STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

CASE TYPE: CIVIL OTHER

REGENTS OF THE UNIVERSITY OF MINESOTA, )

on its behalf and in the name of the State of Minnesota, )

Plaintiff, ) )

v. )
METROPOLITAN COUNCIL, )
)

)
Court File No.

SUMMONS

)
Derendam. )
THE STATE OF MINNESOTA TO DEFENDANT METROPOLITAN COUNCIL:

PLEASE TAKE NOTICE that you are hereby swnmoned and required to serve upon

Plaintiff's attorneys an Answer to the Complaint, which is herewith served upon you, within

twenty (20) days after service of this Summons upon you, exclusive of the day of service. If you

fail to do so judgment by default will be taken against you for the relief demanded in the

Complaint.

Rule 114 of the Minnesota General Rules of Practice for the District Court provides that

all civil cases are subject to alternative dispute resolution (ADR) processes, except for those

actions enumerated in Minn. Stat. § 484.76 and Rules 1IL.01 and 310.01 of the General Rules.

This notice is providcd in accordance with Minn. Stat. § 543.22.

Dated: Septembcr 22, 2009 ENVIRONMENTAL LAW GROUP, LTD

By:
Tha deus R. Lightfoot (#
133 First Avcnuc North
Minneapolis, MN 55401
Tel: (612) 623-2363
Fax: (612) 378-3737
 GREENE ESPEL, P.L.L.P.

Clifford M. Greene (#37436)

Larry D. Espel (#27595)
200 S. Sixth Street, Suite 1200
Minneapolis, MN 55402
(612) 373-0830

OFFICE OF THE GENERAL COUNSEL

UNIVERSITY OF MINNESOTA

Mark B. Rotenbcrg (# 126263)

General Counsel
360 McNamara Alumni Center
200 Oak Street, S.E.
Minneapolis, MN 55455-2006
(612) 624-4100

COUNSEL FOR PLAINTIFF REGENTS

OF THE UNIVERSITY OF MINNESOTA

ACKNOWLEDGMENT

Plaintiff Regents of the University of Minnesota acknowledges through its undersigned

counsel that sanctions may be imposed under Minn. Stat. § 549.211 if, afer notice and a
reasonable opportunity to respond, the Cour determines that a party has violated Minn. Stat.
§ 549.211, subd. 2.

~.¿J
Thaddeus R. Lightfoot (~X)

2
STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

CASE TYPE: CIVIL OTHER

REGENTS OF THE UNIVERSITY OF MINESOTA, )

on its behalf and in the namc of the State of Minnesota, )

Plaintiff, )
v. )
)
Court File No.
)
COMPLAINT FOR
) DECLARATORY AND
METROPOLITAN COUNCIL, ) INJUNCTIVE RELIEF
)
Defendant. )
Plaintiff Regents of the University of Minnesota ("the University") for its Complaint

against Defendant Metropolitan Council ("Metropolitan Council" or "Defendant") states and

alleges as follows:

I. NATURE OF THE ACTION

1. This action arises as a result of the Metropolitan Council's proposed construction

and operation of the Central Corridor Light Rail Transit ("CCLRT") Project. The CCLRT

Project is an ll-mile light rail transit line that wil connect downtown Minneapolis with

downtown St. Paul, running through the University's East Bank and West Bank Campuses. In

2008 the Metropolitan Council decided that the CCLRT Project would run at-gradc on

Washington Avenue, through the very heart of the University's East Bank Campus research and

discovery corridor.

2. The University brings this action for declaratory and injunctive relief to protect its

campus from the adverse effects of thc proposed CCLRT Project. Minnesota law requires

Defendant Metropolitan Council to adequatcly address the serious adverse environmental effects

of the proposed CCLRT Project and proposc mitigation measures to protect the University. The
Metropolitan Council has failed to do so. Accordingly, the University is carrying out its

fiduciary duty to the citizens of the State of Minnesota to protect its campus from thesc adverse

effects and fulfill its mission of research and discovery, teaching and Icarning, and outreach and

public service.

3. The University is a transit-oriented community, with two-thirds of its commuters

using bus, bicycle, carpool, or walking options. Thc University has long supportcd

transportation improvements on its campus, and for nearly a decade has been a key, committed

partncr in planning for the CCLRT Project. The University itself is expected to generate

approximately 25 to 30 percent of the proposed CCLRT Project's daily riders.

4. Defendant Metropolitan Council has adopted a final environmental impact

statement ("FEIS") for the proposed CCLRT Projcct and certified that the FEIS meets state law.

In fact, the FEIS does not comply with thc rcquilCments of state law and is inadcquate. The

FEIS fails to comply with the Minncsota Environmental Policy Act ("MEP A") bccause it does

not adcquately evaluate thc serious adverse environmental impacts of the proposed CCLRT

Project on the Univcrsity or the mitigation measures necessary to safeguard the University's

campus environmcnt and critical research functions.

5. In addition, the Metropolitan Council's proposal to construct and operate the

CCLRT Project is likcly to rcsult in the pollution, impairment, or destruction of natural resources

protected undcr the Minnesota Environmental Rights Act ("MERA"). The proposed CCLRT

Project will impair natural resources on the Univcrsity's East Bank Campus by interfering with

valuable and sensitive research, increasing noisc and vibration during CCLRT Projcct

construction and operation, and detracting from thc currcnt setting and esthetic quality of the

University's historical districts.

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 6. To protect its campus, the University seeks effective mitigation to address the

following serious effects of the proposed CCLRT Project:

. the adverse impact of vibration, both construction-related and from

ongoing operations;

. the advcrsc impact of electromagnetic interference;

. the adverse impact on historic rcsourccs; and

. other adverse construction impacts, including noise.

7. The Metropolitan Council is actively seeking temporary and permanent easements

on property owncd and used by the University for construction and operation of the proposed

CCLRT Project. However, property owned by the University and already dedicated to

University use is not subject to the exercise of eminent domain by the Metropolitan CounciL.

Accordingly, the University sccks a judgment declaring that the Metropolitan Council may not,

for puroses of construction or operation of the proposed CCLRT Project, exercise eminent

domain over property already dedicated for use by the University.

8. The Metropolitan Council has ignored or failed to offer adequate responses to

conccrns thc University has raised repeatcdly regarding the proposed CCLRT Project. Without

intervcntion by this Court to requirc implementation of effective environmental mitigation

measurcs, the CCLRT Project may destroy the public's enormous investment in the University's

rescarch facilities and constrain the University's future use of those facilities and other

University property, thereby jeopardizing one of the State's most important economic engines.

II. I'ARTIES

9. Plaintiff, the Univcrsity, is an institution of higher education and a constitutional

corporation of the State of Minncsota, Minn. Const., Art. XII, § 3, with its principal place of

business at 202 Morril Hall, 100 Church Street S.E., Minneapolis, Minnesota 55455.

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 10. Defendant, Metropolitan Council, is a political subdivision of the State of

Minnesota created by Minn. Stat. § 473.123, with its principal place of business at 390 Robert

Street North, St. Paul, Minnesota 55101. Thc Metropolitan Council is a regional planing

agency serving the Twin Cities metropolitan area and intends to build and opcrate the CCLRT

Project.

Il. JURISDICTION AND VENUE

11. This Court has jurisdiction over the claims against the Metropolitan Council that

arise under the Minnesota Constitution and laws of the State of Minnesota, specifically MEPA,

Minn. Stat. § 116D.04, subds. 10 and 13; MERA, Minn. Stat. § 1168.03; and the Minncsota

Declaratory Judgment Act, Minn. Stat. §§ 555.01-.02, .12.

12. Venue lies in this district under MEPA, Minn. Stat. § 116D.04, subds. 10 and 13,

and the Minnesota Declaratory Judgment Act, Minn. Stat. ch. 555, because part of the proposed

CCLRT Project would be undertakcn in this district.

13. Venue lies in this district undcr MERA, Minn. Stat. § 1168.03, subd. 4, because

the conduct of the Metropolitan Council that is likely to cause pollution, impairment, or

destruction of the natural resources of thc State of Minnesota wil occur, in part, in this district.

iV. ALLEGATIONS COMMON TO ALL CLAIMS

A. THE UNIVERSITY'S LONGSTANDING SUPPORT FOR A CCLRT PROJECT TIIAT DOES

NOT DAMAGE THE UNIVERSITY

14. For more than two decades, the Univcrsity has been an active parner with Metro

Transit and othcrs to develop and implement an integratcd transportation system that scrvcs not

only thc University, but the entire metropolitan area. The University itself is a transit-oricntcd

community, with two-thirds of its commuters using bus, bicycle, carool, or walking options to

reach thc Minneapolis Campus. As a result, the Univcrsity has long supported the developmcnt

4
of reasonable and creativc transportation solutions that will best serve the more than 80,000

students, faculty, staff, patients, and guests that visit the Minneapolis Campus every day.

15. The University alonc is cxpccted to generatc approximately 25 to 30 percent of

thc proposed CCLRT Project's daily riders.

16. For nearly a decadc, the University has been a constrctive parner in the planning

process for the proposed CCLRT Project. The University's support for the CCLRT Project dates

to at least 2001, when the Board of Regents passed a resolution advocating the proposed CCLRT

Project. An active participant in the Central Corridor Management Committec, the University

has committed substantial human and financial resources ovcr the past decade to the proposed

CCLRT Project planing effort. To date, those resources total approximately $2 millon and

include thousands of hours of University professional staff time, faculty time, and other

expenditures.

17. Although thc Univcrsity remains fully committed to effective public transit and to

the proposed CCLRT Project in particular, the University's primar obligation and responsibility

must be to advance its public mission of research and discovery, teaching and learning, and

outreach and public service, as wcll as to protect the academic activities and safety of its faculty,

staff, and students. The CCLRT Project must not degrade the University's mission.

B. TIlE METROPOLITAN COUNCIL'S ENVIRONMENTAL REVIEW PROCESS FOR THE

CCLRT PROJECT

18. Study of light rail as a possible transit option connecting downtown Minneapolis

and downtown St. Paul began in the early 1990s.

19. In or about July 2001 the University Board of Regents unanimously and expressly

rejected any Washington Avenue at-grade alignment on the East Bank Campus for the proposed

CCLRT Project. Any proposed CCLRT Project alignment along Washington Avenue on the

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East Ban Campus, the Board of Regents stated, must be below grade in a tunnel. The Board of

Regents recommended that if CCLRT Project planners decided to study an at-grade alignment on

thc East Ban Campus, such an alignment should not travel along Washington Avenue but

should serve the northern portion of the campus.

20. In or about April 2006 Defendant Metropolitan Council, the Ramsey County

Railroad Authority, and the Federal Transit Administration ("FTA") jointly prepared a single

Alternatives Analysis and Draft Environmental Impact Statement ("DEIS") for thc proposcd

CCLRT Project. Defendant Metropolitan Council prepared the joint DEIS in an attempt to

satisfy the requirements of MEP A. FT A prepared the joint DEIS in an attempt to satisfY the

requirements of the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321-4370h.

The DEIS evaluated several alternatives, including a light rail transit option along an 11 -mile

corridor connecting downtown Minneapolis and downtown St. PauL. Thc light trail transit option

that the DEIS evaluated became known as the proposcd CCLRT Project. The proposed CCLRT

Project that the DEIS evaluated included a tunnel under Washington Avenue on the University's

East Ban Campus, not an at-grade alignment.

21. In or about June 2006 the University submitted extensive comments on the DEIS

to Defendant Metropolitan Council and FTA. Consistcnt with the Board of Regents' action in or

about July 2001, the University's comments on the DEIS supported a tunnel under Washington

Avenue or an at-grade alternative that served the northern portion of the East Ban Campus.

Even assuming a tunnel under Washington Avenue, the Univcrsity's comments expressly statcd

that vibration from construction and operation of the proposed CCLRT Project would adversely

affect the University's research facilitics located adjacent to or in thc vicinity of Washington

Avenue on the East Bank Campus. The comments also statcd that thc DEIS did not explore

6
methods adequate to mitigate the adverse effects of the proposed CCLRT Project on the

University.

22. In or about Fcbruary 2008 Defendant Metropolitan Council and FTA published

noticcs of intcnt to prepare a Supplemental Draft Environmcntal Impact Statcment for thc

proposed CCLRT Projcct ("SDElS"). The notices also discussed the scope of the proposed

SDEIS. In the notices, the Metropolitan Council and FTA explained that they were considcring

certain changes to the proposed CCLRT Project evaluated in the DEIS. One of the changes was

to build and operate the proposcd CCLRT Project on an at-grade alignment along Washington

Avenue, rather than in a tunnel running under Washington Avenue on the University's East Ban

Campus.

23. Dcfendant Metropolitan Council explained in the notice that the SDEIS was

necessary under MEPA to evaluate the environmental effects of an at-grade CCLRT Project

alignment on Washington Avenue rather than in the tunnel evaluated in the DEIS. FTA

explained in the notice that thc SDEIS was necessary under NEP A to evaluate the environmental

effects of an at-grade CCLRT Project alignment on Washington Avenue rather than in the tunnel

evaluated in the DEIS.

24. In or about March 2008 the University submitted extensive comments on the

proposed scope of the SDEIS to Dcfendant Metropolitan Council and FT A. The concerns stated

in the comments included, but were not limited to, the following: (a) the adverse effects of

vibration and electromagnctic interference ("EMI") from the proposed CCLRT Project on the

University's sensitive research facilities located adjacent to or in the vicinity of Washington

Avenue on the East Bank Campus; (b) the adverse effects of the CCLRT Project on historic

resources; and (c) the adverse effects of the CCLRT Project on traffic, especially pertaining to

7
 the University's hospitals and clinics. Thc comments also stated that the SDE1S must explore

methods adequate to mitigate the adverse effects of thc proposed CCLRT Project on the

Univcrsity and evaluate rcasonable alternativcs to the proposed CCLRT Projcct, including an

alternative to an at-grade alignment on Washington Avenue on the East Bank Campus.

25. In or about June 2008 the University Board of Regents rcsolvcd to pursue a

proposed CCLRT Project with an at-grade transit/pcdcstrian mall on Washington Avenue

through the East Ban Campus. The Board of Regents viewed both the tunnel under Washington

Avenue and an at-grade northern alignment on the East Bank Campus as feasiblc and reasonable

alternatives, but recognized that Defendant Metropolitan Council had selected the Washington

Avenue at-grade alternative with a transit/pedestrian mall as the locally preferred alternative for

the proposed CCLRT Project. The Board of Regents further resolved that its decision to pursue

the at-grade transit/pcdestrian mall on Washington Avenue through the East Bank Campus was

contingent upon the execution of all ncccssar agreements needed to achicve, among other

things, viable, effective, and efficient mcasurcs to mitigate the proposed CCLRT Project's

adversc environmental effccts.

26. In or about July 2008 the Univcrsity and Defendant Metropolitan Council entered

into a Memorandwn of Understanding rcgarding the proposed CCLRT Projcct. In the

Memorandum of Understanding, the University expressed support for the proposed CCLRT

Projcct and a willngness to consider, subjcct to the further consideration and final approval by

the University Board of Regents, the possibility of donating certain property rights necessary for

the Metropolitan Council to build and operate the proposed CCLRT Project. However, the

Board of Regents considered any such donation of property rights to be contingent upon a

binding commitment of Defendant Metropolitan Council to implcment mitigation measures that

8
would be cffective in addressing the adverse effects of the proposed CCLRT Project on the

University.

27. In or about July 2008 Defendant Metropolitan Council and FTA completed the

SDEIS and made the docwnent available for public comment. Defendant Metropolitan Council

prepared the SDEIS in an attempt to satisfy the requiremcnts of MEP A. FTA prepared the

SDEIS in an attempt to satisfY the requirements ofNEP A.

28. Defendant Mctropolitan Council stated in the SDElS that many significant

environmental impacts of the proposed CCLRT Project remained unresolved, but promised to

ana1yzc those impacts and appropriate mitigation measures for the first time in a final

environmental impact statcment.

29. In or about August 2008 the University submitted extensive comments on the

SDEIS to Defendant Metropolitan Council and FTA. The University's comments stated that the

SDEIS did not comply with the requirements of MEP A. In paricular, the commcnts stated that

the SDEIS failed to offer adequate analysis of nwnerous significant adverse effects of the

proposed CCLRT Project on the University, including but not limited to: (a) the impact of

vibration, both construction-related and from ongoing operations, on the Univcrsity's sensitive

research; (b) the impact of EMI on the University's sensitive research; (c) the impact on historic

resources; (d) construction impacts, including noise; and ( e) traffc impacts. The comments also

stated that thc SDEIS did not explore methods adequate to mitigate the adverse cffects of the

proposed CCLRT Project on the University.

30. In or about December 2008 the Mctropolitan Council provided thc University

with what it termed an "early review" draft of a final environmcntal impact statcment on the

proposed CCLRT Project and requested the University's comments on that document. The early

9
 review draft final environmental impact statement did not address many of thc issues prcviously

identified in the University's comments on thc notice of intent to prepare an SDEIS and the

SDEIS itself.

31. In or about January 2009 thc Univcrsity submitted extensive comments on the

early review draft final environmental impact statement to the Mctropolitan CounciL. The

University's comments stated that the early review draft final environmental impact statement

did not comply with MEPA. In particular, the comments stated that the early review draft

environmental impact statement failed to offer adequate analysis of numerous significant adverse

effects of the proposed CCLRT Projcct on the University, including but not limited to: (a) the

impact of vibration, both construction-related and from ongoing operations, on the University's

sensitive research; (b) the impact of EM I on the University's sensitive research; (c) the lack ofa

final analysis of impacts on historic resources; (d) construction impacts, including noise; and

(e) traffc impacts. The comments also stated that the early review draft cnvironmental impact

statement did not explore mcthods adequate to mitigate the adverse effects of thc proposed

CCLRT Project on the Univcrsity and failed to address the issues raised in thc University's

previous comments on the SDE1S.

32. In or about Junc 2009 Defendant Metropolitan Council and FTA publishcd

notices of availability of the Final Environmental Impact Statement ("FEIS") for thc proposcd

CCLRT Project. Defendant Metropolitan Council prepared the FEIS in an attcmpt to satisfy thc

requirements of MEP A. FTA prepared the FEIS in an attempt to satisfY the requirements of

NEPA

33. In or about July 2009 the University submitted extensive comments on the FEIS

to Defendant Metropolitan Council and FT A. The comments stated that the FEIS did not comply

10
with the requirements of MEP A. In particular, the comments statcd that the FEIS failed to offer

adequate analysis ofnwnerous significant advcrse effects of the proposed CCLRT Project on the

University, including but not limited to: (a) the impact of vibration, both construction-rclated

and from ongoing operations, on the University's sensitive research; (b) the impact of EMI on

the University's sensitive research; (c) the impact on historic rcsources; and (d) construction

impacts, including noise. The commcnts also stated that the FEIS did not explore methods

adequate to mitigate the adverse effects of the proposed CCLRT Project on the University and

failed to address the comments that the University raised rcpeatedly throughout the

cnvironmental review process.

34. On August 26, 2009, the Metropolitan Council determined that the FEIS was

adequate under MEP A.

C. TIlE PROPOSED CCLRT PROJECT'S SERIOUS ADVERSE EFFECTS ON TIlE

UNIVERSITY'S RESEARCH MISSION

(i) The University's Research Mission

35. Beginning in the nineteenth century and throughout its entire history the
University has expended substantial public funds, with the approval of the Minnesota

Legislature, to establish and maintain structurcs and facilities that serve the University's public

mission of research and discovery, teaching and lcarning, and outreach and public service.

36. In 2008 the University and its faculty were awarded nearly $700 million II

competitively-fundcd grants and contracts for research. In addition, the University currently has

more than 280 revcnue-generating technology transfer agreements with business and industry

and has established successful start-up companies over the last five years. The University serves

as the State's primary research institution, rcceiving approximately 98 percent of all federally-

sponsored research grants awarded to higher cducation institutions in Minnesota. This research

i I
translates into invaluable real-world technologies, medical advances, and economic

development. The Univcrsity's rcsearch plays a vital role in thc economy of the State and the

region, and supports more than 20,000 jobs.

37. The Univcrsity has constructcd, cxpandcd, renovatcd, and maintained numerous

laboratory buildings and research facilities adjacent to or in the vicinity of Washington Avenuc

on the East Ban Campus. There are nearly 100 laboratory faciìities in 17 buildings adjacent to

or in thc vicinity of the proposed CCLRT Project route on the University's East Bank Campus.

38. Maintaining the existing environmental conditions adjacent to or in thc vicinity of

Washington Avcnue on the East Bank Campus is critical to the University's mission because it

makes possible the University's many currcnt and planed research endeavors involving highly

scnsitive laboratory facilities and equipment.

39. For example, Professor Emad Ebbini, whose laboratory facility is locatcd in the

Electrical Engineering and Computer Science building adjacent to Washington Avenue and

along the proposed CCLRT Project route, is partnering with faculty from the Civil Engineering

Department and the Medical School to conduct experiments exploring new methods to detect

skin cancer. Professor Ebbini's research requires that the existing environmental condition in the

vicinity of the Electrical Engineering and Computer Science building be maintaincd.

40. Professor David Blank is conducting research in Kolthoff Hall, also located

adjacent to Washington Avenue and along the proposed CCLRT Project route, using an elaborate

laser device he constructed for measuring the velocity and absorption of light waves. Professor

Blank's research requires that the existing environmental condition in the vicinity of Kolthoff

Hall be maintained.

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 41. The Hasselmo Hall Nuclear Magnetic Resonance ("NMR") facility, also locatcd

adjacent to Washington Avenue and along the proposcd CCLRT Project route, supports $110

million in grant research and 160 rcscarchers across 22 University departments, as well as

undergraduate and graduate teaching activities. The cutting-edge research conducted in this

facility has advanced discoveries and treatments in the areas of cancer, AIDS, heart disease,

muscular dystrophy, paralysis, diabetes, stroke, infectious disease, drug discovery, bone disease,

and Alzheimer's. This rescarch requires that the existing environmental condition in the vicinity

of Hasselmo Hall be maintained.

42. The existing environmental condition adjacent to or in the vicinity of Washington

Avenue on the East Bank Campus makes possible the University's ongoing use of its research

laboratory facilities and equipment in the future, allowing the University to retain and recruit

leading faculty researchers from around the world. Upon information and bclicf, futurc research

facilities and cquipment wil be even more sensitive than existing research facilities and

equipment to thc environmental condition adjacent to or in the vicinity of Washington Avenue

on the East Ban Campus.

(ii) The Proposed CCLRT Project's Scrious Adverse Effects on the University's
Research Mission

43. Defendant Mctropolitan Council intends that thc proposcd CCLRT Project will

run at-grade on Washington Avenue through the very heart of the University's East Bank

Campus research and discovery corridor. Some of the Univcrsity research facilities adjacent to

or in the vicinity of Washington Avenue are located as fcw as approximately 30 feet from the

planned CCLRT Projcct tracks.

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 44. In constructing the proposed CCLRT Project, the Metropolitan Council will

degrade the existing environmental condition adjacent to or II the vicinity of Washington

Avenue on the East Bank Campus.

45. The FEIS acknowledges that vibration from construction of the proposed CCLRT

Project wil have an advcrsc cffcct on the University's existing sensitive research conductcd in

facilities located adjacent to or in the vicinity of Washington Avenue on the East Bank Campus.

Every construction process for the proposed CCLRT Project listed in the FEIS has a vibration

level that exceeds applicablc standards and will interfere with the University's existing rcsearch

equipment.

46. Upon information and belief, vibration during construction of the proposed

CCLRT Project may adversely affect research endeavors that the University may undertake in

facilities adjacent to or in the vicinity of Washington Avenue on the East Bank Campus.

47. Upon information and belief, vibration during construction of the proposed

CCLRT Project may irreparably damage cxtrcmely valuable or one-of-a-kind research

equipment or facilities, or both, locatcd adjacent to or in the vicinity of Washington Avcnue on

the East Bank Campus.

48. The FEIS fails to providc adequate analysis of numerous significant advcrsc

effects on the University during construction of thc proposed CCLRT Projcct, including but not

limited to significant adverse effccts on the University's research mission.

49. Defendant Metropolitan Council has not proposed any mitigation measures

adequate under MEP A to address the adverse effects on University facilities adjacent to or in the

vicinity of Washington Avenue on the East Bank Campus during construction of the proposed

CCLRT Project.

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 50. Defendant Mctropolitan Council has not proposed any mitigation measures

adequate under MERA to preserve thc existing environmental condition adjacent to or in the

vicinity of Washington Avenuc on the East Bank Campus during construction of the proposcd

CCLRT Project.

51. In operating the proposed CCLRT Projcct, the Metropolitan Council will degrade

the existing environmental condition adjacent to or in the vicinity of Washington Avenue on the

East Bank Campus.

52. Operation of thc proposed CCLRT Projcct will add new high frequency vibration

to the existing cnvironmental condition adjacent to or in the vicinity of Washington Avenue on

the East Bank Campus. The addition of ncw high frequency vibration will adversely affect the

University's many currcnt and planned rcsearch endeavors involving existing facilities and

equipmcnt located adjacent to or in the vicinity of Washington Avenue on thc East Bank

Campus.

53. Upon information and belief, the addition of new high frequency vibration from

operation of the proposed CCLRT Project wil adversely affect future research endeavors that the

University may undertake in facilities adjacent to or in the vicinity of Washington Avenue on the

East Bank Campus.

54. Operation of the proposed CCLRT Project will result in changes in the existing

electromagnetic fields adjacent to or in the vicinity of Washington Avenue on the East Bank

Campus. These changes in e1cctromagnetic ficlds create electromagnetic interference ("EMI")

that will adversely affect thc University's many current and planned research endeavors

involving existing facilities and equipment locatcd adjacent to or in the vicinity of Washington

Avenue on the East Bank Campus.

15
 55. Upon information and belief, changes in the existing electromagnetic fields and

the resulting EMI from operation of thc proposcd CCLRT Project will adversely affect future

rescarch cndcavors that the University may undertake in facilities located adjacent to or in the

vicinity of Washington Avenue on thc East Bank Campus.

56. The FEIS fails to provide adequate analysis of numerous significant adverse

effects on the University during operation of the proposed CCLRT Project, including but not

limited to significant adverse effects on the U nivcrsity' s rcscarch mission.

57. Defendant Metropolitan Council has not proposed any mitigation measures

adequate under MEPA to address the adverse effects on University facilities adjacent to or in the

vicinity of Washington Avenue on the East Bank Campus during opcration of the proposed

CCLRT Project.

58. Defendant Metropolitan Council has not proposed any mitigation measures

adequate undcr MERA to preserve the existing environmental condition adjacent to or in the

vicinity of Washington Avenue on the East Bank Campus during operation of the proposed

CCLRT Project.

(ii) The Proposcd CCLRT Project's Adverse Effects on thc Historic Setting of
the University's East Bank Campus

59. The East Bank Campus includcs arcas designatcd by the Board of Regents as

historic districts, including but not limited to thc Campus Mall Historic District and the Old

Campus Historic District, also known as the Knoll District. The East Ban Campus also

includes areas, including but not limitcd to the Campus Mall Historic District and the Old

Campus Historic District, which arc listcd on the National Register of Historic Places or are

eligible for listing on the National Rcgistcr of Historic Places.

16
 60. Setting is a critical element in the listing criteria for the National Register of

Historic Places and in determining whether an area is eligible for listing on the National Rcgister

of Historic Places. Whcn determining whether to list an area as an historic district, the

Univcrsity's Board of Regents also considers an area's sctting.

61. Each historic district on the University campus functions as a whole, with a

longstanding distinct and cohesive feel, making cach district unique.

62. Construction and operation of the proposed CCLRT Project wil adversely affect

the setting of the University's historic districts. For example, the increase in average daily traffc

associated with construction and operation ofthc proposed CCLRT Project will adversely affect

the existing setting and esthetic quality of the Campus Mall Historic District and the Old Campus

Historic District.

63. The FEIS fails to offer adequate analysis of numerous significant adverse effects

on the University's historic districts during construction of the proposed CCLRT Project.

64. Defendant Metropolitan Council has not proposed adequate mitigation measures

under MEPA to address the advcrse effects on the University's historic districts during

construction of the proposed CCLRT Project.

65. Defendant Metropolitan Council has not proposed adequate mitigation measures

under MERA to preserve the existing cnvironmental condition in the University's historic

districts during construction of the proposed CCLRT Project.

66. The FEIS fails to provide adequate analysis of numerous significant adverse

effects on the University's historic districts during operation of the proposed CCLRT Project.

17
 67. Defendant Metropolitan Council has not proposcd adcquate mitigation measures

undcr MEPA to address the adversc cffccts on the University's historic districts during operation

of the proposed CCLRT Project.

68. Defendant Metropolitan Council has not proposed adequate mitigation measures

under MERA to prcscrve the existing environmental condition in thc University's historic

districts during operation ofthc proposed CCLRT Project.

(iv) The Proposed CCLRT Project's Adverse Effccts on thc University From
Construction Noise

69. Constrction of the proposed CCLRT Project will generate noise on the
University campus.

70. The FEIS fails to offer adequate analysis of the noise on the Univcrsity campus

caused by construction ofthc proposed CCLRT Project.

71. Defendant Metropolitan Council has not proposed adequate mitigation measures

under MEP A to address the adverse noisc effects on the University campus during construction

ofthc proposed CCLRT Project.

72. Defendant Metropolitan Council has not proposed adequate mitigation measures

under MERA to preserve the existing noisc condition on the University campus during

construction of the proposed CCLR T Proj ect.

D. TEMPORARY AND PERMANENT EASEMENTS REQUIRED FOR CCLRT I'ROJECT

CONSTRUCTION AND OPERATION

73. The Univcrsity owns and maintains structurcs and facilities on the East Bank

Campus and West Bank Campus (collectively, the "Minneapolis Campus"). These facilities are

essential to the University's public mission of research and discovery, tcaching and learing, and

outreach and public service.

18
 74. The Univcrsity also owns and maintains a transit corridor between the

Minneapolis Campus and the St. Paul Campus to provide for the safe, convenient, and rapid

transportation between the campuses.

75. Dcfcndant Metropolitan Council intends that the CCLRT Project will run at-grade

on Washington Avenue in close proximity to nwnerous University facilities on the East Bank

Campus.

76. Defendant Metropolitan Council intends that the CCLRT Project wil run along a

section of the University's transit corridor between the Minneapolis Campus and the St. Paul

Campus.

77. Defendant Metropolitan Council will require temporary and permanent easements

on property owned and used by the University on the Minneapolis Campus that the Metropolitan

Council deems necessary for the construction or operation, or both, of the proposed CCLRT

Project.

78. The University is under no statutory, contractual, or other legal requirement to

providc the Mctropolitan Council with temporary or permanent easemcnts on property owned or

used by the University that the Metropolitan Council deems necessary for use in the construction

or operation of the proposed CCLRT Project.

CAUSES OF ACTION

COUNT I
FAILURE TO COMPLY WITH MEPA

79. The University restates and incorporates by reference the allegations II

paragraphs I through 78 above.

80. MEPA requires that for every major governmental action where there is a
potential for significant environmental effccts, a responsible governmental unit must prepare a

19
 detailed environmental impact statement beforc the action proceeds. The environmental impact

statement must be analytical rather than encyclopedic, describe the proposed action, analyze its

significant environmcntal impacts, discuss appropriate alternatives, and explore methods

adequate to mitigate the adverse cnvironmental impacts of the proposed action. MEP A, Minn.

Stat. § 1 16D.04, subd. 2a.

81. The proposed CCLRT Project is a major "governmental action" as dcfined in

MEPA, Minn. Stat. § 116D.04.

82. The proposed CCLRT Project has the "potential for significant environmental

effects" within the meaning ofMEPA, Minn. Stat. § 116D.04.

83. Defendant Metropolitan Council is both the proposer of the CCLRT Project and

the responsible governmental unit entrusted with preparing a detailed environmental impact

statement analyzing the CCLRT Project under MEPA, Minn. Stat. § 116D.04.

84. The FEIS fails to analyze adequately the significant environmental impacts of the

proposed CCLRT Project on the University, discuss appropriate alternatives, and explore

methods adequate to mitigate the adverse environmental impacts of the proposed CCLRT Project

on the University. As a result, the FEIS fails to comply with MEPA, Minn. Stat. §§ 116D.OI-

.11, and its implementing rules, Minn. Rules ch. 4410.

85. The Univcrsity is entitled to a dcclaratory judgment that the Metropolitan Council

has failed to comply with MEPA. Minn. § i 16D.04, subd. 10.

86. The University is entitled to a judgment requiring the Metropolitan Council to

prepare an adequatc environmental impact statement for the proposed CCLRT Project under

MEPA. Minn. § 1 16D.04, subd. 13.

20
 87. The University is entitlcd to injunctive relief restraining the Metropolitan Council

from taking any further action regarding the proposcd CCLRT Project pending compliance with

MEPA. Minn. § 116D.04, subd. 13.

II
COUNT

PROTECTION OF NATURAL RESOURCES

UNDER MERA AND MEPA

88. The Univcrsity restates and incorporates by reference the allegations II

paragraphs I through 78 abovc.

89. MERA authorizes any person to bring a civil action for declaratory or equitable

rclief in the name of the State of Minnesota against any person for the protection of natural

resources located within the State from pollution, impairment, or destruction. MERA, Minn.

Stat. § 1168.03. See also MEPA, Minn. Stat. § i 16D.04, subd. 6 (prohibiting State actions

significantly affccting the quality of the environment whcre such action is likely to cause

pollution, impairmcnt, or destruction of the natural resources ofthc State of Minnesota).

90. "Pollution, impairment or destruction" is any conduct that violates or is likely to

violate "any environmental quality standard, limitation, rulc, order, license, stipulation

agreement, or permit of the state or any instrumentality, agency, or political subdivision thereof

which was issued prior to the date the alleged violation occurred or is likely to occur." MERA,

Minn. Stat. § 1168.02, subd. 5; MEPA, Minn. Stat. § 116D.04, subd. 1a(b).

9 i. "Pollution, impairment or destruction" is also any conduct that "materially

adversely affects or is likely to materially adversely affect the environment." MERA, Minn.

Stat. § 1168.02, subd. 5; MEPA, Minn. Stat. § i 16D.04, subd. 1a(b).

92. Thc University and the Metropolitan Council are "persons" as defined in MERA,

Minn. Stat. § 1 16B.02, subd. 2.

21
 93. The existing environmental condition of the University's East Bank Campus

adjacent to or in the vicinity of Washington Avenue, including but not limited to existing air,

quietude, historical, scenic, and csthetic resources, is a "natural resource" as defined in MERA,

§ 11 6B.02, subd. 4.

94. Defendant Metropolitan Council's proposed CCLRT Project is likely to violate an

cnvironmental quality standard or have a matcrial advcrse effect on natural resources within the

meaning of MERA by, among other things, increasing vibration levels on thc East Bank Campus

during construction and operation of the CCLRT Project, increasing electromagnetic fields on

thc East Bank Campus during operation of the CCLRT Project, detracting from the existing

setting and esthetic quality of historical districts on the East Bank Campus, interfering with

valuable and sensitivc research conducted at University facilities adjaccnt to or in the vicinity of

Washington Avenue on thc East Bank Campus, and increasing noise on the East Bank Campus

during construction of the CCLRT Project.

95. The University is entitled to a declaratory judgment that the Metropolitan

Council's proposed CCLRT Project is likely to violate an environmental quality standard or have

a material adverse effect on natural resources within the meaning of MERA and MEP A. Minn.

Stat. § 1168.07; Minn. Stat. § 1 16D.04, subd. 13.

96. The University is cntitled to injunctive relief imposing such conditions as

necessary to ensure that the Mctropolitan Council's proposed CCLRT Project wil not violate an

environmental quality standard or have a material adverse effect on natural resources within the

meaning of MER A and MEPA. Minn. Stat. § 1168.07; Minn. Stat. § 1 16D.04, subd. 13.

22
 COUNT II
MINNESOTADECLATORY JUDGMENT ACT

97. Thc University rcstates and incorporates by reference the allegations II

paragraphs 1 through 78 above.

98. Under the Minnesota Declaratory Judgment Act, Minn. Stat. ch. 555, any person

is entitled to obtain a declaration of rights, status, or other legal relations affected by the

Minnesota Constitution or by any statute if a declaratory judgment or decree would terminate the

uncertainty or controversy giving rise to a eause of action.

99. The University and the Mctropolitan Council are "persons" as defined by the

Minnesota Declaratory Judgment Act, Minn. Stat. § 555.13.

100. In 1851, the Lcgis1ative Assembly of the Tcrritory of Minnesota established the

University and its governing body, the Board of Regents. Minn. Territorial Laws 1851, ch. 3.

The Minnesota Constitution, Art. XII, § 3, provides that "(aJll rights, immunities, franchises and

endowments" granted or conferred upon the University before enactmcnt of the Constitution in

1857 "are perpetuatcd unto the university."

101. Undcr the Minnesota Constitution, the Board of Regents possesses the power and

authority to select, manage, and control all University property. The Minnesota Legislature has

endorsed and ratified the authority of thc Board of Regents to acquire land for the use of the

University.

i 02. Defendant Metropolitan Council will require temporary and permanent easements

on property owned and used by thc University on the Minneapolis Campus for the construction

or operation, or both, of the proposed CCLRT Project. For example, Defendant Metropolitan

Council intends that the proposed CCLRT Project run, for a portion of its route, on a section of

the University's transit corridor on the Minneapolis Campus. Thc Board of Regents has already

23
 established a transit corridor bctween the Minneapolis Campus and the St. Paul Campus for safe,

convenient, and rapid transportation.

103. The Board of Rcgents has the responsibility to protect Univcrsity property and to

ensure that the proposed CCLRT Project adequately safcguards the University's public mission

of research and discovery, teaching and learing, and outreach and public service.

104. Property owned by the Univcrsity and already dedicated to the University's use is

not subject to eminent domain by Defendant Metropolitan CounciL. The University property that

the Metropolitan Council would require to build or operate the proposed CCLRT Project along

thc alignment that the FEIS describcs is, in fact, dedicated to the University's use.

105. Under Minnesota's prior public use doctrine, a government entity possessing the

power of eminent domain may not, as a general rule, condcmn public property or property that is

already devoted to a public use unless such authority is expressly or impliedly granted by statute.

A general grant of authority to condemn property is insuffcient to intcrferc with an alrcady

existing public use.

106. The Minnesota Legislature has not expressly provided that the Metropolitan

Council may exercise emincnt domain over property owned by thc Univcrsity and alrcady

dedicated to the University's use.

107. The University's constitutional right and responsibility to manage, control, and

protect University property supersedes or outweighs any express or implied statutory authority

that the Metropolitan Council may claim to have to condemn University property.

i 08. The proposed CCLRT Project is not a greater public necessity than the
University's existing public mission of research and discovcry, teaching and learing, and

outreach and public service, and the Board of Regents will consent to the CCLRT Project only if

24
Defendant Metropolitan Council provides effective mitigation mcasures suffcient to safeguard

the University.

J 09. A current, ripe, and justiciable dispute and controversy exists between and among

the parties and is fully susceptible to judicial resolution.

110. To eliminate the uncertainty regarding the University's legal rights, the University

requires a declaration by this Court that the University is not obligated, under the Memorandwn

of Understanding entered into in or about July 2008 or on any other basis, to convey any

property rights to the Metropolitan Council for thc construction or operation of the proposed

CCLRT Project in the absence of mitigation measures satisfactory to the Board of Regents and

adequate to protect the Univcrsity's public mission of research and discovery, teaching and

learing, and outreach and public scrvice.

111. To eliminate the unccrtainty rcgarding the University's legal rights, the Univcrsity

requires a dcclaration by this Cour that the Mctropolitan Council may not, for purposes of

construction or operation of the proposed CCLRT Project, exercise eminent domain over

property owned by the University and already dedicated to the University's usc.

112. Under the Minnesota Declaratory Judgment Act, Minn. Stat. ch. 555, the

University is cntitled to a declaratory judgment that the Metropolitan Council may not, for

purposes of construction or operation of the proposcd CCLRT Project, exercisc cminent domain

ovcr propcrty owned by the University and already dedicated to the University's use.

113. The University is entitlcd to injunctive relief restraining the Metropolitan Council

from exercising eminent domain ovcr property owned by the University and already dedicated to

the University's use, and from taking any further action regarding the CCLRT Project that would

25
threaten the University's public mission of research and discovery, teaching and learning, and

outreach and public scrvice.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Regents of the University of Minnesota prays for relief as

follows:

A. A judgment declaring Defendant Metropolitan Council has not complied with

MEP A, remanding this matter to Defendant Metropolitan Council, and ordering Defendant

Metropolitan Council to prcparc an environmental impact statement for the proposed CCLRT

Project that complies with MEP A;

8. A judgment preliminarily and pcrmanently enjoining and restraining Defendant

Metropolitan Council from taking any furher action regarding the proposed CCLRT Project

pending compliance with MEP A;

C. A judgmcnt declaring Defendant Mctropo1itan Council's proposed CCLRT

Project is likely to violatc an environmental quality standard or have a material adverse effect on

natural resources protcctcd under MERA;

D. A judgment preliminarily and permancntly imposing such conditions as necessary

to ensure that Defendant Metropolitan Council's conduct regarding the proposed CCLRT Project

will not violate an environmental quality standard or have a material adverse effect on natural

resources protected under MERA and MEP A;

E. A judgment declaring the Univcrsity is not obligated, under the Memorandum of

Understanding entered into in or about July 2008 or on any other basis, to convey any property

rights to the Metropolitan Council for the constrction or operation of the proposed CCLRT

Project in the absence of mitigation measures satisfactory to the Board of Rcgents and adequate

26
to protect the University's public mission of research and discovery, teaching and learning, and

outreach and public service;

F. A judgment declaring Defendant Metropolitan Council may not, for purposes of

construction or operation of the proposed CCLRT Project, cxcrcisc eminent domain over

property owned by the Univcrsity and already dedicated to the University's use;

G. A judgment preliminarily and permanently enjoining and restraining Defendant

Metropolitan Council from initiating condemnation proceedings against thc University and from

taking any furthcr action regarding the proposcd CCLRT Project that would threaten the

University's public mission of rcscarch and discovery, teaching and learning, and outrcach and

public service;

H. A judgment awarding the University its costs, including disbursements and

attorneys' fees, as available under law; and

1. Such other relief to the University as the Court may deem just, equitable, and

proper.

Respectfully submitted,

Dated: September 22, 2009 ENVIRONMENTAL LAW GROUP, LTD

By:
Tha deus R. Lightfoot
133 First Avenue North
Minneapolis, MN 55401
Tcl: (612) 623-2363
Fax: (612) 378-3737

27
 GREENE ESPEL, P.L.L.P.

L
By:
Clifti d Grecn (#37436)
Larry D. Espel (#27595)
200 S. Sixth Street, Suite 1200
Minneapolis, MN 55402
(612) 373-0830

OFFICE OF THE GENERAL COUNSEL

UNIVERSITY OF MINESOTA

BY:~
Mark B. Rotenberg (#126263)
General Counsel
360 McNamara Alumni Center
200 Oak Strect, S.E.
Minneapolis, MN 55455
(612) 624-4100

COUNSEL FOR PLAINTIFF REGENTS

OF THE UNIVERSITY OF MINNESOTA

ACKNOWLEDGMENT

Plaintiff Regents of the University of Minnesota acknowledges through its undersigned

counsel that sanctions may be imposed under Minn. Stat. § 549.211 if, afer notice and a
reasonable opportunity to respond, the Court determines that a pary has violated Minn. Stat.
§ 549.211, subd. 2.

28
 FORM 104 CERTIFICATE OF REPRESENTATION AND PARTIES

STATE OF MINESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL DISTRICT

CASE TYPE: CIVIL OTHER

CERTIFICATE OF REPRESENTATION AND I'ARTIES

Date Case Filed: September 22, 2009

Regents of the University of Minnesota v. Metropolitan Council

This ccrtificate must be filed pursuant to Rule 104 of the General Rules of Practicc for
the District Courts, which states: "A party filing a civil case shall, at the time of fiing, notifY the
court administrator in writing of the name, address, and telephone number of all counsel and
unrepresented parties, if known (see Form 104 appended to these rules). If that information is
not then known to the fiing party, it shall be provided to the court administrator in writing by the
fiing party within seven days of learning it. Any party impleading additional parties shall
provide the same information to thc cour administrator. The court administrator shall, upon
receipt of the completed certificate, notify all paries or their lawyers, if represented by counsel,
of the date of filing the action and thc fic number assigncd."

LA WYERS FOR PLAINTIFF LAWYER FOR DEFENDANT

Regents ofthe University of Minnesota Metropolitan Council

Namc of Party Name of Pary

Thaddcus R. Lightfoot Dave Theisen

Ally Name (Not firm name) Atty Name (Not firm name)

Environmental Law Group, Ltd. Acting General Counsel

133 First Avenuc North 390 Robert Street North
Minneapolis, MN 55401 St. Paul, MN 55101
Addrcss Address

(612) 623-2363 (651) 602-1000

Phone Number Phone Number

24594X 0178652
MN Atty ID No. MN Atty ID No.
 Clifford M. Greene
Ally Name (Not firm name)

Greene Espel, P.L.L.P.

200 S. Sixth Street, Suite 1200
Minneapolis, MN 55402
Address

(612) 373-0830
Phone Number

37436
MN Atty ID No.

Larrv D. Espel
Atty Name (Not firm name)

Grcene Espel, P.L.L.P.

200 S. Sixth Street, Suitc 1200
Minneapolis, MN 55402
Address

(612) 373-0830
Phone Number

27595
MN Atty ID No.

Mark 8. Rotenberg
Atty Name (Not firm name)

General Counscl
360 McNamara Alumi Ccnter
200 Oak Street, S.E.
Minneapolis, MN 55455
Address

(612) 624-4100
Phone Number

126263
MN Atty ID No.

September 22, 2009

Date

Thaddeus R. Lightfoot/Regents of the University of Minnesota

Filing Lawycr/Pary
2