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May 31, 1989

ROBERT MACHT, et al., Plaintiffs,
SAMUEL K. SKINNER, et al, Defendants

George H. Revercomb, United States District Judge.

The opinion of the court was delivered by: REVERCOMB


 "Light rail transit" is a rail system utilizing modern versions of street cars which operate on their own rights-of-way or within reserved lanes of streets. Construction work on the City of Baltimore's light rail project is scheduled to begin July 1 and will consist of reinforcing bridges. Track work is supposed to begin September 1. The line will be 22.5 miles long, and is designed to unite the northern and southern metropolitan areas. The light rail system will cut through Robert E. Lee Park, using an existing railroad right of way. Defendants point out that the right of way through the park is currently used by freight train traffic, and has existed since 1839 (and thus predated the park). Formerly, (i.e., through the early 1970s), traffic on the line was much heavier than it is currently.

 Plaintiffs have moved for a preliminary injunction to stop construction on the grounds that the project is subject to federal statutes governing parklands and the environment. Defendants admittedly have not complied with federal requirements under the Transportation Act and the National Environmental Policy Act of 1969. There is precedent for venue in this Court under Taxpayers Watchdog Inc. v. Stanley, 260 U.S. App. D.C. 334, 819 F.2d 294, 298 (D.C. Cir. 1987), which was brought in Washington, despite the fact that it concerned the Los Angeles rail system.

 The standard of review for issuance of preliminary injunctions was set forth in Virginia Petroleum Jobbers Association v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921 (D.C. Cir. 1958). A party moving for a preliminary injunction must show (1) that there is a strong likelihood of success on the merits; (2) that the plaintiff will be irreparably injured in the absence of injunctive relief; (3) that the issuance of an injunction will not harm others; and (4) that the public interest will best be served by granting an injunction. Each prong of this test will be considered in turn.

 (1) Likelihood of Success on the Merits.

 Defendants argue that the project is not a federal action, so that federal regulations do not apply. But, although they do not deny the possibility that federal funds could be used for extensions in the future, they also argue that the rail line is not an illegal segmentation of a federal project designed pretextually to avoid federal environmental regulations. The basis for defendants' claim that the rail system is not a federal project is that it will not use and has never been intended to use federal funds for construction of the segment. However, there was a request for federal funds for the rolling stock, (which was intended to equal $ 40 million, representing a 75% federal share of the cost of the vehicles), although that request was later withdrawn.

 In the event the Court finds federal action, defendants argue there is no "use" of parkland triggering review under § 4(f) of the Transportation Act, and no "prudent or feasible alternative to the proposed use" (as that Act requires) of the presently existing right of way. They also argue that there is no "major federal action" significantly affecting the quality of the environment within the meaning of the National Environmental Policy Act, and thus no claim under that statute even if some minor federal involvement were found.

 It is clear that under the Transportation Act, 49 U.S.C. § 303(c), the statute is meant to apply to transportation systems where federal funds are used to finance the construction of the project. If federal funds are not used, the act does not apply. Adler v. Lewis, 675 F.2d 1085 (9th Cir. 1982). Similarly, NEPA applies only to federally aided projects: the requirement of an environmental impact statement applies to "major federal actions significantly affecting the quality of the human environment." NEPA "does not infringe on the right of a state to select a project to be financed solely out of its own funds." Scottsdale Mall v. State of Indiana, 549 F.2d 484, 488 (7th Cir. 1977), cert. denied, 434 U.S. 1008, 54 L. Ed. 2d 750, 98 S. Ct. 717 (1978).

 In addition to their arguments based on improper segmentation, plaintiffs argue that there is federal funding because there was some federal involvement in the early planning stages of the system. However, there is case law saying that this form of federal participation can be so distantly related to actual construction that it should not be counted for purposes of determining whether a project is a federal one at heart. It has been held consistently that the prospect of future federal funding does not make a project "major federal action" for NEPA purposes during the planning stage." Rapid Transit Advocates, Inc. v. Sourthern California Rapid Transit District, 752 F.2d 373 (9th Cir. 1985); City of Highland Park v. Train, 519 F.2d 681, 693-95 (7th Cir. 1975) cert. denied, 424 U.S. 927, 47 L. Ed. 2d 337, 96 S. Ct. 1141 (1976); Friends of the Earth Inc. v. Coleman, 518 F.2d 323 (9th Cir. 1975); City of Boston v. Volpe, 464 F.2d 254 (1st Cir. 1972). Therefore, plaintiffs argument based on federal assistance during planning does not suffice to bring Maryland under the Transportation Act or NEPA.

 But there is some evidence that defendants have deliberately tried to circumvent NEPA in the design of the system. The original proposal was to use federal money solely for the rolling stock, but when the Attorney General of Maryland and the federal Urban Mass Transit Administration ("UMTA") decided that that would constitute sufficient federal involvement to trigger coverage under NEPA, the state decided to "segment" the project and begin construction with the state-funded part of the system. The following is a revealing quote from Attorney General Curran:

However, in December, 1988 MTA was formally advised [by UMTA] that such funding could not be provided without prior satisfaction of the requirements of the National Environmental Protection Act. In order to allow the project to proceed on schedule, MTA now wishes to proceed in phases, with the federal ...

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