270), to Minnesota State House Representatives, and to the 40 State Senators
who don't use e-mail forms -- bobagain, East Lake Harriet Farmstead,
"candidate-journalist", "writer-wing republican", registered Lobbyist on behalf
of We the People, an informal association, more on this later.
NEWS ANALYSIS: Motion to Dismiss heard in Federal lawsuit challenging Met
Councilâs Southwest Light Rail process; Judge to rule ASAP; Lakes and Parksâ
Summary Judgment Motion hearing set for March 9th; Lawsuit could stop, delay,
or change SWLRT
Contact: Bob âAgainâ Carney Jr: <email obscured>; cell phone: (612)
812-4867
This is a âNews Analysisâ article from âcandidate-journalistâ Bob âAgainâ
Carney Jr -- for âstraight newsâ on this event, Carney recommends articles
from two other journalists who were at the hearing:
Randy Furst, Star Tribune: http://www.startribune.com/local/west/294116881.html
Peter Callaghan, MinnPost:
http://www.minnpost.com/politics-policy/2015/02/southwest-light-rail-route-opponents-get-their-first-day-court
Disclosure: Carney is a registered Lobbyist, representing âWe the Peopleâ, an
informal association; Carney does not represent or speak for Lakes and Parks
Alliance.
Correction: A 2/23/2015 news release incorrectly stated: â[Lakes and Parks
Alliance] is advocating reconsideration of an earlier alternative route, called
â3Câ, or the âMidtown/Nicolletâ routeâŚâ Lakes and Parks Alliance has not taken
a position on an alternative route, only on the need for the Met Council and
FTA to comply with federal and state environmental laws.
Minneapolis, 2/26/15 â Motions by the Metropolitan Council and the Federal
Transportation Authority (âFTAâ) to dismiss a lawsuit by Lakes and Parks
Alliance (âLPAâ), a citizen group, were heard yesterday by Federal District
Judge John Tunheim, who said he planned to rule as soon as possible. A second
hearing, on the LPAâs motion for summary judgment, is scheduled for March 9th;
Judge Tunheim need not rule on the Motions to Dismiss before then, although he
can.
Attorney Lewis Remele, CEO of Bassford Remele, represented LPA, and made this
statement after the hearing:
âThe heart of the dispute is whether the 2014 Municipal Consent process and the
way in which consent was obtained from the five cities and Hennepin County
resulted in the elimination of reasonable alternatives in violation of
environmental laws.â
Assistant U.S. Attorney Craig Baune went first, arguing the case was premature,
did not give due deference to a Federal Administrative agency, and that there
was no private cause of action. Baune said a Federal lawsuit would be
premature until after the FTA had issued a record of decision: to allow a
lawsuit to start earlier would turn agency decision making âon its headâ.
Baune argued any claim of injury by the plaintiffs at this point would be
âconjectural,â and was barred by the doctrine of Sovereign Immunity.
Attorney Charles Nauen went next, representing the Metro Council and arguing
that the Court did not have supplemental jurisdiction over state law. Nauen
argued LPAâs Municipal Consent claim was flawed, and that the LPA had no
private cause of action; also noting a Supplemental EIS was expected in the
next few months. When asked by Judge Tunheim about a Memorandum of
Understanding (âMOUâ) entered into by the Metro Council and Saint Louis Park,
Nauen argued the MOU was not a legally binding agreement, and thus was not
âimproper predeterminationâ.
When asked by Judge Tunheim what State Statute requires Cities to have when
considering Municipal Consent, Nauen said âonly preliminary design plans need
to be submitted for Municipal Consent,â but failed to mention that according to
MN Statute 473.3993: âThe preliminary design plan includes the preliminary or
draft environmental impact statement for the light rail transit facilities
proposed.â Nauen added if final design plans change compared to preliminary
plans the Municipal Consent process would have to be repeated. At the end of
the hearing Remele cited MN Statute 473.3993 (Statute text is at the end of
this article), and emphasized the required preliminary or draft environmental
impact statement was not available during the 2014 Municipal Consent process.
Remele followed Nauen, and commenced by asserting the defendants do not
understand the case, which he said is not about substantive questions that can
and do arise after an FTA record of decision is issued, but rather turns on the
question of procedural injury. Remele acknowledged that the kind of
substantive claim discussed by the defendants is not ripe. However, Remele
argued that during the NEPA process an agency canât do anything that has an
adverse environmental impact, and canât preclude consideration of reasonable
alternatives. Remele argued there can be no âright without a remedyâ, and that
NEPA does provide for a private cause of action because given the current fact
situation and timeline, there could be a âfait accompliâ by the time an FTA
record of decision is issued. Remele asserted a person injured âdue to a
failure to follow a procedure has a cause of action at that time,â and that to
hold otherwise would mean there was no real remedy.
Regarding reasonable alternatives, Remele noted that while it has previously
been determined colocation of freight and light rail couldnât be allowed, a new
Scoping Document issued by the Metro Council in July of 2013 said co-location
would be looked at again. As examples of procedural flaws in Municipal Consent
and the elimination of reasonable alternatives, Remele noted that Minneapolis
consented after a private mediation between the City and the Metro Council,
that such mediations are typically undertaken to result in a binding agreement,
and that the mediation included a gag order. Remele also noted Governor Dayton
has threatened to cut funding for the Minneapolis Park Board, an independent
elected body; the Park Board has been seeking answers to environmental
questions associated with the current Metro Council Southwest Light Rail plan.
Members of the Metro Council are frequently described as serving at the
pleasure of the Governor. Remele said âThese are all issues that under NEPA
need to be aired, need to be discussed,â and noted St. Louis Park would be
âvery surprisedâ to hear rerouting freight to Saint Louis Park could still be
done. When Judge Tunheim asked if LPA was not arguing about final Agency
action, Remele replied âNo,â and re-emphasized actions of the defendants have
limited reasonable alternatives.
Remele concluded by saying this case is âuniqueâ because of the âblatantâ way
in which the Metro Council has not followed the required procedure.
Analysis
The narrow legal issue under consideration at yesterdayâs hearing was if the
lawsuit can proceed, or must be dismissed. The arguments, and questions by the
Judge, may have been framed and argued more broadly partly to explore and
consider what kind of a precedent might result if the case does go forward.
The FTA is clearly concerned about any precedent that would threaten settled
law regarding deference due to administrative agencies, including whether and
when a Federal Court can intervene in a process before a record of decision has
been issued.
In that context, Remeleâs focus: that the case turns on a question of
âprocedural injuryâ, may be a crucial consideration weighing against granting a
Motion to Dismiss. The Judge appeared sympathetic to the idea that irreparable
harm might occur before the current process runs its course to a record of
decision. It is easy to conceive of a narrow opinion by the Court, possibly
including criticism of actions of the Metro Council, but rendered in a way that
would not support precedential application by any future plaintiff outside the
context of Municipal Consent provisions and requirements in Minnesota State
law. In that scenario, if the FTA loses it might choose not to pursue an
appeal, partly to avoid adding any additional precedential weight associated
with an Appellate Court opinion.
Although the focus is on the Metro Council, and not the FTA, and although
interpreting and applying State Law figures prominently in the case, no direct
discussion emerged during the hearing regarding a question of State or Federal
venue. LPA could have filed a lawsuit in State court, which would not have
been subject to the arguments for dismissal advanced yesterday by the
defendants. By implication, the defendantsâ arguments for dismissal are by
default an argument that a State venue would be more appropriate, at least in
the sense that from their point of view a Federal venue is not a current
option. But the interaction of the FTA and State entities, including of course
the Metro Council, and of Federal and State law, seem to be so pervasive that
it might be unrealistic to think a State Distsrict Court could best render a
reasonable and equitable legal result. If there is validity to the argument
that âirreparable harmâ is a real, current danger, and that there canât be a
âright without a remedy,â Federal Court seems to be a preferable venue.
This case is of course proceeding in the context of a larger political and
budget context. According to a document provided to the Minnesota House
Transportation Committee by Hennepin County Commissioner Peter McLaughlin
earlier this year, the Counties Transit Improvement Board has already spent
about $100 million on the Southwest Light Rail project. If the project is
cancelled outright, for whatever reason, that would amount to a $100 million
write-off. This fact is a major, but little discussed, driving force behind
the continued push for some kind of Southwest Light Rail line â unfortunately
many people seem to think that even a disasterously flawed something is better
than nothing. With this underlying issue now brought into view, it becomes all
the more reasonable to ask: can the route be more fundamentally reconsidered,
and in particular, can it be moved out of Kenilworth, along the Greenway to
Hennepin Avenue or beyond? One alternative route considered earlier follows
the Greenway to Nicollet Avenue, heading to downtown from there.
One âstandard lineâ offered so far has been that when the âLocally Preferred
Alternativeâ part of the process was concluded, it became impossible to revisit
the question of where the route runs. However, at a Metro Council meeting last
year this journalist asked Commissioner Peter McLaughlin whether the question
of reconsideration of the route was really closed with such finality, and was
told, paraphrasing, that at this point in the process no previous project had
ever attempted to change an agreed-upon route. Given the massive issues and
problems with the current proposed route through Kenilworth, this may be a
question worth revisiting. It may be possible to re-open the question of
sending the route to Hennepin/Uptown, or beyond, as a way of resolving problems
that have emerged with the Kenilworth portion of the route. Such a
reconsideration of alternatives not involving Kenilworth could conceivably be
part of a negotiated settlement of the current lawsuit.
A âno-buildâ option was one of the alternatives originally considered, and of
course this remains an option. But if, in the end, Southwest Light Rail is not
built, the $100 million spent so far would then be, in effect, a massive
tuition pre-payment on a course the entire State of Minnesota now appears to be
taking, called: âMetropolitan Council Openness and Transparency.â Further
questions might then include: is this a course -- a degree program -- or a real
career? Some people say the âSchool of Hard Knocksâ is the best school in the
world. We know this: it has the highest tuition.
<end>
473.3993 LIGHT RAIL TRANSIT FACILITY PLANS; DEFINITIONS.
Subdivision 1.Application. The definitions in this section apply to sections
473.3993 to 473.3997.
Subd. 2.Preliminary design plan. "Preliminary design plan" means a light rail
transit plan that identifies:
(1) preliminary plans for the physical design of facilities, including
location, length, and termini of routes; general dimension, elevation,
alignment, and character of routes and crossings; whether the track is
elevated, on the surface, or below ground; approximate station locations; and
related park and ride, parking, and other transportation facilities; and a plan
for disability access; and
(2) preliminary plans for intermodal coordination with bus operations and
routes; ridership; capital costs; operating costs and revenues, and sources of
funds for operating subsidies; funding for final design, construction, and
operation; and an implementation method.
The preliminary design plan includes the preliminary or draft environmental
impact statement for the light rail transit facilities proposed.