USCA Case #17-5104 Document #1675041 Filed: 05/12/2017 Page 1 of 32

No. - - -

IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA

IN RE STATE OF MARYLAND,

Petitioner.

On Petition for a Writ of Mandamus
to the United States District Court for the District of Columbia
(Richard J. Leon, District Judge)

PETITION FOR WRIT OF MANDAMUS

BRIANE. FROSH
Attorney General of Maryland

LINDA M. STROZYK DEVUONO
Assistant Attorney General
100 S. Charles Street, Tower II,
Suite 700
Baltimore, Maryland 21201
Telephone: (410) 451-3 722

ALBERT M. FERLO
Perkins Coie LLP
700 Thirteenth Street, N. W., Suite 600
Washington, D.C. 20005-3960
Telephone: (202) 654-6262

May 12, 2017 Attorneys for Petitioner

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CERTIFICATE AS TO PARTIES

The parties in the district court proceeding, Case No. 14-1471, are as

follows:

The Plaintiffs are Friends of the Capital Crescent Trail, John McKnight

Fitzgerald and Christine Real de Azua.

Defendants are the Federal Transit Administration, the United States

Department of Transportation, the United States Fish and Wildlife Service and the

United States Department of the Interior.

The Defendant-Intervenor is the State of Maryland.

The amici curiae in this proceeding are Prince George's County, Maryland,

and Montgomery County, Maryland.

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TABLE OF CONTENTS
Page
CERTIFICATE AS TO PARTIES ............................................................................ i

TABLE OF AUTHORITIES ................................................................................... iii

RELIEF SOUGHT ................................................................................................... l

ISSUE PRESENTED ............................................................................................... l

INTRODUCTION .................................................................................................... 2

STATEMENT OF FACTS ....................................................................................... 5

REASONS WHY THE WRIT SHOULD ISSUE .................................................. 12

A Supervisory Writ of Mandamus Is Appropriate to Remedy the
District Court's Failure to Issue a Final Judgment in this Case ............................. 13

A. There Are No Other Adequate Means to Attain the
Desired Relief .................................................................................... 14

B. The State's Entitlement to the Writ Is Clear and
Indisputable ........................................................................................ 17

C. A Writ of Mandamus Is Appropriate Under the
Circumstances .................................................................................... 20

CONCLUSION ...................................................................................................... 24

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

11
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TABLE OF AUTHORITIES

CASES

Celotex Corp. v. Catrett,
477 U.S. 317 (1986) ..................................................................................... 17, 18

Cheney v. US. Dist. Court for Dist. of Columbia,
542 U.S. 367 (2004) ..................................................................................... 14, 20

Dietz v. Bouldin,
136 S. Ct. 1885 (2016) ................................................................................. 17, 20

In re Kellogg Brown & Root, Inc.,
756 F.3d 754 (D.C. Cir. 2014) ........................................................................... 21

In re United States,
598 F.2d 233 (D.C. Cir. 1979) ........................................................................... 13

Izaak fValton League of America v. Kimbell,
558 F.3d 751 (8th Cir. 2009) .............................................................................. 16

Lakes Pilots Ass 'n, Inc. v. U.S. Coast Guard,
359 F.3d 624 (D.C. Cir. 2004) ........................................................................... 15

Life & Fire Ins. Co. ofN.Y v. FVilson 's Heirs,
33 U.S. 291 (1834) ............................................................................................. 14

Lujan v. Nat 'I Wildlife Fed 'n,
497 U.S. 871 (1990) ........................................................................................... 18

N. C. Fisheries Ass 'n v. Gutierrez,
550 F.3d 16 (D.C. Cir. 2008) ....................................................................... 14, 15

Occidental Petroleum Corp. v. SEC,
873 F.2d 325 (D.C. Cir. 1989) ........................................................................... 15

Rempfer v. Sharfstein,
583 F.3d 860 (D.C. Cir. 2009) ........................................................................... 18

Roche v. Evaporated Milk Ass 'n,
319 U.S. 21 (1943) ............................................................................................. 13

lll
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Sierra Club v. Mainella,
459 F. Supp. 2d 76 (D.D.C. 2006) ..................................................................... 19

Sierra Club v. US. Dep 't ofAgriculture,
716 FJd 653 (D.C. Cir. 2013) ..................................................................... 15, 16

Spencer v. Kemna,
523 U.S. 1 (1998) ....................... :....................................................................... 13

US. v. Fokker Services B. V.,
818 F.3d 733 (D.C. Cir. 2016) ........................................................................... 14

Will v. Calvert Fire Ins. Co.,
437 U.S. 655 (1978) ........................................................................................... 13

STATUTES

28 u.s.c. § 1291 ..................................................................................................... 14
28 U.S.C. § 1292(a)(l) ............................................................................................ 16

28 U.S.C. § 1651 ....................................................................................................... 1

OTHER AUTHORITIES

Fed. R. App. P. 21 ..................................................................................................... 1

Fed. R. Civ. P. 1 .......................................................................................... 17, 18, 24

Fed. R. Civ. P. 56 .............................................................................................. 17, I 8

Fed. R. Civ. P. 56(a) .......................................................................................... 17, 18

Fed. R. Civ. P. 56(c) ................................................................................................ 18

IV
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PETITION FOR WRIT OF MANDAMUS

RELIEF SOUGHT

Pursuant to 28 U.S.C. § I 651 and Federal Rule of Appellate Procedure 21,

the State of Maryland (the "State") respectfully petitions this Court to issue a writ

of mandamus in aid of its appellate jurisdiction, directing the United States District

Court for the District of Columbia to decide forthwith the dispositive cross-

motions for summary judgment now pending in the case below, Friends of the

Capital Crescent Trail, et al. v. Federal Transit Administration, et al., No. 14-

1471.

ISSUE PRESENTED

In this challenge to federal administrative agency action involving a vital

State-sponsored transportation project with federal funding, should this Court

exercise its discretion to issue a writ of mandamus directing the district court to

decide dispositive cross-motions that have been fully briefed and pending decision

for nearly a year, where there are no disputed facts and the district court's

continued delay threatens to cause the State and its taxpayers a loss of over $800

million in addition to the transportation project itself?

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INTRODUCTION

A writ of mandamus is an extraordinary remedy that this Court does not

lightly grant. However, the facts underlying the State's request are extraordinary.

By June 1, 2017, without the relief sought from this Court, budgetary requirements

will force the State to begin suspension of work on a multi-billion dollar project.

The suspension will in tum result in significant increases in the cost of the project

and eventually could lead to the cancellation of the project, which would deprive

the State of a vitally needed transportation facility and cause the irretrievable loss

of over $800 million. See Declaration of Pete K. Rahn, Secretary of the Maryland

Department of Transportation ("Rahn Deel.") ,I 74. The Rahn Declaration is

attached to this Petition as Exhibit A.

The project in question is known as the Purple Line, a 16-mile long transit

facility designed to sen'e residents in a corridor that spans from Bethesda, in

Montgomery County, to New Carrollton, in Prince George's County. The Purple

Line ("Purple Line" or the "Project") has been in the planning and approval

process for well over a decade. It is supported by virtually all of the local

jurisdictions along the line, including the governments of l\.1ontgomery and Prince

George's Counties. Rahn Deel. ,I 9.

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This case began in August 2014 when an .organization and two individual

plaintiffs sued the Federal Transit Administration ("FTA"), the U.S. Department of

Transportation, and two other federal agencies. The State intervened, in part to

ensure that the district court would understand that any delay in this litigation

would jeopardize the Project and impose great financial cost on the State. ECF 18-

1 at 8-9. Summary judgment motions have been pending and fully briefed since

June 20 I 6. Although the district court did issue an order on August 3, 2016

addressing and granting partial summary judgment on a single issue, the court

reserved judgment and did not address the 23 other issues in the case. The State

recognizes that, in other circumstances, nearly a year's delay in the issuance of a

decision on fully-briefed issues might not be deemed unreasonable or a cause for

concern. However, as more fully explained below, from the time of the first status

conference in July 2015, the district court's handling of this case has created an

extraordinary circumstance that risks the ongoing viability of the Project, and so

compels the State to file this petition.

The prejudice caused by the delay in resolving the cross-motions for

summary judgment primarily arises from the district court's August 3, 2016 Order

vacating the FTA's Record of Decision ("ROD") approving the Purple Line for

federal funding. In the absence of the ROD, federal funding that is necessary for

the Project to continue is unavailable. The August 3 Order vacated the ROD

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because of the district court's belief that more analysis was needed on the impact

of recent ridership declines and safety issues on the Washington Metrorail system,

but the court gave no indication of when the other 23 issues would be decided.

Nine months later, the district court has not yet decided any of those issues, nor has

it finally decided whether to uphold FTA's determination in response to the August

3 Order that no further environmental analysis is required. In the absence of a final

decision, and with the FTA's ROD vacated, the State lacks an appealable final

order from the district court, yet also lacks the ability to proceed with construction

of the Purple Line. With each passing month, the continued delay costs the State

millions of dollars and places the Project in greater jeopardy.

By limiting its decision to only one of 24 issues raised in the case, and by

continuing to ignore Defendants' resolution of the single issue previously decided,

the district court has brought this Project to the brink of cancellation. If the Project

is canceled due to the district court's delay, that would deprive the State of the

ability to seek meaningful appellate review and deprive this Court of an

opportunity to conduct the requisite de nova review of the merits of Plaintiffs'

claims in a timeframe that would allow the Project to continue if Defendants are

successful on appeal.

Because the State lacks any means to seek timely appellate review of the

district court's action, and given the extraordinary harm that the State is currently

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suffering and will suffer absent a prompt final decision on the merits by the district

court, the State has reluctantly taken this extraordinary step of invoking this

Court's supervisory mandamus jurisdiction.

STATEMENT OF FACTS

Following a lengthy and thorough analysis of environmental impacts as

required by the National Environmental Policy Act ("NEPA"), FTA issued its

ROD approving the Purple Line Project on March 19, 2014. On August 26, 20 I 4,

Plaintiffs filed their initial complaint against the federal Defendants. ECF l.

However, Plaintiffs did not complete service of the complaint on all federal

defendants until December I 6, 2014. ECF I 2. The State moved to intervene as a

defendant on March I 0, 2015, noting its "strong interest in the swift resolution of

the case." ECF 18-1 at 12. On April 9, 2015, Plaintiffs filed an amended

complaint. ECF 20. The federal Defendants filed an answer to the amended

complaint on April 23, 2015 (ECF 22), and filed the administrative record by June

2, 2015 (ECF 24, 25).

On July 15, 20 I 5, the district court held a status conference where it granted

the State's motion to intervene and directed the parties to develop a proposed

summary judgment briefing schedule. In response to the State's request that the

district court rule expeditiously, the district court stated that it was not likely that it

would be able to consider the case until the Spring of 2016, and that the parties

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should develop a briefing schedule reflecting that timeframe. July 15, 2015
1
Transcript ("Status Conf. Tr.") at 15. The district court noted that this timeline

could have "a little bit of a delaying effect, but, you know, not that much." Id. at

22.

When the State informed the district court that the proposed timeframe

"could kill the project ... ," the district court admonished the State Hnot [to] have a

doomsday attitude about it." Id. The district court then said that it had "no reason

to think contractors are going to be dissuaded if it might start a month or two later.

It's just not likely." Id. at 23. In dismissing the State's concern that a delayed

final decision could affect the Project's financing, the district court stated that the

potential bidders were "awash in money. Don't worry about it." Id

Shortly after the July 15, 2015 status conference, Plaintiffs filed the first of

its two "supplemental complaints." ECF 32. Plaintiffs then filed a second

supplemental complaint on January 20, 2016. ECF 42. In allowing Plaintiffs'

second supplemental complaint, the district court established a summary judgment

briefing schedule. Pursuant to that schedule, the parties filed cross-motions for

summary judgment, and briefing on those motions was completed on May 24,

2016. The district court held a hearing on the summary judgment motions on June

15, 2016. At the hearing, the State again advised the district court that a delay in

1
A copy of the transcript of the July 15, 2015 status conference is attached as
Exhibit B.

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the project would cost the State millions of dollars. June 15, 2016 Transcript

("Summary Judgment Tr.") at 78. 2 The State also informed the court that the

private parties who had won the right to build and operate the transit Iine had

succeeded in obtaining the financing they needed to implement the project - so that

all financing needed for construction was in place except for the FTA 's $900

million grant. Id. at 50.

During the hearing, the district court and Plaintiffs' counsel engaged in a

dialogue about the delay that might be occasioned if the court ordered Defendants

to prepare a supplemental Environmental Impact Statement ("EIS") on a single

issue raised in Plaintiffs' summary judgment motion, and whether such a ruling

would be appealable. Id. at 55-60. Plaintiffs' counsel suggested that the agency

could complete the document "within six months," id. at 55, and, in response to a

question from the court, questioned whether such an order would be appealable, id.

at 59-60. Plaintiffs' counsel further stated that it would not make sense for the

government to appeal from such an order in any case "because the D.C. Circuit has

its own timetable for doing things." Id. at 60.

In response, the State's counsel informed the Court that a six-month delay

"would allow the private investors to pull out" of the Project, and if that were to

happen, "the state would incur all the costs that [the private investors] have thus far

2
A copy of the June 15, 2016 Transcript is attached as Exhibit C.

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incurred...." Id. at 77-78. Counsel for FTA also pointed out that the issue the

district court was considering for preparation of a Supplemental EIS was based on

events that occurred on the Washington Metrorail system after FTA had issued the

ROD. Id. at 64.

At the district court's request, the parties filed supplemental summary

judgment briefs on June 29, 2016. ECF 92, 93, and 94. In its supplemental brief,

the State requested that the district court allow additional briefing on possible

remedies and noted that the possible schedule and financial impacts of even a short

delay in resolving the case would lead to "cascading consequences." ECF 93 at

15. 3

In late July 2016, the State announced that on August 8, 20 I 6, the Full

Funding Grant Agreement ("Grant Agreement") would be signed, providing the

State with access to $900 million in vital funding for the project. 4 On August 3,

2016, shortly after the public announcement and five days prior to the scheduled

signing, the district court entered an order that has prevented the execution of the

3
A copy of the State's Supplemental Brief is attached as Exhibit D.
4
See Washington Post, July 28, 2016, "Signing of Purple Line's federal funding
agreement set for Aug. 8, officials say," available at
https://www.washingtonpost.com/news/dr-gridlock/wp/20 I 6/07/28/signing-of-
purple-lines-federal-funding-agreement-set-for-aug-8-sources-
say/?utm term=.f4e608c871 fl (last accessed on May 3, 2017).

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Grant Agreement. The court order decided only one of the 24 issues raised in

Plaintiffs' summary judgment motion. August 3, 2016 Opinion, ECF 96. 5

On that issue, the court ordered FTA to produce a Supplemental EIS

addressing the impact of recent ridership declines and safety issues on the

Washington Metro system as "expeditiously as possible." Id. at 9. The district

court stated that it was a matter of "common sense" to prepare the Supplemental

EIS before the FTA committed to providing the funding needed for the project.

Id. Without allowing an opportunity for briefing on the scope of the remedy for

this single issue, the district court vacated FTA 's ROD, thus preventing FTA from

signing the Grant Agreement and preventing the State from initiating construction

of the Project. The district court stated that it would "reserve[]" judgment on the

remaining issues in the case, id. at 2, and has never returned to them.

On August 23, 2016, the State and FTA filed motions to amend the
J

judgment to allow FTA to determine in the first instance whether the Metro

ridership and safety issues warranted preparation of a Supplemental EIS. ECF 98

& 99. In the same motions, the State and FTA also moved the court to reinstate the

ROD while this additional analysis was prepared. Id. Briefing on the motions was

completed on September 19, 2016.

5
A copy of the district court's August 3, 20 I 6 Opinion is attached as Exhibit E.

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On November 22, 2016, the district court granted the motion m part,

allowing FTA to make the determination whether a Supplemental EIS was needed

on the Metrorail issue, the court declined to reinstate the ROD. November 22,

2016 Order, ECF 110. 6 The district court established a briefing schedule to

address FTA's determination, once that decision was made.

On December 16, 2016, FTA informed the district court that it had

completed the required analysis and determined that recent ridership and safety

issues facing the Washington Metro did not warrant a Supplemental EIS for the

Purple Line. FTA filed the analysis and its determination with the district court.

ECF 113. That same day, the State and FTA filed renewed motions for summary

judgment on all issues. ECF 115 & 116. Plaintiffs responded to the renewed

motions for summary judgment on January 5, 2017 (ECF 119), and the State and

FTA filed reply briefs on January 12 and 13, 2017, respectively. ECF 120 (State's

Reply) & 121 (Federal Defendants' Reply). Since that time, all issues raised in the

cross-motions for summary judgment - both in the initial motions and the renewed

motions - have been ripe for decision.

On March 31, 2017, the State filed a motion seeking an expeditious ruling

on all remaining issues in the summary judgment motions or, in the alternative, an

order reinstating the ROD until those motions are decided. State's Motion, ECF

6
A copy of the district court's November 22, 20 I 6 Order is attached as Exhibit F.

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133. 7 The State informed the district court that the passage of time is causing

"grave harm" to the State and the businesses, counties, and cities that "are relying

on the Project to create jobs and to improve access to public and commercial
8
facilities and neighborhoods." State's Reply, ECF 135 at 3. Relying on
9
previously submitted declarations from the State official in charge of the Project,

the State reminded the district court that "each month of delay could result in an

estimated $13 million in additional cost." Id. at 4. The State also reminded the

district court that termination of the project as a result of a failure to resolve the

litigation could result in termination costs and delay damages that, at that time,

would have resulted in a total loss to the State of approximately $650 million. Id.

As of the date of the filing of this Petition, the district court has not granted

or denied the motion for an expeditious decision, nor has it issued a final

appealable order resolving all the issues in the case, nor has it reinstated the ROD

in response to FTA's resolution of the only issue on which the court has ruled thus

far. The State therefore requests that this Court order the district court to issue a

final decision addressing all issues raised in the parties' cross-motions for

summary judgment.

7
A copy of the State's Motion is attached as Exhibit G.
8
A copy of the State's Reply is attached as Exhibit H.
9
Declaration of Charles Lattuca, ECF 98-3 and Second Declaration of Charles
Lattuca, ECF 116-2. Copies are attached as Exhibits I & J.

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REASONS WHY THE WRIT SHOULD ISSUE

The State is now at a critical point in its efforts to maintain the viability of

the Project. The district court's order vacating the ROD stands in the way of the

State obtaining the federal funds needed to implement the Project, while the district

court's unexplained failure to address the other issues in the case deprives the

parties of an appealable final judgment. The district court's order requiring FT A to

produce a Supplemental EIS was initially intended to preserve the status quo - i.e.,

no construction activity or federal funding - for a confined period while FT A

conducted additional analysis of the effects of Metrorail safety and ridership issued

on the Purple Line. That period has long since passed, the required analysis was

completed and submitted to the district court in 2016, and yet the State remains

unable to move forward with the Project because no final decision has been issued

by the district court.

The district court's decision to address only a single issue out of the 24

issues raised in the parties' summary judgment motions, and its subsequent failure

to rule on the adequacy of the additional analysis ordered in its August 3 Opinion,

leaves the State with an inability to proceed or to appeal, and has created a

substantial risk that this dispute will ultimately be decided by pocket veto rather

than on the merits. This course has impeded the State's ability to implement this

important public transit project and now threatens to force the State to suspend

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many of the implementation activities, in an attempt to m1mm1ze the damage

caused by the district court's limited and interlocutory decision. The citizens of

the State are entitled to a decision on all of Plaintiffs' pending claims in a

timeframe that allows the State either to implement the Project without further

undue delay or to pursue available appellate review and relief from the district

court's order.

A SUPERVISORY WRIT OF MANDAMUS IS APPROPRIATE TO REMEDY THE
DISTRICT COURT'S FAILURE TO ISSUE A FINAL JUDGMENT IN THIS CASE.

A writ of mandamus "has traditionally been used in the federal courts ... 'to

compel [a district court] to exercise its authority when it is its duty to do so."' In

re United States, 598 F.2d 233,236 (D.C. Cir. 1979) (quoting Roche v. Evaporated

Milk Ass'n, 319 U.S. 21, 26 (1943)). Mandamus relief is appropriate when a

district court's failure "to adjudicate a case properly before it" is "'obstructing the

appeal"' and might otherwise prevent the appellate court from exercising its

jurisdiction. Will v. Calvert Fire Ins. Co., 437 U.S. 655, 662 (1978) (quoting

Roche, 319 U.S. at 25). The Supreme Court expects that "as a general matter,

district courts ... will not unduly delay their own rulings," but if that expectation

is not met, "where appropriate, corrective mandamus will issue from the courts of

appeals." Spencer v. Kemna, 523 U.S. 1, 18 (1998).

Although mandamus is a "drastic and extraordinary" remedy "reserved for

really extraordinary causes," the Supreme Court has instructed that the

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requirements for granting the writ, "however demanding, are not insuperable."

Cheney v. U.S. Dist. Court for Dist. of Columbia, 542 U.S. 367, 380, 381 (2004).

"Before a court may issue the writ, three conditions must be satisfied: (i) the

petitioner must have 'no other adequate means to attain the relief he desires'; (ii)

the petitioner must show that his right to the writ is 'clear and indisputable'; and

(iii) the court 'in the exercise of its discretion, must be satisfied that the writ is

appropriate under the circumstances."' U.S. v. Fokker Services B. V., 818 F.3d 733,

747 (D.C. Cir. 2016) (granting writ of mandamus against district court (quoting

Cheney, 542 U.S. at 380-81)). All of these conditions are satisfied here.

A. There Are No Other Adequate Means to Attain the Desired
Relief.

This case satisfies the first condition - the lack of any other adequate avenue

to relief - because, as the Supreme Court has long recognized, mandamus "is the

only adequate mode of relief, where an inferior tribunal refuses to act upon a

subject brought properly before it." Life & Fire Ins. Co. of N. Y v. Wilson's Heirs,

33 U.S. 291, 302-03 (1834). Here, it is clear that there are no other adequate

means for the State to attain the desired relief from the August 3, 2016 remand

order vacating the ROD.

The State could not seek to appeal the district court's August 3, 2016

remand order, because "(i]t is black letter law that a district court's remand order is

not normally 'final' for purposes of appeal under 28 U.S.C. § 1291." N.C.

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Fisheries Ass 'n v. Gutierrez, 550 F.3d I 6, 19 (D.C. Cir. 2008) (citations omitted).

Although "there is a limited exception permitting a government agency to appeal

[a remand order] immediately rather than bear significant expenses that cannot be

recovered or take action pursuant to the remand that cannot be reversed if it is later

determined that the order was improper," id. (citation omitted), this Court has

applied that exception only when "the agency to which the case is remanded seeks

to appeal .... " Occidental Petroleum Corp. v. SEC, 873 F.2d 325, 330 (D.C. Cir.

1989) (emphasis added). Here, the district court's August 3, 2016 order vacated

the ROD, and remanded to the federal agency that generated it, FTA, with

instructions to prepare a Supplemental EIS. ECF 97. The "limited exception"

does not permit the State to appeal under these circumstances.

For similar reasons, the State could not appeal the August 3 Order under the

collateral order doctrine. In Lakes Pilots Ass 'n, Inc. v. US Coast Guard, 359 F.3d

624, 625 (D.C. Cir. 2004), this Court treated the "limited exception" for federal

agencies described above as a subset of the collateral order doctrine. The Court

held that an interlocutory appeal under the collateral order doctrine was generally

unavailable to parties other than the government agency to which the case was

remanded. Id.; see Sierra Club v. U.S. Dep't of Agriculture, 716 F.3d 653, 656-57

(D.C. Cir. 2013) (reaching the same conclusion but addressing separately collateral

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order analysis and the "limited exception" authorizing an appeal by the agency to

which the case has been remanded).

Finally, the district court's order vacating the ROD is not appealable as an

order granting injunctive relief. In Sierra Club, this Court held that even where a

district court's order included directives enjoining the federal agency to take

certain actions on remand, the order will not be treated as an immediately

appealable injunction under 28 U.S.C. § 1292(a)(l) if "the injunction against the

[federal agency] serves no function beyond the remand order." 716 F.3d at 660

(agency obligated to prepare environmental impact statement on remand). In

reaching that conclusion, the Court cited with approval an Eighth Circuit decision

holding that "it lacked jurisdiction under § l 292(a)(l) where," as in this case, "a

defendant-intervenor, rather than the defendant agency, sought to appeal a district

court order enjoining the agency from taking further action until it prepared an

EIS." Id. (citing Izaak Walton League of America v. Kimbell, 558 F.3d 751, 763

(8th Cir. 2009)).

Quite simply, the district court has yet to issue an appealable order or to

provide any indication of when it will do so. Continuing delay comes with the

substantial risk that the State will be compelled to cancel the Project because of the

inability to access $900 million in federal funding and in order to avoid further

delay damage claims under the public-private partnership agreement to develop

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and implement the Project. It is the lack of appealability of the order vacating the

ROD - a matter the district court confirmed with Plaintiffs' counsel before issuing

its August 3 Order - that has compelled the State to seek this extraordinary relief.

The State has no other adequate means of securing the necessary relief.

B. The State's Entitlement to the Writ Is Clear and Indisputable.

The second condition for mandamus is satisfied because the State is "clearly

and indisputably" entitled to a timely resolution of the pending cross-motions for

summary judgment. The Supreme Court has insisted that all district court

procedures in civil actions serve "Rule l's paramount command: the just, speedy,

and inexpensive resolution of disputes." Dietz v. Bouldin, 136 S. Ct. 1885, I 89 I

(20 I 6); see Fed. R. Civ. P. I (The Rules "should be construed, administered, and

employed by the court and the parties to secure the just, speedy, and inexpensive

determination of every action and proceeding."). The Supreme Court has long

held that this "paramount command" of Rule 1, together with the language of Rule

56, imposes on a district court the obligation to decide a summary judgment

motion when, as in this case, the submissions before the court establish that "there

is no genuine dispute as to any material fact. . . . " Fed. R. Civ. P. 56(a).

"Summary judgment procedure," like "the Federal Rules as a whole," is "designed

'to secure the just, speedy and inexpensive determination of every action."'

Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting former language of

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Fed. R. Civ. P. 1). A summary judgment motion "may, and should, be granted so

long as whatever is before the district court demonstrates that the standard for the

entry of summary judgment, as [formerly] set forth in Rule 56(c) [now in Rule

56(a)], is satisfied." Id. at 323 (emphasis added). "[T]he plain language" of Rule

56 "mandates the entry of summary judgment, after adequate time for discovery

and upon motion, against a party who fails to make a showing sufficient to

establish the existence of an element essential to that party's case, and on which

that party will bear the burden of proof.... " Id. at 322 (emphasis added). "Where

no such showing is made, '[t]he moving party is 'entitled to a judgment as a matter

of law."" Lujan v. Nat'! Wildlife Fed'n, 497 U.S. 871, 884 (1990) (emphasis

added).

This obligation to provide a 'just, speedy, and inexpensive determination" of

a summary judgment motion is all the more imperative, and should be all the more

readily achieved, in a case such as this involving review of administrative agency

action. For, as the district court acknowledged, it has only a "limited" task. See

Exhibit D, August 3 Opinion at 2-3 ("The Court's review 'is based on the agency

record and limited to determining whether the agency acted arbitrarily or

capriciously.' Rempfer v. Sharfstein, 583 F.3d 860, 865 (D.C. Cir. 2009)."

(emphasis added)). Indeed, in this context a summary judgment motion merely

"serves as the mechanism for deciding, as a matter of law, whether the agency

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action is supported by the administrative record and otherwise consistent with the

AP A standard of review." Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90

(D.D.C. 2006).

Despite the limited and straightforward role of a court on judicial review of

administrative action, the district court indefinitely, and without explanation,

deferred ruling on 23 of the 24 issues placed before it in the cross-motions for

summary judgment. The district court reasoned, in reliance on its own "common

sense," that a delay in implementing the Project was warranted, and that a

"temporary halt" for the agency to produce a Supplemental EIS on a single issue

was a prudent way for the federal government to proceed. Exhibit E, August 3

Opinion at 9. However, the district court never addressed how the "temporary

halt" to prepare a new environmental analysis on a single issue would interact with

its decision to reserve judgment on the remaining 23 issues in the case. For

example, the district court did not indicate if preparing the Supplemental EIS on

that single issue, in itself, would resolve the other NEPA claims in the lawsuit.

Notably, several of the issues "reserved" by the district court addressed the

sufficiency of the underlying original EIS. See, e.g., Plaintiffs' Amended

Complaint, ECF 20, ,r,r 122-13 6. The district court did not indicate if, after FT A

had prepared a Supplemental EIS, the court would then grant summary judgment

to MTA and FTA on the Plaintiffs' claims that the underlying EIS was inadequate.

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Under the district court's decision on partial summary judgment, FTA could

have initiated preparation of a Supplemental EIS on the Metrorail issue, published

that document for public comment, and issued an updated ROD, only to have the

district court find that the underlying EIS was flawed in other ways and then

require another Supplemental EIS to address those additional issues. The district

court's decision to withhold judgment on the .remaining 23 issues leaves entirely

unclear whether there is a path to resolution or what the timeframe for such a path

might be.

In short, by failing to resolve finally the only issue on which it has thus far

ruled and reserving judgment indefinitely on all the others, the district court has

created a situation in which the State could be left without a -~final" judgment

indefinitely in this time-sensitive and important matter. Condemning the State to

indefinite uncertainty and delay, at enormous expense, deprives Maryland and its

taxpayers of the "just, speedy, and inexpensive resolution of disputes," and thereby

defies the Rules' "paramount command." Dietz, 136 S. Ct. at 1891. Mandamus is

the necessary and appropriate remedy.

C. A Writ of Mandamus Is Appropriate Under the Circumstances.

Finally, "the writ is appropriate under the circumstances" that the State is

facing. Cheney, 542 U.S. at 381. This third criterion for mandamus has been

construed to be "a relatively broad and amorphous totality of the circumstances

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USCA Case #17-5104 Document #1675041 Filed: 05/12/2017 Page 26 of 32

consideration." In re Kellogg Brown & Root, Inc., 756 F.3d 754, 762 (D.C. Cir.

2014). Foremost among the pertinent totality of the circumstances is the harm to

the State caused by the failure of the district court to issue a final appealable

judgment, a failure with costly consequences that could not be con-ected by an

appeal at a later date.

The State has repeatedly informed the district court that a delay in issuing a

decision results in great financial cost to the State - an estimated $13 million for

each month of delay - and increases the probability that the Project will need to be

abandoned to prevent further financial harm to the State. Even now, the cost to the

State of cancellation of the Project has grown to more than $800 million. Exhibit

A, Rahn Deel. ~ 74. This amount includes ( 1) funds expended to date in

development of the Project of approximately $545 million; (2) delay costs, which

could reach approximately $150 million for an estimated 12-month delay: and (3)

termination costs, which could reach approximately $200 million. /d. 10

As further explained in the Rahn Declaration (Exhibit A at~~ 56-78), these

harms to the State are real and substantial. The cascading effects predicted in the

State's supplemental brief (ECF 93) filed in June 2016, pose current and future

10
In anticipation of receiving the $325 million that Congress has already
appropriated for this Project, the State has expended that amount using State
taxpayer dollars to carry out ongoing and long lead-time pre-construction
activities, such as real property acquisitions, engineering and design, soil and
geotechnical analysis, utility relocations and community and small business
outreach and involvement. Exhibit A, Rahn Deel. ,r 33.

(Page 26 of Total) 21
USCA Case #17-5104 Document #1675041 Filed: 05/12/2017 Page 27 of 32

harm to the Project. Failure to reinstate the ROD would result not only in a

tremendous financial loss to the State, but also a tremendous loss to the tens of

thousands of workers, students, and other residents of the State who would benefit
11
from a transit line connecting Montgomery and Prince George's Counties.

Declarations filed in district court informed that court of the substantial harm to the

State absent a final appealable decision. See Exhibits I & J, Latucca Declarations,

ECF 98-3 & 116-2, respectively.

The harm to the State is not limited to the potential loss of over $800

million. The Project includes the replacement of eight bridges in the Counties -

several of which are currently structurally deficient. Major maintenance or

replacement work by the Counties on these bridges was put on hold pending

implementation of the Project. One bridge was recently closed to vehicular traffic,

causing school buses and emergency vehicles to take longer routes to reach their

destinations. Exhibit A, Rahn Deel. ,I 77.

The State anticipates that as of June 1,2017, it will no longer have sufficient

funds to continue funding pre-construction activities. Id. at 162. As a result, if the

ROD is not reinstated by that date, the State is likely to direct the private developer

to begin an orderly process of suspending Project activities. Id. The State will also

11
One of the benefits is quicker trips connecting large population centers in the
two Counties. For example, a trip between downtown Bethesda and downtown
Silver Spring is projected to take nine minutes. Exhibit A, Rahn Deel., ,I I 7a.

(Page 27 of Total) 22
USCA Case #17-5104 Document #1675041 Filed: 05/12/2017 Page 28 of 32

initiate suspension of other activities it is carrying out on its own. Id. If Project

activities are able to resume in the future, this resumption will result in increased

Project costs for remobilization. Moreover, in light of impending deadlines for

inclusion in the federal budget, the Secretary expects that suspension of activities

now would impair the State's ability to obtain additional federal appropriations for

the 2018 Fiscal Year. Even in the event the Project were ultimately able to

proceed, a failure to obtain a 2018 appropriation now would cause yet further

delays and increased costs for the Project. Id. at 166.

In addition to the direct implications for the Project, because of the

expenditure of State funds on pre-construction activities that were expected to be

reimbursed by appropriate federal funds, a delay in obtaining federal funding for

this Project will also require the State to begin delaying or eliminating other

transportation projects from the State's transportation plans to make up the

shortfall. Id. at 178.

While the State will continue to take all reasonable steps to avoid

cancellation of the project, the Secretary expects that a decision to cancel the

Project could occur unless the ROD is reinstated within approximately 60 days

following the suspension of ongoing Project activities. Id. at ,r 65. If the Project is

terminated before a final decision by the district court, the case could become moot

- preventing the State from ever obtaining a final judgment on the merits in the

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USCA Case #17-5104 Document #1675041 Filed: 05/12/2017 Page 29 of 32

district court or from appealing an adverse district court decision. Moreover, even

if the case were not found to be moot, a favorable ruling in the district court or on

appeal would be a hollow victory if it comes only after the Project has been

rendered non-viable due to the passage of time. A final decision by the district

court in a timeframe that allows the Project to proceed or for expedited

consideration by this Court of the merits of Plaintiffs' claims is necessary to avoid

the potential of irreparable harm to the State.

As the State argued in its still-pending motion to expedite the district court's

decision on the merits, there is a simple reason for the State's request for a final

decision: the fate of the Purple Line hangs in the balance, and that fate should be

determined by policy makers responsible for the Project and accountable to the

public - or, if by a court, on the merits of a claim - rather than as a side-effect of

inaction by the district court. Exhibit G. A writ of mandamus from this Court

directing the district court to issue a final judgment in this case forthwith is needed

to satisfy the "paramount command" of Rule I and to ensure that the interests of

justice are served.

CONCLUSION

For the foregoing reasons, the petition for a writ of mandamus should be

granted.

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USCA Case #17-5104 Document #1675041 Filed: 05/12/2017 Page 30 of 32

Dated: tviay 12, 2017 Respectfully submitted,

BRIAN E. FROSH
Attorney General of Maryland

l-uvic, M.!l~.SVL Mowto a+-
L1 DA NI. STROZY K DEXiuo1 0 (Bar ·o.
429514)
Assistant Altorney Genera l
I 00 S. Charles Street, Towe r II, Suite 700
Baltimore, l\!ID :Z l 20 l
(410) 45 1-3722
Email: ldevuono@sha.state.md.us

@Ur7
ALBE RT NI. F ERLO
Perkins Coie LLP
700 Thirteemh Street, N. 'vV.. Suite 600
\Vashington , D.C. 20005 -3960
Telephone : 202 .654.6200
Facsimi le : 202 .654.62 l l
Emai l: alerlo01perkinscoie.com

Attorneys for Petitioner

(Page 30 of Total) 25
USCA Case #17-5104 Document #1675041 Filed: 05/12/2017 Page 31 of 32

CERTIFICATE OF COMPLIANCE

1 hereby certify that this brief complies with the type-volume limitation of

Rule 2 1(d)(i) of the Federal Rules of Appellate Procedure. As measured by the
u}\t"1\,F
word-processing system used to prepare this brief, the brief contains 5,8{~ wo rds,

excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), and

complies with the type style requirements of Fed. R. App. P. 32 (a)(6), because it

has been prepared in a 14 point proportionally spaced roman-style typeface (Times

New Roman).

(Page 31 of Total)
USCA Case #17-5104 Document #1675041 Filed: 05/12/2017 Page 32 of 32

CERTIFICATE OF SERVICE

I hereby certify that on May 12, 20 I 7, a copy of the foregoing Petition for a

Writ of Mandamus with accompanying Ex hi bits was served via U.S . First C lass

Mail and email on the following counse l of record in the U .S. District Court.

David Brown
Knopf & Brown
brown@knopf-brown.com
Kevin W. McArdle
U.S. Department of Justice
Keven. mcardle@usdoj .gov

Jeremy Hessler
U.S . Department of Justice
Jeremy.hessler@usdoj .gov

Tyler L. Burgess
U.S. Department of J ustice
Tyler. burgess@usdoj .gov

John M. Fitzgerald
4502 Elm Street
Chevy Chase, .MD 20815
johnmfitzgerald@earthlink.net

Eric Robert Glitzenstein
Meyer Glitzenstein & Eubanks LLP
eglitzenstein@meyerglitz.com

Date: May 12, 2017

Sheri Pai s

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EXHIBIT A

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DECLARATION OF PETE K. RAHN
My name is Pete K. Rahn, and I have first-hand experience with, and

personal knowledge of, the facts and matters discussed in this declaration.

STATEMENT
1. I am currently the Secretary of Transportation for the State of

Maryland, a cabinet position appointed by the Governor and confirmed by the

State Senate. As Secretary of Transportation, I lead the Maryland Department of

Transportation (“MDOT”).

2. Before becoming Maryland’s Secretary of Transportation, I served as

the Secretary of Transportation for the New Mexico State Highway and

Transportation Department (1995-2002), as the Director of the Missouri

Department of Transportation (2004-2010), and as a Senior Vice President of

HNTB Corporation (2010-2015).

3. In addition, I served in a variety of leadership positions in the

transportation industry, including president of the American Association of State

Highway and Transportation Officials (2007-08), membership on the Executive

Committee of the Transportation Research Board of the National Academies of

Sciences (2006-2009), and Chair of the State Transportation Commission of New

Mexico (2011- 2015).

1
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4. I also received the Vision Award from the National Council on Public

Private Partnerships in 2008; the Environmental Achievement Award for

Environmental Stewardship from the Federal Highway Administration in 2002;

and the Transportation Leadership Award from the Design-Build Institute of

America in 2010.

The Maryland Department of Transportation

5. MDOT is a state agency comprised of five modal administrations: the

State Highway Administration, Maryland Transit Administration (“MTA”), Motor

Vehicle Administration, Maryland Port Administration, and the Maryland Aviation

Administration. As Secretary, I chair the board of the Maryland Transportation

Authority.

6. Also as Secretary, I am responsible for overseeing the business units

of MDOT and ensuring that their planning and capital project initiatives are

complementary to each other and that they help realize the Governor’s

transportation goals for the State. I am also responsible for managing MDOT’s

financial resources, which are comprised of tax and fee revenues, operating

revenues, bond proceeds, and federal funds.

7. The State’s investment in its transportation system is a key component

to ensuring for its citizens that the State advances its goals for economic success

and sustainment, mobility, quality of life, safety, greater access to employment,

2
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education and health care, and reducing congestion and air pollution in federally

designated air quality non-attainment areas.

The Maryland Transit Administration

8. MTA, a unit within MDOT, is responsible for the development,

administration, and operation of transit services throughout the State. In all, MTA

provides more than 112 million trips per year. Services operated by MTA include

the Maryland Area Regional Commuter (“MARC”) train, as well as the light rail

transit system, subway system, and local bus systems in the Baltimore area. It also

financially supports locally operated transit systems throughout the State.

9. The Washington Metropolitan Area Transportation Authority

(“WMATA”) is a Compact entity that is an instrumentality and agency of

Maryland, Virginia and the District of Columbia, wholly separate from MTA.

WMATA operates the Metrorail subway system in the Washington, D.C.

metropolitan area, as well as a regional bus system, known as Metrobus. All three

local jurisdictions – Maryland, Virginia, and Washington, D.C. – make significant

financial contributions to WMATA, in addition to funding their own respective

transportation systems.

10. MTA’s transit services, by design, intersect with each other as well as

with WMATA’s Metrorail and Metrobus systems and with other transportation

3
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systems, including county-operated bus services and intercity passenger rail

service operated by Amtrak.

11. MTA is responsible for the planning and development of the Purple

Line light rail project.

The Purple Line: Needed to Connect Maryland Communities

12. The Purple Line is a light rail transit (“LRT”) project that connects

several major activity centers in Maryland, including Bethesda, Silver Spring,

Takoma/Langley Park, College Park (and the University of Maryland), and New

Carrollton.

13. The Purple Line is located in the State’s two most populous counties,

Montgomery County and Prince George’s County (“the Counties”). Together, the

Counties have a population of more than 1.9 million residents, almost one third of

the entire State’s population.

14. Both Counties have emerged as significant employment centers in

their own right. Between 2010 and 2040, employment is projected to grow by 43

percent in Montgomery County and 32 percent in Prince George’s County, while

population is projected to increase in these Counties by 22 percent and 12 percent,

respectively, over the same period.

15. The Purple Line is an important element of the economic development

and land use plans of both Montgomery County and Prince George’s County. In

4
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the case of Montgomery County, the Purple Line has been included in some form

in the County’s land use plans for more than 30 years. These land use plans

represent the visions adopted by the Counties, through a public process, for

accommodating future growth in population and attracting economic development

and jobs to the Counties.

16. There is strong demand for public transit service in the Purple Line

corridor, which contains a large number of residents who do not own a vehicle,

particularly in the eastern end of the corridor. But there is no existing east-west

Metrorail service in the Purple Line corridor, and east-west bus transit service is

often slow and unreliable because it operates on an increasingly congested

roadway network.

17. The Purple Line would greatly improve east-west transit service in the

corridor by providing faster, more frequent, and more reliable transit service

connecting 21 stations along the 16-mile route. Some of the project’s benefits

include:

a) The Purple Line will connect downtown Bethesda and downtown

Silver Spring – Montgomery County’s largest employment centers –

with a 9-minute train ride, far faster than bus service on the region’s

increasingly congested roads.

5
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b) The Purple Line LRT is projected to serve approximately 60,000 daily

riders when it opens in 2022 and that number will grow to more than

74,000 by 2040.

c) More than one billion dollars of new adjacent development has been

advanced in New Carrollton, College Park, Silver Spring and

Bethesda in anticipation of the Purple Line’s completion. These

developments will create thousands of additional new construction,

retail, and professional jobs.

d) The Purple Line will run through the center of the campus of the

University of Maryland at College Park with three on-campus stops

and will be accessible to more than 46,000 students, faculty and staff.

e) The Purple Line leverages existing public transportation services by

improving the connections among them. In addition to its four

connections to the Metrorail system, the Purple Line connects to

dozens of local and regional bus routes, two MARC commuter rail

stations, and an Amtrak intercity rail station.

f) The design and construction phase of the Purple Line project will

create more than 6,300 direct and indirect jobs.

6
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USCA Case #17-5104 Document #1675041 Filed: 05/12/2017 Page 8 of 219

The Purple Line: A Key Part of State and Regional Transportation Plans

18. The Purple Line is also an important part of State and regional

transportation plans for maintaining and expanding all transportation modes.

These plans are required by federal law and adopted through a public process in

accordance with federal requirements.

19. Maryland’s statewide long-range transportation plan, the 2035

Maryland Transportation Plan (“MTP”), addresses all transportation modes and

defines the State’s long-term transportation priorities. One of the plan’s goals is to

“Systematically improve transit service connectivity, frequency, extent, quality and

speed to make transit a more attractive modal option,” and, specifically, to “Link

the region’s inner Beltway employment and housing across its urban centers with

the construction of the Purple Line LRT and interconnect it with WMATA and

local transit services.” 2035 Maryland Transportation Plan at 37.

20. The Metropolitan Washington Council of Governments (“MWCOG”),

which is governed by representatives from Maryland, Virginia, and the District of

Columbia, is responsible for adopting the National Capital Region’s metropolitan

long-range transportation plan, known as the Financially Constrained Long-Range

Plan (“CLRP”). The current CLRP dedicates substantial funds for maintaining

existing infrastructure: $79 billion for major rehabilitation or replacement projects

by 2040, plus another $123 billion for operating and maintaining the system during

7
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the same period. CLRP at 46. But the CLRP also recognizes the importance of

expanding public transit service throughout the region, and includes funding for 76

additional miles of high-capacity public transit, including the 16-mile-long Purple

Line. CLRP at 47. Collectively, the CLRP reflects a regional consensus on the

need to both maintain the existing transportation and invest in expanding capacity

to meet growing demand.

Federal Review and Approval of the Purple Line

21. The Purple Line is expected to be funded, in part, with federal funds

administered by the Federal Transit Administration (“FTA”) under its Capital

Investment Grants program, commonly known as the New Starts program. As

such, the project required an environmental review under the National

Environmental Policy Act (“NEPA”) and other laws and was subject to a

comprehensive financial analysis as required by the New Starts program.

22. FTA and MTA initiated the preparation of an environmental impact

statement (“EIS”) for the Purple Line in 2003, pursuant to NEPA and other federal

and State laws. FTA and MTA issued the Draft EIS for the Purple Line in October

2008 and issued the Final EIS for the Purple Line in August 2013. FTA issued a

Record of Decision (“ROD”) approving the project on March 19, 2014.

23. In 2011, MTA submitted an application to FTA for a $900 million

grant under the New Starts program.

8
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24. The FTA grant application process included multiple rounds of review

by FTA, including a comprehensive assessment of project justification and local

financial commitment. Following this review, the FTA formally recommended

approval of the $900 million grant for the Purple Line in June 2016. In

recommending approval, FTA assigned the Purple Line a rating of “Medium-

High” for project justification and “High” for local financial commitment, and

assigned the project an overall rating of “High.”

25. The final step in the New Starts application process is the execution of

the Full Funding Grant Agreement (“FFGA”), which can be signed only after a 30-

day review period by Congress. FTA submitted the FFGA for the Purple Line to

Congress for review on July 6, 2016 for the required 30-day review. The

Congressional review was completed without objection. The execution of the

FFGA was scheduled for August 8, 2016, but was postponed after the District

Court’s order of August 3, 2016. To date, the FFGA for the Purple Line has not

been signed.

A Federal, State and Local Partnership to Develop the Purple Line

26. With a cost of more than $2.447 billion to develop and construct, the

Purple Line is the largest transportation construction project ever undertaken by

MDOT.

9
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27. The development of this complex project has involved close

collaboration among the federal government, the State, the Counties, and the

private sector – with multiple agreements between and among these entities.

Circumstances that affect one party’s obligations under one agreement can have a

ripple effect across multiple other agreements.

28. The funding for construction of the Purple Line involves substantial

financial contributions from federal, State, and County governments, as well as

private financing. The requested federal grant of $900 million represents 37% of

the estimated $2.447 billion construction cost of the project.

29. To implement a project of this magnitude, the State has entered into a

public-private partnership (“P3”) agreement (“P3 Agreement”) as well as

numerous agreements and memoranda of understanding with the Counties and

other parties. The P3 Agreement is described further below.

Federal Appropriations for the Purple Line

30. To date, Congress has appropriated a total $325 million of the $900

million anticipated federal grant for the Purple Line but none has been distributed

to the State. The $325 million has been appropriated in three consecutive years as

follows:

a) $100 million was appropriated for the Purple Line in Fiscal Year

2015;

10
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b) an additional $100 million was appropriated for the Purple Line in

Fiscal Year 2016; and

c) an additional $125 million was appropriated for the Purple Line in

Fiscal Year 2017 through legislation enacted by Congress on May 4,

2017.

31. The State intends to continue seeking annual appropriations for the

remaining amounts of the anticipated $900 million federal grant in the Fiscal Year

2018 appropriations process and in future years until the full amount is

appropriated.

32. The $325 million in appropriated federal funds, including the $125

million in Fiscal Year 2017, cannot be distributed to the State until FTA enters into

an FFGA with MTA, and the FTA cannot execute the FFGA until the ROD is

reinstated.

33. In anticipation of being reimbursed the $325 million in funds

appropriated over the last three fiscal years, the State has expended that amount in

State taxpayer dollars to carryout on-going and long lead-time pre-construction

activities, such as real property acquisitions, engineering and design, soil and

geotechnical analysis, utility relocations, and community and small business

outreach and involvement.

11
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The Public-Private Partnership Agreement

34. The use of a P3 agreement to implement a transportation project is

authorized under Title 10A of the State Finance and Procurement Article of the

Annotated Code of Maryland (“Title 10A”), as a way to finance and operate costly

and critical transportation projects.

35. A P3 agreement is a performance-based contract that places primary

design, construction, implementation, and maintenance risk on the private entity,

with the aim of achieving the most efficient expenditure of costs and allocation of

risk and reward between the State and the concessionaire. With a P3 agreement,

the State remains the owner of, and ultimately accountable for, the public

infrastructure asset and its public function.

36. On November 8, 2013, the State initiated a competitive bid process to

select a private partner to finance, develop, design, construct, and supply light rail

vehicles for the Purple Line and to operate and maintain the Purple Line for a

period of 30 years after operations begin.

37. Through the three-year bid process, MTA selected Purple Line Transit

Partners LLC (“PLTP”) as the concessionaire for the Purple Line project and

negotiated a P3 agreement with PLTP (“P3 Agreement”). The term of the P3

Agreement is approximately 36 years, consisting of a design-build period of

approximately six years followed by an operations and maintenance period of 30

12
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years (through 2052). At the end of the term of the P3 Agreement, PLTP is

required to return the Purple Line to the State in a state of good repair.

38. The P3 Agreement was presented to the State’s Board of Public

Works (“BPW”), which consists of three statewide elected officials: the Governor,

Treasurer, and Comptroller. On April 6, 2016, the BPW unanimously approved

the P3 Agreement. The State and PLTP executed the P3 Agreement on April 7,

2016.

39. Following execution of the P3 Agreement, PLTP took several major

steps to begin implementing its obligations under the agreement:

a) PLTP first entered into debt and related financing arrangements to

perform its financing obligation under the P3 Agreement, discussed in

greater detail below;

b) PLTP entered into separate design-build contracts and operations-and-

maintenance contracts with contractors; and

c) PLTP entered into a contract with a rail car manufacturer for the

supply of light-rail vehicles for the Purple Line.

40. On June 17, 2016, the State and PLTP completed the financing of the

Purple Line, with PLTP entering into the various debt and financing-related

agreements with bond-holders and lenders, including an $875 million loan to PLTP

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by the U.S. Department of Transportation under the Transportation Infrastructure

Finance and Innovation Act (“TIFIA”) program.

41. The P3 Agreement provides considerable certainty for the State in

terms of performance, financial payments and risk. Following completion of

construction, the State pays PLTP a specified amount per year for the next 30

years. The State maintains oversight of the project throughout the life of the P3

Agreement and may deduct amounts from its payments to PLTP if PLTP does not

meet performance standards for operating and maintaining the Purple Line as

defined in the P3 Agreement. This defined payment schedule greatly helps the

State with budgeting and planning for other capital projects.

42. In addition to the Purple Line transitway, PLTP’s responsibilities

under the P3 Agreement include construction of certain projects funded by the

Counties, including the construction of a new Bethesda Station South Entrance to

the existing underground Metrorail system, the construction of two

jogging/walking/biking trails: (1) a permanent Capital Crescent Trail from

Bethesda to Silver Spring, and (2) the Silver Spring Green Trail. The Bethesda

Station South Entrance and Silver Spring Green Trail are independent of the Purple

Line but are being built under the same contract for reasons of efficiency and cost

savings.

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Initiation of Preconstruction Activities under the P3 Agreement

43. On April 7, 2016, with FTA’s approval, the State authorized PLTP to

perform certain “early work” consisting of preliminary design and geotechnical

activities and preparation of certain contractual submittals and permit applications.

PLTP issued a corresponding limited notice to proceed to its design-build

contractor. The design-build contractor performed this specified early work

through June 17, 2016.

44. On June 17, 2016, MTA gave PLTP full notice to proceed with pre-

construction work under the P3 Agreement.

45. On June 18, 2016, after submitting the required certification that all

necessary preconditions had been met, PLTP commenced non-construction

activities on the Purple Line. PLTP then authorized its design-build contractor to

commence its non-construction activities.

46. Since June 18, 2016, PLTP’s design-build contractor has been

engaged in performing non-construction activities, including engineering work,

geotechnical borings, permitting and marking the location of utilities in the Purple

Line right-of-way. In addition, certain other non-construction long lead-time

activities also are being carried out by the State, including right-of-way acquisition

and relocation activities, which have been under way since approximately May

2014.

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47. Pursuant to the P3 Agreement, PLTP has developed a project schedule

that takes into account thousands of factors to develop an efficient and cost-

effective plan and critical path to timely complete the Purple Line and the County-

Funded Projects. The project schedule has been carefully crafted to satisfy all

applicable constraints and interdependencies (including financing requirements) to

maximize efficiency and minimize construction costs. The schedule is extremely

complex, with almost 6,000 discrete activities that must be coordinated and

sequenced over the approximately six-year design and construction period.

Vacation of FTA’s Record of Decision (ROD)

48. On August 3, 2016, the U.S. District Court for the District of

Columbia issued an order (“August 3 Order”) finding that FTA was required to

prepare a Supplemental EIS under NEPA on a limited issue: to assess the effects of

WMATA Metrorail safety and ridership issues on Purple Line ridership. Based on

that decision, the District Court vacated FTA’s March 2014 ROD for the Purple

Line as part of the August 3 Order.

49. The execution of the FFGA by FTA and MTA for the Purple Line was

scheduled for August 8, 2016, but was postponed after the District Court issued the

August 3 Order vacating the ROD.

50. Following the August 3 Order, MTA began performing additional

analysis as directed by the District Court to assess the potential effects of Metrorail

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safety and ridership issues on Purple Line ridership. This analysis culminated in a

report that MTA submitted to FTA on November 3, 2016.

51. On August 23, 2016, FTA and MTA filed motions with the District

Court asking the court to modify its August 3 Order to allow FTA and MTA the

opportunity to conduct a new analysis of Metrorail safety and ridership issues and

make a determination as to whether new information requires a Supplemental EIS

to be prepared. FTA and MTA also asked the court to reinstate the ROD while this

additional analysis was conducted.

52. In a November 22, 2016 decision, at the request of FTA and MTA, the

District Court modified its August 3, 2016 order to allow FTA and MTA the

opportunity to conduct a new analysis of Metrorail safety and ridership issues and

make a determination as to whether new information requires a Supplemental EIS

to be prepared (“November 22 Order”). The court declined to reinstate the ROD

while this analysis was prepared.

53. In accordance with the District Court’s November 22 Order, FTA and

MTA prepared an analysis of the effects of Metrorail safety and ridership issues on

Purple Line ridership, and concluded that even under extreme and unrealistic

assumptions about declining Metrorail ridership, the Purple Line still would have

sufficient ridership to qualify for FTA funding and to meet the project’s purpose

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and need. Based on that analysis, FTA determined that a Supplemental EIS was

not required.

54. On December 16, 2016, FTA filed its analysis and determination with

the court as required by the November 22 Order. On the same date, FTA and

MTA filed motions asking the court to find that the new analysis was sufficient

and to reinstate the ROD.

55. As of this date, the FTA’s and MTA’s motions for summary judgment

remain pending and the ROD remains vacated.

Harm from Delay in Reinstating the ROD

56. The continued absence of a ROD has significant, immediate, and

potentially devastating consequences for the Purple Line project and for other State

of Maryland transportation capital and maintenance projects.

57. In the absence of a ROD, FTA is unable to execute the FFGA, the

vehicle through which FTA can provide the federal funds critical to the project.

Because the ROD remains vacated, the federal funds anticipated for this project

have been delayed now for nine months. MDOT has been advancing State dollars

in lieu of federal funding while anticipating the timely resolution of the litigation

and reinstatement of the ROD and the reimbursement of those advances. MDOT is

rapidly approaching the point at which it cannot continue to advance these funds.

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58. Further, in order to maintain eligibility for FTA funds, MTA is

restricted to carrying out only pre-construction activities and is prohibited from

proceeding with project construction even with State funds. Therefore, the ROD

remaining vacated is effectively prohibiting the State from moving forward with

construction of the project, even with State funds.

59. As further described below, a delay in construction – if attributed to

the District Court decision – would likely give rise to substantial delay claims by

PLTP under the terms of the P3 Agreement.

60. The absence of a ROD also jeopardizes the State’s ability to secure

federal funding through the annual appropriations process. As noted above, the

FY2017 appropriations bill includes $125 million in funding for the Purple Line,

which the State cannot access without reinstatement of the ROD. With the

completion of the FY2017 bill, negotiations in Congress for FY2018

appropriations are beginning and will continue through the summer. During this

time, the absence of a ROD for the Purple Line will jeopardize the State’s ability to

secure additional federal funding needed and anticipated for the project in FY2018,

as well as future years.

Potential Suspension of Ongoing Activities after June 1, 2017

61. The State remains firmly committed to the Purple Line, and

completion of the Purple Line is one of the State's highest infrastructure priorities.

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Nonetheless, without access to the anticipated federal funding for the project, and

without any clear indication of when an FFGA may be executed, the State will be

compelled to reduce project expenditures by suspending many, if not all, ongoing

project activities in the near future, as further described below.

62. I anticipate that as of June 1, 2017, the State will no longer have

sufficient cash flow to continue funding ongoing pre-construction activities.

Therefore, if there is no foreseeable path to resolving the litigation, and no

reasonable expectation that the ROD will be reinstated, I anticipate that the State

will direct PLTP shortly after June 1, 2017 to begin an orderly process of

suspending Project activities. In addition, the State will initiate suspension of

activities being carried out by the State.

63. A suspension of ongoing project activities would have severe

consequences for the Project. Following a suspension, steps consistent with

demobilization would occur. Re-starting project activities in the future – if and

when federal funding is obtained – would involve substantial additional delays and

increased project costs.

64. I expect that the suspension of ongoing project activities also would

impair the State’s ability to obtain additional federal appropriations for the 2018

Fiscal Year, which begins on October 1, 2017. If such appropriations are not

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obtained, the delay in obtaining the remaining portions of the federal funding could

cause additional delays, increased costs, and possible cancellation of the project.

65. Following a suspension of ongoing project activities, the State would

face the ultimate decision of whether to cancel the project altogether. While the

State has taken and will continue to take all reasonable steps to avoid that outcome,

I expect that a decision to cancel the project could occur unless the ROD is

reinstated within approximately 60 days following the suspension of ongoing

project activities.

Potential Delay Claims to the State

66. To date, MTA and PLTP have taken steps to minimize the cost of

delay through the re-sequencing of project activities. However, with the passage

of time, opportunities to avoid incurring delay costs have greatly diminished and

are nearly exhausted. MTA anticipates that delay costs will escalate rapidly in the

coming months if the ROD is not reinstated. As described below, those delay costs

will likely average $13 million a month.

67. Under the terms of the P3 Agreement, PLTP has the right to

additional compensation if a “Relief Event,” as defined in the P3 Agreement,

occurs.

68. On November 14, 2016, pursuant to the P3 Agreement, PLTP

provided notice to MTA asserting that the August 3, 2016 District Court order

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vacating the ROD for the Purple Line constitutes a Relief Event under the P3

Agreement.

69. If the State is required to compensate PLTP under the terms of the P3

Agreement, the State (and consequently, its taxpayers) would incur substantial

costs from factors such as:

a) additional costs of financing and interest on bonds that have already

been issued for the project (including extension costs on associated

letters of credit);

b) additional cost escalation and inflation resulting from delaying the

purchasing of materials, additional equipment, and performing work

later;

c) additional labor costs for State employees and MTA’s consultants

(that serve as an extension of MTA staff) who are assisting MTA with

its functions and also performing oversight of PLTP; and

d) extended overhead for PLTP relating to construction activities.

70. MTA has not yet made a determination regarding PLTP’s claim of a

Relief Event under the P3 Agreement.

71. MTA has been advised by its project management consultant that the

delay costs to be borne by the State if construction is delayed would be

approximately $13 million per month. This estimate includes but is not limited to

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delay costs that may be owed to PLTP under the P3 Agreement. Based on this

monthly estimate, a 12-month delay would result in delay costs in excess of $150

million.

Potential for Termination of the P3 Agreement

72. The P3 Agreement gives PLTP certain rights to terminate the P3

Agreement if an “Extended Delay” related to a Relief Event occurs. An Extended

Delay is defined to include a delay resulting from a Relief Event that lasts 180 days

or more within a 365-day period.

73. If termination occurs due to an Extended Delay from a Relief Event,

in accordance with the P3 Agreement, the State would also have the obligation to

make a significant termination payment to PLTP, reimbursing PLTP for costs

incurred in performance of the P3 Agreement, including costs relating to the

project’s financing obtained by PLTP that would otherwise have been spread over

the 30-year operating term. If applicable, the termination payments to PLTP plus

other termination costs could be in excess of $200 million.

Total Cost of Delay Resulting in Termination

74. The potential costs to Maryland taxpayers if the project were delayed

for an extended period and then shut down could exceed $800 million. This

estimate includes:

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a) the State’s total investment in the Purple Line project to date, which is

approximately $545 million, consisting of approximately $325 million

in FY2016 and $220 million in prior fiscal years;

b) the potential delay costs, which are an estimated $13 million per

month, and therefore would be in the range of $150 million over a 12-

month period; and

c) the potential termination costs under the P3 Agreement and other

agreements could be in excess of $200 million.

75. In addition, any investments made by Prince George’s County and

Montgomery County may be lost.

Additional Injury to Citizens of Maryland

76. In addition to the potential costs to Maryland taxpayers, a delay in the

start of construction or termination of the project will delay or deprive the many

benefits of the project to the citizens of Maryland as described above.

77. As one example, the project is causing eight bridges in the Counties to

be replaced. Several of these bridges are structurally deficient and major

maintenance or replacement was put on hold by the Counties pending the project.

The project delay has recently forced Montgomery County to close Talbot Avenue

to traffic. This bridge is one of four that provides an important link to Lyttonsville,

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Maryland. Emergency vehicles and school buses will now have to take longer

routes to reach their destinations.

78. Termination payments required under the P3 Agreement would need

to be paid from taxpayer dollars. Given the potential magnitude of those

payments, it would be necessary to cancel or delay a like amount in in

transportation projects statewide, which could amount to hundreds of millions of

dollars. In effect, the cancellation of the Purple Line would have an immediate and

devastating negative effect on transportation funding for projects across the entire

State.

I declare under penalty of perjury that the foregoing is true and correct.

Executed in fl\AAY'-Pt,-.,...D on May .LL, 2017.

~ );a_
Pete K. Rahn

25

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EXHIBIT B

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1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JOHN M. FITZGERALD, ET AL, )
)
Plaintiff, ) CV No. 14-1471
)
) Washington, D.C.
vs. ) July 15, 2015
) 3:30 p.m.
FEDERAL TRANSIT ADMINISTRATION, )
ET AL., )
)
Defendant. )
___________________________________)

TRANSCRIPT OF STATUS CONFERENCE HEARING
BEFORE THE HONORABLE RICHARD J. LEON
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiffs: David W. Brown
KNOPF & BROWN
401 East Jefferson Street
Suite 206
Rockville, MD 20850
(301) 545-6100
brown@knopf-brown.com

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2

APPEARANCES CONTINUED
For the Defendants: Tyler L. Burgess
U.S. DEPARTMENT OF JUSTICE
Environment
& Natural Resources Division
601 D Street, NW
Room 3204
Washington, D.C. 20004
(202) 616-4119
tyler.burgess@usdoj.gov
Kevin W. McArdle
U.S. DEPARTMENT OF JUSTICE
Wildlife
& Marine Rescue Section
P.O. Box 7369
Washington, D.C. 20044-7369
(202) 305-0219
kevin.mcardle@usdoj.gov
Linda M. DeVuono Strozyk
OFFICE OF THE
ATTORNEY GENERAL- MD
100 S. Charles Street
Tower II, Suite 700
Baltimore, MD 21201
(410) 451-3722
lstrozyk@sha.state.md.us
Court Reporter: William P. Zaremba
Registered Merit Reporter
Certified Realtime Reporter
Official Court Reporter
U.S. Courthouse
333 Constitution Avenue, NW
Room 6511
Washington, D.C. 20001
(202) 354-3249
Proceedings recorded by mechanical stenography; transcript
produced by computer-aided transcription

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3

1 P R O C E E D I N G S
2 DEPUTY CLERK: All rise. The United States

3 District Court for the District of Columbia is now in

4 session, the Honorable Richard J. Leon presiding. God save

5 the United States and this Honorable Court. Please be

6 seated and come to order.

7 Your Honor, calling Civil Action No. 14-1471,

8 John M. Fitzgerald, et al., versus the Federal Transit

9 Administration, et al.

10 Will counsel please approach the lectern and

11 identify yourself for the record and the party or the

12 parties that you represent.

13 MR. BROWN: Good afternoon, Your Honor.

14 David Brown for the plaintiffs, John Fitzgerald, and

15 Christine Real De Azua, who are here; and the Capital

16 Crescent Trail, Friends of the Capital Crescent Trail, the

17 plaintiffs in this case.

18 THE COURT: Welcome.

19 MS. BURGESS: Good afternoon, Your Honor.

20 Tyler Burgess for the federal defendants, the Fish and

21 Wildlife Service, and the Federal Transit Administration,

22 and the respective secretaries thereof.

23 THE COURT: Welcome.

24 MR. McARDLE: Good afternoon, Your Honor.

25 Kevin McArdle also for the federal defendants.

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4

1 THE COURT: Welcome.

2 MS. DeVUONO STROZYK: Good afternoon, Your Honor.

3 Linda DeVuono Strozyk. I'm here on behalf of Maryland

4 Transit Administration.

5 THE COURT: Welcome.

6 MS. DeVUONO STROZYK: Thank you.

7 THE COURT: All right, Counsel. We're here for a

8 little update on where things stand. Obviously, I've got a

9 motion pending from the State of Maryland to intervene in

10 the case so I wanted to hear from the State of Maryland

11 first. It's not been opposed, obviously, but I wanted to

12 give you a chance to set on the record why you believe you

13 should be allowed to intervene in the case, and I had a few

14 questions for you.

15 MS. DeVUONO STROZYK: Thank you, Your Honor.

16 I think to make it very brief, the State of

17 Maryland, the project under which the lawsuit is filed, is

18 the Maryland Purple Line. It will travel from Bethesda

19 through Prince George's County. It is a resource of the

20 State of Maryland; it has been on their planning documents

21 for many years, and the state has confirmed its desire to

22 move forward with this project.

23 THE COURT: That's where I had a question.

24 I had an impression, from newspaper accounts and

25 media accounts, that the governor, the newly elected

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5

1 governor of Maryland was having some questions in his mind

2 as to whether he was going to support this program, this

3 plan going forward.

4 Are you in a position to represent to the Court

5 today that the governor has made a decision that he will

6 support this program going forward and the building -- using

7 of Maryland resources and taxpayers' funds for the purposes

8 of this, or do you know?

9 MS. DeVUONO STROZYK: Yeah.

10 Your Honor, today, we will be publishing an

11 addendum to the request for proposals. So the governor has

12 permitted that release. It will be -- it may be out now.

13 It probably won't make it till, you know, the last

14 hour, but that will be the next addendum to the request for

15 proposals for the construction of the Purple Line.

16 THE COURT: Okay. So it's your understanding, if

17 I understand you correctly, the governor is in support of

18 this program?

19 MS. DeVUONO STROZYK: That's about as strong a

20 statement as you can make, Your Honor.

21 THE COURT: Okay.

22 MS. DeVUONO STROZYK: Thank you.

23 THE COURT: Thank you.

24 Does that have any impact on your not opposing the

25 intervention?

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6

1 MR. BROWN: Your Honor, we have never been opposed

2 to the intervention. We believe that if this project is

3 going forward, the State of Maryland is welcome as a party

4 in the case.

5 THE COURT: Okay.

6 MR. BROWN: The question of whether the project is

7 going to go forward or not is still, in our minds, somewhat

8 up in the air, and we were going to talk with you,

9 presumably, about scheduling, in light of that potential

10 uncertainty today.

11 THE COURT: Sure.

12 Well, I'm going to grant the motion to allow the

13 State of Maryland to intervene based on the representations

14 that have been made today and based on the documents that

15 I've been told will be filed before the day ends.

16 If for some reason they're not filed or they don't

17 measure up to snuff, I'd be willing to reconsider. But my

18 guess is they will and they will be filed.

19 And so I would -- I'm proceeding on the assumption

20 that the governor is in full support of the project going

21 forward and the use of taxpayer funds for the project. So

22 based on that belief, the Court will grant the motion to

23 intervene.

24 So let's talk now about your concerns you have

25 about the schedule that we need to come up with for

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7

1 discovery, and then, of course, motions practice in the

2 case.

3 MR. BROWN: Your Honor, just about the time that

4 you called us into court earlier this week, we were in the

5 process of finalizing with the government a joint status

6 report, but we decided, at least I decided, that it would

7 make more sense to just come here and talk about it today

8 rather than try to file something a day or so in advance.

9 THE COURT: Sure.

10 MR. BROWN: Basically, where we are is that we are

11 in general agreement about the procedures to be employed to

12 resolve this case.

13 We need to spend some time making sure that the

14 administrative record is complete, and once that is done,

15 I think we are in agreement that this case will proceed on

16 cross-motions for summary judgment, rather than with any

17 discovery --

18 THE COURT: Okay.

19 MR. BROWN: And that --

20 THE COURT: Based on the administrative record?

21 MR. BROWN: Yes.

22 And that the timetable for the briefing prior to

23 oral argument on the motions, which we would certainly

24 request, is something in the order of around 90 days, after

25 we've -- after we agree that their administrative record is

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8

1 complete.

2 THE COURT: How big a record are we, just roughly,

3 are we talking about here? How voluminous a record?

4 MR. BROWN: About a quarter million pages,

5 I believe, Your Honor.

6 THE COURT: It's a good-size one.

7 A quarter of a million. All right.

8 MR. BROWN: Probably more than the number of

9 emails that you'd have to deal with in that other case.

10 THE COURT: Oh, no, that's more than that.

11 MR. BROWN: The problem that -- the disagreement

12 with us at the moment is about when that process should

13 start.

14 The problem is, from our perspective -- well, let

15 me mention three things.

16 First of all, we had to file our case within 150

17 days of the time that the government said that they were

18 done with their work under NEPA.

19 THE COURT: Okay.

20 MR. BROWN: And at that point in time, it was way

21 before we felt that the project was in a final-enough form

22 that we could be confident that it wasn't a moving target.

23 One of the characteristics of this project that

24 makes it different from a normal government project is that

25 it is a public-private-partnership project in which the

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9

1 government will be entering into an agreement with a

2 contractor, who will not only construct the project, he will

3 design the project. It's a design-build project.

4 THE COURT: It hasn't been designed yet?

5 MR. BROWN: I beg your pardon?

6 THE COURT: It hasn't been designed yet even?

7 MR. BROWN: No, Your Honor.

8 We know roughly where it's going to be, but there

9 are a lot of variables that can go into the bids, which are

10 now not due until November 17th.

11 So from our perspective, it's very much a moving

12 target, and we were hoping that the Court would agree with

13 our sentiment that the time to start the briefing process

14 would be after that particular point.

15 Another point of uncertainty has to do with the

16 press reports, of which the very latest is in this morning's

17 Washington Post, concerning whether or not the governor's

18 request for something like an additional $50 million from

19 each of the two affected counties, Montgomery and Prince

20 George's, would, in fact, be forthcoming.

21 I mean, only a couple of days ago, there was

22 another article in the Post about the county executive in

23 Montgomery County saying, we need to cut our budget by

24 $50 million; at the very same time, the state is asking for

25 $50 million more on this.

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1 All of this, we think, will be pretty well worked

2 out by the end of the year. And, frankly, we don't see any

3 real prejudice to the government in waiting until that --

4 until this thing is more concrete, literally, at that point,

5 to start this process, because --

6 Well, what the government has told us is that if

7 we don't get going with these briefs and arguments right

8 away, you may be forced to file a motion for a preliminary

9 injunction instead of going through the normal briefing

10 schedule. And our attitude is, well, we appreciate your

11 concern, but that's really our problem, because we would

12 face a much more difficult hurdle in getting a preliminary

13 injunction than just arguing --

14 THE COURT: To say the least.

15 MR. BROWN: -- the case on the merits.

16 So we're willing to take that chance. And what we

17 were going to propose to you in the pleading that was going

18 to come your way was either an elongated briefing schedule,

19 or, for administrative purposes, if the Court thought it was

20 more appropriate, it would be a six-month continuance or

21 stay, whichever one of those words is the right word to be

22 using in this context. I'm not real sure. But that's what

23 we were thinking about.

24 THE COURT: Well, if the -- I think you said the

25 bids and the plans are not even due until December?

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1 MR. BROWN: November 17 --

2 THE COURT: November.

3 MR. BROWN: -- the bids are due.

4 The government will be evaluating those bids and

5 selecting a contractor in early 2016.

6 THE COURT: And those bids will include within the

7 planned route and the planned --

8 MR. BROWN: Well, the route is planned, but each

9 one of the contractors will have varying amounts of

10 flexibility with regard to what's exactly going to happen.

11 In fact, one of the uncertainties that we see in

12 this is that there -- we're not even completely sure who is

13 going to be the person or the regulators who are going to

14 decide whether or not these projects are in compliance with

15 state environmental laws, because one of the details in this

16 very lengthy request for proposal is the notion that some of

17 those regulatory -- some of that regulatory authority would

18 be surrendered to the Maryland Transit Administration, which

19 strikes us as a little bit like letting the fox in the

20 henhouse. But that's all to be decided in the future.

21 And we want to see what all this is going to look

22 like down the road when the bids are in and the project is

23 really -- is really ripe for going forward.

24 THE COURT: So you think the bids will be in in

25 November, and they'll make a selection some time in early

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1 2016?

2 MR. BROWN: That's what we see in the press

3 accounts and in the reports from the state.

4 THE COURT: So you want the administrative record

5 to close, so to speak, after the bids are entered?

6 MR. BROWN: Well, the administrative record, from

7 the government's point of view, was finished last year.

8 One of the things that we did in the past few days

9 was file a request with the Secretary of Transportation for

10 a supplemental environmental impact statement.

11 Presumably, by the time the -- we go through

12 this -- if we have a delay, by that time, we should know

13 whether or not the government is going to agree or disagree

14 with us that an SCIS is warranted. If they agree with us

15 that an SCIS is appropriate, then we will have to evaluate

16 that, and we may amend the complaint based upon that and

17 include that in the administrative record.

18 If they decide that an SCIS is not indicated,

19 we would probably want to amend the complaint to add another

20 count and bring into the record their denial of the SCIS as

21 a further -- as a further claim of illegal action under

22 NEPA. All of that we should be able to sort out before the

23 end of this year.

24 THE COURT: Before the end of the year?

25 MR. BROWN: Before the end of this year.

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1 THE COURT: All right. So you want the

2 administrative record to be finalized some time at the

3 beginning of 2016?

4 MR. BROWN: Well, as far as we're concerned, for

5 purposes of this case right now and if there's no amendment

6 to the complaint, the administrative record, subject to our

7 review for completeness, is finalized now.

8 This is not an issue about whether or not --

9 whether or not the changes that go into the program are or

10 are not justified as changes to the program. We're just

11 concerned about making our case with regard to environmental

12 concerns and related effects as they relate to the project.

13 But we're not seeking -- we're not seeking to

14 enlarge the administrative record just because of this

15 delay. But only if, in fact, the -- we have an opportunity

16 to amend the complaint, to allege new claims based upon

17 either the re-evaluation of the case -- of the environmental

18 impact or their denial of the request to reevaluate.

19 THE COURT: Have the defendants given you any

20 sense of the amount of time that's likely needed to

21 transpire between the selection of the winning bid and the

22 breaking of ground?

23 MR. BROWN: I don't have -- I don't have anything

24 concrete on that, Your Honor.

25 THE COURT: Common sense would say it would take

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1 months.

2 MR. BROWN: I think so, Your Honor.

3 THE COURT: Not years, but months.

4 MR. BROWN: And many of their predictions that

5 have been made about this project have proven to be short of

6 the mark all along.

7 THE COURT: Because it's, you know, it's a big

8 project in terms of the enormity of the construction that

9 has to take place. It's a lengthy process. It's, what,

10 16 miles of track or something like that?

11 MR. BROWN: That's right.

12 THE COURT: And, you know, based on what you see

13 here for WMATA here in the District and the other lines,

14 they're cavernous, they're way down in the underground.

15 It's a huge construction project to say the least.

16 So I would think it would be -- if you started

17 filing briefs somewhere within, say, 90 days of the

18 selection of the winning bid and we completed the briefing

19 process, say, within, three months or something like that,

20 four months, probably could get a court ruling within a few

21 months after that, hopefully, depending upon...

22 MR. BROWN: That's pretty much in line with what

23 we were thinking, Your Honor.

24 THE COURT: Depending a little bit on what else --

25 like, for example, this fall, I have a three-month criminal

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1 trial. If you submitted briefs this fall, I wouldn't even

2 have time to look at them; I wouldn't have time.

3 So you don't -- you know, there's no chance this

4 Court can focus on this -- these pleadings, these

5 cross-motions for summary judgment between now and the end

6 of the year anyway, because I have a three-month trial

7 starting September 15th; it's going to go until December, a

8 criminal case.

9 So the practical reality is, if you can get your

10 briefs done by March, something like that, we could have a

11 hearing in March or April or something like that.

12 Hopefully, I could issue a decision within a few months

13 after that. A quarter of a million is a lot of documents to

14 review, but we've had bigger ones.

15 What do you think?

16 MS. BURGESS: Well, in light of your schedule,

17 Your Honor, I think it's important just to have a bit of the

18 facts on your mind.

19 So it's looking like we will be selecting a

20 contractor in late November, and, right away, acquisitions.

21 THE COURT: I thought the bids were due in

22 November.

23 MS. BURGESS: Well, the bids are due in November.

24 THE COURT: Well, don't you have to go over the

25 bids?

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1 MS. BURGESS: Selection, I believe, forgive me,

2 Your Honor, is in approximately January.

3 THE COURT: January.

4 MS. BURGESS: Financial close, we're looking at

5 spring.

6 THE COURT: Say that again.

7 MS. BURGESS: The financial close and the notice

8 to proceed in which a contractor could begin breaking ground

9 would be in late spring, as early as late spring.

10 THE COURT: So that's late April.

11 MS. BURGESS: Perhaps.

12 THE COURT: Early May.

13 MS. BURGESS: Approximately.

14 THE COURT: Yeah.

15 MS. BURGESS: There are some activities ongoing

16 now. We're looking at right-of-way acquisitions ongoing,

17 that that process is allowed prior to the notice to proceed

18 also.

19 THE COURT: How about the supplemental EIS, can

20 you see any need for that down the road?

21 MS. BURGESS: Well, Your Honor, we think that

22 the -- the plaintiffs have already claimed, in their first

23 count, a failure to supplement. And so we don't think that

24 anything that they've discussed today changes that claim,

25 and it's certainly, in our opinion, ripe to be briefed, and

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1 we're ready to go. The administrative records, as you know,

2 are lodged. So we don't see the information that plaintiffs

3 are providing today as stopping that.

4 And so if there was any re-evaluation in the

5 future, that is a separate action, they would need to file a

6 separate suit in which the Court would have jurisdiction on

7 those claims at that point, and then, perhaps, seek to

8 consolidate.

9 But at this point, those claims are not at issue,

10 and we see that everything that the plaintiffs have in their

11 complaint is ready to go. And so, of course, we would like

12 to have a timely resolution of these issues so that

13 Your Honor has as much time as possible to decide the case

14 on the merits before construction would begin.

15 But, as I've said, some utility relocation that

16 could be happening prior to the notice to proceed for a

17 contractor. Again, some of these small preconstruction

18 activities could begin, you know, in the new year. And so

19 our aim was to attempt to try and brief this up by the end

20 of the year and give Your Honor as much time as possible to

21 decide before the spring.

22 But in light of your schedule, you know, we're

23 certainly willing to delay that slightly, you know, given --

24 given the need to try and avoid preliminary injunctive

25 proceedings in the spring, if that's going to happen.

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1 THE COURT: No, we don't want to have to do that.

2 MS. BURGESS: You're right, Your Honor.

3 THE COURT: That's not in anyone's interest,

4 frankly.

5 Why don't you do this. Get together with counsel

6 for the plaintiff and talk over, you know, some kind of a

7 proposed schedule for briefing that would have the first

8 briefs due sometime in January, okay?

9 And then, of course, their cross-motions so you

10 both would file your motions in January. Then each side

11 would have a certain period of time to respond, and then

12 each side would have a chance to reply, right?

13 MS. BURGESS: Correct, Your Honor. Usually --

14 THE COURT: So we'll look at maybe 120 days to do

15 the whole thing, something like that, three months, four

16 months.

17 MS. BURGESS: Right, Your Honor.

18 THE COURT: That way we'd have the briefs all done

19 before spring, certainly before late spring. And, of

20 course, it will take a while to weed through them. I have

21 to read them, and we'll -- the record's done, you said,

22 basically.

23 MS. BURGESS: It is.

24 THE COURT: Unless it needs to be supplemented,

25 but we don't know that yet.

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1 So the record will be done. So we probably could

2 have a hearing sometime in early April or something like

3 that; give you a chance to strut your stuff. And then I'll

4 go back in my chambers and try to figure out the answer to

5 the question.

6 MS. BURGESS: We would appreciate that.

7 THE COURT: All right.

8 MS. BURGESS: Thank you.

9 THE COURT: So why don't you all work on that.

10 Come up with a proposal there.

11 Hold on, we got incoming here.

12 MS. DeVUONO STROZYK: Your Honor, may I just --

13 THE COURT: Sure. Come on up.

14 MS. BURGESS: So, Your Honor, as Mr. McArdle was

15 pointing out, we had not anticipated doing simultaneous

16 briefing. We would --

17 THE COURT: Well, that's how we do cross-motions

18 around here. You submit your motion for summary judgment

19 the same day he submits his. And then you respond to his

20 and he responds to yours. And then each replies to the

21 other's response. It's two tracks, parallel tracks. That's

22 how we do it, in this courtroom at least.

23 MS. BURGESS: Okay, Your Honor.

24 Traditionally, we stagger them a bit so that we

25 respond in a combined response to plaintiff's motion and our

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1 cross-motion, and then the subsequent reply and response

2 would be combined for plaintiffs as well, and with a bit of

3 staggering to somewhat streamline the briefs. But if

4 Your Honor would choose otherwise, we're happy to.

5 THE COURT: No, we don't need to do that,

6 I don't think.

7 Less is more.

8 MS. BURGESS: Thank you, Your Honor.

9 THE COURT: Trust me, less is more.

10 Mr. Brown, you got any questions?

11 MR. BROWN: No, Your Honor.

12 THE COURT: Are you all right? Got what you need?

13 MR. BROWN: Yes, Your Honor.

14 THE COURT: Very good.

15 What's the State of Maryland want to do? Do you

16 want to file briefs too?

17 MS. DeVUONO STROZYK: I will, Your Honor.

18 THE COURT: Come on up.

19 MS. DeVUONO STROZYK: I will note that the P3

20 contract is due to go to financial close at the end of -- in

21 the spring.

22 THE COURT: Right.

23 MS. DeVUONO STROZYK: And so the impact of an

24 outstanding litigation will have some impact on that -- on

25 the interest rates, et cetera, to the financial close. So

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1 there are some concerns there.

2 THE COURT: Well, let's face it. This lawsuit is

3 no secret to the people who are working out all these

4 details, they've known about this suit now for months, it's

5 been around. These issues have been out there for months.

6 People know all about it. No secrets. And, you know,

7 people have to work within that context anyway.

8 I mean, I think at this point, the most important

9 thing is to make sure the record is complete and accurate --

10 MS. DeVUONO STROZYK: Right.

11 THE COURT: -- and that each side gets a fair

12 opportunity to present its cross-motion for summary

13 judgment.

14 MS. DeVUONO STROZYK: I just was thinking we had

15 already created a schedule, that if we recused it by 30

16 days, we would probably be closer to the -- and have less

17 impact upon the construction schedule.

18 THE COURT: Well, you're going to be in these

19 meetings with these folks. I mean, see what you can do to

20 figure it out.

21 But, you know, what I have in mind, roughly, is

22 the first briefs will be due some time in January, and then

23 the responses maybe three weeks later or four weeks later,

24 and then the replies a couple weeks after that.

25 I mean, basically, something like that, which

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1 would get everything briefed up by late March, and then we'd

2 have a hearing sometime in April. I'm going to need a few

3 weeks to digest all that paper.

4 MS. DeVUONO STROZYK: That's what I was counting

5 on, Your Honor.

6 THE COURT: There's a lot of paper here.

7 MS. DeVUONO STROZYK: It will.

8 THE COURT: So, I mean, you know, maybe we could

9 have a hearing in mid to late April, something like that.

10 Obviously, I don't have a crystal ball; I can't

11 tell you how long it will take to issue an opinion.

12 MS. DeVUONO STROZYK: No. That's why we were

13 hoping to give you more time, Your Honor.

14 THE COURT: I know. These kind of cases have lots

15 of papers. So I mean, that's the dilemma there.

16 But it might have a little bit of a delaying

17 effect, but, you know, not that much.

18 MS. DeVUONO STROZYK: We're -- it could kill the

19 project, Your Honor, from a perspective of --

20 THE COURT: Oh, now let's --

21 MS. DeVUONO STROZYK: -- prospective of banking.

22 It is true that --

23 THE COURT: -- not have a doomsday attitude about

24 it.

25 MS. DeVUONO STROZYK: If we have a delay of more

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1 than -- you know, it has a significant effect.

2 THE COURT: I have no doubt you will report to all

3 those making bids what happened here today, they'll take it

4 into consideration, factor it all out.

5 This is a multibillion dollar public works

6 project, which common sense would tell you is a very

7 attractive opportunity for builders.

8 MS. DeVUONO STROZYK: We hope so.

9 THE COURT: Multibillion dollars, you know.

10 I mean, it's not the Big Dig in Boston --

11 MS. DeVUONO STROZYK: It won't be.

12 THE COURT: -- but it's pretty darn big.

13 So I have no reason to think contractors are going

14 to be dissuaded if it might start a month or two later.

15 It's just not likely.

16 MS. DeVUONO STROZYK: No, Your Honor, it's not the

17 contractors we're worried about. We're worried about the

18 financing.

19 THE COURT: Financing?

20 MS. DeVUONO STROZYK: Yes.

21 THE COURT: They're a wash in money. Don't worry

22 about it.

23 MS. DeVUONO STROZYK: Okay. Thank you.

24 THE COURT: What have you got to say? Come on up.

25 MR. McARDLE: Your Honor, if I could, with your

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1 indulgence, I have one more plug for staggered briefing.

2 There would only be four briefs instead of six. And it also

3 makes more sense in an administrative act case, because the

4 government has already issued its decisions with its

5 reasoning.

6 So until the plaintiffs come forward and assert

7 why they believe the decisions are arbitrary, we're not

8 really in a position to file an opening brief. It's almost

9 like asking, you know -- that's basically the reason. It's

10 in the nature of an appellate procedure. So we'd be four

11 briefs instead of six and would make more sense.

12 THE COURT: All right. Well, I'll tell you what.

13 You all talk it out --

14 MR. McARDLE: All right.

15 THE COURT: -- you make your proposal, I'll

16 consider it, and maybe I'll agree with you, and maybe I'll

17 disagree with you.

18 MR. McARDLE: Thank you, Your Honor.

19 THE COURT: All right?

20 MR. BROWN: Thanks, Your Honor.

21 THE COURT: We will we'll give you a chance.

22 You got two weeks to submit a proposed schedule,

23 okay?

24 Anything else for the government?

25 MS. BURGESS: No, Your Honor.

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1 THE COURT: Anything else for the plaintiffs?

2 MR. BROWN: No, thank you, Your Honor. All done.

3 THE COURT: Have a good day.

4 DEPUTY CLERK: All rise.

5 This Honorable Court now stands in recess until

6 the return of court.

7 (Proceedings concluded at 4:00 p.m.)

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C E R T I F I C A T E
I, William P. Zaremba, RMR, CRR, certify that
the foregoing is a correct transcript from the record of
proceedings in the above-titled matter.

Date: April 27, 2017________ /S/__William P. Zaremba______
William P. Zaremba, RMR, CRR

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EXHIBIT C

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1

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JOHN M. FITZGERALD, ET AL., )
)
Plaintiffs, ) CA No. 14-1471
)
) Washington, D.C.
vs. ) June 15, 2016
) 2:45 p.m.
FEDERAL TRANSIT ADMINISTRATION, )
ET AL., )
)
Defendants. )
___________________________________)

TRANSCRIPT OF MOTIONS HEARING
BEFORE THE HONORABLE RICHARD J. LEON
UNITED STATES DISTRICT JUDGE
APPEARANCES:
For the Plaintiffs: David W. Brown
KNOPF & BROWN
401 East Jefferson Street
Suite 206
Rockville, MD 20850
(301) 545-6100
brown@knopf-brown.com
Eric R. Glitzenstein
MEYER GLITZENSTEIN
& EUBANKS LLP
4115 Wisconsin Avenue, NW
Suite 210
Washington, D.C. 20016
(202) 588-5206 x 13
eglitzenstein@meyerglitz.com
John M. Fitzgerald
JOHN FITZGERALD,
ATTORNEY AND ADVOCATE
4502 Elm Street
Chevy Chase, MD 20815
(202) 288-0231

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APPEARANCES CONTINUED:
For the Defendants: Tyler L. Burgess
U.S. DEPARTMENT OF JUSTICE
Environment
& Natural Resources Division
601 D Street NW, Room 3204
Room 3204
Washington, D.C. 20004
(202) 616-4119
tyler.burgess@usdoj.gov
Kevin W. McArdle
U.S. DEPARTMENT OF JUSTICE
Wildlife
& Marine Rescue Section
P.O. Box 7369
Washington, D.C. 20044-7369
(202) 305-0219
kevin.mcardle@usdoj.gov
Linda M. Strozyk DeVuono
OFFICE OF THE
ATTORNEY GENERAL- MD
100 S. Charles Street
Tower II, Suite 700
Baltimore, MD 21201
(410) 451-3722
lstrozyk@sha.state.md.us
Albert M. Ferlo, Jr.
PERKINS COIE LLP
700 13th Street, NW
Suite 600
Washington, D.C. 20005
(202) 654-6262
aferlo@perkinscoie.com
Court Reporter: William P. Zaremba, RMR, CRR
Official Court Reporter
U.S. Courthouse
333 Constitution Avenue, NW
Room 6511
Washington, D.C. 20001
(202) 354-3249
Proceedings recorded by mechanical stenography; transcript
produced by computer-aided transcription

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1 P R O C E E D I N G S
2 DEPUTY CLERK: All rise. This Honorable Court is

3 now in session. The Honorable Judge Richard J. Leon

4 presiding. God save the United States and this Honorable

5 Court. Please be seated and come to order.

6 Civil Action 2014-1471, John M. Fitzgerald,

7 et al., versus the Federal Transit Administration, et al.

8 This case is set for a motions hearing.

9 Counsel, would you please come to the microphone

10 and state your names for the record.

11 MR. BROWN: Good afternoon, Your Honor.

12 David Brown of Knopf & Brown, counsel for the plaintiffs.

13 MR. GLITZENSTEIN: Good afternoon, Your Honor.

14 Eric Glitzenstein for the plaintiffs.

15 THE COURT: Welcome.

16 MR. FITZGERALD: Good afternoon, Your Honor.

17 John Fitzgerald for the plaintiffs.

18 THE COURT: Welcome.

19 MS. BURGESS: Good afternoon, Your Honor.

20 Tyler Burgess for the United States.

21 THE COURT: Welcome.

22 MR. McARDLE: Good afternoon, Your Honor.

23 Kevin McArdle for the federal defendants.

24 THE COURT: Welcome.

25 MS. DeVUONO: Good afternoon, Your Honor.

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1 Linda DeVuono for the State of Maryland.

2 THE COURT: Welcome.

3 MR. FERLO: Good afternoon, Your Honor.

4 Albert Ferlo for the State of Maryland.

5 THE COURT: Welcome.

6 All right, Counsel. As my law clerk already

7 indicated, plaintiffs can have up to a half an hour for

8 their motion, defendants -- intervener defendants and

9 defendant can split their half hour as they see fit. But no

10 more than one advocate for each side.

11 And then each side will have ten minutes for

12 rebuttal, take a break somewhere in the middle.

13 Who will speak for the plaintiff?

14 MR. BROWN: Your Honor, David Brown.

15 THE COURT: The podium's yours.

16 MR. BROWN: Your Honor, I must start by begging

17 your indulgence to at least hear my request.

18 We just learned that we would be obliged to have

19 me handle the entire argument. I like to consider myself a

20 man for all seasons, but Mr. Fitzgerald is much more deeply

21 versed in environmental matters; and with your indulgence,

22 I'd like to ask again if I might give him a little of the

23 oral argument time.

24 THE COURT: What did you have in mind?

25 MR. BROWN: About five to ten minutes, Your Honor.

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1 THE COURT: All right.

2 MR. BROWN: Thank you.

3 Your Honor, we're here today on a challenge to the

4 administrative process leading to the decision to approve

5 the Purple Line.

6 My clients are very concerned about this project.

7 They don't like the project. But they -- and a lot of them

8 are here in this room expressing silently that sort of point

9 of view. But they understand fully that this Court is not

10 here today to second-guess the wisdom of going forward with

11 the Purple Line but, rather, to evaluate whether or not the

12 process leading to the decision was in compliance with law.

13 THE COURT: Let me --

14 MR. BROWN: And since we're very --

15 THE COURT: Before we go any further, let me ask

16 you. I think it's a pretty obvious question, which is:

17 How is it that we are, this late in the game, having this

18 case come before Federal Court, when all of this work's been

19 done administratively for years and could have been

20 challenged a lot earlier? Why so late in the game and why

21 in Federal Court in the first instance?

22 MR. BROWN: What happened, Your Honor, was that we

23 had to get a final agency decision on the environmental

24 impact statement.

25 And then we had a 150-day statute of limitations

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1 within which to file this case thereafter. And that's what

2 we did, Your Honor. We filed this case within that

3 statute-of-limitations period, and it has basically taken

4 this long to get the record together, to develop it and

5 brief and argue it.

6 THE COURT: When was the final agency action

7 again?

8 MR. BROWN: I believe that the final agency action

9 was somewhere around -- if I might --

10 THE COURT: Because the suit was filed in '14.

11 MR. BROWN: The final agency action was announced

12 on -- in the federal register on March 31st of 2014. And we

13 filed by the deadline, announced in the federal register, of

14 August 28th.

15 THE COURT: All right.

16 And there was no other earlier way to challenge it

17 in the administrative process? It had to be a challenge in

18 the first instance in the Federal Court?

19 MR. BROWN: I can't imagine that we would have

20 been greeted with anything except a claim of prematurity at

21 that point, Your Honor.

22 THE COURT: All right. Go ahead.

23 MR. BROWN: Let me get to -- I just want to

24 make -- there's an awful lot of stuff in the briefs.

25 Obviously, I don't have time to go back over that in great

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1 detail. I just want to make --

2 THE COURT: Hit the high points.

3 MR. BROWN: Four points. I have four points to

4 make, Your Honor, and then I'll turn it over to

5 Mr. Fitzgerald to address a few environmental law points.

6 These are the four points:

7 One: Defendants improperly relied on undisclosed

8 proprietary information to reject alternatives to the

9 Purple Line that would be less environmentally harmful and

10 more cost efficient.

11 Number two: Defendants improperly rejected our

12 repeated requests that a Supplemental Environmental Impact

13 Statement be prepared to reconsider the eight-year-old, and,

14 we think, highly questionable conclusion that the

15 Purple Line should be preferred over what we regard as less

16 costly and more efficient bus rapid transit.

17 Number three: The need for a fresh, transparent

18 look at alternatives is underscored by the parade of

19 horribles the community is witnessing and experiencing in

20 what has become known in the popular media as

21 Metropocolypse.

22 And, finally, the record of decision should, but

23 does not, contain the analysis and information needed for

24 the Secretary of Transportation to make the findings

25 required, under the Federal Transit Act, to fund this

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1 project, a defect that, if curable at all, can be addressed

2 following a vacatur.

3 Let me just briefly elaborate on each of these

4 four points.

5 First of all, with regard to the undisclosed

6 proprietary information, proprietary ridership modeling

7 software and data form the basis for the NEPA evaluation of

8 alternatives, and very determined efforts by the public to

9 comment meaningfully on that were stymied by the defendants.

10 THE COURT: So let's pause on that for a second.

11 Do we have any cases -- start with this circuit,

12 okay?

13 Do we have any cases in this circuit where a

14 reliance upon undisclosed proprietary information was a

15 basis to reject a construction project?

16 MR. BROWN: Your Honor, I would say that the

17 Connecticut Light and Power case is one that, at -- directly

18 addressed this notion of basically not disclosing the

19 underlying data that relates to your project.

20 THE COURT: How is that analogous to this case?

21 MR. BROWN: I beg your pardon?

22 THE COURT: How is that analogous to the situation

23 in this case?

24 Is it proprietary information?

25 MR. BROWN: I don't think it was proprietary

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1 information, Your Honor. It was just information that was

2 not disclosed.

3 THE COURT: I mean, there's no statutory provision

4 that says --

5 MR. BROWN: No, there's no statutory provision.

6 THE COURT: -- that a failure to share --

7 MR. BROWN: But we do, we do point to 40 CFR

8 1502.21, which talks about, when an agency incorporates

9 information by reference into their decision, they have to

10 make that information available. And we think it's no great

11 extension of that concept to say that if they're going to

12 rely upon information, they need to disclose it, or it at

13 least has to be disclosable.

14 THE COURT: Was there a demand for disclosure made

15 early on?

16 MR. BROWN: I'm sorry, Your Honor?

17 THE COURT: Was there a demand for disclosure made

18 early on that was rejected?

19 MR. BROWN: Yes, Your Honor. I was just getting

20 to that.

21 THE COURT: Okay. Go ahead.

22 MR. BROWN: Commenters with resources to do so and

23 concerned enough to spend the money hired experts to review

24 the analysis in the 2008 draft environmental impact

25 statement and alternatives analysis, and they filed detailed

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1 statements explaining what they found in the cost data and

2 why they needed access to the computer models to understand

3 and comment on the cogency of the MTA calculations.

4 This included such renowned leading transportation

5 cost experts as Tom Crowley and William Allen. And their

6 requests for information and their detailed analysis of what

7 they needed is contained in the record as part of the

8 comments of the Columbia Country Club, which I strongly

9 recommend as one of the most important pieces of information

10 in this lengthy administrative record.

11 THE COURT: What was the rationale for not sharing

12 the information when it was demanded?

13 MR. BROWN: What the government said was that this

14 was proprietary work product of its contractors and that

15 they didn't have an obligation to disclose it.

16 The final EIS, when it came out after this denial,

17 said, the information provided by MTA was sufficient to

18 allow for an informed review of the information.

19 But what these experts showed in chapter and verse

20 is they were trying very hard to make an informed review but

21 were stymied in the process.

22 What they were seeking was not something

23 peripheral, they were seeking information on costs and on

24 ridership, critical components of the cost-effectiveness of

25 this multibillion-dollar project.

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1 So our point is that these errors -- this

2 hide-the-peanut-type approach was harmful to the

3 public-comment process and particularly egregious here,

4 because the Purple Line is, perhaps, the most expensive

5 proposed transportation project in Maryland history.

6 MTA properly asked for comments on the right

7 questions, cost, ridership and benefits and said, in effect,

8 well, we really don't want meaningful comments; how we

9 developed this information is going to stay in-house.

10 THE COURT: Now, the kind of information you're

11 alluding to, costs and ridership, how would that be of

12 significance or even relevance in assessing the

13 environmental impact of this?

14 MR. BROWN: Well, part of the environmental impact

15 is looking at alternatives to the one that was selected as

16 the preferred alternative. And that has to look at,

17 particularly closely, at ones that have less environmental

18 harm associated with them.

19 And there's no question, in this case, that

20 Bus Rapid Transit has less environmental harm than a Light

21 Rail solution. So just the fact of choosing the Light Rail

22 is more environmental impact than under these other

23 alternatives.

24 Secondly, Your Honor, the record reflects that --

25 and this is in the record -- fixed rail transit projects

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1 proponents and those -- those who favor those projects and

2 the FTA in dealing with those requesters, have a long

3 history of understating project costs and overestimating

4 ridership figures. The FTA candidly acknowledged that.

5 It's in the record in this case.

6 And it's also reflected, if you look, for example,

7 at the projected cost increase for this project in the final

8 Environmental Impact Statement in 2013, that cost is

9 51 percent greater than the cost when they did this

10 alternatives analysis in 2008, yet during the period between

11 2008 and 2013, inflation only went up 11 percent, yet the

12 alternatives analysis is based upon cost-and-ridership

13 projections from eight years ago.

14 Finally, Your Honor, on this point, the record

15 shows that, in 2007, MTA initially calculated ridership

16 figures that wouldn't qualify the Purple Line Project for

17 federal funding.

18 But following the election of Governor O'Malley --

19 THE COURT: Those projections on ridership, of

20 course, pre-dated the recent comprehensive problems with the

21 MTA system we have in D.C. right now.

22 MR. BROWN: Yes. And I am going to get to that in

23 just a minute.

24 THE COURT: I mean, those problems, I mean,

25 clearly could have an even greater impact on projected

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1 ridership based upon safety concerns that, apparently, are

2 comprehensive in the entire existing system.

3 MR. BROWN: Yes. You're anticipating what -- my

4 argument, Your Honor, very much.

5 THE COURT: Good.

6 MR. BROWN: But at any rate, back in 2007, the new

7 Secretary of Transportation ordered MTA to reconsider the

8 ridership figures in hope of getting them to the point where

9 they would meet the federal funding standards.

10 Now, here's what the defendants say about our

11 complaint about this process. First they say the public got

12 all the information it needed to make informed comment.

13 But what the record shows is the experts explained

14 in detail what they wanted and what they needed. You just

15 need to look at the highly informed -- information requests

16 that they made. And they're all there in the Columbia

17 Country Club submission before the final AA/DEIS was

18 finalized.

19 THE COURT: Okay.

20 MR. BROWN: Secondly, what we got in the end was,

21 even today, unreadable data.

22 In the process of putting together the

23 administrative record for this case, the transportation of

24 the travel forecasting data is on two DVDs, which everyone

25 acknowledged we, in the lay public, simply cannot read,

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1 because it's based upon a proprietary software.

2 They claim that the commenters who retained

3 experts filed substantive comments on ridership.

4 But basically, that was just -- you know, they were fumbling

5 at the margins to try to understand this data. They never

6 really got the chance, and these disks basically show that

7 it's still kind of a black box.

8 Another telling point that they argue is that,

9 well, the commenters didn't file an FOIA request. That's

10 true. But the MTA, the lead agency for Maryland developing

11 the alternatives analysis, said, file a state PIA request.

12 In Maryland, it's called a Public Information Act. And they

13 did that. This just shows how result driven the process

14 was. MTA says do X. And now defendants say, you should

15 have done Y without even acknowledging that originally they

16 told MPA to do X.

17 And they claim, well, we didn't file -- that they

18 didn't file an appeal of the Public Information Act. Well,

19 we don't think they had to based upon the cases and

20 authorities that I was describing to you. If the agency is

21 going to ask for comments on a study result, it should make

22 the study available.

23 And they also argue that my clients, the

24 plaintiffs, did not raise these points in the NEPA process.

25 But they, and many others, certainly raised questions about

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1 whether there was a genuine need for the project.

2 But in any case --

3 THE COURT: What would the harm have been -- what

4 did they claim the harm would have been to making this

5 proprietary information available to the experts on a

6 condition, which we do all the time, a condition of

7 confidentially? I mean --

8 MR. BROWN: You got me.

9 THE COURT: If it's proprietary, then obviously,

10 there needs to be some protection of the information.

11 But a confidentiality agreement could have been

12 executed, that the experts were bound by, and any failure to

13 comply with it could have resulted in, you know, serious

14 repercussions.

15 MR. BROWN: I don't know the answer, Your Honor.

16 There was a 90-day comment period after the -- on the draft

17 EIS before it was finalized. They made these requests for

18 information within that period. It was never worked out.

19 And I don't think it was the public's fault that it wasn't

20 worked out.

21 With regard to changes that have taken place in

22 the project since -- even since the Record of Decision was

23 finalized in 2014, we've made the argument that an SEIS,

24 Supplemental Environmental Impact Statement, should have

25 been prepared.

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1 And our requests were like the requests of the

2 Columbia Country Club earlier, buttressed by testimony from

3 experts on matters critical to the rationales advanced for

4 the Purple Line in both the draft and final EIS.

5 There are also many changes to the project made by

6 Governor Hogan. Mr. Fitzgerald will talk about one of them,

7 the green-track change.

8 And there have been a lot of other changes that

9 bear on the selection of Light Rail for this east/west

10 transportation network.

11 The defendants disagree, claiming that, well,

12 failed to document, that this new information presents,

13 "A seriously different picture of the environmental

14 landscape."

15 Well, we think that it does. But in any case,

16 this is an overly narrow concept of when the rejection of an

17 SEIS may be found arbitrary and capricious.

18 Sure it's true that if there is an anticipated

19 environmental impact that is significantly changed, there

20 should be an SEIS, but the SEQ regulations also require an

21 SES be prepared: "There are significant new circumstances

22 or information relevant to environmental concerns and

23 bearing on the proposed action."

24 THE COURT: Now, would have requested a

25 Supplemental EIS -- were you requesting a Supplemental EIS,

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1 notwithstanding the fact they were unwilling to provide the

2 proprietary information? Or was the one linked to the

3 other?

4 MR. BROWN: They were not linked to each other,

5 but they certainly were interrelated, because we weren't --

6 I wasn't representing the Columbia Country Club back then.

7 THE COURT: So you wanted a Supplemental EIS,

8 notwithstanding the fact that you weren't -- they weren't

9 giving you the proprietary information?

10 MR. BROWN: That's correct.

11 I just wanted to bring a little concreteness to

12 this situation by citing one example of the information that

13 we brought to their attention requesting the SEIS, and that

14 was a declaration of Dr. Frank Lysy, a Stanford Ph.D.

15 economist. He doesn't live near the Purple Line. He wasn't

16 paid a dime to volunteer his analysis of project economics.

17 His affidavit's at page AR 56669 to 75. I especially invite

18 the Court's attention to these few pages out of the thousand

19 pages -- the thousands of pages in the record.

20 In a nutshell, Dr. Lysy explains that the

21 alternatives analysis assessment was decidely biased in

22 favor of Light Rail.

23 And he points, as an example, that transit riders,

24 who want to travel from where they are to where they want to

25 go, basically were projected to follow the Purple Line route

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1 religiously.

2 For example, MTA projected that riders who were

3 going to go between New Carollton and Bethesda would take

4 the Purple Line for 108 minutes -- I'm sorry, for 59

5 minutes. But it would require 108 minutes to do it any

6 other way. But that simply ignores the fact that you could

7 simply take Metro, assuming it's operating according to

8 schedule, for 51 minutes. So their so-called savings of 49

9 minutes was really nonexistent if you did a fair evaluation

10 of the route alternatives. But the same thing -- he also

11 notes that the same thing could be said for the various

12 other places where the Purple Line intersects with Metro.

13 And he notes, as another example, particularly

14 compelling, in my mind, is that, say travelers wanted to

15 travel between Wheaton and Rockville. Instead of looking at

16 the bus time between Wheaton and Rockville today, they

17 projected this particular trip to take place from Wheaton to

18 Silver Spring, then on the Purple Line from Silver Spring to

19 Bethesda, and then back on another bus from Bethesda to

20 Rockville. And no surprise, that took a lot more time than

21 just going on the Purple Line. And so they projected more

22 savings of time and more benefit than should realistically

23 be done.

24 But all of this kind of analysis has not been

25 analyzed, it's part of our SEIS request. And the

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1 government's position essentially is, well, this isn't

2 really new information. But we submit that this kind of

3 enlightened and common-sense analysis is exactly the kind of

4 new information that should be considered in an SEIS.

5 Now, if the Court may have, perhaps, noted that we

6 made the rejection of the SEIS the lead point in our briefs.

7 We did so in part due to the clarity of the need for a fresh

8 appraisal, but also because the Court could order a vacatur

9 on this grounds alone and dispense with ruling on all the

10 other claims, giving the defendants a fresh opportunity to

11 consider, rather than reflectively dismiss this new

12 information.

13 THE COURT: Is the plan that's in place for the

14 Purple Line structured in such a way that it will account

15 for and build into the construction the safety problems that

16 now have been unearthed in the other parts of the system?

17 MR. BROWN: I certainly can't point to anything in

18 the record that would enable me to say yes to that, because,

19 basically, all of this is coming out, really, for the first

20 time just in recent days and weeks. So it's very unlikely

21 to be in the information that was prepared months or years

22 ago.

23 In fact -- of course, there's data --

24 THE COURT: You've got about ten minutes left

25 here.

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1 MR. BROWN: I'm sorry. I'll do this very quickly,

2 Your Honor.

3 All of the unreliability of the Metro line has, in

4 our mind, a significant impact on the reliability of the

5 economic analysis for the Purple Line, and all of this can

6 be reconsidered on a vacatur and the issuance of a

7 Supplemental EIS.

8 The government seems to think that this somehow

9 demonstrates that the viability of the Purple Line does not

10 rise or fall with Metro, but we already know, from their own

11 numbers, that they project the Purple Line as 27 percent --

12 27 percent of Purple Line riders would connect to the Metro.

13 And, of course, the map in the administrative

14 record, at page 1,927 -- I have an extra copy here for

15 Your Honor -- shows the Purple Line as just another one of

16 the colored lines connecting in the overall system. And you

17 see the four points at which it actually connects to Metro.

18 The last point I want to make as quickly as I can,

19 Your Honor, is that the Record of Decision is deficient

20 under 5309 of the Federal Transit Act. That act requires a

21 secretary to make findings to support the funding of the

22 Purple Line that can only be made if a properly conducted

23 NEPA process provides the documentation and analysis of

24 facts to support the needed findings.

25 But the Secretary has not made those findings.

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1 The documentation and analysis for them is not in the ROD.

2 The only final action available for judicial review is the,

3 according to them, the Environmental Impact Statement.

4 Those findings by the Secretary have to address

5 six different factors, including the project's

6 cost-effectiveness, as measured by cost per rider.

7 But Section 5309(d)(1)(B) basically provides that

8 this analysis is to be developed concurrent with the

9 analysis under NEPA. So federal funding under 5309 cannot

10 be grounded in a cost-benefit analysis whose credibility and

11 reliability is insulated from informed public comment.

12 THE COURT: So why haven't they completed the 5309

13 analysis to date? What's your understanding?

14 MR. BROWN: It's our understanding that --

15 THE COURT: The Secretary of Transportation hasn't

16 made those findings, has he?

17 MR. BROWN: He has not made those findings.

18 But what I understand the government to be saying

19 is that somehow it's premature that we're here. But they're

20 the ones that filed the federal register notice saying that

21 the statute of limitations is running because there's been

22 final action on agency approval of the Purple Line.

23 THE COURT: Well, aren't they in the very process

24 of getting ready to start digging?

25 MR. BROWN: First of all, the Secretary has to

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1 sign on the dotted line for $900 million of federal funding.

2 And apparently, that's only going to happen -- has yet to

3 happen, but is due to happen in the next few days. That's

4 our understanding.

5 THE COURT: Oh. So notwithstanding what happens

6 in this case, the Secretary is prepared to go forward.

7 That's your understanding?

8 MR. BROWN: That's correct.

9 But we don't have the findings here, and we are

10 entitled to judicial review under the APA of the credibility

11 and cogency of those findings. But they're not in the

12 record.

13 So either the government is saying this case is

14 premature or they're basically saying we have to come back

15 here for a second round of argument on the second set of

16 findings.

17 But the information to support those findings

18 should have been under the statutory scheme included in the

19 Record of Decision, but they weren't. That's our basic

20 position on that.

21 And since I'm very short on time, I'd like to just

22 give Mr. Fitzgerald a couple of minutes, if he could.

23 THE COURT: Sure.

24 MR. FITZGERALD: Thank you, Your Honor.

25 THE COURT: Yes, sir.

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1 MR. FITZGERALD: We will be as brief as we can.

2 In support of our request for a Supplemental

3 Environmental Impact Statement, I'll note a couple of the

4 more dramatic examples that fulfill all three of the

5 criteria, any one of which would trigger an SES requirement.

6 As you've heard, the law requires that that be

7 done in the face of changes of the proposed action itself,

8 new information or new circumstances.

9 We submitted, on October 9th, a fairly

10 comprehensive set of information that triggered all three of

11 those; the first, as David Brown has explained, is the

12 indication that the context is entirely different, the

13 collapse in the Metro system upon which this thing relies;

14 that other change is Governor Hogan's 41 changes, saving

15 half a billon dollars of Maryland money, including one that

16 was fairly fundamental to environmental protection.

17 As you may recall, this project will remove

18 20 acres or more of trees. In place of those trees, the

19 county and every other interested party was doing what they

20 could to include stormwater runoff.

21 The available method that they promised in several

22 different places in the record was the use of about an

23 8-inch hedge or a kind of planting that will control the

24 runoff as it goes across the tracks and from the tracks.

25 This is the key issue for Montgomery County, is

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1 stormwater runoff, and yet this change, this failure to use

2 green track, would basically set back the county and the

3 town of Chevy Chase and every other jurisdiction for years

4 by this one project. They assert that they didn't promise

5 it. We have six different points on record wherein they

6 did.

7 But to be brief, I'll go on and say, the initial

8 new information we presented was about noise, two aspects of

9 water, and I will explain those.

10 These are from senior experts. Don MacGlashan was

11 a DOD noise consultant for many years. He pointed out that

12 they used exactly the wrong method to analyze the noise.

13 They used the standard method for highway hum.

14 FTA's own guidance says you must use, for rail projects and

15 environmental assessments, the peak noise that people hear

16 every six minutes, every seven minutes most hours of the day

17 and night.

18 Extremely different. That impacts not only people

19 but also parks where people go for quiet. This will be

20 right next to 13 different parks. That, in turn, triggers

21 Section (4)(F), which tells us, the federal government is

22 not to subsidize a significant use of any park if there's

23 any other alternative. And they analyze several

24 alternatives where that would not be the case.

25 Harold Collinson was for a decade -- no, 25 years,

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1 actually -- in the regulatory affairs office of the Army

2 Corps of Engineers -- this project will need a Section 404

3 permit from the Army Corps, which analyzes the effect of

4 their actions on federal waters, federal wetlands, and the

5 aquatic wildlife therein.

6 He said they did absolutely the wrong approach.

7 They didn't use the right watershed. They did absolutely no

8 assessment of the cumulative effect on wildlife and waters.

9 He said, they're going to have to need to do that

10 all over again for the Corps. They could have had the Corps

11 as a collaborating agency, and they did not.

12 They failed to release a stormwater report of

13 their own doing. We FOIA'ed it. We got it. We got several

14 experts, including Mr. Collinson, to point out that what

15 little they did release after the fact was dangerously

16 revealing of many stormwater runoff points that they would

17 not be able to control the stormwater, and yet there's no

18 plan for how to deal with that.

19 And, finally, before these changes, the

20 fundamental violations of NEPA, I'll just mention a couple,

21 existed even before the changes of context in information,

22 fundamental changes.

23 DOT has had a foundational order since 1979,

24 explaining in detail how DOT agencies are supposed to assess

25 the impact of their actions. It's, frankly, very, very

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1 good, and yet this process ignored it entirely.

2 One of the things that asked of DOT projects to do

3 is to look at the effect upon pedestrians and cyclists.

4 This is, after all, about a trail. They're going

5 to remove the trail. It's a popular trail. Pedestrians and

6 cyclists use it all the time, and yet they're planning to

7 put a train that, when it blows its horn, emits ear-damaging

8 levels of noise 12 feet from the riders and hikers.

9 They did nothing on that particular issue of noise effect on

10 the riders on the trail.

11 The same DOT order says you will assess the air

12 pollution that you're going to cause.

13 Now, there was a lot of talk about how a transit

14 system doesn't emit air pollution. Well, not so. It relies

15 on a lot of electricity to drive those heavy trains; that

16 comes from somewhere. That comes from coal-fired power

17 plants, which will eventually, over decades, be phased out.

18 They didn't say a word about that. In fact, when pressed,

19 they said, well, we don't have to.

20 They cite an EPA regulation that has nothing to do

21 with that. What they cited was a regulation that said, we

22 don't have to measure the pollution related with building

23 the cars.

24 That's not what we're asking for. It's the power

25 to drive those cars, and that means air pollution. They did

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1 nothing on that point, despite World Resources Institute and

2 another expert of the town of Chevy Chase saying, early on

3 in the drift, you failed to address this. They could have

4 fixed this, they did not.

5 THE COURT: What percentage of the Purple Line is

6 going to be above ground?

7 MR. BROWN: All of it, except for a small tunnel,

8 a very small section of tunnel, in portions of Silver

9 Spring, I believe.

10 And the final point I would make, if Your Honor is

11 finished with that question, is that one of the fundamental

12 conservation provisions of federal law, one of the earliest,

13 is the mandate that federally sponsored transportation

14 projects will not significantly harm any park or any

15 historic site, unless there's absolutely no alternative.

16 They admit that their noise from this rail train

17 will affect 13 different parks and historic sites.

18 They also admit that the alternatives assessed

19 would not. And yet they proceed to say, well, it's okay if

20 we make up for it somehow. I'm sorry, that's not what the

21 law says.

22 Thank you, Your Honor.

23 THE COURT: All right. We'll hear from the

24 defendants.

25 Ms. Burgess.

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1 MS. BURGESS: Good afternoon, Your Honor.

2 THE COURT: Good afternoon.

3 MS. BURGESS: May it please the Court.

4 THE COURT: All right.

5 MS. BURGESS: The Purple Line is an important

6 piece of the region's public transportation network; when it

7 is built, it will be.

8 It's designed to serve the region's growing

9 population and employment centers.

10 And the administrative record for the Purple Line

11 demonstrates the very careful planning process and

12 decision-making process undertaken by these agencies that

13 spanned more than a decade.

14 At each step along the way in the NEPA process,

15 the agency solicited comments from the public, gave them

16 careful consideration, and the plaintiffs themselves availed

17 themselves of this administrative process. They commented.

18 And the agency has considered those comments.

19 Now, plaintiffs simply disagree with the agency's

20 conclusion, but that does not undermine FTA's Record of

21 Decision in this case.

22 The Record of Decision, or the ROD, and its

23 supporting documents, demonstrate that the expert analysis

24 conducted by FTA and MTA, as co-lead sponsors, is sound, and

25 the resulting decision is entitled to substantial deference

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1 under the Administrative Procedure Act.

2 THE COURT: What about this

3 proprietary-information issue?

4 MS. BURGESS: Well, Your Honor, there are a couple

5 of issues with the proprietary data that plaintiffs are

6 citing that are somewhat incorrect.

7 So first, they're suggesting that the agencies are

8 incorporating this proprietary data by reference, and that's

9 simply not true. They didn't actually incorporate the data

10 by reference.

11 And to be clear, we're talking about software.

12 So Microsoft Word is proprietary, but, of course, it can be

13 accessed by individuals.

14 This happens to be software to evaluate ridership,

15 and it's often used by transportation engineers. So many

16 people don't have that, but that's not to say that it

17 couldn't have been available.

18 To the extent that Federal Transit has a stake, if

19 you will, in this issue, plaintiffs never asked Federal

20 Transit.

21 But that's not to say that that data wasn't

22 available. It was available in the project files, it was

23 available in the technical reports that were made publicly

24 available.

25 And all of the underlying assumptions and the

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1 conclusions that were created from this data were all

2 available and made available through the NEPA process and

3 would have been made available if any FOIA request had been

4 made. It simply was not.

5 And so FTA has met its obligations under NEPA,

6 which essentially incorporates FOIA and those requirements

7 to provide the information upon request.

8 There's no statutory requirements to spontaneously

9 provide the data, but, again, it was available, it was made

10 available at public meetings. And, again, those technical

11 reports and all of the underlying data simply was available

12 to the public upon request.

13 And there was simply no attempt to try and

14 subverse the process and withhold that data, at least on --

15 THE COURT: So the experts who were complaining --

16 that he's alluding to -- the experts who he claims were

17 complaining about the lack of the information regarding

18 costs and ridership that were in the proprietary information

19 could have gotten the same information through other

20 non-proprietary information that was somewhere in the

21 record?

22 MS. BURGESS: And I'm going to have to defer to

23 Maryland Transit on some of the fine details of the public

24 information request and what data was available to the town

25 of Chevy Chase, because, again, it was not requested of FTA,

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1 and we don't have the precise details. I'd like to defer to

2 my colleague, Ms. DeVuono, on the details of that.

3 But, again, my understanding is that this is

4 ridership data. The data itself was made available. And,

5 you know, the proprietary software, if you will, while

6 initially not available to the public, at some point in the

7 process and I believe early in the NEPA process, actually

8 became available to those experts.

9 And the town of Chevy Chase and the Columbia

10 Country Club never did follow up after, you know, the

11 exchange back and forth between MTA and those experts.

12 And, again, I'd like to let Ms. DeVuono clarify,

13 but my understanding is that that information was made

14 available, and that it simply became a non-issue at some

15 point, until the plaintiffs have picked up and asked now,

16 you know, and brought this to light. But they themselves

17 didn't complain when they commented on the project.

18 And really what it comes down to is whether or not

19 the plaintiffs had the information that they needed to

20 knowingly comment on the project. And they did. Not only

21 did they comment on the project, they commented knowingly on

22 a substantial number of issues that are at issue here today.

23 But this was not an issue. They didn't complain that they

24 did not have the data.

25 Now, I'd like to turn to plaintiffs' claims

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1 regarding a number of issues that they're requesting the

2 Court to find that the agencies should have completed an

3 SEIS, or Supplemental Environmental Impact Statement.

4 So first, it's most important to look at the

5 context and the standard for when an agency would be

6 required to complete an SEIS.

7 And under 23 CFR 771.130(a), FTA must prepare a

8 Supplemental Environmental Impact Statement when there are

9 changes to the proposed action that would result in

10 significant, significant environmental impacts that were not

11 evaluated in the underlying NEPA analysis, or if there's new

12 information or changed circumstances that bear on the

13 environmental concerns that were not evaluated.

14 So the important point here is, Your Honor, that

15 the agencies received two different submissions from

16 plaintiffs, not only after the Record of Decision was

17 signed, but also after this litigation began.

18 And, actually, that reminds me of a point to

19 correct, Your Honor. I believe Mr. Brown stated that the

20 Record of Decision was March 31st or 30th. It was actually

21 March 19th of 2014, just as a point clarification.

22 But in any event, they've asked -- on two separate

23 occasions, they've submitted a substantial amount of

24 additional information to the agencies for their

25 consideration.

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1 And as with the initial NEPA process, the agencies

2 took this request seriously. They evaluated all the

3 information provided and then made a determination that none

4 of it required an SEIS.

5 And they made that determination based on a

6 thorough evaluation. They decided that none of the

7 information was new, or anything that, perhaps, was new was

8 not significant.

9 But the fact is that the majority of what the

10 plaintiffs raised here is, in fact, not new information.

11 And they bring to light a substantial number of

12 post Record of Decision declarations, and each of those

13 comments primarily on the SEIS and the ROD.

14 And they essentially say, we've already commented

15 on this and we don't like what you did; we don't like the

16 conclusion; we don't like the outcome of the analysis.

17 We don't think your response to our comment was sufficient.

18 And so now we're bringing it again and asking you to

19 supplement.

20 So perhaps the most prevalent request for an SEIS

21 is this issue of green track.

22 So just to be clear, green track refers to a

23 segment of rail line where plant material is grown between

24 the rails. It's the Best Management Practice, or BMP,

25 that's used to reduce stormwater runoff.

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1 Now, under Maryland law, it's considered what we

2 call an Environmental Site Design.

3 An environmental site design is a BMP that more

4 closely mimmicks the predevelopment conditions, rather than

5 traditional BMPs that collect stormwater into a centralized

6 location for treatment before it moves on.

7 And under Maryland law, an environmental site

8 designed strategy must be used, if practicable.

9 So maybe green track. But if not green track,

10 then some other environmental site design strategy would be

11 used, if practicable.

12 THE COURT: What's the cost to keep that grass

13 between the tracks from getting too high?

14 MS. BURGESS: I imagine quite expensive.

15 I don't know that that's actually been addressed here in the

16 analysis.

17 But the point actually is --

18 THE COURT: How could it not be?

19 I mean, if you're going to grow grass between the

20 tracks, you can't allow it to grow up to such a height that

21 it would interfere with the train passing over it.

22 MS. BURGESS: Correct, Your Honor.

23 THE COURT: So it's going to have to be kept --

24 I mean, I don't know of any customized lawnmowers

25 that mow lawn that's between tracks. I've never seen such a

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1 thing like that before.

2 MS. BURGESS: Correct, Your Honor.

3 My understanding is that the SEIS and the ROD

4 suggests a planting of what we call sedum. And so grass,

5 sedum -- some vegetation that, in essence -- if it is sedum,

6 they only grow about eight inches high. They don't actually

7 get taller than that. So I think that that's -- the intent

8 is that it would be lower maintenance, but that it would, in

9 some sense, collect stormwater as opposed to -- so creating

10 a lower maintenance situation than grass itself.

11 But the vegetation would be a low profile,

12 something that would not require the maintenance, is my

13 understanding. And, again, I don't believe that the record

14 addresses, at least my understanding is that it does not

15 address the cost of that.

16 But the point really here is, Your Honor, that

17 plaintiffs are assuming that green track is somehow better

18 than other environmental site design strategies; that it

19 must be superior. And so, therefore, without the green

20 track, then there's going to be something wrong with the

21 project. But that's not necessarily true.

22 And the determination of which strategy is going

23 to be the best for any individual location is going to be,

24 you know, tailored, if you will, to each location.

25 You might need to consider whether it's even feasible to

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1 grow plant material in the area at all, and so those are the

2 kind of final-design-and-engineering-phase decisions.

3 But the bottom line with this request for an SEIS

4 based on green track is that the fundamental legal

5 requirement to meet the State of Maryland's stormwater,

6 you know, law requirements is the same.

7 And the State of Maryland has some of the

8 strictest laws in the nation when it comes to stormwater

9 management. And so the plaintiffs -- or, excuse me, the

10 agencies will utilize the environmental site design that's

11 practicable, if it is, and choose the best one based on

12 engineering expertise.

13 And then if not, if that's not practicable, then

14 the agencies would then turn to other on-site treatment

15 options, again, some of the more traditional ones where you

16 would collect stormwater into a certain location, the

17 treatment pond or what have you. And only if those are not

18 options, then would they turn to something that is off-site.

19 And so there's simply no merit to the fact that

20 the agencies must scrap the process and start all over

21 because there's no longer a requirement to -- a contractual

22 requirement to install green track. Again, green track is

23 certainly still even a possibility. It may be used. We're

24 not saying it won't be used, we're saying that it may be.

25 THE COURT: Well, in the few minutes you have

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1 left, why don't you address the argument that the plaintiffs

2 advance about the failure to date of the Secretary of

3 Transportation to make the necessary findings under 5309.

4 MS. BURGESS: Your Honor, this is a fairly

5 straightforward argument.

6 Plaintiffs here have challenged a final agency

7 action of the FTA in its Record of Decision. That Record of

8 Decision is the culmination of the NEPA process, and it is

9 FTA's determination that the project will meet the NEPA

10 requirements.

11 Now, Section 5309 of the Federal Transit Act,

12 that's a separate finding. And, again, that's going to look

13 at whether or not the FTA can issue a full-funding grant

14 agreement. And that is the final contract, the final money,

15 right?

16 And so there are a number of processes, not only

17 the compliance with NEPA, but a lot of other findings.

18 As you're aware with reviewing 5309, there are a lot of

19 findings that need to be made.

20 The agency will look at mobility improvements,

21 environmental benefits, here again in the ROD, congestion

22 relief, economic development, cost-effectiveness, among

23 other things.

24 And the NEPA process is just simply one part of

25 FTA's final determination on whether the project should be

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1 funded. And that --

2 THE COURT: Why does it make sense to go forward

3 with the project, in the aftermath of the NEPA analysis,

4 prior to the 5309 analysis?

5 That's the decision of the Secretary of

6 Transportation that requires him to evaluate a lot of

7 different factors that bear on the practical sense of going

8 forward with the building project, because, you know, it's

9 going to relate to the funding.

10 So why shouldn't they both be completed before the

11 project can begin?

12 MS. BURGESS: Well, they will both have to be

13 completed before the project begins.

14 And so the project cannot begin until the FTA

15 issues its full-funding grant agreement. And that is the

16 culmination, that is the determination that all of the

17 factors have been considered, and that it's essentially the

18 green light, if you will, to give federal funding to MTA to

19 build this project.

20 Now, the point of this --

21 THE COURT: Is that days away?

22 MS. BURGESS: No, Your Honor. That --

23 There are multiple -- and that's part of what

24 I was about to say, is that there are multiple different

25 processes all simultaneously going on; one of which is the

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1 NEPA process that's culminated by the ROD; another is

2 shoring up and ensuring that the local entities have the

3 funding.

4 And Federal Transit isn't going to sign on the

5 dotted line until it's sure that all of the promises from

6 all the local agencies that are involved are going to commit

7 their funding. The private concessionaire has to commit its

8 funding, as well as the counties, and others.

9 And so the FTA won't issue that full-funding grant

10 agreement until all of that has been completed. So these

11 things are going on simultaneously, along with final design,

12 also called engineering.

13 And so, you know, FTA has been considering the

14 cost-effectiveness and rating this project through its

15 Capital Investment Program, the New Starts program,

16 throughout. But it's not going to make its final

17 determination until it has all the information before it,

18 and that is when the Secretary will sign-off and say, yes,

19 this project meets the requirements of 5309.

20 And the FFGA, or full-funding grant agreement, is

21 the instrument that makes those findings, and that is not at

22 issue in this case. It is not -- first of all, it has not

23 been issued yet, and it has not been challenged.

24 THE COURT: Once it is issued, will there not be a

25 period of time thereafter during which a challenge to it

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1 could be made?

2 MS. BURGESS: And that, of course -- that

3 question, I think, is certainly not before the Court,

4 because today, we're -- plaintiffs have only challenged the

5 Record of Decision.

6 Now, my understanding is that the FFGA is to be

7 issued sometime in the next couple of months; construction

8 is not until November.

9 And so to answer your question, there is a time

10 period and a lag between those two events. But, again, the

11 FFGA, if one is executed, is not at issue in this case.

12 THE COURT: All right.

13 MS. BURGESS: If Your Honor has no further

14 questions...

15 THE COURT: All right. You can turn the podium

16 over to your colleague from Maryland.

17 MS. BURGESS: Thank you.

18 MS. DeVUONO: Good afternoon, Your Honor.

19 THE COURT: Good afternoon.

20 MS. DeVUONO: For the State of Maryland, I'd like

21 to absolutely clarify one very important point.

22 THE COURT: Okay.

23 MS. DeVUONO: In Maryland, Mass Transit

24 Administration is not in any way related to the Metro, the

25 subway in D.C. They are completely different entities; that

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1 Metro is not an entity of the State of Maryland.

2 So this Purple Line is a project of Maryland's,

3 it is a project of the Maryland Mass Transit Administration

4 and the Maryland Department of Transportation.

5 But also -- so Your Honor will not have the

6 problems that are occurring in the subway system in D.C.

7 There are a couple of important distinctions

8 between the Metro and the Purple Line: One, they are

9 totally different technology; two, one of the reasons that

10 the project, as is set forth in the administrative record,

11 is moving forward with what we call a P3, a private-public

12 partnership, is that it has hired an entity who will be

13 responsible to not only design and finance a portion of this

14 project, but they will operate it and maintain it.

15 And truly, one of the reasons that are the basis

16 for doing that is to give them the -- they call it the skin

17 of the game; that they have a responsibility under the

18 contract, and they have money at risk if they don't meet

19 their contractual obligations.

20 And that P3 contract is a quality contract.

21 It doesn't just say, build, you know, these five sticks.

22 It says, this is what we want it to do. Make it do this.

23 And that's what is set forth in the contract.

24 In a way, that also helps segue right into the

25 green track. The green track, Your Honor, it was, as

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1 counsel said, a best management -- is possibly -- it hasn't

2 actually been recognized as a best management practice under

3 Maryland, that I know of. It's not established in the

4 record, but they were moving forward to attempt to get that

5 recognized.

6 But what the governor requested was, if we're

7 investing in this private industry, who are to be the, you

8 know, international specialists, let's let them have the

9 freedom to design what is most effective.

10 But one very important point is, this Record of

11 Decision that the FTA came to and that is the foundation of

12 this lawsuit, they require the State of Maryland to meet

13 Maryland's stormwater management requirements. They are

14 quality-based standards.

15 The plaintiffs have admitted that they are some of

16 the most stringent in the country. They don't just make the

17 state, or any entity, mitigate for the impacts associated

18 with that project. They require you to do more.

19 So that not only will the runoff from this project

20 be mitigated, more will be mitigated. And we'll leave

21 the -- theoretically, less stormwater untreated than will be

22 produced by the project.

23 I'd also like to point out, Your Honor, there's a

24 great -- well, I think one more point, Your Honor, that

25 I would like to make is that this project started almost 50

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1 years ago, ten years before the federal government became

2 involved, because it has been on the planning books of

3 Montgomery County for nearly 50 years. In particular, the

4 section on the Georgetown branch, it's part of the

5 master-plan documents since 1970. At that point, it was

6 just a transit or transportation facility.

7 In the mid to -- 1986, 1985, the CSX railroad was

8 no longer going to be operating on that Georgetown branch.

9 And so instead of building just the transitway, the concept

10 was born to do both, the transitway and a trail. But that

11 trail is a not a park as inferred by the plaintiffs.

12 The state, the county has made great effort to

13 assure that it is understood that that trail was an interim

14 trail, and that the trail to be built is a transportation

15 facility. It is to be a transit facility and a

16 bicycle/pedestrian facility. It is not to be a park.

17 And that's why they're improving in that way. And they --

18 before they agreed to rip up the tracks and allowed for

19 interim use, they explained that in the documents and to the

20 public.

21 The plaintiffs make a point here, Your Honor, that

22 it takes a long time to go from one end -- the full 16 miles

23 of the Purple Line. Very few people will be riding it from

24 end to end. That's not its overall purpose. It is a

25 benefit, but it is not the overall purpose of this project.

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1 One of the main purposes of this project is to get

2 people in between those little pieces, between the major

3 employment centers along the Montgomery and Prince George's

4 County.

5 I think the majority of these riders, a large

6 number, will be doing the Bethesda to Silver Spring.

7 And you will be able, even in the year 2040 when

8 congestion on the roads will be far in excess of what they

9 are today, as if that's imaginable, they will be able to

10 travel from Bethesda to Silver Spring in nine minutes.

11 No other alternative can do that. This SEIS straight-up

12 recognized that the cost of BRT is less.

13 NEPA does not require you to take the absolute

14 least-cost alternative. The state and the federal

15 government looked at the benefits of this project and said,

16 transit, along this alternative, will create faster

17 connections, they will create better connections, and it

18 will create more riders, lots more -- you know, more people

19 riding it from section to section. So that's not the only

20 purpose.

21 And what this federal government is required to do

22 under NEPA is to present the information and to evaluate the

23 information and make a rational basis and explain that

24 basis. It's not directed at -- it can't be that it is

25 whatever the plaintiffs or the public think is the

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1 least-costly alternative.

2 I'd also like to address the Public Information

3 Act request that has been discussed here today.

4 I'd like to give you an example that, first of

5 all, there were -- the ones that they refer to were from the

6 Columbia Country Club. And I have an example with me,

7 Your Honor. And it is several pages long, single-spaced.

8 Massive quantities of data were provided under

9 this Public Information Act request. And the Maryland State

10 Mass Transit Administration followed the Maryland Public

11 Information Act. They provided them with the data. And it

12 says, for instance, "all the information necessary to

13 replicate the operating and maintenance costs is available

14 in the operating and maintenance costs technical report,

15 which is provided.

16 "The spreadsheets that you've requested are a

17 proprietary tool of a private entity that was not

18 developed -- that was developed, sorry, independent of the

19 contract with the MTA, and thus the request is denied under

20 the Maryland Public Information Act."

21 Not only -- so, Your Honor, were these requests --

22 there was information provided. So I'd like to sort this

23 out. There was information provided.

24 All the data inputs, all the data outputs, there

25 are -- there were -- in each of the chapters of the DEIS and

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1 the FEIS, there are chapters dedicated to cost and

2 ridership.

3 In addition to those, there were technical reports

4 that were provided upon request, or, in some instances, on a

5 CD in the back of the document. Those included a Capital

6 Cost Estimate and Methodology Technical Report, Travel

7 Analysis Technical Report, Travel Demand Forecasting

8 Technical Report. I actually think -- oh. The Capital Cost

9 Estimating Methodology, and the Cost and Funding chapters.

10 So, Your Honor, they've received lots of this

11 information. Not only that, the State met -- and the record

12 will indicate and it's cited into our brief -- that the

13 State met with these requesters, the Chevy Chase -- the town

14 of Chevy Chase and the Columbia Country Club many, many

15 times during this process.

16 And though the record can't reflect what occurred

17 at those meetings, they were represented by counsel, they

18 were provided sufficient documentation, they were met

19 with -- the letters themselves explained the appellate

20 rights, the appeal rights under the Maryland Public

21 Information Act. Those entities never filed an appeal under

22 the Maryland Public Information Act. And they commented

23 extensively on the DEIS and then again on the FEIS.

24 So there is extensive -- the question here before

25 you, the standard is, was there sufficient information for

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1 the public to provide an informed comment. And I think you

2 will find that all the information that is needed to provide

3 an informed comment is here.

4 Could they help replicate the analysis? Well,

5 Your Honor, I don't know, because I don't know whether they

6 have the skills that our consultants do, nor is the state

7 and the federal agencies required to hire them, those

8 consultants, should they not be able to operate the

9 commercially available software.

10 It would -- it just simply would be unfeasible to

11 build a project if you were required to assist every

12 individual to be able to replicate the analysis by skill and

13 software. But we did provide them sufficient data and told

14 them where they could get the commercially available

15 software.

16 On Section 5309, Your Honor, I just want to make a

17 quick correction under the -- 5309 sets up a funding

18 mechanism where there are two stages. The first is project

19 development. And that is your -- that operates concurrently

20 with NEPA.

21 During that first phase -- and this is set forth

22 in 5309. During that first phase of project development,

23 you are developing what -- you're going to do your

24 alternatives analysis. You just do your scoping, do your

25 alternatives analysis.

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1 And there are slightly different but very similar

2 qualitative assessments that the NEPA document is looking

3 for and what FTA is looking for when they're going to

4 evaluate whether they will grant you -- give you a

5 full-funding grant agreement.

6 So -- but the first thing that they do is you --

7 once you get a ROD, that's just one check box, one check box

8 of many before you can move from that project-development

9 stage to the next stage, which is what the plaintiffs have

10 quoted.

11 That next stage is called engineering. I still

12 call it by its old name of final design. And that's the

13 stage you can't use federal funds to do detailed engineering

14 until after you have gotten a Record of Decision.

15 So the theory of the federal government is, we're

16 going to provide some resources for you to do a scoping, but

17 we're not going to provide you with all the money to do,

18 you know, final design on every possible alternative. They

19 want you to keep funneling those alternatives down.

20 And then once you get to a point -- and in this

21 case, it is the Record of Decision. Once you get to that

22 point -- and then there are some other reports that must be

23 submitted on cost-effectiveness -- there are whole reams --

24 if this record were -- if this case had been clearly a 5309

25 case, which it was not, Your Honor, they didn't present a

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1 claim in their complaint. It just says they violated 5309.

2 No facts. They didn't ask for any administrative record,

3 the administrative record on the 5309, so none was provided.

4 But there is a whole other record.

5 So all those little check boxes have actually been

6 reached. So the project is in final design. And, in fact,

7 that concessionaire has started final design.

8 So the concessionaire, the contractor, has been

9 selected by the State of Maryland. That contract has gone

10 before the Maryland Board of Public Works and has been

11 approved, and they have started doing final design.

12 So that's where they are doing a little bit of geotech work

13 to make sure that they're going to design it to fit the

14 various stages of the project.

15 And at that point, they also will be able to tell

16 where the water will run off.

17 So at some point in the future, they will have

18 sufficient level of design to know where those stormwater

19 management facilities will best be placed. At this point,

20 they do not.

21 And there was some confusion which I would just

22 like to clarify. There is -- the private concessionaire,

23 over the past few weeks, has been gathering all of their

24 private financing, and they have it in place.

25 Also, they are getting a loan from the federal

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1 government, a loan from the federal government, and that has

2 closed.

3 So Friday, all of those pieces are just coming

4 together for what they call overall financial closure with

5 the state. So they'll be presenting all of that

6 information.

7 There is still yet to go more check boxes to get

8 to a full-funding grant agreement, which is the one-more

9 piece of finance, another 900 million. So it's separate

10 from -- the Record of Decisions allows us to move into

11 engineering. In order to move to construction with federal

12 dollars, we will need that full-funding grant agreement.

13 If the Court doesn't have any questions,

14 Your Honor...

15 THE COURT: Well, when the Secretary makes his

16 final decision under 5309, will that be -- will there be a

17 period where that can be reviewed and evaluated by a court

18 or an administrative agency?

19 MS. DeVUONO: I actually don't know, Your Honor.

20 I would imagine that if -- it certainly is a -- it

21 is a discretionary decision by the Secretary on -- he's

22 already been given the authority by government -- by the

23 legislature to -- that if you meet these criteria, that you

24 shall -- I would imagine there would be some form of action

25 that someone created to come up with.

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1 THE COURT: He has to make findings, right?

2 He has to issue a decision that has, within it, findings

3 that he has reached with regard to the project.

4 And I would imagine that, at least theoretically,

5 if the findings were in some way inaccurate based on a

6 faulty prejudicial or what have you, that they would be

7 challengeable, either in court or in some other way.

8 MS. DeVUONO: I cannot respond to that,

9 Your Honor.

10 THE COURT: Have you ever seen it happen?

11 MS. DeVUONO: I've never actually been on another

12 project with a full-funding grant agreement, so I do not

13 know.

14 THE COURT: So it's a bit of a purple haze.

15 MS. DeVUONO: Well -- thank you, Your Honor.

16 That was just too fun of a note to end on.

17 THE COURT: That's what Jimi Hendrix would say.

18 All right.

19 MR. GLITZENSTEIN: Thank you, Your Honor.

20 I'll sort of try to respond to a couple of the

21 points and add a couple citations.

22 To start off with on the question Your Honor honed

23 in on, which is the relationship of the Metro problems, as

24 in their briefs, I think both federal and state defendants

25 have given this argument remarkably short shrift, and it's

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1 alone sufficient to resolve this case. It provides the

2 basis for a Supplemental EIS.

3 They themselves acknowledge that more than a

4 quarter of the rationale comes from Metro riders. Even

5 before the most recent spate of problems, data was presented

6 to them showing a decline in Metro ridership.

7 So based upon the cases that we've cited in our

8 brief at page 13, which is that if a rationale for a project

9 that will admittedly be a major project, whether you think

10 it's good, better or different, it has enormous consequence.

11 THE COURT: Well, now, if I understand them

12 correctly, they're going to get a chance to do rebuttal so

13 I'll hear -- I'm sure I'll hear from them a second about

14 this.

15 But if I understand them correctly, because this

16 is -- essentially the entire project is above ground --

17 I think she said there was a small portion -- there was a

18 tunnel in a couple of places.

19 But basically, it doesn't pose the same kind of

20 safety risks with the tracking, the fire risks and other

21 types of risks that have materialized recently in our Metro

22 system. It doesn't pose these kind of risks from a

23 technology point of view. I think that was her essential

24 argument.

25 MR. GLITZENSTEIN: Two points for that,

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1 Your Honor, classic post hac rationalization of counsel:

2 Not addressed in any NEPA document, because they didn't do

3 an SEIS in light of these problems. So it's not for me or

4 you or for anyone else to evaluate. That's for the agency

5 in the first instance. So we don't have an evaluation of

6 that in the record.

7 The second, and, I think, perhaps, even more

8 critical point is, totally apart whether it will suffer from

9 the same exact problems, it depends intricately on a

10 thriving Metro system.

11 If you look at the Record of Decision and if you

12 look at their underlying EIS, it has tables which presume a

13 certain number of Metro ridership.

14 So even if the Purple Line never independently has

15 those problems but the Metro continues to have those

16 problems, then it reduces the rationale for the project

17 based upon the projected ridership, and, therefore, brings

18 into play potential alternatives.

19 Your Honor, this is exactly why --

20 THE COURT: Is your argument, then, premised on

21 the linkage between the Purple Line and these four other --

22 Red, Green, Yellow, these three other lines that, if the --

23 which are all underground -- if the ridership is down on

24 those three other lines, logically, one would imagine that

25 that would affect or have an impact on the amount of

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1 ridership on the aboveground line, the Purple Line.

2 MR. GLITZENSTEIN: Not only logically, but

3 quantitatively in their own document.

4 Their own document presents a table of the Record

5 of Decision, which presumes a certain level of ridership at

6 those Metro stations. People getting off those Metro

7 stations, walking a short distance, and taking the

8 Purple Line.

9 If that is dramatically different and they have

10 projected it as of years ago, it's when those projections

11 were made, then logically, and then by, I think, any sort of

12 reasonable set of assumptions, that's going to affect the

13 ridership on the Purple Line, which was called the

14 Purple Line to be interconnected with the Metro system.

15 And, again, we're not saying that we're

16 necessarily right or wrong as to the degree, we're simply

17 saying to analyze that in a Supplemental EIS, which is

18 precisely created for a purpose like this one when you've

19 had a dramatically different context for the project.

20 And if Your Honor agrees with us on that, then,

21 frankly, the rest of this case can be put on the backburner,

22 because you could vacate the current ROD on that basis, say

23 go back and analyze this issue.

24 They've conceded or claimed, at least, that they

25 haven't yet made a final decision on federal funding, a

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1 point I was going to get to in a moment.

2 But I think that allows this case to basically go

3 back and analyze that issue, and would actually, frankly,

4 potentially save a great deal of time, given the fact that

5 they claim they're still looking at making the findings in

6 5309, which directly interrelate with this point,

7 Your Honor.

8 THE COURT: How long would they have to do a

9 Supplemental Environmental Impact Statement under the

10 existing regulatory scheme?

11 MR. GLITZENSTEIN: Well, they could try to

12 truncate that process fairly rapidly. They'd have to

13 provide for another round of public comment. There is a

14 requirement for a hearing. But beyond those processes, they

15 could try to get that done fairly rapidly.

16 I can't sit there because I'm not the agency who

17 can tell you precisely how long, but I do know that when

18 agencies try to get that process done, they can try to do it

19 fairly quickly.

20 THE COURT: Still fairly quickly, you mean within

21 six months?

22 MR. GLITZENSTEIN: I think they could accomplish

23 it potentially within six months, depending, in part, on

24 some of these issues.

25 We think it would be very prudent for them to

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1 resolve this proprietary-information problem, and I think

2 Your Honor suggested a perfect vehicle for doing that,

3 if it's generally proprietary software, which is, have the

4 experts who have the wherewithal to evaluate the ridership

5 information in conjunction with what's happening in Metro

6 sign confidentially agreements. As Your Honor knows, this

7 happens all the time in cases in this court.

8 THE COURT: Do it all the time.

9 MR. GLITZENSTEIN: Experts can do that. And we

10 have the people.

11 That's really what's so extraordinary about this

12 case. This is not just a bunch of folks that sit around and

13 don't like this. People went out of their way to get

14 undisputed experts. Even the government does not dispute

15 the expertise of the economic analyst and others.

16 Get them to sign confidentially agreements and get

17 that information so that could be done in conjunction with

18 looking at the Metro problem. And that could be done in six

19 months or -- I would assume in that range. And they have

20 talked about not beginning construction until November.

21 That seems to me, Your Honor, to make a lot more

22 sense than what the government is proposing to you, which,

23 as I understand it, is, we're going to make another decision

24 on the findings, we believe it should have been made in the

25 ROD, Record of Decision, that's before the Court.

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1 We think the statute is as plain as day that

2 that's what Congress contemplated, especially when read

3 along with the statute of limitations, which gives 150 days

4 for a challenge.

5 Congress didn't think that this should be drawn

6 out with two separate decision-making documents. But take

7 them at their word that they're going to make a new

8 decision, presumably putting us and the Court, if they do

9 that, and coming back here, I imagine, seeking some kind of

10 emergency injunctive relief.

11 We've tried to litigate this case in a way that

12 allowed Your Honor to have the entire case presented on this

13 record in one package, which we think is consistent with

14 Congress's intent.

15 THE COURT: Well, you would think, at a minimum,

16 that the Secretary of Transportation might be concerned

17 about the impact of the recent safety issues with the Metro

18 system and how that would impact Purple Line ridership.

19 You would think that Supplemental EIS addressing

20 that very issue and those very problems might be important

21 to get to the bottom of before $900 million is committed of

22 federal funds.

23 MR. GLITZENSTEIN: You would think, Your Honor.

24 And, frankly, my client submitted a request based

25 upon that information, and we're a bit surprised that the

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1 answer was, we don't think that rises to the level of taking

2 another look at this in contrast to the alternatives.

3 But, you know, frequently, agencies get set on a

4 course and it's difficult for them to get off that course,

5 even if logic, as well as data, dictates taking a fresh

6 look.

7 THE COURT: Well, let's not, you know, let's not

8 be Pollyannish about this.

9 This is a very large public construction project

10 that's going to mean jobs and income for thousands of

11 workers, and there's obviously political pressure. That's

12 just normal, natural to want to be pro jobs. Let's have a

13 pro-jobs project.

14 I mean, it's kind of like apple pie and baseball.

15 Who's against having more jobs for more people? So one can

16 imagine that there are pressures to keep this thing going,

17 not only within the federal system, but in the State of

18 Maryland system. It's understandable. It's natural.

19 But I think the issue before this Court, of

20 course, is much narrower than that, and it's focused on the

21 legal requirements here that need to be complied with under

22 federal law.

23 MR. GLITZENSTEIN: Yeah.

24 THE COURT: And so -- but we can't be,

25 I don't think, oblivious to the practical reality of the

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1 pressure to employ people and have people working.

2 MR. GLITZENSTEIN: Well, I completely agree,

3 Your Honor.

4 And I would simply add to that what I think is at

5 least suggested by that which is -- and I think many of the

6 cases recognize -- that under those circumstances, which is

7 the Court's role, obviously, to step in and make sure that

8 that hard look, you know, in NEPA terminology and APA

9 terminology is taken, especially when there are new

10 circumstances.

11 And, again, at the end of that, especially from a

12 NEPA standpoint, which is not a substantive mandate, it

13 doesn't say, you can make whatever decision you want.

14 If you decide jobs are more important than other elements of

15 the environment, that's your choice. But at least you have

16 to take that hard look.

17 And as the Supreme Court has said in a number of

18 cases, you can't put blinders on to new developments that

19 may require you taking a fresh look at those issues.

20 THE COURT: So let's say, hypothetically, the

21 Court were to agree with you that we should, you know, put

22 this on hold, do a Supplemental EIS, give the experts access

23 to the proprietary information as part of that, as well as

24 do -- a portion of the supplementary has to deal with the

25 safety issues and ridership impact in the safety issues on

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1 the existing Metro system, and, you know, set a time frame

2 that all of that has to take place within, hypothetically,

3 let's say six months.

4 If the Court were to issue an order along those

5 lines, hypothetically, is that appealable?

6 Are we going to be up in the Court of Appeals for

7 the next -- tied up in the Court of Appeals for the next

8 year, year and a half on that decision, which is going to

9 extend this yet another year and a half?

10 It could be upheld, could be reversed. Is it a

11 decision that's reviewable at that point? What's the

12 practical reality of this here?

13 MR. GLITZENSTEIN: Whether or not that would be --

14 fall under the Appeal Order Doctrine, I think it depends

15 partly, in part, on exactly how it's framed. It's something

16 we could probably contribute some additional thought to.

17 I would say if you have a time frame like that,

18 I'm not sure it would make any sense for them to appeal.

19 As you know, the D.C. Circuit has its own

20 timetable for doing things. The notion that we would --

21 THE COURT: Yes, they do.

22 MR. GLITZENSTEIN: The notion we would get

23 briefing and argument --

24 THE COURT: Very, very different timetable.

25 MR. GLITZENSTEIN: I can't imagine why it would

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1 make an enormous amount of sense for them to appeal.

2 And I'm not going to speak, obviously, for the

3 government and the Justice Department; they'll make their

4 own determination.

5 But I think if Your Honor ordered that based on

6 the record that we have, it seems to me that carrying out

7 that order, unless they asked for a stay of the order, which

8 also wouldn't make a lot of sense, because, presumably --

9 unless they're insisting on going forward with the project

10 while they were appealing an order like that -- and, of

11 course, then there would be questions that would come into

12 play -- it would seem that it would be logical for them to

13 just get on with this analysis that Your Honor is

14 hypothesizing, as opposed to spending the parties' and the

15 judicial resources on an appeal that would take longer than

16 carrying out an order like that.

17 THE COURT: Would the existing regulatory scheme

18 prohibit the Court from setting an accelerated timetable for

19 the purposes of the completion of a Supplementary

20 Environmental Impact Statement?

21 MR. GLITZENSTEIN: Not as I understand the scheme.

22 Others may have a different view, but I'm not

23 aware of anything in the statute that would foreclose --

24 And I think that's true regardless of which of the

25 competing interpretations you have of 5309, especially given

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1 the government's and the state government's statement that

2 5309 analysis is going on simultaneously. Logically one

3 would think that could merge with the Supplemental EIS

4 review.

5 And at the end of that process, if we get to the

6 end of that process in a reasonable time frame and they make

7 the findings, whatever they are, then obviously that would

8 provide an opportunity for judicial review that seems to

9 make a lot more sense than the kind of bifurcated approach

10 that we've been presented with here today by the government.

11 THE COURT: Do you have any reason to think that

12 if the Court were, hypothetically, to issue such an order,

13 your experts would have any problem signing a confidentially

14 agreement?

15 MR. GLITZENSTEIN: My clients are shaking their

16 head no, Your Honor. So that means I don't have any reason

17 to think that.

18 THE COURT: Do you have any reason to think that

19 they, if they did sign such a confidentially agreement,

20 would be able to get their work completed in an accelerated

21 timetable of a matter of a few months?

22 MR. GLITZENSTEIN: I have every reason to think

23 that that would be possible, Your Honor.

24 THE COURT: Okay. Do you have anything else?

25 MR. GLITZENSTEIN: I think that's it, Your Honor.

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1 Thank you.

2 THE COURT: What do you think of that idea?

3 MS. BURGESS: Well, Your Honor, that's what I was

4 just about to -- just what I was about to address.

5 THE COURT: All right.

6 MS. BURGESS: So, Your Honor, the Supreme Court,

7 in Marsh v. Oregon Natural Resources Council, reminds us

8 that the agencies don't have to do an SEIS any time any new

9 information comes to light.

10 THE COURT: Well, that makes perfect sense, even

11 if it does come from the Supreme Court. Sometimes I don't

12 agree with the things they say, but I have no choice.

13 But anyway, that makes perfect sense. But it also

14 seems to make perfect sense that if a dramatic event occurs

15 of considerable proportions that has a likely

16 co-relationship to a fundamental component of the reasoning

17 in the original EIS, that obviously being projected

18 ridership, then common sense might dictate that it would

19 make some sense to, you know, do a follow-up analysis to

20 determine the extent to which, if any, that major event

21 would, indeed, have that kind of, you know, corrosive effect

22 or undercutting effect on this, you know, basic critical

23 piece of the analysis in the initial EIS, right?

24 MS. BURGESS: I understand, Your Honor.

25 THE COURT: It's a point of common sense, right?

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1 MS. BURGESS: Your Honor, sure.

2 I'd like to frame up the question for you, first

3 by pointing to the plaintiffs' 2005 letter, located in the

4 record at AR 56471, in requesting an SEIS on this very

5 issue.

6 They are referring to news reports, and say that

7 they cast an additional shadow over the rosy projections of

8 ever-increasing ridership for the Purple Line, which is

9 inextricably linked to and depended upon the use of several

10 subway stops from beginning to date.

11 THE COURT: What's the date of that later?

12 MS. BURGESS: October 9, 2014. That is their

13 second request for a Supplemental EIS.

14 THE COURT: Yeah. But what I'm talking about are

15 the events of the last month --

16 MS. BURGESS: Right.

17 THE COURT: -- month and a half.

18 We have experienced, here in the

19 District of Columbia, in this Metro area in the last month

20 and a half, safety issues of what appear to be epic

21 proportions with the entire system that have the potential,

22 even for a non-expert such as myself, to observe the

23 potential to have short and long-term impact on ridership in

24 the existing underground Metro system.

25 I mean, they're talking about comprehensive redo

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1 of the tracking system of the entire system because of work

2 that has not been done, maintenance that has not been done

3 for years, decades.

4 So there's this major problem that has been

5 unearthed that they're starting kind of a, I guess, a

6 structured project to address, as they have to, because it,

7 you know, it puts people at risk, frankly. We've had fires

8 breaking out in the Metro system in the last couple months.

9 So one would think that this recent major

10 development with all of the possible impacts it could have

11 on ridership, short run and long run, would be something

12 that might really be valuable to know about and think

13 through and factor into an EIS, but especially before

14 900 million taxpayer dollars is committed, don't you think?

15 MS. BURGESS: Your Honor, I understand,

16 Your Honor.

17 And you make a good point. And I think --

18 THE COURT: That's why I made it.

19 MS. BURGESS: I think that the response here is

20 that there are a couple of points.

21 First of all, Maryland Transit Administration is a

22 separate financial entity than Washington Metro.

23 THE COURT: But they want $100 million in federal

24 funds, don't they?

25 MS. BURGESS: Yes, they do.

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1 THE COURT: They want the Secretary of

2 Transportation to give them the -- and, you know, Hogan's a

3 tough bargainer; he wants $900 million.

4 MS. BURGESS: Yes.

5 And I think that the Washington Metro's --

6 you know, of course, this is outside the record, because

7 this is simply not an issue that's before the Court.

8 But I mean, seriously, you're asking these

9 questions.

10 THE COURT: I'm taking judicial notice.

11 MS. BURGESS: You're asking these questions, but,

12 of course, that's not something the agency have spoken

13 directly on.

14 So I'll tell you the impression that I can give

15 you is that the Washington Metro is making a significant

16 investment right now in these safety surges.

17 It has been a system that has been in place for

18 over 40 years, and it is committed and showing its

19 commitment to correcting these safety issues and making a

20 significant investment in trying to ensure that there is a

21 future for Washington Metro.

22 And so the point here with the Purple Line is that

23 it is financially independent, but also it is justified not

24 based entirely on its connection to the Washington Metro.

25 In fact, 73 percent of the riders in this

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1 ridership forecast are anticipated to use the Purple Line as

2 their sole means of transportation and that they would not

3 get on the Washington Metro or connect to the Washington

4 Metro, and that's a substantial amount of the justification

5 for this project.

6 And the point really is, Your Honor, that the

7 ridership forecasts are actually projected for 2040. That's

8 what we're talking about here. So we have these long-term

9 infrastructure projects, they're planned over decades, and

10 they're implemented and intended to be an infrastructure for

11 eternity. I mean, not quite. But essentially a very

12 long-term plan.

13 And so when we're looking at ridership that would

14 justify this project, we're looking at estimates that were

15 made based on 2040. And so any short-term problems that the

16 Washington Metro is experiencing, it's demonstrating right

17 now that it's committed to fixing those issues.

18 That's a separate issue from the justification for

19 the Purple Line itself, which is funded separately. It has

20 a private concessionaire of private industry that has a

21 financial stake in maintaining and operating this as a

22 functional line, and it has a requirement to maintain that

23 to a certain level and to a standard. It's required to do

24 so.

25 And so Maryland is demonstrating that it has made

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1 that policy decision, that this is an important project and

2 is committed to it. And it's looked --

3 THE COURT: But there's a federal component to

4 that decision process, is there not?

5 MS. BURGESS: Certainly.

6 THE COURT: Because I mean, the Secretary of

7 Transportation has to, himself, make findings that justify a

8 nearly $1 billion commitment of federal resources. That's a

9 pretty big decision, is it not?

10 MS. BURGESS: It is a big decision, Your Honor.

11 But the statutory scheme that federal transit

12 operates under really focuses on allowing the states, who

13 are the ones that are on the ground in their jurisdictions,

14 to determine the best projects to set forth and ask for

15 federal funding. The states are really the ones that make

16 those decisions in trying to determine which are the best

17 projects.

18 And then, of course, the federal government has an

19 obligation to review that project and determine whether it's

20 eligible for federal funding.

21 But really it is the people on the ground that

22 live in those places and commute and work in those places to

23 try and develop and set forth the projects that they think

24 are the best for funding.

25 THE COURT: So let me ask you this: What would

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1 the harm be to the federal government, and to Maryland, if

2 you want to throw them in the analysis too -- although

3 I'm sure I'll hear from the State of Maryland on this issue

4 in a second.

5 What would the harm be to take a six-month period,

6 take a timeout and give the relative parties a six-month

7 period to do a supplement EIS, to get it done, to take into

8 consideration these recent events which have been

9 extraordinary, to give the experts that the plaintiffs have

10 come up, access to the proprietary information, with a

11 confidentially agreement to protect it, so that they could

12 do their own analysis of the costs and the projected

13 ridership, and then roll that into one ball and get a

14 Supplemental EIS done in the next six months, and then see

15 where we are at that point?

16 MS. BURGESS: Well --

17 THE COURT: I mean, how is that going to harm the

18 government at this point? This thing has been kicking

19 around for, what did you say, it started eight years ago,

20 nine years ago?

21 MS. BURGESS: More than ten.

22 THE COURT: Ten years ago.

23 I mean, at this point, these recent events are of

24 such, you know, potentially monumental impact, you would

25 think it would be in the government's interest, before it

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1 commits -- the Federal Government's interest, before it

2 commits nearly a billion dollars, to have some sense of

3 what, if any, impact it would have on the Purple Line.

4 I mean, maybe the impact on the Purple Line would

5 be minimal to none. I mean, that's what you're certainly

6 expecting it will be. You said 73 percent was the

7 projection of riders who would have no use, would make no

8 use. That's three-fourths, basically, of the Metro system.

9 But I don't know enough about this project to know

10 that if it were projected to, say, be -- go from 73 percent

11 down to, say, 53 percent, what would be the financial impact

12 and, really, the future viability of the Purple Line, if

13 reduced ridership in the Metro system would drop by

14 20 percent?

15 I mean, I have no idea myself, but that's why we

16 have experts who try to figure these things out.

17 MS. BURGESS: Right.

18 And Maryland Transit, when the plaintiffs

19 presented this request for an SEIS, Maryland looked into

20 this, made the conclusion that this would -- that the

21 short-term issues that the Washington Metro was having

22 wouldn't affect their ridership estimates. They discussed

23 this and briefed this with Federal Transit, and they have

24 agreed.

25 And so here, you know, admittedly, the federal

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1 government's interest isn't giving the money away. And, of

2 course, we have a certain interest in our programs

3 proceeding efficiently and on target.

4 But the point really here is that the plaintiffs

5 have not met their burden to demonstrate that an SEIS is

6 necessary. They've requested an SEIS based on the

7 ridership. We've demonstrated that, again, any short-term

8 problems that the Washington Metro is having simply is way

9 too speculative to suggest that that would have any impact

10 on the ridership of 2040. And the agencies looked at that

11 issue and concluded that there's simply no SEIS is required,

12 and the agencies are entitled to substantial deference on

13 that conclusion. And so the question here before the Court

14 and the review is limited to whether or not that decision

15 was arbitrary and capricious under rule of reason.

16 And so, again, we're looking at what the

17 plaintiffs have asked for. They've asked for an SEIS based

18 on ridership. The agencies looked at that and concluded

19 that the ridership for the Purple Line was based primarily

20 upon riders that will not even be connecting to the

21 Washington Metro. And so they simply haven't demonstrated

22 that that decision, that there's no SEIS required based on

23 the information presented by the plaintiffs, is not

24 arbitrary and capricious. It's sound. And so that's the

25 question we're really trying to answer here.

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1 And so I certainly couldn't commit the agency to

2 saying that an SEIS could be done in six months. I mean,

3 I don't -- sometimes, you know, it could take some time to

4 look at those, if the Court were to order that.

5 But the point is that the plaintiffs have not met

6 a burden that they have to show; that this decision that the

7 agencies made is arbitrary and capricious.

8 And they have looked at this. They have looked at

9 not only this issue of the Washington Metro but all the

10 issues that the plaintiffs raised. They've given them

11 careful consideration. Their experts have looked at it.

12 And they simply have deference in the conclusions that

13 they've made.

14 THE COURT: Okay.

15 MS. BURGESS: I would like to spend a moment on --

16 THE COURT: Well, you've taken more than the time

17 allotted.

18 MS. BURGESS: All right. Thank you, Your Honor.

19 THE COURT: All right.

20 Ms. DeVuono.

21 MS. DeVUONO: Thank you, Your Honor.

22 I want to try to explain that this case was

23 brought on whether or not the Record of Decision, under

24 NEPA, was properly followed.

25 That Record of Decision, they've got plenty of

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1 proof that that Record of Decision was founded on rational

2 basis. They properly analyzed the alternatives. They

3 disclosed that information to the public, and they allowed

4 the public to view that.

5 Very critical here, Your Honor. There has been a

6 misunderstanding, conveniently, I believe. Proprietary

7 data. That's the word they're using. Ask them. It's

8 software. Proprietary software. It means we don't have a

9 license. And what they want -- what they didn't get was a

10 license to purchase software from another entity.

11 During all these years, the County of Chevy Chase

12 or the Columbia Country Club, perhaps, bought that software,

13 analyzed the data. It's all speculative.

14 These plaintiffs didn't ask for it. They could

15 have obtained that license, evaluated it, and said, we don't

16 need to raise a claim under the Maryland Information Act

17 request, because, well, they were right, we're not obligated

18 -- they're not obligated to provide that information to us.

19 And we got it. We bought it online.

20 It's a license. I can't give it to you. You have

21 to get it from the company. You have to go to Apple or

22 Microsoft. It's not that kind of software, but that's

23 essentially the same concept for the everyday man.

24 So every piece of data that they needed that they

25 requested -- and remember they didn't request it, this is

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1 the Columbia Country Club and the Town of Chevy Chase.

2 They got all of the data, all the inputs, all the outputs.

3 They were given reports of all that data. And they were

4 given very specific reports that explained the methodology

5 used. So this is not about signing a confidentiality

6 agreement. They have to go to Apple or Microsoft or

7 whatever entity produces that software to get that.

8 We simply don't have it.

9 Secondly, Your Honor, on the issue of ridership,

10 we need to go back. What is at issue in this case?

11 There are two different statutory frameworks. One is NEPA.

12 That produced a Record of Decision that defined a project

13 that allowed this project to go into engineering. We are

14 already in engineering.

15 It allows us to use federal funds to help in the

16 design of the project. It does not give you the

17 900 million. That's a separate statutory framework --

18 did I get it right -- 49 U.S.C. 5309.

19 If you look at 49 CFR, part 611, the regulations

20 implementing that statutory framework that produces the

21 900 million at the end of the project, or at the end of this

22 design phase, you will see it requires repeated reports to

23 the FTA on cost, safety, right-of-way acquisition, hazardous

24 materials. These reports are constantly being produced.

25 And before the Secretary of Transportation decides

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1 that they will actually give that 900 million, they have to

2 go through all of those reports and check the boxes. That's

3 a different statutory scheme.

4 You don't have that information here today,

5 because it wasn't properly put before you. They didn't give

6 us any indication that that was going to be before this

7 Court, except for one line: They violated 5309. That's all

8 that's in the complaint.

9 And actually, the troubles with the Metro, that

10 wasn't even in their report. They just said -- they didn't

11 say, the ridership will be so reduced that the project will

12 no longer be needed.

13 And as the Court noted that even if -- I would

14 say, Your Honor, it is pure speculation for us in this room

15 to come to any conclusion on what traffic and what the

16 condition of the Metro will be in the year 2040.

17 Now, there are experts who could do that, but,

18 Your Honor, those reports will need to be submitted, those

19 forecasting reports have to be updated before that

20 900 million goes in.

21 So if those experts believe, in their expert

22 opinion, that the agencies decide -- are the right experts

23 following the right methodology, they will include whatever

24 impact they think the current troubles with the Metro will

25 have in the year 2040.

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1 But I think it's speculation in this room as to

2 whether or not -- perhaps it will increase, maybe more

3 people will ride the Purple Line because they don't want to

4 get on the Metro, perhaps the -- you know, because we had

5 that long -- plaintiff made this speech that no one will

6 ride it from end to end, because you can ride the Metro

7 faster. Well, okay. If the Metro is not faster and safer,

8 then the Purple Line may be.

9 And even if -- I mean, the Metro is here to stay,

10 Your Honor. And I think it's pure speculation to assume

11 that they won't be. So even if that 23 percent drops by a

12 percentage or two, that would negate legally to allow the

13 Court to say legally that the agencies are arbitrary and

14 capricious for moving forward with this project.

15 I think, Your Honor, the need for this project is

16 the driving force. This governor had no problems negating

17 other projects that he didn't think were needed. He decided

18 to move forward with this project, even though he campaigned

19 against it. He took a good look at it, and he took many

20 months to do that, and he made a decision. And not only did

21 he make that decision, but he presented it to the Maryland

22 Board of Public Works, and all three of those members made

23 that decision. And before doing that, it had to go through

24 a complete economic analysis.

25 So when plaintiffs say that we haven't -- that we

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1 don't disagree with his economic, Mr. -- I think it's --

2 Saggese's report, well, I would like to point out, he

3 reported that there would not be private financing, no one

4 would invest in this project, it was economically

5 infeasible.

6 Well, at this point, the private investors have

7 put in their own money. They've obtained bonding

8 commitments. They've already sold the bonds to the

9 investors, who will now start selling it to people.

10 But those investors don't agree to issue bonds if they think

11 it's economically infeasible.

12 The federal government has made a decision to loan

13 money to the federal -- to the private investors. That was

14 last night.

15 So the troubles of the Metro have been here during

16 these financing decisions, and it hasn't affected that --

17 well, it hasn't stopped the financing. I don't know whether

18 it's created any form of effect, but it certainly hasn't

19 stopped, so far, the financing.

20 So one point is also, perhaps, the Metro, I think

21 Your Honor could -- it's pure speculation, but it could be

22 fixed before we could get an SEIS back and finished.

23 And it would be -- I tell you, the Purple Line P3

24 contract is in the administrative record. And it's very

25 complicated, so I don't want to --

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1 But I do know that a six-month stop of work would

2 allow the private investors to pull out. And the state

3 would incur all the costs that they have thus far incurred

4 to the point -- you know, as it's set forth on -- I don't

5 want to give them an opportunity to get all their costs

6 back, so whatever it says in the contract, if we were to end

7 up in that situation.

8 So, again, Your Honor, there's no evidence in this

9 record that the ridership will decline in the year 2040 and

10 that this project is not needed.

11 Thank you, Your Honor.

12 THE COURT: All right.

13 All right, Counsel. In cases of this kind, which

14 come along once in a while, I'm happy to say, I usually give

15 the parties an opportunity, if they wish to, to file a

16 supplemental pleading based on arguments that were raised

17 today and made today, and that's it.

18 I'm not requiring it. You don't have to do it.

19 It's limited to 15 pages or less. And it's basically an

20 option that I give you based on years of experience on my

21 own part, where invariably you're having a beer two hours

22 later and you say, I wish I'd said this, I wish I'd said

23 this, I wish I'd said this.

24 Well, guess what? You're going to get a chance to

25 say what you wish you'd said. But you only got 15 pages in

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1 which to do it. And you don't even have to do it.

2 But if you want to do it, it has to be limited to

3 arguments that were raised today. It's not new arguments,

4 things you're pulling out of the blue, blah, blah, blah.

5 So it's limited to what we discussed today.

6 The case is of sufficient complexity and sufficient

7 importance that I would make an exception in these kind of

8 cases to give you a little added opportunity to express your

9 thoughts in writing. So do as you see fit.

10 Thank you for your voluminous briefs.

11 MR. GLITZENSTEIN: Is there a time frame for that?

12 THE COURT: Yeah. You can have two weeks.

13 MR. GLITZENSTEIN: Simultaneous filings,

14 Your Honor?

15 THE COURT: Simultaneous filings. No rounds of

16 briefs. One filing.

17 MS. BURGESS: Your Honor, one more issue,

18 I'm sorry.

19 THE COURT: Hmm?

20 MS. BURGESS: Your Honor, if I could -- it's come

21 to our attention that a number of the pages in the joint

22 appendix are illegible and have a number of problems; and

23 for your review, we've offered a hard drive that would give

24 you clean and clear copies that are in color. If you would

25 like that, we have it here today.

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1 THE COURT: Well, make sure that the other side

2 has a copy of it too.

3 MS. BURGESS: They do, Your Honor. They have

4 consented to this.

5 THE COURT: All right.

6 DEPUTY CLERK: This Court is in recess.

7 (Proceedings concluded at 4:31 p.m.)

8

9

10

11

12

13

14

15

16

17

18

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20

21

22

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25

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C E R T I F I C A T E
I, William P. Zaremba, RMR, CRR, certify that
the foregoing is a correct transcript from the record of
proceedings in the above-titled matter.

Date: June 22, 2016_________ /S/__William P. Zaremba______
William P. Zaremba, RMR, CRR

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EXHIBIT D

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT *
TRAIL, et al.,
*

Plaintiffs, *

v. *

FEDERAL TRANSIT ADMINISTRATION, * Civil Case No. 14-01471 (RJL)
et al.,
Defendants, *

and *

The STATE OF MARYLAND, *

Defendant – Intervenor *

* * * * * * * * *

STATE OF MARYLAND’S POST-HEARING SUPPLEMENTAL MEMORANDUM

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TABLE OF CONTENTS

Page

STANDARD OF REVIEW ........................................................................................................... 1
ARGUMENT ................................................................................................................................. 1
A. Plaintiffs’ Demand For Proprietary Data And Software
Provides No Basis For Requiring A Supplemental EIS......................................... 1
1. Plaintiffs Never Sought Data During The NEPA
Process, Nor Did They Object To MTA’s
Responses To Others’ Data Requests. ....................................................... 2
2. The Record Shows That MTA Was Responsive To
Requests For Information. ......................................................................... 3
3. MTA Was Not Obligated To Provide Software. ....................................... 5
4. Plaintiffs Have Had Access To The Model Data,
Model Scripts, and Software For Nearly A Year. ...................................... 6
B. There Is No Basis For Requiring Additional Analysis Of
“BRT” Alternatives. ............................................................................................... 7
C. The Washington Metro System’s Recent Difficulties Do
Not Warrant Preparation Of A Supplemental EIS. .............................................. 10
1. Metro’s Ridership Issues Do Not Require A
Supplemental EIS..................................................................................... 10
2. Metro’s Safety Issues Do Not Require A
Supplemental EIS..................................................................................... 12
D. Plaintiffs’ Complaint Fails to State a Section 5309 Claim. ................................. 15
E. An Injunction Requiring A Supplemental EIS Would Be
Profoundly Disruptive And Could Jeopardize The Purple
Line Project. ......................................................................................................... 15

i
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TABLE OF AUTHORITIES

Page
CASES

Dep’t of Transp. v. Pub. Citizen,
541 U.S. 752 (2004) ...................................................................................................................3

Friends of the River v. FERC,
720 F.2d 93 (D.C. Cir. 1983) ...................................................................................................10

National Committee for the New River, Inc. v. FERC,
373 F.3d 1323 (D.C. Cir. 2004) ...........................................................................................1, 11

STATUTES

5 U.S.C. § 706(2)(A)........................................................................................................................1

49 U.S.C. § 5309 ........................................................................................................................1, 15

Md. Code Ann., General Provisions, § 4-101 et seq. ......................................................................3

REGULATIONS

23 C.F.R. § 771.129 .......................................................................................................................12

40 C.F.R. § 1502.21 .........................................................................................................................5

OTHER AUTHORITIES

FTA, “Final Interim Policy Guidance Federal Transit Administration Capital
Investment Grant Program” (June 2016) .................................................................................14

ii
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The State of Maryland submits this post-hearing supplemental memorandum to address

the four main reasons cited by Plaintiffs at the June 15, 2016 hearing in support of their claim

that a supplemental EIS should be prepared: (1) reliance on so-called “proprietary information”

regarding ridership forecasts used in the NEPA process; (2) the length of time since the

comparison of the selected light rail alternative to a “bus rapid transit” or BRT alternative; (3)

the potential effect of the Metro system’s recent difficulties on the Purple Line; and (4) the fact

that FTA did not make determinations under 49 U.S.C. § 5309 as part of its Record of Decision

(“ROD”) in the National Environmental Policy Act (“NEPA”) process. None of these arguments

has merit, and thus there is no basis for requiring a supplemental EIS.

STANDARD OF REVIEW

An agency’s decision must be upheld unless a plaintiff establishes that the decision was

“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). Under NEPA, the existence of new information requires a supplemental EIS only

when the new information provides “a seriously different picture of the environmental landscape.”

National Committee for the New River, Inc. v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004).

Here, FTA reviewed and gave reasoned consideration to each of Plaintiffs’ many requests for a

supplemental EIS and found, in accordance with its regulations, that a supplemental EIS was not

warranted. Because Plaintiffs have not borne their burden of demonstrating that FTA’s decision

was arbitrary and capricious, FTA’s decision should be upheld.

ARGUMENT

A. Plaintiffs’ Demand For Proprietary Data And Software Provides No Basis
For Requiring A Supplemental EIS.

At the June 15 hearing, Plaintiffs argued that MTA’s alleged refusal to provide

“proprietary information” had stymied Plaintiffs’ ability to provide comments on the Purple Line,

1
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and a supplemental EIS would give them an opportunity that they did not previously have. As

explained below and in the State’s previous briefs, this claim has no merit and provides no basis

for requiring a supplemental EIS. The Plaintiffs have had the information and ability to analyze

ridership forecasts for nearly a year – far longer than the six months in which they claimed at the

hearing they could complete such an effort. That is, even though the Plaintiffs never requested

any ridership forecasting data, the MTA and FTA provided directly to Plaintiffs the relevant

materials (data inputs and outputs, model scripts, certain “proprietary software”) and directions

for acquiring a license to commercially available modeling software almost a year ago. The

Plaintiffs have submitted no new analyses or comments based on those materials.

1. Plaintiffs Never Sought Data During The NEPA Process, Nor Did
They Object To MTA’s Responses To Others’ Data Requests.

At the hearing, Plaintiffs claimed that FTA’s decision was flawed because of the way

MTA responded – in 2008 and 2009 – to certain requests by others for technical information

related to cost estimates and ridership forecasts used in comparing alternatives. For all of the

reasons stated in the State’s previous briefs, FTA fully complied with its disclosure obligations

by ensuring that the public had sufficient information to allow for informed comment on the

NEPA documents. MTA Opening Brief 24-27; MTA Reply Br. 15-17. In this brief, we

elucidate only a few specific points related to matters raised at the June 15 hearing.

First, Plaintiffs’ claims that they were frustrated in their ability to comment on the Purple

Line NEPA process are disingenuous. The record on this point is clear: Plaintiffs did not submit

any of the public information requests at issue in this lawsuit; those requests were submitted

solely by other parties (the Town of Chevy Chase and the Columbia Country Club). Moreover,

Plaintiffs submitted comments during the NEPA process, but did not seek the information they

now claim should have been provided. Plaintiffs’ comments on the Final EIS are instructive: In

2
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total, Plaintiffs submitted 42 single-spaced pages of comments on the Final EIS. AR2_226851 -

65; AR2_226773 – 99. Their comments raised dozens of issues, many of them highly technical.

FTA responded to those comments point-by-point in the ROD. AR1_000093 – 267. Not a

single one of Plaintiffs’ comments on the Final EIS raised any concerns regarding the adequacy

of the data made available by FTA or MTA during the NEPA process. In short, Plaintiffs did not

give Defendants an opportunity during the NEPA process to address the disclosure concerns

raised in this suit.

The Court should not set aside FTA’s NEPA document based on concerns that Plaintiffs

themselves did not raise during the NEPA process. See Dep’t of Transp. v. Pub. Citizen, 541

U.S. 752, 764 (2004) (quoting Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,

435 U.S. 519, 553 (1978)) (participants in the NEPA process must “‘structure their participation

so that it … alerts the agency to the [parties’] position and contentions.’”).

2. The Record Shows That MTA Was Responsive To Requests For
Information.

At the hearing, Plaintiffs sought to characterize MTA as unresponsive to the Town and

the Club’s requests for technical information used in the comparison of light rail and bus rapid

transit (“BRT”) alternatives. As discussed below, the record shows the opposite – an extended

dialogue involving correspondence and in-person meetings, which enabled the Town and the

Club to submit detailed, highly technical comments on the Alternatives Analysis/Draft

Environmental Impact Statement (“AA/DEIS”). See MTA Reply Br. 15-17.

First, some context is necessary: Plaintiffs’ “proprietary information” claim is derived

from public record requests made by the Town and the Club in 2008 under the Maryland Public

Information Act (“PIA”), Md. Code Ann., General Provisions, § 4-101 et seq. MTA Opening Br.

24-25. Those public-record requests occurred as part of a long-running series of discussions

3
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with the Town and the Club, which focused on the relative merits of two distinct types of

alternative – a BRT line along Jones Bridge Road, which the Town and Club preferred, or a light

rail line built in the Georgetown Branch right-of-way, which the Town and Club strongly

opposed. See MTA Opening Br. 9-11 and n.12 (list of administrative record citations).

Contrary to the Plaintiffs’ claims, the record includes extensive correspondence with the

Town regarding the assumptions used in the analysis of the Jones Bridge Road BRT alternatives

as well as other aspects of the analysis in the AA/DEIS. 1 Time and again, MTA responded to the

Town’s technical questions, both in writing and in meetings. 2 The correspondence reveals a

highly technical discussion of the ridership forecasts, such as traffic signal timing assumptions –

down to the number of seconds – at each individual intersection on Jones Bridge Road. 3 In fact,

after MTA provided its detailed responses to the Town’s PIA requests, MTA offered to meet

with the Town and its traffic consultants again to explain the modeling – and the Town declined

the invitation. 4 Three times, MTA extended the invitation, and the Town did not take MTA up

1
See AR2_181401 (MTA letter to Town of Feb. 25, 2008); AR2_179780 (Town letter to MTA
of March 27, 2008); AR2_179776 (MTA letter to Town of April 16, 2008); AR2_179754 (Town
letter to Md. Secretary of Transportation of April 17, 2008); AR2_178719 (Md. Secretary of
Transportation letter to Town of May 27, 2008); AR2_161782 (MTA letter to Town of Aug. 15,
2008); AR2_214695 (Town letter to MTA of Sept. 30, 2008); AR2_161269 (MTA letter to
Town of Oct. 1, 2008); AR2_161082 (MTA letter to Town of Oct. 8, 2008); AR2_160905 (MTA
letter to Town of Oct. 20, 2008); AR2_160813 (MTA letter to Town of Oct. 24, 2008);
AR2_159983 (Md. Secretary of Transportation letter to Town of Dec. 1, 2008); AR2_156958
(MTA white paper responding to Town, Jan. 2009); AR2_145233 (Town letter to Governor of
June 2, 2009); AR2_133946 (Md. Secretary of Transportation letter to Town of July 30, 2009).
2
See AR2_156958 (referring to meeting regarding forecasts on March 11, 2008); AR2_167556
(referring to meeting regarding forecasts on July 31, 2008); AR2_161269 (referring to meeting
regarding forecasts and other issues on Aug. 26, 2008).
3
See AR2_160813 - 14 (explaining basis for MTA’s assumptions regarding traffic signal timing
under Jones Bridge Road BRT alternative); AR2_150110 (responding to Town’s proposal
regarding traffic signal timing for BRT on Jones Bridge Road).
4
See AR2_160813 (inviting Town to meet regarding forecasts); AR2_160568 (confirming Town
declined invitation to meet and re-extending invitation); AR2_149807 (re-extending invitation to
meet); AR2_133946 (noting that Town declined offer to meet).

4
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on that offer. Viewed in context of this entire body of correspondence, it is clear that MTA was

open and responsive in its communications regarding the modeling for ridership forecasts.

The record shows that the Town and the Club were represented by counsel, were advised

of their rights to appeal MTA’s responses to their PIA requests, and did not appeal. Further, the

Town and Club never submitted any Freedom of Information Act (“FOIA”) requests to FTA.

See FTA Reply Br. 6 (citing Navajo Nation v. U.S. Forest Serv., 408 F. Supp. 2d 866, 878 (D.

Ariz. 2006)). When the Final EIS was issued, the Club submitted no comments, and the Town

submitted comments but raised no specific concerns regarding a lack of data. MTA Reply Br. 15,

n.9. On this record, it could not have been arbitrary and capricious for FTA to conclude that the

Town’s and Club’s requests had been addressed sufficiently to satisfy NEPA requirements.

3. MTA Was Not Obligated To Provide Software.

Plaintiffs repeatedly complain that data made available by MTA was “unreadable.”

Implicit in this argument is the assumption that MTA was obligated not only to release data, but

also to provide – to the Town, the Club, or any other commenter that asked for it – licenses to

use any of the software used by MTA’s consultants in the NEPA process. When asked by the

Court to provide support for this novel claim, Plaintiffs cited a Council on Environmental

Quality (“CEQ”) regulation, 40 C.F.R. § 1502.21. But as explained in the Defendants’ briefs,

that regulation is inapplicable here: it applies when “proprietary data” is incorporated by

reference in a NEPA document. See MTA Opening Br. 24, n.17. Nothing in Section 1502.21 or

elsewhere in the CEQ regulations requires agencies to purchase software licenses allowing the

general public to use computer programs used in developing the Final EIS.

In short, Plaintiffs have cited no legal authority – and there is none – for requiring a

federal or state agency to provide licensed software available upon request, for free, to any

commenter who asks for it in the NEPA process. To impose such a requirement would be cost-

5
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prohibitive and unduly burdensome, given the large number of commenters and the large number

of different software programs used to perform analysis under NEPA.

4. Plaintiffs Have Had Access To The Model Data, Model Scripts, and
Software For Nearly A Year.

During Plaintiffs’ rebuttal argument, the Court asked whether it would be advisable for

the parties to enter into a confidentiality agreement that would allow Plaintiffs to review data or

software that Plaintiffs asserted was classified by MTA as “proprietary.” The Court also

suggested that implementation of the Project could be delayed for several months to allow

Plaintiffs to review and analyze the alleged confidential data without causing any significant

problems to either MTA or FTA. Plaintiffs indicated that they would welcome the opportunity

to obtain the “withheld” data and prepare an analysis of ridership forecasts.

In fact, the administrative record in this case includes the model data used in developing

the ridership forecasts for both the AA/DEIS and the Final EIS, as well as model scripts and the

“proprietary software” developed by MTA’s consultant, Parsons Brinckerhoff, to assist in

summarizing the model output. These items are specifically listed and described in the index to

the administrative record. See Attachment A (ECF No. 24-2, p. 1065). The same materials were

provided separately to the Town by letter dated July 30, 2014. See Attachment B. Prior to the

status conference held by the Court on July 15, 2015, Defendants’ counsel provided to Plaintiffs’

counsel a copy of MTA’s letter to the Town; the letter described the materials that had been

provided and identified the commercially available software needed to run the model itself. See

Attachment C, p. 3. In short, as of July 15, 2015, Plaintiffs had all of the data and all of the

information that they would need to run the model themselves. 5

5
Plaintiffs never directly requested this data or the software from FTA or MTA; Defendants
chose to include it in the administrative record because of the issues raised in their Complaint.

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After receiving this data, Plaintiffs complained that it was “unreadable” without

specialized software. In a letter to Plaintiffs’ counsel dated September 25, 2015, FTA’s counsel

again described the contents of the disks, informed Plaintiffs’ counsel that the modeling software

was “commercially available,” and provided instructions on how they could purchase that

software. A copy of the September 25, 2015 letter is attached as Attachment C.

Because the Plaintiffs have already had the opportunity the Court offered to the Plaintiffs,

it would be unjust and serve no purpose to direct Defendants to again provide that information to

Plaintiffs now. Nor would there be any purpose in entering into a confidentiality agreement,

because the same materials were provided to the Town as well and are not confidential. The sole

remaining issue is whether Defendants have any obligation to purchase for Plaintiffs’ use a

commercially available software license allowing them to run the model. As explained above,

Plaintiffs have not cited any legal authority for requiring an agency to purchase software for use

by commenters or others who wish to re-run the agency’s models. Therefore, Plaintiffs’ demand

for disclosure of so-called “proprietary information” must be rejected.

B. There Is No Basis For Requiring Additional Analysis Of “BRT” Alternatives.

Plaintiffs suggested at the June 15 hearing that a supplemental EIS is needed to ensure

that the public has a full understanding of the relevant differences among alternatives, citing

“BRT” (bus rapid transit) alternatives as requiring further review. However, the relevant

alternatives were fully analyzed, and the differences between them were stark and unmistakable.

No further analysis is required.

The heart of this dispute – and the central issue in the NEPA process – involved the

choice between two very different approaches to providing public transit service in the western

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portion of the Purple Line corridor, where the Georgetown Branch right-of-way is located. 6 The

Town and many of its residents adamantly opposed using the Georgetown Branch right-of-way

for public transit service and instead advocated building a BRT (bus rapid transit) line along a

more circuitous route using Jones Bridge Road. The record demonstrates that Defendants took a

hard look at the Jones Bridge Road BRT concept, but ultimately decided that a light rail line

using Georgetown Branch would better meet the purpose and need of the project and better

balance the wide range of concerns expressed by commenters.

Defendants’ explained their reasons for selecting the Georgetown Branch light rail over

the Jones Bridge Road BRT alternative. See AR1_001944 (summarizing rationale for selecting

light rail over BRT); AR1_002352, AR2_160104, and AR2_133946 (summarizing drawbacks of

Jones Bridge Road BRT alternative). In responding to comments from the Town, the Maryland

Secretary of Transportation summarized main drawbacks of the Jones Bridge Road BRT

alternative as follows: (1) “reducing existing general traffic lanes on Jones Bridge Road ... would

result in adverse impacts to traffic flows along this east-west route, and would result in increased

demand on alternate roadways”; (2) “it would be very difficult to locate stations in the median

along the Jones Bridge Road alignment without substantial property impacts”; (3) “it is unclear

how left turns for traffic would be accommodated without substantially impacting BRT

operations”; (4) the BRT proposals do not take into account the State Highway Administration’s

plans for the Jones Bridge Road corridor; and (5) the State does not accept the Town’s

assumptions regarding the percentage of existing automobile traffic on Jones Bridge Road that

would shift to the BRT. AR2_133946 – 47. “The larger issue associated with using Jones

6
Georgetown Branch was used for freight rail service for over 100 years. After freight rail
service ended in the mid-1980s, Montgomery County acquired the right-of-way for
transportation and other uses. In 1990, the County designated the Georgetown Branch for use as
a light-rail transitway with a paved trail. See MTA Opening Br. 3-4.

8
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Bridge Road as an alternative alignment continues to be one of travel times. Any Purple Line

alternative utilizing Jones Bridge Road results in travel time delays for the larger travel market

which is destined for the Bethesda Central Business District.” Id. (emphasis added). 7

In the Final EIS, as part of its responses to public comments, FTA again summarized the

reasons for selecting the Georgetown Branch light rail alternative over BRT alternatives, noting

that “the BRT alternatives provided lower user benefits than the LRT alternatives; the BRT

alternatives were less reliable, did not provide the same level of travel time savings, and had

lower projected ridership. In addition, the BRT alternatives were limited in their ability to handle

increased ridership in the future beyond the design year.” AR1_002352. Further, FTA noted

that “stronger public and stakeholder support” for the Georgetown Branch light rail alternative,

as well as that alternative’s consistency with the Montgomery County master plan and

endorsements of that alternative by Montgomery County and Prince Georges County. Id.

As these responses show, the NEPA analysis identified fundamental differences between

the two main alternatives at issue in this case. Those differences involved a wide-ranging set of

issues related to transportation benefits, impacts, and costs; ridership was only one factor and

was not identified as the deciding factor. In the end, Plaintiffs and others disagreed with the

Defendants’ policy decision about which alternative to select. But the record shows that

decision-makers and the public understood the relevant differences among these alternatives.

There is simply no evidence that new ridership projections would affect the underpinnings of the

Defendants’ decision to select a Georgetown Branch light rail alternative; therefore, no new

alternatives analysis is required. See MTA Reply Br. 7.

7
One of the key advantages of the Georgetown Branch light rail alternative is that it provides
much faster travel time – 9 minutes – between Bethesda and Silver Spring, as compared to a 25-
minute travel time for the Jones Bridge Road BRT alternative. MTA Opening Br. 8.

9
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C. The Washington Metro System’s Recent Difficulties Do Not Warrant
Preparation Of A Supplemental EIS.

At the June 15 hearing, Plaintiffs asserted that a recent decline in ridership levels on the

region’s Metrorail subway system (“Metro”) was “new information” that required FTA to

prepare a supplemental EIS. Plaintiffs’ arguments seek to capitalize on the intense public

attention and media coverage surrounding the recent Metro service disruptions, without actually

showing how those events undermine the basis for FTA’s approval of the Purple Line. At

bottom, Plaintiffs’ arguments rest on little more than a speculative “doomsday scenario” in

which the Metro system’s current difficulties are never effectively addressed, even by 2040.

Plaintiffs’ hyperbolic speculation, unaccompanied by facts, did not require an exhaustive

response by FTA, which is intimately familiar with both the Purple Line and the repairs being

made to address the Metro’s dated infrastructure. As this Circuit has held, an agency is not

required to prepare a supplemental EIS – or even “a formal document explaining why ... a

supplemental EIS is unnecessary” – simply because new information has come to light. Friends

of the River v. FERC, 720 F.2d 93, 109 (D.C. Cir. 1983). Under this standard of this Court’s

review, FTA’s decision not to prepare a supplemental EIS addressing Metro’s ridership and

safety issues must be upheld

1. Metro’s Ridership Issues Do Not Require A Supplemental EIS.

Plaintiffs’ assertions regarding a recent decline in ridership levels on Metro do not

require a supplemental EIS. 8 As explained at the hearing, the travel forecasts used in the NEPA

process were based on projections for the “horizon” year of 2040. MTA Reply Br. 6. There is

simply no evidence before this Court that the Metro is experiencing the type of long-term decline

8
Plaintiffs submitted no data showing ridership declines on the Metro system, nor have they
shown that ridership is declining specifically at the stations that would connect to the Purple Line
(Bethesda, Silver Spring, College Park, and New Carrollton).

10
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in ridership that would continue through 2040, nor is there evidence that any future decline on

the Metro would (as Plaintiffs suggest) profoundly and negatively affect Purple Line ridership.

Further, it would be illogical to extrapolate from a ridership decline that occurs during a period

when Metro is temporarily reducing service to allow faster implementation of safety upgrades.

Major investments are based on long-term trends, not short-term fluctuations – no matter how

much media attention those short-term fluctuations may attract.

Even if Metro were to experience a substantial and sustained ridership decline, there is no

evidence in the record to suggest that such a decline would greatly affect the ridership on the

Purple Line. To the contrary, nearly three-quarters of Purple Line riders would not use the Metro

for any portion of their trip; they would access the Purple Line by walking, by transferring from

a bus, or by driving. MTA Reply Br. 6. And in fact, only 13 percent of boardings at Purple Line

stations would involve transfers from Metro; 77% would arrive by other means (e.g., by bus or

on foot). AR1_005361 - 62. Given the relatively low number of Purple Line passengers

expected to transfer to or from Metro, fluctuations in Metro ridership caused by recent efforts to

remedy safety issues on the Metro system do not require preparation of a supplemental EIS.

Moreover, even if Purple Line ridership in 2040 is somewhat lower than the forecasts

used in the NEPA process, it would not undermine the fundamental rationale for building the

Purple Line project. The purpose and need for the project is centered on providing “faster, more

direct, and more reliable east-west transit service connecting the major activity centers in the

Purple Line corridor at Bethesda, Silver Spring, Takoma/Langley Park, College Park and New

Carrollton.” AR1_000003. The project achieves that objective even if the number of riders

transferring to or from Metro is somewhat lower than projected. Lower-than-expected Purple

11
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Line ridership would not provide “a seriously different picture of the environmental landscape.”

National Committee for the New River, 373 F.3d at 1330.

Finally, there is no basis for concern that FTA might commit federal funds to this project

based on outdated ridership forecasts that fail to consider recent developments. MTA has in fact

submitted updated forecasts, which are currently under review by FTA. If there were any

notable change in the forecasts (and there is not), FTA would have the opportunity to consider

that change before committing federal funds, and if needed would reevaluate its prior NEPA

approvals before doing so as required by its regulations. See 23 C.F.R. § 771.129. Plaintiffs’

unsubstantiated speculation about Metro’s potential effects on Purple Line ridership in 2040 does

not require preparation of a supplemental EIS. See MTA Reply Br. 7.

2. Metro’s Safety Issues Do Not Require A Supplemental EIS.

At the hearing, the Court noted recent reports of safety issues involving the Metro and

asked whether those issues might require FTA to conduct a supplemental EIS. The Court asked,

in particular, about safety issues that have arisen after Plaintiffs made their October 9, 2015

request for a supplemental EIS. On the current record, there is no basis for requiring a

supplemental EIS to address Metro’s safety issues.

First, as MTA noted at the hearing, the Purple Line and the Metro are separate transit

systems that have different owners and use different technologies. The Metro is operated by the

Washington Metropolitan Area Transportation Authority (“WMATA”), an independent regional

body governed by its own board. The Metro is powered by an electrified high-voltage “third

rail” in the track-bed, which requires that the system be operated only in tunnels or on aerial

structures. By contrast, the Purple Line will be powered by overhead wires, which avoid the

need for an electrified third rail and thus allow the system to operate on the ground surface. The

Purple Line is being developed by the Maryland Department of Transportation (“MDOT”) and

12
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its transit agency, MTA, which have entered into contract under which a private consortium will

finance, design, build, operate and maintain the system to strict performance and safety standards

for a period of 35 years. MDOT and MTA retain ultimate responsibility for the safety of the

traveling public and for enforcement of all the contractual obligations, and they have

incentivized the contractor to adhere to its maintenance and operating obligations through

payment reductions. Given these facts, there is no basis for inferring that any safety issues

currently facing Metro will extend to the Purple Line.

Moreover, the facts cited in Plaintiffs’ request for a supplemental EIS do not support an

inference that Metro’s safety problems will affect ridership on the Purple Line. Plaintiffs’ letter

of October 9, 2015 noted – without explanation – four items related to the Metro system, two of

which involve safety. AR5_006470 to 71. The two safety-related items cited in Plaintiffs’ letter

provide no support for their argument; to the contrary, they show that the federal government, at

the highest levels, has stepped in to ensure that Metro’s safety problems will be fixed.

The FTA Safety Directive. As Plaintiffs noted, FTA issued a “safety directive” to

WMATA in June 2015, requiring a series of safety improvements recommended in a June 2015

report. 9 But issuance of this safety directive, and FTA’s heightened involvement more generally,

does not support Plaintiffs’ argument. Rather, it shows that Metro’s safety problems have been

identified and are being addressed. Moreover, to the extent the Court considers recent events, it

is clear that FTA remains actively involved in ensuring implementation of the safety directive,

and indeed many of the required safety improvements have been completed. 10

9
FTA Safety Directive 15-01 (June 17, 2015), at:
https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/Safety_Directive_15-1_Final.pdf.
10
FTA, WMATA Safety Oversight Activities, at https://www.transit.dot.gov/regulations-and-
guidance/safety/wmata-safety-oversight-activities.

13
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The NTSB Report. As Plaintiffs also noted, the National Transportation Safety Board

(“NTSB”) recommended that Congress shift responsibility for safety oversight of WMATA from

a regional body to a federal agency. AR5_006470. But again, the facts undercut Plaintiffs’

depiction of out-of-control safety problems. The U.S. Secretary of Transportation responded to

the NTSB’s report by directing FTA to take on an increased role in overseeing WMATA’s

compliance with federal safety standards. 11 In communicating this decision, the Secretary stated

that “this increased oversight means that FTA will now directly enforce and investigate the

safety oversight of WMATA Metrorail” until a newly created regional body is in place to take

over those responsibilities. Id. As noted above, FTA is actively carrying out this oversight role.

In short, the evidence before this Court does not support Plaintiffs’ “doomsday theory” of

the Metro becoming permanently unsafe. Rather, the evidence shows that FTA has taken strong

action to ensure that safety issues are addressed. In this light, it is clear that FTA was not

arbitrary and capricious when it determined that WMATA’s safety issues do not require a

supplemental EIS for the Purple Line. AR5_00003 at 04 (FTA); AR5_00005 at 09 (MTA).

Finally, even assuming hypothetically (and unrealistically) that Metro’s safety problems

are not effectively addressed, and assuming further that those problems lead to a long-term

decline in Metro ridership relative to current trends, there still is no evidence that such a decline

would negate the fundamental rationale for building the Purple Line. Plaintiffs present only

remote hypotheticals involving, at most, a marginal effect on Defendants’ ridership forecasts.

FTA was not arbitrary and capricious in deciding not to prepare a supplemental EIS.

In sum, FTA set forth a reasoned basis for deciding that a supplemental EIS is not warranted.

There is no basis for finding that the FTA was arbitrary or capricious in reaching that conclusion.
11
Letter from U.S. Transportation Secretary Anthony Foxx to NTSB Chairman Christopher
Hart, dated Oct. 9, 2015, at: https://www.transportation.gov/briefing-room/letter-us-
transportation-secretary-anthony-foxx-ntsb-chairman-christopher-hart-ntsb.

14
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D. Plaintiffs’ Complaint Fails to State a Section 5309 Claim.

At the June 15 hearing, counsel argued that Plaintiffs had failed to adequately plead a

claim under the New Starts program, 49 U.S.C. § 5309, and that if such a claim were properly

pleaded, the administrative record would reflect the relevant submissions by the State and the

review by FTA of the Purple Line under the New Starts program. In short, Plaintiffs have not

pleaded a viable section 5309 claim; FTA’s decision-making under section 5309 is ongoing; and

the question of whether a section 5309 claim can be brought in the future is not before this Court.

Plaintiffs’ section 5309 “claim” should be dismissed. See MTA Reply Br. 11-15. 12

E. An Injunction Requiring A Supplemental EIS Would Be Profoundly
Disruptive And Could Jeopardize The Purple Line Project.

For all the reasons stated above and in our previous briefs, there is no basis for finding

FTA in violation of NEPA and therefore no basis for issuing an injunction requiring a

supplemental EIS to be prepared. But if the Court were to consider providing such relief, the

State respectfully requests an opportunity to inform the Court of the complex contractual

arrangements involving the project, including the potential for a seemingly modest delay to have

cascading consequences on the project schedule and financing arrangements.

12
There also is no merit to Plaintiffs’ claim that FTA must make its section 5309 findings
“concurrent with” the NEPA process. Plaintiffs misread the plain language of the statute. The
applicant must prepare information concurrent with the NEPA process, as MTA did here – but
under the statute, FTA makes its section 5309 determinations only after the NEPA process is
completed. MTA Reply Br. 13.

15
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Dated: June 29, 2016 Respectfully submitted,

BRIAN E. FROSH
Attorney General of Maryland

/s/ Linda M. Strozyk DeVuono
LINDA M. STROZYK DeVUONO (Bar No.
429514)
Assistant Attorney General
100 Charles Street, Tower II, Suite 700
Baltimore, MD 21201
(410) 451-3722
Email: ldevuono@sha.state.md.us

/s/ Albert M. Ferlo
ALBERT M. FERLO (Bar No. 290395)
PERKINS COIE LLP
AFerlo@perkinscoie.com
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: 202.654.6262
Facsimile: 202.654.6211
Email: aferlo@perkinscoie.com
Attorneys for Defendant-Intervenor

16
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CERTIFICATE OF SERVICE

I hereby certify that on June 29, 2016, a copy of the foregoing document was served via

the CM/ECF system on the following counsel of record.

David Brown
Knopf & Brown
brown@knopf-brown.com

Kevin W. McArdle
U.S. Department of Justice
Keven.mcardle@usdoj.gov

Jeremy Hessler
U.S. Department of Justice
Jeremy.hessler@usdoj.gov

Tyler L. Burgess
U.S. Department of Justice
Tyler.burgess@usdoj.gov

John M. Fitzgerald
4502 Elm Street
Chevy Chase, MD 20815
johnmfitzgerald@earthlink.net

/s/ Albert M. Ferlo
ALBERT M. FERLO
Attorney for Defendant-Intervenor

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Friends of the Capital Crescent Trail, et al. v. FTA, et al.
Case No. 14-01471 (RJL)

Attachment A
(ECF No. 24-2, p. 1065)

(Page 189 of Total)
Case
Case
1:14-cv-01471-RJL
1:14-cv-01471-RJL Document
Document24-293-1 FiledFiled
05/22/15
06/29/16 Page
Page
1065
2 of 2
1065
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Document #1675041 Filed: 05/12/2017 Page 158 of 219
Case No. 14-cv-01471
Administrative Record AR2 -- Project Documents and Correspondence

Doc ID Begin Doc ID End Date Document Description / Title From / Author To CC / BCC DVD

AR2 219924 AR2_219949 Record of phone calls Purple Line Project DVD No. 4
Team
AR2 219950 AR2_219952 Responses to Roger Paden's Purple Line Project DVD No. 4
Questions Team
AR2 219953 AR2_219953 Silver Spring meeting log Purple Line Project DVD No. 4
Team
AR2 219954 AR2_219955 Talbot Avenue Bridge Purple Line Project DVD No. 4
Team
AR2 219956 AR2_219957 The Indian Spring Citizens Association Hausner, Tony DVD No. 4
Perspective on the Purple Line

AR2 219958 AR2_219958 Town of Chevy Chase Purple Line Purple Line Project DVD No. 4
Mitigation Priorities Team
AR2 219959 AR2_219963 Transportation Research Board No Boorse, Jack DVD No. 4
1930 Directly and Indirectly Reducing
Visual Impact of Electric Railway
Overhead Contact Systems
AR2_219964 AR2_219964 Travel Forecasting Data -- 2030 DVD No. 5
Forecasts-No Build and FEIS Build
Scenarios
--Inputs necessary to run models
--Outputs of model runs
--Model scripts
AR2_219965 AR2_219965 Travel Forecasting Data -- 2040 DVD No. 6
Forecasts-No Build and FEIS Build
Scenarios
--Inputs necessary to run models
--Outputs of model runs
--Model scripts
--PB Software (in "Root Directory"
folder

May 22, 2015
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Friends of the Capital Crescent Trail, et al. v. FTA, et al.
Case No. 14-01471 (RJL)

Attachment B
(Letter dated July 30, 2014)

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MTA'i
Filed: 05/12/2017

Maryland
Page 160 of 219

MARYLAND TRANSIT ADMINISTRATION
MARYLAND DEPARTMENT OF TRANSPORTATION
Martin O'Malley, Governor • Anthony G. Brown, Lt. Governor
James T. Smith, Jr., Secretary • Robert L. Smith, Administrator

July 30,2014

The Honorable Patricia Burda
Town of Chevy Chase
4301 Willow Lane
Chevy Chase, MD 20815

Dear Vice-Mayor Burda:

We understand the Town of Chevy Chase seeks additional information that would allow you to
validate ridership forecasts prepared by the Maryland Transit Administration (MTA) for the
Purple Line light rail project. In support of your inquiry I am enclosing three reports on the travel
forecasts, two DVDs containing over 6.6 Gigabytes of data, and information on how and from
whom to acquire software used to compile the results.

Enclosed please find:

1. Purple Line FEIS Travel Forecast Results Technical Report (also available on the Purple
Line website)
2. Purple Line AAIDEIS Travel Demand Forecasting Technical Report (also available on the
Purple Line website)
3. New Starts Travel Forecasting Model Calibration Report for Evaluating the Purple Line and
Corridor Cities Transitway Projects (November 201 0)
4. Two DVDs containing:
- Inputs necessary to run the models for all four alternatives (2030 and 2040 No Build
and Build Alternatives) presented in the Purple Line FEIS (August 2013)
- Outputs of the travel forecasting model runs for the above four FEIS alternatives
- Model scripts, including the compiled Java scripts Gar files) to run the applicable
portions of the model.
5. Software developed by Parsons Brinckerhoff used to compile summaries of results. (See
Disk Bin the file "Root Directory" folder labeled "Software.") This software is not part of
the model that produces the forecasts; it only assists in summarizing the results. In order to
actually run the model, it is necessary to purchase a license to run Cube, the commercial
modeling software, which is available from Citilabs (www.citilabs.com).

The MTA has used nationally accepted practices for travel forecasting for the Purple Line
project, and we stand behind these practices and the results. The MTA continues to make itself
and its consultants available to provide further information and background on the process used

(Page 192 of6Total)
St. Paul Street • Baltimore, Maryland 21202-1614 • TTY 410-539-3497 • Toll Free 1-866-743-3682
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The Honorable Patricia Burda
Page Two

to prepare the Purple Line ridership forecasts. Thank you for your continued engagement in the
Purple Line project.

HenryM. Kay
Executive Direct for Transit Development and Delivery

Enclosures

cc: ert Smith, Administrator, MTA

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Friends of the Capital Crescent Trail, et al. v. FTA, et al.
Case No. 14-01471 (RJL)

Attachment C
(Letter dated September 25, 2015)
[Tables 1 and 2 omitted]

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U.S. Department of Justice

Environment and Natural Resources Division
TLB: DJ #90-8-6-07734/1
Natural Resources Section Telephone (202) 616-4119
P.O. Box 7611 Facsimile (202) 305-0506
Washington, DC 20044

SENT VIA EMAIL
brown@knopf-brown.com

September 25, 2015

David W. Brown, Esq.
Knopf & Brown
401 E. Jefferson Street, Suite 206
Rockville, MD 20850

Re: Friends of the Capital Crescent Trail et al. v. FTA et al., No. 1:14-cv-01471-RJL
(D.D.C.)

Dear Mr. Brown:

Thank you for your letter dated August 25, 2015 providing a list of documents that
Plaintiffs wish to include in the Administrative Records for the Purple Line litigation. We
provide you the Federal Transit Administration’s (“FTA”) and U.S. Fish and Wildlife Service’s
(“FWS”) response, recognizing that the parties are required to file a joint status report on
October, 14, 2015. ECF No. 30.

Table 1 responds to each document, or group of documents, that you referenced and
provides an explanation for the Agencies’ conclusions regarding your request. In addition, the
agencies have identified eight documents that were inadvertently omitted, see Table 2, and the
Agencies will file a corrected Certified List of Administrative Record Contents as soon as
practicable to add these documents to the appropriate Administrative Record.

In reviewing the Agencies’ responses to your document requests contained in Table 1,
please note that the Administrative Records consist only of materials considered by the agency
decision-maker, either directly or indirectly, in reaching a decision. Accordingly, at a minimum,
a document must have been before the agency decision-maker at the time the decision was made
and relevant to the environmental concerns evaluated in the decision, in order to potentially be
eligible for inclusion in the Administrative Records.

As FTA explained in its notice accompanying the Certified Lists of Administrative
Record Contents (ECF No. 24-1 at 2), FTA’s AR1 includes the Record of Decision (“ROD”),
Final Environmental Impact Statement (“FEIS”), and the Alternatives Analysis/Draft
Environmental Impact Statement (“AA/DEIS”) documents. FTA’s AR2 consists of the project

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file documents and emails that relate to the preparation of the ROD, FEIS, and AA/DEIS. Id.
As such, materials that post-date the March 19, 2014 ROD, by definition, could not have been
before the decision-maker and are not properly part of either AR1 or AR2.

FWS’s Administrative Record for the January 7, 2014, August 22, 2014, and May 13,
2015 Endangered Species Act determinations related to the Purple Line (ECF Nos. 24-3, 24-4),
and FTA’s AR3 supporting its May 19, 2015 decision not to prepare a supplemental
Environmental Impact Statement with respect to the Kenk’s or Hay’s Spring amphipods (ECF
No. 25), contain documents that post-date the ROD. However, the majority of the documents
that you brought to our attention post-date either the ROD or the subsequent agency
determinations supported by ECF Nos. 24-3, 24-4, and 25, or are unrelated to the subject matter
of those determinations. On that basis, the Agencies decline to include the documents in any of
the Administrative Records.

In addition, a number of the items such as news articles and blogs providing commentary
on the project are not relevant to the environmental analysis, nor were they submitted to the
agencies for their consideration. The final report by Dr. Culver (Doc. 19) and Dr. Manville’s
affidavit (Doc. 21) were never submitted to the agencies. Therefore, the agencies decline to
include those items in the Administrative Records because they were not directly or indirectly
considered by FTA or USFWS in taking any final action regarding the Purple Line.

It is the Agencies’ position that in order for Plaintiffs to rely on any documents not within
the Administrative Records, they will need to demonstrate that the documents fall within one of
the limited exceptions to the record review rule. Where the Agencies have concluded that the
documents should not be included within the Administrative Records, they also believe that
Plaintiffs will not be able to meet their burden to admit them as extra-record evidence.

In your August 25, 2015 letter, you also raise a number of issues not pertaining to the
scope of the Administrative Records. With respect to your request for the United States’ consent
to amend the pleadings, we will consent to the filing of a supplemental pleading consistent with
Federal Rule of Civil Procedure 15(d) and the schedule set forth below to address the events that
have occurred “after the date of the pleading to be supplemented.” The United States cannot,
however, stipulate that the operative pleading filed on April 9, 2015 (ECF No. 20) includes
events that happened after it was filed. In order to facilitate this supplementation, we propose the
following additional deadlines to address the anticipated claim alleging that FTA failed to
prepare a supplemental Environmental Impact Statement (“SEIS”):

October 12 Plaintiffs file their Supplemental Complaint
October 26 Federal Defendants and Defendant-Intervenor each file their answer to the
Supplemental Complaint
October 26 FTA files its Certified List of Administrative Record Contents for the SEIS
claim (“AR4”)
November 9 Plaintiffs notify Federal Defendants and Defendant-Intervenor whether they
believe AR4 is complete or should be supplemented with additional materials
November 16 Federal Defendants respond to Plaintiffs’ notice
November 23 Plaintiffs file any motion challenging the completeness of AR4

-2-
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December 7 Federal Defendants file response to Plaintiffs’ motion challenging the
completeness of AR4
December 14 Plaintiffs’ reply to opposition to motion challenging the completeness of AR4
January 15 Plaintiffs’ opening summary judgment brief due (as established by the current
scheduling order, ECF No. 30)
Please note that the discussion above and in Table 1 regarding inclusion of the
documents, and groups of documents, in the Administrative Records does not address whether
any of these documents may be appropriate for inclusion in FTA’s AR4.

The Agencies do not believe that it is necessary to provide an electronic library for the
parties to share documents from the Administrative Records. The agencies have fulfilled their
obligations under Local Civil Rule 7(n) to file a certified list of the contents of the
Administrative Records and provided Plaintiffs with the records on DVDs. This is standard
practice in record review cases. However, the Maryland Transit Administration (“MTA”)
restored access to the AA/DEIS documents on its website as you requested.

In response to Plaintiffs’ question regarding the travel model data included on DVDs # 5
and 6 of FTA’s AR2 (AR2_219964 and AR2_219965) and listed at page 1061 of the index (ECF
No. 24-2 at 1065), the DVDs contain travel model inputs and outputs used in generating
ridership forecasts for the FEIS. Specifically, the following materials are included on those
discs:

 Inputs necessary to run the travel models for four scenarios: the No Build Alternative in
2030 and 2040, and the Build Alternative in 2030 and 2040.
 Outputs of the travel forecasting model runs for the above four scenarios.
 “Model scripts” that were used to run the applicable portions of the model.
 Software developed by Parsons Brinckerhoff used to compile summaries of results. This
software is not part of the model that produces the forecasts; it only assists in
summarizing the results.

To run the model, it is necessary to purchase a license to run Cube, the commercial
modeling software, which is publicly available from Citilabs (www.citilabs.com). The data on
these discs is identical to the data that was transmitted by MTA to the Town of Chevy Chase in a
letter dated July 30, 2014. A copy of that letter was provided to you in person prior to the status
conference held by the district court on July 15, 2015.

Plaintiffs’ August 25, 2015 letter states that the “data [is] accessible only with software
that is proprietary and available only for rent at a substantial cost,” which is incorrect. The
software is commercially available for purchase as described above, as is the case with other
software used in developing the analysis underlying the ROD. In addition, the data, as distinct
from the software, is not “proprietary” within the meaning of 40 C.F.R. § 1502.21.

-3-
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Please don’t hesitate to contact us if you have any questions or wish to discuss these
issues further.

Sincerely,

s/ Tyler L. Burgess
Tyler L. Burgess
Kevin McArdle
Jeremy Hessler
Trial Attorneys

-4-
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EXHIBIT E

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT )
TRAIL, et al. )
)
)
Plaintiffs, )
)
)
v. ) Civil Case No. 14-01471 (RJL)
)
)
FEDERAL TRANSIT ADMINISTRATION, )
et al. )
)
)
F D
Federal Defendants. ) AUG - 3 2016
)
Clerk, U.S. District & Bankruptcy
) Courts for the District of Columbia
v. )
)
)
· STATE OF MARYLAND, )
)
Defendant-Intervenor. )

MEMOr:l.NDUM OPINION
(August 3 ,2016) [Dkts. ##47, 54, 56]
Plaintiffs Friends of the Capital Crescent Trail ("FCCT"), John MacKnight

Fitzgerald, and Christine Real de Azua ("plaintiffs") challenge the March 19, 2014 Record

of Decision ("ROD") by the Federal Transit Administration ("FTA") and related approvals

by the U.S. Fish and Wildlife Service ("FWS," and together with FTA and the Department

of Transportation and the Department oflnterior, "federal defendants") for the Purple Line

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Project, a 16.2-mile light rail transit project in Montgomery and Prince George's Counties,

Maryland. Plaintiffs raise multiple claims under the National Environmental Policy Act

("NEPA"), 42 U.S.C. § 4321 et seq., the Federal Transit Act, 49 U.S.C. § 5309, Section

4(f) of the Department of Transportation Act, 23 U.S.C. § 138, the Endangered Species

Act, 16 U.S.C. §§ 1531 et seq., and the Migratory Bird Treaty Act, 16 U.S.C. § 703 . See

generally Am. Compl. [Dkt. #20]; First Supp. Compl. [Dkt # 33]; Second Supp. Compl.

[Dkt #42]. Following the filing of the complaint, the State of Maryland joined the federal

defendants as an intervenor-defendant. See Minute Order, July 15, 2015. Currently before

the Court are cross-motions for summary judgment filed by plaintiffs, federal defendants,

and defendant-intervenor. See Pls .' Mot. for Summ. J. [Dkt. #47]; Federal Defs.' Cross-

Mot. for Summ. J. [Dkt. #54] ; Def.-Intervenor's Cross-Mot. for Summ. J. [Dkt. #56]. Upon

consideration of the pleadings, record, and relevant law, I find that the recent revelations

regarding Washington Metropolitan Area Transit Authority's ("WMATA") ridership and

safety concerns merit a supplemental Environmental Impact Statement under NEPA and

reserve judgment as to the remaining issues. Accordingly, plaintiffs' motion for summary

judgment is GRANTED in part, and federal defendants' and defendant-intervenors' cross-

motions for summary judgment are DENIED in part.

STANDARD OF REVIEW

Under Federal Rule of Civil Procedure 56(a), summary judgment is warranted "if

the movant shows that there is no genuine dispute as to any material fact." Fed. R. Civ. P.

56(a). The Court's review "is based on the agency record and limited to determining

whether the agency acted arbitrarily or capriciously." Rempfer v. Sharfstein, 583 F.3d 860,

2

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865 (D.C. Cir. 2009). Whereas "the role of the agency [is] to resolve factual issues," the

sole "function of the district court is to determine whether or not as a matter of law the

evidence in the administrative record permitted the agency to make the decision it did."

Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (internal citation and

quotation marks omitted). The·Court must determine "whether the agency acted within the

scope of its legal authority, ... explained its decision, ... relied [on facts that] have some

basis in the record, and ... considered the relevant factors." Fund for Animals v. Babbitt,

903 F. Supp. 96, 105 (D.D.C. 1995).

ANALYSIS

I. Statutory Background

NEPA requires that federal agencies consider the environmental effects of proposed

actions by requiring them to "carefully consider[] detailed information concerning

significant environmental impacts." Robertson v. Methow Valley Citizens Council, 490

U.S. 332, 349 (1989). Under NEPA, a federal agency must prepare an Environmental

Impact Statement ("EIS") whenever a proposed government action qualifies as a "major

Federal action[] significantly affecting the quality of the human environment." 42 U.S.C.

§ 4332(2)(C). The EIS "shall state how alternatives considered in it and decisions based

on it will or will not achieve the requirements of [NEPA] and other environmental laws

and policies," 40 C.F.R. § 1502.2(d), discuss "[p]ossible conflicts between the proposed

action and the objectives of Federal ... land use plans, policies and controls for the area

concerned," id. § 1502.16(c), and "present the environmental impacts of the proposal and

the alternatives in comparative form, thus sharply defining the issues and providing a clear

3

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basis for choice among options by the decisionmak.er and the public," id. § 1502.14. The

idea is that "[s]uch information may cause the agency to modify its proposed action."

Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1.151 (D.C. Cir.

2001).

Even after preparation of an EIS, an agency is obligated to undertake a supplemental

EIS ("SEIS") when presented with "substantial changes in the proposed action that are

relevant to environmental concerns" or "new and significant circumstances or information

relevant to environmental concerns and bearing on the proposed action or its impacts." 10

C.F.R. § 51.92(a)(l)-(2). "[A]n agency need not supplement an EIS every time new

information comes to light," Marsh v. Oregon Nat. Res. Council, 490 U.S. 360, 373 (1989),

but rather only when "new information provides a seriously different picture of the

environmental landscape,"' Nat'! Comm.for the New River v. FERC, 373 F.3d 1323, 1330

(D.C. Cir. 2004) (citation omitted). Courts review an agency's decision whether to

undertake an SEIS under the arbitrary and capricious standard. City of Olmsted Falls v.

FAA, 292 F.3d 261, 274 (D.C. Cir. 2002).

The scope of review under the "arbitrary and capricious" standard "is narrow," and

"a court is not to substitute its judgment for that of the agency." Motor Vehicle Mfrs. Ass'n

v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 43 (1983). Nevertheless, the agency must

examine the relevant data and articulate a satisfactory explanation for its action including

a "rational connection between the facts found and the choice made." Burlington Truck

Lines v. United States, 371 U.S . 156, 168 (1962). An agency's act~on is arbitrary and

capricious if it "has relied on factors which Congress has not intended it to consider,

4

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entirely failed to consider an important aspect of the problem, offered an explanation for

its decision that runs counter to the evidence before the agency, or is so implausible that it

could not be ascribed to a difference in view or the product of agency expertise." Motor

Vehicle Mfrs. Ass 'n, 463 U.S. at 43.

II. WMATA's Ridership and Safety Concerns Merits an SEIS

Plaintiffs bring various claims against defendants challenging agency actions

involving the Purple Line, but today I will only address plaintiffs' NEPA claim challenging

defendants' failure to prepare an SEIS based on recent events that raise substantial concerns

about WMATA's safety and in turn its possible decline in future ridership. I find that

defendants' failure to adequately consider WMATA' s ridership and safety issues was

arbitrary and capricious, and that these conditions create the "seriously different picture"

that warrant an SEIS.

Plaintiffs submitted a letter on October 9, 2015, requesting that the agencies prepare

an SEIS based on WMATA's recent safety concerns and declines in ridership in the

Metrorail system, which, as a consequence, called the ridership forecasts for the Purple

Line into question. AR5 _ 0064 70-71. Plaintiffs pointed to a "series of incidents that have

raised questions about passenger safety," explained that the National Transportation Safety

Board had found that the "FTA and WMATA's Tri-State Oversight Commission are

incapable of restoring and ensuring the safety of WMATA's subway system," and

emphasized how these developments directly undermined the rationale for the Purple Line,

providing that:

[R]idership on the WMATA subway has declined every year since

5

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2009. That is the year after the [draft Environmental Impact
Statement] last reviewed ridership projections for the Purple Line and
alternatives to it. . . . The news of [declining Metrorail ridership] ...
casts a[n] additional shadow over the rosy projections of ever-
increasing ridership for the Purple Line, which is inextricably linked
to and dependent upon the use of several subway stops from beginning
to end.

Id. (footnotes omitted). Amazingly, the response from the Maryland Transit Authority

("MTA") consisted solely of the following:

As described in the [final Environmental Impact Statement], the
Purple Line is not part of the WMATA's Metrorail system. The
Purple Line would be owned by MTA and operated by MTA's
contractor. Therefore, the financial or other issues currently being
experienced by WMATA do not involve the Purple Line, and they
have no relationship to the environmental impacts of the Purple Line.
Therefore, the WMATA-related issues cited in FCCT's letter provide
no basis for preparing an SEIS.

AR5 _ 000009. Curiously, this bare bones explanation was subsequently adopted by the

FTA, notwithstanding the fact that the Purple Line project is dependent on a future federal

grant of nearly a billion dollars. June 15, 2016 Oral Arg. Tr.at 21:25-22:4, 50:7-9

[Dkt. #95]. In a memorandum dated January 7, 2016, the FTA stated, in relevant part, that

it concurred with MTA's recommendation that no supplemental documentation was

required under NEPA. AR5 _ 000003. FTA simply reiterated MTA's response that "actions

and any potential issues related to WMATA, which is not the project sponsor for the Purple

Line, do not affect FTA's NEPA findings." AR5_000004.

"In making the factual inquiry concerning whether an agency decision was

'arbitrary or capricious,' the reviewing court 'must consider whether the decision was

based on a consideration of the relevant factors and whether there has been a clear error of

6

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judgment.'" Marsh, 490 U.S. at 378 (quoting Citizens to Preserve Overton Park, Inc. v.

Volpe, 401 U.S. 402, 416 (1971 )). "[I]n the context of reviewing a decision not to

supplement an EIS," as here, courts must "carefully review[] the record and satisfy[]

themselves that the agency has made a reasoned decision based on its evaluation of the

significance-or lack of significance-of the new information." Marsh, 490 U.S. at 3 78.

Here, defendants wholly failed to evaluate the significance of the documented safety issues

and decline in WMA TA ridership, skirting the issue entirely on the basis that the Purple

Line is not part of WMAT A. While it is true that WMA TA is a distinct entity from MT A,

which would own and operate the Purple Line, AR5 _ 000009, this does not provide a

rational basis for defendants' summary conclusion that a decline in ridership thereon has

no effect on the Purple Line, given that the previous projections estimated over one quarter

of Purple Line riders would use the WMA TA Metrorail as part of their trip. See

1
AR1 _001973-74. Nor can I turn a blind eye to the recent extraordinary events involving

seemingly endless Metrorail breakdowns and safety issues. See ARS _ 0064 70-71 & nn. 2-

4 (citing public reports and media accounts discussing WMA TA' s safety issues and

ridership decline). 2 These serious issues, which may have long-term effects on Metro

1
See Paul Duggan , Metro acknowledges breakdowns might be adding to a ridership decline Wash. Post
(Oct. 6, 2015) https://www.'!l'.fi. hingtonpo t.com/I ca l/1raJricandconl[nutiug/melro-say - ubway-:
brcak.Q.ov ns-might-be-adding-to-a-steady-ridcr. hi p-decline/2015/ I0/06/4l?..959716-6c35-1 1e5-bJ Ic-
.f18Qtl_0.;,h~J e2 8_,~t<2D' Atrnl
(cited at AR5_006470 n 2.).
2
Furthermore, these safety issues show no signs of abating in the near future. See, e.g., Press Release,
WMA TA, Orange and Silver line service impacts to continue Saturday following derailment (July 29,
2016), http://www.wmato.com/about metro/news/Press Rclea seDcta i l.cfm ? Re lease·l 0 =6143;
Press Release, WMATA, Metro releases preliminary findings of investigation into Saturday smoke incident
outside Friendship Heights (April 25, 2016),
http://www.wmata.com/a bout metro/ne\vs/Press Rclea eDeta il.cfm'?ReleasclD= 6096; Press Release,
WMA TA, All Metro rail service will be suspended Wednesday, March 16, for emergency inspections
(March 15, 2016), htip;l/w\Y..lY~iYlllatL~onVab__s~!~t_m~t. rol:news/f>.r~~~B.~J.~Be D etai l.cfrn?~. leaseJ_Q=6Q~Z;

7

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ridership, only underscore how important it was for defendants to take the requisite hard

look at the potential effect of Metro's safety issues on future Purple Line ridership and any

related environmental issues. See, e.g., Sabine River Auth. v. US. Dep 't of Interior, 951

F..2d 669, 678 (5th Cir.1992) (citation omitted) (court must look outside the administrative

record to determine whether the agency adequately considered the environmental effects

of a particular project). At a minimum, WMATA and the FTA's cavalier attitude toward

these recent developments raises troubling concerns about their competence as stewards of

nearly a billion dollars of the federal taxpayers' funds.

III. Remedy

The Administrative Procedure Act governs remedies for NEPA violations and

provides that a reviewing court shall "hold unlawful and set aside agency action, findings,

and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise

not in accordance with law." 5 U.S.C. § 706(2); see Citizens to Preserve Overton Park,

Inc., 401 U.S. at 413 ("In all cases agency action must be set aside if the action was

'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law' or

if the action failed to meet statutory, procedural, or constitutional requirements.").

"Pursuant to the case law in this Circuit, vacating a rule or action promulgated in violation

of NEPA is the standard remedy." Humane Soc'y of US. v. Johanns, 520 F. Supp. 2d. 8,

37 (D.D.C. 2007). The decision whether to vacate depends on "the seriousness of the

order's deficiencies" and "the disruptive consequences of an interim change .... " Allied-

Press Release, WMA TA, Orange and Silver line return to 6-minute rush hour service for first time since
Stadium-Armory substation fire (Dec. 30, 2015),
!.illn://www. wmata.co rn/about m etro/n ewslEL~fili.F. el easeDetail . cfm'?Re l easelD=6022 .

8

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Signal, Inc. v. US. Nuclear Regulatory Comm 'n, 988 F.2d 146, 150-51 (D.C. Cir. 1993).

Here, defendants failed to engage in the requisite supplemental analysis with respect to

important recent information that calls into question, at a minimum, whether nearly a

billion dollars in federal funding should ultimately be committed to a project for which

serious questions have been raised as to its future viability. While a temporary halt in the

project is not ideal, it would make little sense and cause even more disruption if defendants

were to proceed with the project while the SEIS was being completed, only to subsequently

determine that another alternative is preferable. Accordingly, it is hereby ordered that the

Record of Decision be vacated and remanded to the defendants for the preparation of an

SEIS as expeditiously as possible, and consistent with NEPA's requirements. Common

sense requires no less.

CONCLUSION

For the foregoing reasons, plaintiffs' motion for summary judgment is GRANTED

in part, and federal defendants' and defendant-intervenors' cross-motions for summary

judgment are DENIED in part. An order consistent with this decision accompanies this

Memorandum Opinion.

United States District Judge

9

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EXHIBIT F

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT )
TRAIL, et al. )
)
Plaintiffs, )
)
v. ) Civil Case No. 14-01471 (RJL)
)
FEDERAL TRANSIT ADMINISTRATION, )
et al. )
) FILED
Federal Defendants. )
) NOV 2 2\ 2016
v. ) Clerk, U.S. District & Bankruptcy
) Courts for the District of Columbfa
STATE OF MARYLAND, )
)
Defendant-Intervenor. )

0~
(November~ 16) [Dkts. ## 98, 99]

For the reasons set forth in the Memorandum Opinion accompanying this Order,

federal defendants' Motion to Alter or to Amend the Court's Judgment [Dkt. # 99] and

defendant-intervenor Maryland's Motion to Alter or to Amend the Court's Judgment

[Dkt. # 98] are GRANTED IN PART and DENIED IN PART. It is hereby ORDERED

1. That the Federal Transit Administration ("FTA") shall conduct an assessment as

expeditiously as possible, in accordance with its regulations, as to whether recent

Washington Metropolitan Area Transit Authority ("WMATA") Metrorail safety

and ridership issues require a supplemental EIS ("SEIS") for the Purple Line. Upon

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completion, the FTA shall submit the assessment to the Court with a determination

as to whether the WMATA Metrorail safety and ridership issues require an SEIS.

2. If the FTA determines that an SEIS is required, the FTA shall file a notice with the

Court announcing that an SEIS will be prepared, and shall provide an estimate of

how long it will take to complete the SEIS.

3. If the FTA determines that an SEIS is not required, the following supplemental

briefing schedule shall be established:

a. Together with the filing of the assessment and determination, or within seven

days thereafter, federal defendants and defendant-intervenor will file renewed

motions for summary judgment on the limited issue of whether the WMA TA

Metrorail safety and ridership issues require an SEIS for the Purple Line.

Federal defendants' and defendant-intervenor's supporting memoranda shall

not exceed 15 pages each;

b. Fourteen days after federal defendants and defendant-intervenor file their

renewed motions, plaintiffs shall file their opposition. Plaintiffs' supporting

memorandum shall not exceed 20 pages; and

c. Seven days after plaintiffs file their opposition, federal defendants and

defendant-intervenor shall file their replies. Federal defendants' and

defendant-intervenor's supporting memoranda shall not exceed 10 pages each.

SO ORDERED.

2

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EXHIBIT G

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT *
TRAIL, et al.,
*

Plaintiffs, *

v. *

FEDERAL TRANSIT ADMINISTRATION, * Civil Case No. 14-01471 (RJL)
et al.,
Defendants, * Hon. Richard J. Leon

and *

The STATE OF MARYLAND, *

Defendant – Intervenor. *

* * * * * * * * *

STATE OF MARYLAND’S MOTION FOR EXPEDITIOUS RULING ON PENDING
SUMMARY JUDGMENT MOTIONS

The State of Maryland (the “State”), Defendant-Intervenor in this case, respectfully

moves this Court to enter a final judgment on resolving the pending summary judgment

motions (ECF # 46, 55, 56, 115, 116) as expeditiously as possible, but no later than April 28,

2017. In the alternative, the State requests that the Court vacate that portion of its August 3,

2016 Order (ECF # 96) vacating the Record of Decision pending a final decision on the merits of

the complaints. In support of this motion, the State submits the accompanying

Memorandum In Support Of Motion for Expeditious Ruling on Pending Summary Judgment

Motions.

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WHEREFORE, the State requests that the Court issue a final decision as expeditiously as

possible, but no later than April 28, 2017, or vacate the portion of its August 3, 2016 Order (ECF

# 96) vacating the Record of Decision for the project.

Dated: March 31, 2017 Respectfully Submitted,

BRIAN E. FROSH
Attorney General of Maryland

/s/Linda M. Strozyk DeVuono
LINDA M. STROZYK DeVUONO (Bar No.
429514)
Assistant Attorney General 100 Charles Street,
Tower II, Suite 700
Baltimore, Maryland 21202
(410) 451-3722
Email: ldevuono@sha.state.md.us

ALBERT M. FERLO, JR. (Bar No. 290395)
PERKINS COIE LLP
700 13th Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: 202.654.6262
Fax: 202.654.6211
Email: aferlo@perkinscoie.com

Attorneys for Defendant-Intervenor

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT *
TRAIL, et al.,
*

Plaintiffs, *

v. *

FEDERAL TRANSIT ADMINISTRATION, * Civil Case No. 14-01471 (RJL)
et al.,
Defendants, * Hon. Richard J. Leon

and *

The STATE OF MARYLAND, *

Defendant – Intervenor. *

* * * * * * * * *

STATE OF MARYLAND’S MEMORANDUM IN SUPPORT OF MOTION FOR
EXPEDITIOUS RULING ON PENDING SUMMARY JUDGMENT MOTIONS

The State of Maryland, Defendant-Intervenor in this case, respectfully requests that this

Court enter a final judgment resolving the pending summary judgment motions (ECF #s 47, 55,

56, 115, 116) as expeditiously as possible, but no later than April 28, 2017. In the alternative,

the State requests that the Court vacate that portion of its August 3, 2016 Order (ECF #96) that

vacated the Record of Decision pending a final decision on the merits of the complaints. The

State has conferred with the Federal Defendants and Plaintiffs prior to filing this motion. Federal

Defendants have not yet provided a response on its position. Plaintiffs state that they reserve the

right to file a response.

1
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In making this request, the State relies on the legal arguments made previously in support

of the Defendants’ motions for summary judgment. The public interest lies in achieving a

definitive resolution of the legal issues raised in this case as promptly as possible, so that the

outcome of the case can be decided on the merits – rather than having the outcome determined

by default, as continued uncertainty and delay risks threaten the financial viability of the Purple

Line project.

I. Procedural Background

A. Pending Cross-Motions For Summary Judgment

The parties filed cross-motions for summary judgment (ECF #s 47, 55, 56) addressing all

of the issues raised in Plaintiffs’ amended and supplemental complaints. (ECF #s 20, 33, 42).

The cross-motions were fully briefed as of May 24, 2016 and oral argument was held on June 15,

2016. Supplemental briefs invited by the Court after oral argument were filed by all parties

on June 29, 2016. (ECF #s 92, 93, and 94.) In its Order of August 3, 2016, the Court found that

a Supplemental Environmental Impact Statement (“SEIS”) was needed to address recent safety

and ridership issues involving the region’s Metrorail system, and therefore vacated the Federal

Transit Administration’s (“FTA’s”) March 19, 2014 Record of Decision (“ROD”) approving the

project. (ECF # 96.) The Court expressly reserved judgment on all remaining issues in the case.

As of the date of this filing, it has been over three years since the FTA ROD was issued, over

two-and-a-half years since Plaintiffs commenced this action, and over nine months since the

completion of all briefing on the Cross Motions for Summary Judgment.

B. Pending Renewed Motions Summary Judgment On SEIS Issue

After the Court’s August 3, 2016 ruling, Defendants filed motions to alter or amend the

judgment to allow the Federal Defendants to consider new information regarding Metrorail

2
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safety and ridership issues and determine whether, in fact, it meets the legal standard requiring

preparation of an SEIS. (ECF #s 98, 99.) Defendants also proposed a schedule for separate

briefing on that decision, if the Federal Defendant determined that an SEIS was not needed. Id.

In addition, Defendants moved the Court to reinstate the ROD while FTA completed its

additional analysis of the Metrorail issues. Id. On November 22, 2016, the Court granted

Defendants’ motions in part and issued an order that set a schedule under which Defendants were

allowed to submit renewed motions for summary judgment on whether an SEIS was needed to

address the Metrorail safety and ridership issues. (ECF # 109, 110.) The Court denied

Defendants’ request to reinstate the ROD. Id.

On December 16, 2016, the Federal Defendants filed a notice with the Court of the

FTA’s determination that the Metrorail safety and ridership issues did not require an SEIS under

applicable legal standards. (ECF # 113.) On the same date, in accordance with the Court’s

November 22, 2016 order, the Defendants filed the administrative record supporting FTA’s

determination, and the Federal and State Defendants each filed renewed motions for summary

judgment urging the Court to uphold FTA’s determination. (ECF #s 114, 115, 116.) Briefing on

these renewed summary judgment motions was completed on January 13, 2017. (ECF # 120,

121.)

II. Argument

The State makes this request for an expeditious ruling on all pending summary judgment

motions for a simple reason: the fate of the Purple Line hangs in the balance, and should be

determined on the merits. The increasing delay risks caused by this litigation – and the

uncertainty about how long it will take for the remaining issues to be decided – has had far-

reaching and potentially devastating effects on the financing and contractual arrangements for

3
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the Purple Line. Federal Rule of Civil Procedure 1 directs the Court and parties to seek the “just,

speedy and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. The

Supreme Court has stressed that the “just speedy and inexpensive resolution of disputes” is the

“paramount command” of Rule 1. Dietz v. Bouldin, 136 S. Ct. 1885, 1891 (2016).

The potential effects of an extended delay have previously been presented in two

declarations of Charles Lattuca (ECF #s 98-1, 116-2). As set forth in the Lattuca declarations,

the State’s project management consultants have estimated that the State will incur delay costs of

approximately $13 million per month if the ROD is not reinstated – resulting in total delay costs

in excess of $150 million if the project is delayed for a full year. (ECF # 116-2 at 3). Further, an

extended delay of the project could give the State’s private partner – under the terms of the

Public-Private Partnership Agreement (“P3 Agreement”) – the legal right to terminate the

agreement, potentially requiring the State (if required conditions are met) to pay termination

costs, which could exceed $100 million. Id. at 2-4. And if the project were cancelled as a result

of increased costs and/or termination of the P3 Agreement, the State would lose its entire

investment to date in the project, which is over $400 million. Altogether, the costs of project

termination were estimated at $650 million. Id. at 4-5.

As provided in the P3 Agreement, the State is working with its private partner to

minimize and mitigate the schedule and costs impacts of project delay risks that have resulted

from this litigation. Although the precise allocation of costs between the State and its private

partner has not been determined, with each passing month, the delay risks increase, and the risk

of project cancellation increases as well.

In vacating the FTA’s ROD, the Court sought to ensure that FTA considered new

information regarding Metrorail safety and ridership issues before executing the Full Funding

4
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Grant Agreement, which would commit $900 million in federal funding to the project. 1 In

effect, the ROD was vacated to preserve the status quo while additional NEPA analysis was

conducted. (ECF # 96 at 9; ECF # 109, at 10-11.) That purpose has been achieved: FTA has

considered Metrorail safety and ridership information, and has documented its determination that

the new information does not meet the legal standard for requiring an SEIS. But as this case

remains pending without any resolution, the continued vacatur of the ROD is putting the

fundamental viability of the Purple Line at risk, and could have the practical effect of killing the

Purple Line project.

In short, if the Court does not resolve the motions for summary judgment in the near

future, or vacate that portion of the August 3 Order that vacated the ROD, the fate of the project

could be decided without regard to the merits. Resolving the remaining issues in this case

promptly will provide certainty to all parties and best serve the public interest.

III. Conclusion

The State respectfully requests that the Court issue a final decision as expeditiously as

possible, but no later than April 28, 2017, on all pending dispositive motions in this case,

including the parties’ cross-motions for summary judgment (ECF #s 47, 55, 56) and the

Defendants’ renewed motions for summary judgement (ECF #s 115, 116). In the alternative, the

State requests that the Court vacate that portion of its August 3, 2016 Order (ECF # 96) that

vacated the ROD for the project.

1
At the time of the Court’s August 3, 2016 Order, the Full Funding Grant Agreement (“FFGA”)
had completed the required 60-day review by Congress and the FTA had announced its intention
to sign the FFGA on August 8, 2016.

5
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Dated: March 31, 2016 Respectfully submitted,

BRIAN E. FROSH
Attorney General of Maryland

/s/ Linda M. Strozyk DeVuono
LINDA M. STROZYK DeVUONO (Bar No.
429514)
Assistant Attorney General
100 Charles Street, Tower II, Suite 700
Baltimore, MD 21201
(410) 451-3722
Email: ldevuono@sha.state.md.us

ALBERT M. FERLO (Bar No. 290395)
PERKINS COIE LLP
AFerlo@perkinscoie.com
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: 202.654.6262
Facsimile: 202.654.6211
Email: aferlo@perkinscoie.com

Attorneys for Defendant-Intervenor

6
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CERTIFICATE OF SERVICE

I hereby certify that on March 31, 2017, a copy of the foregoing document was served via the
CM/ECF system on the following counsel of record.

David Brown
Knopf & Brown
brown@knopf-brown.com

Kevin W. McArdle
U.S. Department of Justice
Keven.mcardle@usdoj.gov

Jeremy Hessler
U.S. Department of Justice
Jeremy.hessler@usdoj.gov

Tyler L. Burgess
U.S. Department of Justice
Tyler.burgess@usdoj.gov

John M. Fitzgerald
4502 Elm Street
Chevy Chase, MD 20815
johnmfitzgerald@earthlink.net

1
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DRAFT -- 3/30/2017 -- PRIVILEGED AND CONFIDENTIAL
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT *
TRAIL, et al.,
*

Plaintiffs, *

v. *

FEDERAL TRANSIT ADMINISTRATION, * Civil Case No. 14-01471 (RJL)
et al.,
Defendants, * Hon. Richard J. Leon

and *

The STATE OF MARYLAND, *

Defendant – Intervenor. *

* * * * * * * * *
[Proposed] Order Granting Defendant-Intervenor’s Motion for Expeditious Ruling on

Pending Summary Judgment Motions

THIS MATTER having come before the Court on the Defendant-Intervenor’s Motion for

Expedited Ruling, and this Court having reviewed the motion and supporting memorandum and

being fully advised in the premises:

IT IS HEREBY ORDERED that Defendant-Intervenor’s Motion for Expeditious Ruling

on Pending Summary Judgment Motions is GRANTED.

ENTERED this day of , 2017.

BY THE COURT:

HON. RICHARD J. LEON
United States District Judge

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EXHIBIT H

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT *
TRAIL, et al.,
*

Plaintiffs, *

v. *

FEDERAL TRANSIT ADMINISTRATION, * Civil Case No. 14-01471 (RJL)
et al.,
Defendants, * Hon. Richard J. Leon

and *

The STATE OF MARYLAND, *

Defendant – Intervenor. *

* * * * * * * * *

STATE OF MARYLAND’S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR
EXPEDITIOUS RULING ON PENDING SUMMARY JUDGMENT MOTIONS

The premise of the State of Maryland’s (“State”) Motion For Expeditious Ruling is that

the passage of time has changed the status quo in this case. With no decision from the Court on

the Federal Transit Administration’s (“FTA”) determination not to prepare a Supplemental

Environmental Impact Statement (“SEIS”), and no decision on the remaining issues addressed in

the long-completed summary judgment motions, the mere passage of time may create the

outcome that Plaintiffs clearly seek - abandonment of the Purple Line project (the “Project”). It

would be an injustice to the people of the State and to the FTA not to have a decision on the

merits of Plaintiffs’ claims regarding the August 2013 Final Environmental Impact Statement

1
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and the March 2014 Record of Decision (“ROD”) in a timeframe that will not cause grave harm

to the Project. The State submitted this Motion to the Court to assure that the Court was

informed as to the effect of the prospective passage of time.

When the Court issued its August 3, 2016 Order vacating the ROD approving the Project,

it did so intending to preserve the status quo. As stated in the Court’s August 3 Memorandum, a

“temporary halt in the project…” would allow the FTA to “engage in the requisite supplemental

analysis” with respect to impacts of safety and ridership issues being experienced by the

Washington Metro on the viability of the Purple Line. The Court recognized that speed was of

the essence in reaching a resolution of the issues, stating that the State should prepare the

analysis “as expeditiously as possible….” Memorandum Order at 9. Contrary to Plaintiffs’

implications, the Defendants began the “requisite supplemental analysis” immediately. The

analysis has been prepared, and FTA has issued a decision on the analysis and submitted that

analysis and decision to the Court. All issues are ripe for a decision.

When Plaintiffs filed this case in 2014, they failed to seek any preliminary injunctive

relief. Even when it became clear that the FTA and the State were about to sign the Full Funding

Grant Agreement (“FFGA”), Plaintiffs did not seek any form of preliminary injunctive relief. As

this Court noted in its August 3 Order, it chose to issue a decision that addressed the single flaw

it had identified in FTA’s analysis and vacate the ROD, so that the FTA would not be able to

issue the FFGA. By doing this, the Court prevented the State from proceeding with construction

of the project. The Court clearly determined that a short delay would preserve the status quo.

The State takes the unusual step of filing this motion to inform the Court that further delay goes

beyond monetary delay damages and puts the entire project at risk. Without an expeditious

decision, there will be no justice on the merits.

2
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The mere passage of time causes grave harm to the State, Montgomery County, Prince

George’s County, and the businesses and citizens who are relying on the Project to create jobs

and to improve access to public and commercial facilities and neighborhoods. The loss of the

Project would be monumental, as are the potential monetary damages. As previously established

in the declarations filed by Charles Lattuca (ECF 98-3 and 116-2), each month of delay could

result in an estimated $13 million in additional cost. Also, as previously discussed, further delay

puts at risk the $400 million that the State has already invested in making this vital public transit

project a reality. In addition, termination of the Project could result in additional termination

costs and delay damages, resulting in a total cost in the range of $650 million. ECF 116-2 at 15.

Given the decades of study, broad public support, and the importance of the Project to the local

communities (see the amicus briefs and supporting declarations filed by Prince George’s County

- ECF 111 and Montgomery County - ECF 112), cancellation of the Project as a result of

litigation delays would cause severe prejudice to the interests of the public.

It is clearly in the public interest to reach a decision on the legal issues as “expeditiously

as possible.” Nothing in Plaintiffs’ response to the State’s motion provides a reason for the

Court to delay its decision. Contrary to Plaintiffs’ assertion, the State does not dispute that the

Court has the inherent power to control its docket. Plaintiffs are correct that the State is

confident that the FEIS and the additional analysis of the Metro rail issues are sufficient under

applicable law and that once the Court has an opportunity to review the full merits of the case, it

will rule in the State’s favor. However, even should the Court find a flaw in the process, it is in

the public interest for the Court to issue an expeditious final decision on the merits of the claims

raised in this case so that the State can take whatever further steps it deems necessary in its

efforts to pursue and implement this vital transportation project. If the Court’s docket does not

3
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permit an expeditious review of the now completed supplemental analysis, which was the basis

for vacation of the ROD, the preservation of the status quo dictates that the ROD be reinstated

while this litigation remains pending.

Conclusion

The State respectfully requests that the Court issue a final decision as expeditiously as

possible, but no later than April 28, 2017, on all pending dispositive motions in this case,

including the parties’ cross-motions for summary judgment (ECF 47, 55, 56) and the

Defendants’ renewed motions for summary judgement (ECF 115, 116). In the alternative, the

State requests that the Court vacate that portion of its August 3, 2016 Order (ECF 96) that

vacated the ROD for the Project.

4
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Dated: April 10, 2017 Respectfully submitted,

BRIAN E. FROSH
Attorney General of Maryland

/s/ Linda M. Strozyk DeVuono
LINDA M. STROZYK DeVUONO (Bar No.
429514)
Assistant Attorney General
100 Charles Street, Tower II, Suite 700
Baltimore, MD 21201
(410) 451-3722
Email: ldevuono@sha.state.md.us

ALBERT M. FERLO (Bar No. 290395)
PERKINS COIE LLP
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: 202.654.6262
Facsimile: 202.654.6211
Email: aferlo@perkinscoie.com

Attorneys for Defendant-Intervenor

5
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CERTIFICATE OF SERVICE

I hereby certify that on April 10, 2017, a copy of the foregoing document was served via the
CM/ECF system on the following counsel of record.

David Brown
Knopf & Brown
brown@knopf-brown.com

Kevin W. McArdle
U.S. Department of Justice
Keven.mcardle@usdoj.gov

Jeremy Hessler
U.S. Department of Justice
Jeremy.hessler@usdoj.gov

Tyler L. Burgess
U.S. Department of Justice
Tyler.burgess@usdoj.gov

John M. Fitzgerald
4502 Elm Street
Chevy Chase, MD 20815
johnmfitzgerald@earthlink.net

1
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EXHIBIT I

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Exhibit 2

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DECLARATION OF CHARLES LATTUCA

My name is Charles Lattuca, and I have first-hand experience with, and personal

knowledge of, the facts and matters discussed in this declaration.

STATEMENT

1. I am currently the Executive Director of the Office of Transit Development and

Delivery ("TDD") of the Maryland Transit Administration ("MTA"). As Executive Director, I

oversee the team responsible for delivering MTA's program of major capital projects, including

the Purple Line transit project ("Purple Line").

MT A's Role

2. MTA is an agency of the State of Maryland (the "State"); MTA is a unit of the

Maryland Department of Transportation ("MDOT").

3. MTA is responsible for the development, administration and operation of transit

services throughout the State. In all, MTA provides more than 112 million trips per year.

Services operated by MTA include the Maryland Area Regional Commuter ("MARC") train, as

well as the light rail transit system, subway system, and local bus system in the Baltimore area.

4. The Washington Metropolitan Area Transportation Authority ("WMATA") is a

regional body, wholly separate from MTA, that operates the Metrorail subway system in the

Washington, DC, metropolitan area, as well as a regional bus system, known as Metrobus.

5. MTA's transit services, by design, intersect with each other as well as with

WMATA's Metrorail and Metrobus systems and with other transportation systems, including

county-operated bus services and intercity passenger rail service operated by Amtrak.

6. While MTA and WMATA's service areas overlap, MTA and WMATA are

independent entities.

1

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The Purple Line

7. The Purple Line is a light rail transit project that connects several major activity

centers in Maryland, including Bethesda, Silver Spring, Takoma/Langley Park, College Park

(and the University of Maryland), and New Carrollton. The general location of this project is

referred to as the "Purple Line corridor."

8. The Purple Line serves vital interests of the State because of the project's role in

improving public transportation access in an area with high demand for public transit and

because of its role in supporting the duly adopted land use plans of the jurisdictions in which it is

located, Montgomery County and Prince George's County ("the Counties"). Several factors

illustrate the importance of this project to the State, the Counties, and the public at large:

a) The Purple Line corridor has been and remains marked by high transit usage and

contains a large number of residents who do not own a vehicle. With 181,395

jobs in the corridor and 247,024 residents, there is strong ridership demand.

b) Montgomery County and Prince George's County have emerged as significant

employment centers in their own right. Between 2010 and 2040, employment is

projected to grow by 43 percent in Montgomery County and 32 percent in Prince

Georges County.

c) East-west bus transit service is available (from multiple operators) in the Purple

Line corridor, but it is often slow and unreliable because it operates on an

increasingly congested roadway network.

d) The Purple Line leverages existing public transportation services by improving

the connections among them. In addition to its four connections to the Metrorail

2

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system, the Purple Line connects to dozens of!ocal and regional bus routes, two

MARC commuter rail stations, and an Amtrak intercity rail station.

e) The Purple Line is a key element of the economic development and land use plans

of Montgomery County and Prince George's County. In the case of Montgomery

County, the Purple Line has been included in some form in the County's land use

plans for more than thirty years.

f) The Purple Line connects downtown Bethesda and downtown Silver Spring - the

Counties' largest employment centers - with a 9-minute train ride, far faster than

bus service on the region's increasingly congested roads.

g) The Purple Line includes three transit stations serving the University of Maryland

College Park campus, including one in the center of the campus, greatly

improving transit service for the University's 37,000 students and 13,000

employees.

9. The Purple Line was exhaustively analyzed by the Federal Transit Administration

("FTA") and other federal, state, and local agencies in an enviromnental review process that

lasted more than a decade. FTA issued its final enviromnental impact statement ("Final EIS")

for the Purple Line in August 2013 and issued a Record of Decision ("ROD") approving the

project on March 19, 2014.

10. The Purple Line also has been exhaustively analyzed by FTA through its New

Starts grant application process, which requires FTA to evaluate and rate projects based on

statutorily defined criteria for "project justification" and "local financial commitment" and to

assign each project an "overall" rating based on the ratings for project justification and local

3

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financial commitment. A project must receive at least a "Medium" overall rating to receive New

Starts funding.

11. In a 2016 report, FTA assigned the Purple Line an overall rating of "Medium-

High" based on ratings of"Medium-High" for both "project justification" and "local financial

commitment." The report identified $900 million as the proposed New Starts grant amount and a

total $ 2,448.22 million as the project cost. (FTA, "Annual Report on Funding

Recommendations, Fiscal Year 2017, Capital Investment Grant Program," Tables 1and2A).

12. On June 13, 2016, the FTA New Starts Team submitted a memorandum to the

FTA Acting Administrator and other senior FTA officials recommending approval of the Full

Funding Grant Agreement ("FFGA") for the Purple Line. The memorandum reported that the

Purple Line's overall rating is now "High" based on a rating of"Medium-High" for "project

justification" and "High" for "local financial commitment" and reported that the project cost

estimate is now $2,407,030,296.

13. The final step in the New Starts application process is the execution of the FFGA,

which can be signed only after a 30-day review period by Congress. FTA submitted the FFGA

for the Purple Line to Congress for review on July 6, 2016 for the required 30-day review. The

30-day period was completed without objection.

14. The execution of the FFGA was scheduled for August 8, 2016, but was postponed

after this Court's Order of August 3, 2016.

15. Since the initiation of the environmental review process in 2003, MTA has

expended more than $270 million on environmental, engineering, right of way acquisition,

project management, procurement, public outreach, mobilization, insurance, and other services

and activities in support of the development of the Purple Line.

4

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The Public Private Partnership Agreement

16. Title 1OA of the State Finance and Procurement Article of the Annotated Code of

Maryland ("Title 1OA'') authorizes State agencies to enter into public-private partnership ("P3")

agreements as an innovative way to finance critical transportation projects that may not

otherwise be affordable.

17. In general, a P3 agreement under Title 1OA grants a concession to a private-sector

partner to perform certain functions normally undertaken by the govermnent, with the State

remaining the owner of, and ultimately accountable for, the public infrastructure asset and its

public function.

18. Pursuant to Title 1OA, the State conducted a procurement process to select a

private partner to finance, develop, design, construct, and supply light rail vehicles for the Purple

Line and to operate and maintain the Purple Line for a period of 30 years after operations begin.

The procurement formally commenced with issuance of the Request for Qualifications on

November 8, 2013.

19. Through the procurement process, MTA selected Purple Line Transit Partners

LLC ("PL TP") as its private-sector partner for the Purple Line project and negotiated a detailed

P3 agreement with PL TP ("P3 Agreement"). With the Governor's support, the contract was

presented to the State's Board of Public Works ("BPW"); the BPW consists of three statewide

elected officials: the Governor, Treasurer, and Comptroller. On April 6, 2016, the BPW

unanimously approved the P3 Agreement. The parties executed the P3 Agreement on April 7,

2016.

20. The term of the P3 Agreement is approximately 36 years, consisting of a design-

build period of approximately six years followed by an operations and maintenance period of 30

5

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years. At the end of the contract term of the P3 Agreement, PLTP is required to return the

Purple Line to the State in a state of good repair.

21. As is typical in this type of procurement, the State paid a stipend to each of the

four finalist proposal teams (including PLTP), partially offsetting the amount expended by each

team in developing its proposal. The amount of the stipend for each team was $2.5 million.

22. Following execution of the P3 Agreement, PLTP entered into separate design-

build contracts and operations-and-maintenance contracts with contractors, as is customary in P3

transactions. In addition, PLTP entered into a contract with a rail car manufacturer for the

supply oflight-rail vehicles for the Purple Line. PLTP also entered into debt and related

financing arrangements to perform its financing obligation under the P3 Agreement, discussed in

greater detail below. PLTP's plan of finance for the Purple Line also assumes the availability of

the $900 million grant under FTA's New Starts program.

23. The P3 Agreement provides considerable certainty for the State in terms of

financial payments and risk. Following completion of construction, the State pays PLTP a

specified amount per year on average for the next 30 years. The State maintains oversight of the

project throughout the life of the P3 Agreement and may deduct amounts from its payments to

PLTP if PLTP does not meet performance standards for operating and maintaining the Purple

Line as defined in the P3 Agreement. This defined payment schedule greatly helps the State

with budgeting and plarming for other capital projects.

24. On June 17, 2016, the State and PL TP completed the financing of the Purple Line,

with PLTP entering into the various debt and financing-related agreements with bond-holders

and lenders, including a loan by the federal "Transportation Infrastructure Finance and

Innovation Act" (or "TIFIA") office within the U.S. Department of Transportation.

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25. The P3 Agreement gives PLTP the right to additional compensation ifa "Relief

Event" occurs and gives PL TP certain rights to terminate the P3 Agreement if an "Extended

Delay" occurs. Relief Events and Extended Delays as defined in the P3 Agreement encompass

delays due to the inability to proceed with work as the result of a court order.

26. If termination occurs due to an Extended Delay, in accordance with the P3

Agreement, the State would have the obligation to make a significant termination payment to

PLTP, reimbursing PLTP for costs incurred in performance of the agreement, including costs

relating to the financing obtained by PLTP that would otherwise have been spread over the 30-

year operating term.

27. In addition to the Purple Line, PLTP's responsibilities under the P3 Agreement

include construction of certain projects funded by the Counties ("County-Funded Projects").

The County-Funded projects include: the construction of a new Bethesda Station South Entrance

to the existing underground Metrorail system; the construction of a permanent Capital Crescent

Trail from Bethesda to Silver Spring and the Silver Spring Green Trail; and the replacement of

the deteriorating Lyttonsville Bridge (located just east of Brookville Road near Silver Spring).

Except for the Capital Crescent Trail, the County-Funded Projects are not part of the Purple Line

as approved in the ROD; they are independent of the Purple Line but are being built under the

same contract for reasons of efficiency and cost savings.

Project Schedule Under P3 Agreement

28. Under the P3 Agreement, PLTP developed an initial project schedule over the

course of a year during the proposal development period and has spent significant resources

further defining the schedule over the past four months.

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29. The project schedule is extremely complex, with almost 6,000 discrete activities

that must be coordinated and sequenced over the approximately six-year design and construction

period.

30. The development of the schedule takes into account thousands of factors to

develop an efficient and cost-effective plan to complete the Purple Line and the County-Funded

Projects. Constraints that affect the timing of construction activities include, among others:

noise restrictions, time-of-year and seasonal restrictions, environmental and wildlife-protection

restrictions, permitting requirements, public commitments, public school year schedules,

logistical considerations, availability of equipment, and availability of labor resources. In

addition, many tasks are interdependent; that is, one task will need to be completed before

another task can begin.

31. The project schedule has been carefully crafted to satisfy all applicable constraints

and interdependencies, to maximize efficiency, and to minimize construction costs.

32. The project schedule also has been carefully tailored to offer steady and long-tenn

employment of workers, which allows for efficient and cost-effective work during construction.

Work Status Under P3 Agreement

33. On April 7, 2016, the State authorized PLTP to perform certain "early work"

consisting of preliminary design and geotechnical activities and preparation of certain

contractual submittals and permit applications. PLTP issued a corresponding limited notice to

proceed to its design-build contractor. The design-build contractor performed this specified

early work through June 17, 2016.

34. On June 17, 2016, MTA gave PLTP full notice to proceed with work under the P3

Agreement.

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35. On June 18, 2016, after submitting the required certification that all necessary

preconditions had been met, PLTP commenced non-construction activities on the Purple Line.

PLTP then authorized its design-build contractor to commence its non-construction activities.

PL TP's design-build contractor is currently performing non-construction activities, including

engineering work, geotechnical borings, and marking the location of utilities in the Purple Line

right-of-way.

36. Under the P3 Agreement, PLTP may commence construction activities for the

Purple Line once PLTP certifies to MTA that specified conditions precedent are met, including

the receipt of all required governmental approvals. That certification has not yet been submitted

by PLTP, and therefore PLTP is not yet authorized to commence construction of the Purple Line

under the terms of the P3 Agreement.

37. Under the initial schedule submitted by PLTP, construction work would begin on

October 31, 2016.

Other Ongoing Activities

38. In addition to non-construction work being performed by PLTP under the P3

Agreement, certain other non-construction activities also are being carried out by the State.

39. Acting on behalf ofMTA, the Maryland State Highway Administration ("SHA")

and MTA consultants have been carrying out right-of-way acquisition and relocation activities

for the Purple Line since approximately May 2014. Of the 626 property acquisitions for the

Purple Line, more than half are already in the State's possession. Some property acquisitions

involve relocations of residents or businesses; of the 148 business and residential relocations

required for the project, 46 relocations have been completed.

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40. The State is in the process of demolishing a strip of now-empty buildings

acquired in the Riverdale neighborhood in Prince George's County. Remaining buildings are in

various stages of demolition, including hazardous material remediation (asbestos removal).

Consequences of Delaying Start of Construction

41. This Court's Order of August 3, 2016, vacated FTA's ROD for the Purple Line

and directed FTA to prepare a Supplemental EIS "as expeditiously as possible" to assess the

potential effects of Metrorail ridership and safety issues on the Purple Line.

42. If the Order results in a months-long delay in the start of construction, relative to

the anticipated start date of October 31, 2016, the construction schedule will be substantially

disrupted, with potentially severe consequences for the State and its P3 partners, as the delay

cascades through the entire schedule. Depending on the length of the court-ordered delay, it

could eventually give PLTP the right to terminate the P3 Agreement.

43. The following paragraphs (No. 44 to 53) set forth, for illustrative purposes, the

potential consequences of an extended (months-long or longer) delay in the start of construction.

44. The schedule for the Purple Line's development includes a multitude of long-lead

and specifically designed items, including special track work, tunnel construction (on a 0.3-mile

long tunnel), traction power substations, manufacturing of light rail vehicles, train control,

station platforms and overall aligrunent. If construction is delayed, these activities will be

delayed, adversely impacting pricing and availability of such items. Since manufacturing and

delivery schedules in some instances were negotiated and are currently set in the project

schedule, any rescheduling is likely to result in increased pricing by the manufacturers.

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45. More than 200 suppliers and subcontractors are expected to be involved in the

Purple Line's development, and any schedule delay will have a ripple effect on the local,

regional and national suppliers and subcontracting communities.

46. The delay is likely to have the greatest financial impact on approximately 80

small disadvantaged business enterprise ("DBE") subcontractors planned to be utilized on the

project. As small businesses, DBEs generally are less well-positioned to withstand a sudden and

unexpected loss of a large volume of work.

47. Manufacturers generally procure materials sufficiently prior to production so that

the production schedule will fit into their overall factory plan. As a consequence, any schedule

delay may result in a loss of a planned production window due to new or existing order

requirements, thus creating an adverse cost impact downstream throughout the supply chain.

The schedule delay could also lead to the loss of jobs as manufacturers and producers' staffing

for production orders would be adversely affected.

48. Delay in the commencement of construction will also negatively impact the

availability of skilled laborers already scheduled to work on the project.

49. Scheduling conflicts would likely appear in a competitive market with scarce skill

staffing being re-assigned to other projects and no longer available to the Purple Line, which will

result in an adverse cost impact to the project. Staffing issues would pose demobilization and

remobilization costs and delays to the project, raising project costs and delays.

50. Furthermore, the ripple effect of any delay would disturb many other components

and aspects of the project, such as: labor and equipment planning, material procurement, permit

coordination, subcontractor coordination, agency coordination, and public outreach.

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51. The delay would require re-sequencing of many of the tasks in the schedule.

PLTP would need to negotiate a new schedule not only with MTA, but also with all of PLTP's

sub-contractors and their respective sub-contractors and suppliers, as well as utility companies

and other third-party stakeholders.

52. If construction work is delayed, PLTP would likely submit a claim under the P3

Agreement for reimbursement from the State of the additional costs incurred by PLTP.

53. Beyond any payments that may be owed to PLTP, the termination of the P3

Agreement would likely have a substantial negative effect on the State's ability to procure P3

Agreements (or other major infrastructure contracts) in the future and would likely prevent the

State from moving forward with the Purple Line project.

Estimated Costs of Delaying Start of Construction

54. If the start of construction is delayed as a result of a court order, requiring the

State to compensate PLTP under the terms of the P3 Agreement, the State (and consequently, its

taxpayers) would incur substantial costs from factors such as:

a) additional costs of financing and interest on bonds that have already been issued

for the project (including extension costs on associated letters of credit);

b) additional cost escalation and inflation resulting from delaying the purchasing of

materials, additional equipment, and performing work later;

c) additional labor costs for state employees and MTA's consultants (that serve as an

extension ofMTA staff) who are assisting MTA with its functions and also

performing oversight of PLTP; and

d) extended overhead for PLTP relating to construction activities.

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55. In connection with the development of this declaration, MTA has directed its

project management consultant to estimate the cost of delaying the start of construction as a

result of a court order. MTA has been advised that the delay costs borne by the State would be

approximately $13 million per month, taking into account the types of costs identified in the

preceding paragraph. Based on this monthly estimate, a 12-month delay would result in delay

costs in excess of $150 million.

Effects of Delaying the Start of Construction on the Public

56. The Lyttonsville Bridge is a County-Funded Project that will be replaced by

PLTP as part of Purple Line construction. Montgomery County has informed MTA that the

County has determined the Lyttonsville Bridge to be structurally deficient and in need of

replacement; that the current bridge has posted weight restrictions; that prolonging those

restrictions create a significant cost impact to Montgomery County's Ride On bus operations,

because all buses must use other more circuitous routes to arrive at their starting points or return

to the bus depot; and that local businesses are adversely impacted as their delivery trucks may be

restricted from using this bridge. Further, Montgomery County has informed MTA that, if

construction of the Purple Line is delayed significantly, Montgomery County may need to close

the Lyttonsville Bridge entirely due to its deteriorating condition, further extending the cost

implications to the Ride On bus service as well as causing additional impacts to businesses and

the public due to increased travel times on congested routes to travel around this bridge.

57. A major employer in Montgomery County is considering relocation, and a site

with easy access to the Purple Line is under consideration. If construction of the Purple Line is

delayed significantly, it may affect the company's decision, potentially causing the company to

relocate out of the county or possibly out of the State.

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Potential for Termination

58. The State remains firmly committed to the Purple Line, and completion of the

Purple Line is one of the State's highest transportation priorities.

59. Nonetheless, extended delays in starting construction could result in such

substantial costs that the State would need to consider cancelling the Purple Line altogether.

60. In the event that a delay in construction caused the Purple Line to be cancelled,

the public would be deprived of the benefits of the Purple Line, and the State and its taxpayers

would entirely lose the investment made to date and would incur substantial additional costs to

PLTP under the P3 Agreement.

I declare under penalty of perjury that the foregoing is true and correct.

Executed in £a4'Mof t Mb on August,;{ Z 2016.

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EXHIBIT J

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SECOND DECLARATION OF CHARLES E. LATTUCA

My name is Charles Lattuca, and I have first-hand experience with, and personal

knowledge of, the facts and matters discussed in this declaration.

STATEMENT

I. I am currently the Executive Director of the Office of Transit Development and

Delivery ("TDD") of the Maryland Transit Administration ("MTJ\''). As Executive Director, I

oversee the team responsible for delivering MTA's program of major capital projects, including

the Purple Line transit project ("Purple Line").

The Purple Line

2. The Purple Line is a public-private partnership that was weighed and balanced by the

State for its environmental effects and mitigation, costs and funding constraints, public concerns,

and its purpose and need.

3. The Purple Line serves vital interests of the State because of the project's role in

improving public transportation access to jobs, education, health care, shopping and activity

centers, increasing economic development opportunities for much-needed business and job

growth, and reducing roadway congestion and work, school, and recreational commute times.

4. The Purple Line is a key element of the economic development and land use plans of

both Montgomery County and Prince George's County. Citizens ofMontgomcry County have

consistently included a light rail transit line in the Purple Line corridor in some form in

Montgomery County's land use plans for more than thirty years. The alignment has evolved

from a light rail side-by-side with a freight line along the Georgetown Branch to a light rail

alongside a bicycle/pedestrian trail.

5. The Purple Line was exhaustively analyzed by the Federal Transit Administration

("FTA") and other agencies in an environmental review process that lasted more than a decade.

I

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FTA issued its final environmental impact statement ("Final EIS") for the Purple Line in August

2013 and issued a Record of Decision ("ROD") approving the project on March 19, 2014.

6. On November 3, 2016, MTA submitted a report to the FTA assessing the potential

effects of recent Metrorail safety and ridership issues on the Purple Line project. Based on that

report, the FTA determined on December 13, 2016 that recent declines in Metrorail ridership,

even if they were to continue, would not alter the environmental impacts caused by the Purple

Line project and would not undermine the Purple Line's ability to meet the identified purpose

and need, therefore do not require a Supplemental Environmental Impact Statement ("SEIS").

The State has further determined that the financial viability ofthc Purple Line is not affected by

the worst-case Metrorail ridership declines.

The Public Private Partnership Agreement

7. MTA selected Purple Line Transit Partners LLC ("PLTP") as its private-sector partner

for the Purple Line project and negotiated a detailed and complex public-private partnership

agreement with PLTP ("P3 Agreement") that combines federal, state, local and private

investments. The parties executed the P3 Agreement on April 7, 2016.

8. The P3 Agreement gives PLTP the right to additional compensation if a "Relief

Event" occurs and gives PLTP certain rights to terminate the P3 Agreement if an "Extended

Delay" related to the Relief Event occurs. A Relief Event basically means a delay not caused by

PLTP but that prevents PLTP from proceeding with its work as scheduled, such as a court order

or force majeure that prohibits such work. An Extended Delay, in this context, means a delay

resulting from a Relief Event that lasts 220 days or more within a 365-day period.

9. If termination occurs due to an Extended Delay from a Relief Event, in accordance

with the P3 Agreement, the State would also have the obligation to make a significant

2

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te1mination payment to PLTP, reimbursing P LTP for costs incurred in performance of the P3

Agreement, including costs relating to the project's financing obtained by PLTP that would

otherwise have been spread over the 30-year operating term.

10. Under the P3 Agreement, any party may declare a Relief Event under certain

circumstances and ask for delay costs.

Consequences of Delaying Start of Construction

1 l. On November 14, 2016, PLTP provided notice to MTA asserting that the August

3, 2016 order vacating the ROD for the Purple Line constitutes a Relief Event under the P3

Agreement. The notice also stated that "Construction Work is currently contemplated to

commence in the fourth quarter of 2016."

12. MTA expects that the magnitude of any claims asserted by PL TP related to the

August 3, 2016 order will accelerate if the ROD is not promptly reinstated.

13. MTA has been advised by its project management consultant that the delay costs

to be borne by the State would be approximately $13 million per month. Based on this monthly

estimate, a 12-month delay would result in delay costs in excess of $150 million. Thjs estimate

includes but is not limited to delay costs that may be owed to PLTP under the P3 Agreement.

14. Unless swift action is taken to reinstate the ROD, additional irnpacts ·include:

(a) Exponential delay due to seasonal restrictions and limitations. Environmental

restrictions allow tree removal only between September and March. Half of PLTP's anticipated

tree cutting season is now past.

(b) Mobilization, necessary hiring of workers, equipment rentals, ordering of materials

and staging all equipment and materials at a construction site could be delayed due to the

uncertainty of the construction schedule, including hiring and equipment rentals.

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(c) Subcontractors, some of which are Disadvantaged Business Enterprises (DBE), will

not be able to start work on schedule. DBEs are, by definition, smaller companies which

particularly suffer from long delays in starting work and getting paid. These firms may have to

leave the Purple Line to seek work on other projects. The DBEs utilized on this project will be

difficult to replace if delay causes them to leave the project.

Potential for Termination

15. The State remains firmly committed to the Purple Line, and completion of the

Purple Line is one of the State's highest infrastructure priorities.

16. Nonetheless, extended delays in starting construction could result in such

substantial costs that the State would need to consider cancelling the Purple Line altogether.

17. If a delay in construction caused the Purple Line to be cancelled, the public would

be deprived of the benefits of the Purple Line, and the State and its taxpayers would entirely lose

the investments made to date and would incur substantial additional costs to PLTP for

termination of the P3 Agreement. Those tennination costs could be in excess of $100 million.

Potential Total Cost of Delay and Project Termination

18. The potential costs to the State if the project were delayed for an extended period

and then tenninated could exceed $650 million. This estimate includes:

(a) the State's total investment in the Purple Line project to date, which is approximately

$400 million;

(b) the potential delay costs from a Relief Event, which is an estimated $13 million per

month, and therefore would be in the range of $150 million over a 12-month period, as described

in paragraph 13 above;

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(c) the tennination payment owed to PLTP under the P3 Agreement (if PLTP exercises

its right to terminate after a Relief Event that lasts 220 days or more), which may be in excess of

$100 million, as described in paragraph 17 above.

19. The delay and termination costs to the State (as estimated in paragraph 18 above)

do not include additional investments made by Prince George's County and Montgomery

County, which also would be lost if the project does not proceed.

I declare under penalty of perjury that the foregoing is true and correct.

Executed in J?:c.\.\•'11.\C.r-- (\1\1) on December { b , 2016.

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