of Transportation,

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Defendants,

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CV No. 11-0307 AWT
ORDER RE MOTION TO MODIFY
PARTIAL INJUNCTION

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FAITH ACTION FOR COMMUNITY|
E Q U I T Y ; P A C I F I C R E S O U R C E|
PARTNERSHIP; and MELVIN UESATO, |
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Intervenors - Defendants.
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Before the court is City Defendants’ Motion to Clarify and Modify Partial

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Injunction, which now has been fully briefed. Plaintiffs oppose the motion, at least in

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part. No other party opposes the motion.

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City Defendants seek to modify1 the partial injunction in four ways: (1) to permit

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certain types of real estate acquisition activities; (2) to negotiate, but not acquire, rights of

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way; (3) to permit relocation of owners and tenants of property acquired before issuance

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of the injunction; and (4) to permit real estate acquisition activities in those areas of Phase

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4 of the Project which would be necessary either under the present Project alignment for

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Phase 4, or under the Beretania Street Tunnel Alternative.

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Plaintiffs appealed the final judgment and partial injunction on February 11, 2013.

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Once an appeal is taken, the trial court is divested of jurisdiction over the matters

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appealed. See McClatchy Newspapers v. Cent. Valley Typographical Union No. 46, Int’l

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Typographical Union, 686 F.2d 731, 734 (9th Cir. 1982). City Defendants argue,

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however, that their instant motion falls under an exception to the general rule; namely,

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that the district court can take action to preserve the status quo pendente lite. See id.; see

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also Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir. 2001); Natural Res. Def.

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Council v. Sw. Marine, Inc., 242 F.3d 1163, 1166-67 (9th Cir. 2001). The court is

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unconvinced. Plainly, the sought modifications would permit City Defendants to engage

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in certain Phase 4 activities now prohibited by the partial injunction; their purpose and

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effect are not to preserve the status quo. Thus, “[these] modification[s would] alter[] the

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status quo by removing the [existing] prohibition . . . .” Small v. Operative Plasterers’ &

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City Defendants also use the word “clarify” in describing the changes they
want to the partial injunction, but clarification does not appear to be the objective of this
motion.
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Cement Masons’ Int’l Ass’n Local 200, 611 F.3d 483, 495 (9th Cir.2010).
For the forgoing reasons, the court concludes that it is without jurisdiction to grant

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City Defendants’ motion. The motion is therefore DENIED. This denial, however, is

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without prejudice to the further proceedings set forth below.

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Plaintiffs have made it known that, if this court had jurisdiction, they would not

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oppose certain of the modifications sought by City Defendants. The court thus hereby

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indicates that if City Defendants can obtain a Crateo2 remand from the Ninth Circuit, this

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court would look favorably on City Defendants’ motion to modify the partial injunction

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to the extent that: (1) it is not opposed by Plaintiffs; and (2) City Defendants and

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Plaintiffs can reach agreement on the language of such modifications.

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IT IS SO ORDERED.

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DATED this 22nd day of April, 2013.
/s/ A. Wallace Tashima

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A. WALLACE TASHIMA
United States Circuit Judge
Sitting by Designation.

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See Crateo, Inc. v. Intermark, Inc. (In re Crateo), 536 F.2d 862, 869 (9th Cir.

1976).
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