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Friends of Capital Crescent Trail v. Federal Transit Administration

United States District Court, District of Columbia

June 26, 2017

FRIENDS OF THE CAPITAL CRESCENT TRAIL et al. Plaintiffs,
v.
FEDERAL TRANSIT ADMINISTRATION et al., Federal Defendants.
v.
STATE OF MARYLAND, Defendant-Intervenor.

          MEMORANDUM OPINION [DKT.# 145]

          RICHARD J. LEON JUDGE.

         Currently before the Court is defendant-intervenor the State of Maryland's Motion for Stay Pending Appeal and Reinstatement of Record of Decision [Dkt. # 145]. In its motion, Maryland asks me to stay my May 30, 2017 final judgment and my August 3, 2016 Order vacating the Record of Decision ("ROD") approving the Purple Line Project, which would permit Maryland to obtain federal funding and begin construction during the pendency of its appeal to our Circuit Court. Upon consideration of the pleadings, the record evidence, and the relevant law, I find that Maryland has shown neither a likelihood of success on the merits nor the sort of irreparable harm that warrants equitable relief, and has therefore not met the stringent requirements for a stay pending appeal. As such, Maryland's Motion must be DENIED.

         BACKGROUND

         Today's decision marks my fifth substantive opinion on this matter in the past eleven months, so a brief summary of the relevant factual and procedural history will suffice. In March 2014, the Federal Transit Administration ("FTA") issued a ROD approving the Purple Line Project, a 16.2-mile light rail project in Montgomery and Prince George's Counties, Maryland. AR1_000001-03. In August 2014, Friends of the Capital Crescent Trail ("FCCT"), John MacKnight Fitzgerald, and Christine Real de Azua (collectively, "plaintiffs") filed suit in this Court, challenging the ROD and related approvals by the U.S. Fish and Wildlife Service ("FWS") under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 551-706, and five substantive statutes: (1) the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq.; (2) the Federal Transit Act, 49 U.S.C. § 5309; (3) Section 4(f) of the Department of Transportation Act, 23 U.S.C. § 138; (4) the Endangered Species Act, 16 U.S.C. §§ 1531-1544; and (5) the Migratory Bird Treaty Act, 16 U.S.C. § 703. See generally Am. Compl. [Dkt. # 20]; First Suppl. Compl. [Dkt # 33]; Second Suppl. Compl. [Dkt # 42].[1]

         In August 2016, upon consideration of the parties' cross-motions for summary judgment, I granted partial summary judgment to plaintiffs, finding that the FTA violated the APA when it relied on the formal ownership distinction between the Purple Line and WMATA Metrorail and therefore refused to consider the effect that Metrorail's recent safety and ridership issues could have on the Purple Line Project. Aug. 3, 2016 Mem. Op. and Order [Dkts. ## 96, 97]. As a result, I vacated the ROD and remanded to the FTA to prepare a supplemental environmental impact statement ("SEIS") addressing these issues as expeditiously as possible. Id. In response, federal defendants and Maryland filed motions to alter or amend the judgment, asking met to reinstate the ROD and permit the FTA to reassess whether an SEIS was warranted. Mots, to Alter Judgment [Dkts. ## 98, 99]. In November 2016, I granted in part and denied in part their motions; although I amended my judgment to give the FTA an opportunity to critically evaluate the likely effects of WMATA's ridership and safety issues and determine what level of additional NEPA analysis was required for the Purple Line, I determined that reinstatement of the ROD was unwarranted under the law of this Circuit. Nov. 22, 2016 Mem. Op. and Order [Dkts. ## 109, 110].

         On remand, the FTA relied on a previously prepared Maryland Transit Authority ("MTA") technical assessment and concluded that Metrorail's ridership and safety issues did not constitute the type of information that requires an SEIS, and both FTA and Maryland filed renewed motions for summary judgment. Fed. Defs.' Renewed Cross-Mot. for Summ. J. [Dkt. # 115]; Maryland's Renewed Cross-Mot. for Summ. J. [Dkt. # 116], On May 22, I issued an opinion holding that the FTA had yet again failed to the take the requisite "hard look" that WMATA Metrorail ridership and safety issues could have on the project, and I again ordered Maryland to prepare an SEIS as expeditiously as possible. May 22, 2017 Mem. Op. and Order [Dkts. ## 138, 139]. Soon thereafter, on May 30, 1 granted summary judgment to defendants on all of plaintiffs' remaining claims and entered final judgment. Final Judgment [Dkt. # 142]. Less than a week later, Maryland filed the instant motion, asking me to stay my final judgment and my order vacating the ROD during its appeal. [Dkt. # 145].

         STANDARD OF REVIEW

         A court's decision to stay its final judgment pending appeal is an extraordinary remedy that constitutes an "intrusion into the ordinary process of. . .judicial review." Nken v. Holder, 556 U.S. 418, 428 (2009); see also Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 978 (D.C. Cir. 1985). As a result, the decision to grant a stay is entrusted to the Court's discretion, Nken, 556 U.S. at 443-44, and the party seeking a stay bears the burden of "justifying] the exercise of such an extraordinary remedy." Cuomo, 772 F.2d at 978.

         When considering whether to stay an order or judgment pending appeal, courts consider the following four factors: (1) whether the applicant has made a "strong showing that [it] is likely to succeed on the merits" of its appeal; (2) whether the applicant will be irreparably harmed without the requested stay; (3) whether the stay "will substantially injure other parties interested in the proceeding"; and (4) "where the public interest lies." Nken v. Holder, 556 U.S. 418, 425-26 (2009); see also Cuomo v. U.S. Nuclear Regulatory Comm'n, 772 F.2d 972, 974 (D.C. Cir. 1985); Washington Metro. Area Transit Comm'n. v. Holiday Tours, 559 F.2d 841, 842-43 (D.C. Cir. 1977). When considering these factors, the first two-likelihood of success on the merits and irreparable harm-are the most critical. Nken, 556 U.S. at 434.

         ANALYSIS

         I. Maryland Has Not Established a Likelihood of Success on the Merits.

         When determining whether to grant a stay pending appeal, the Court first considers whether the movant has shown that it is "likely to succeed on the merits" of its appeal. Men, 556 U.S. at 425-26.[2]

         On remand, the FTA considered whether WMATA's ridership and safety issues required the preparation of an SEIS, and concluded that they did not. In reaching that conclusion, FTA relied on a technical assessment that Maryland Transit Authority had previously prepared in consultation with FTA experts. See AR6_00552-55 (MTA Technical Assessment); AR6_000916-23 (FTA Memorandum). The technical assessment discussed five divergent WMATA ridership scenarios, ranging from a rapid return to ridership growth to an "extreme" situation where no riders at all transfer from WMATA to the Purple Line. AR6_000533-67. Although the assessment stated that population and employment growth make it reasonable to believe ridership will return to a growth trend, AR6_000552, and asserted that the fifth "extreme" scenario was "highly unlikely", AR6_000922, the assessment did not critically assess which scenario was actually most likely to occur. Instead, FTA concluded that under any of the five scenarios, the Purple Line would have the same environmental impact and would have sufficient ridership numbers to meet its identified purpose and need, and thus concluded there was no need for an SEIS. In deciding not to prepare an SEIS, the FTA concluded that the Purple Line would meet its purpose and need no matter what happens to Metrorail, even though one of the stated purposes was to "provide better connections to Metrorail services." AR1_000003.

         During the remand process, plaintiffs submitted a series of letters and materials to the FTA for its consideration while conducting its supplemental analysis. Within those materials, plaintiffs included declarations from, former railroad executive Dr. Martin Saggese, economist Dr. Frank Lysy, and transportation planner William G. Allen. . AR6_000298-307; AR6_0003 08-23; AR6_000324-43. The declarations raised serious questions about the impact that WMATA's ridership trends could have on the Purple Line and issues that were closely related to FTA's decision not to prepare an SEIS. As an example, Mr. Lysy's declaration included information that called ...


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