UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT
TRAIL et al.,

Plaintiffs,

Civil Case No. 14-01471 (RJL)

FEDERAL TRANSIT ADMINISTRATION
el al. , '

FILED
JuN-szm?

C|ark. U.S. Distrlct & Bankruptcy
Courts for the D|str|ct of Co|umb|a

Federal Defendants.

STATE OF MARYLAND,

VVVVVVVVVVVVV\/VVVVVVVVV

Defendant-Intervenor.

l\:lEMORANDUM OPINION
(June 3 , 2017) [Dkts. ## 47, 54, 56, ll$, 116]

In March 2014, the Federal Transit Adrninistration (“FTA”) issued a Record of
Decision (“ROD”) approving the Purple Line Project, a planned 162-mile light rail transit
system in Montgomery and Prince George’s Counties, Maryland. Friends of the Capital
Crescent Trail (“FCCT”), John MacKnight Fitzgerald, and Christine Real de Azua

(“plaintiffs”) filed suit in this Court, challenging the ROD and related approvals by the

U.S. Fish and Wildlife Service (“FWS,” together with FTA and the Department of
Transportation and the Department of Interior, “federal defendants”).l Plaintiffs raise a
plethora of claims under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551~706,
and five substantive statutes: (l) 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) ofthe
Department of Transportation Act, 23 U.S.C. § 138; (4) the Endangered Species Act, l6
U.S.C. §§ 1531-1544; and (5) the Migratory Bird Treaty Act, l6 U.S.C. § 703. See
generally Am. Compl. [Dkt. # 20]; First Suppl. Compl. [Dl<t # 33]; Second Suppl. Compl.
[Dkt # 42].

l already determined that the FTA did not meet its obligations under NEPA When it
failed to properly consider the effects that Washington l\/letropolitan Area Transit Authority
(“Wl\/[ATA”) Metrorail’s recent safety issues and ridership decline could have on the
Purple Line Project, and ordered the defendants to prepare a supplemental Environmental
Impact Statement (“SEIS”) addressing those issues. See Aug. 3, 2016 Mem. Op. and Order
[Dkts. ## 96, 97]; Nov. 22, 2016 Mem. Op. and Order [Dkts. ## 109, llO]; May 22, 2017
Mem. Op. and Order [Dkts. ## 138, 139].

Hovvever, as mentioned above, plaintiffs raised a variety of other claims that are
unrelated to WMATA’s ridership and safety concerns. On May 30, 2017, l entered final
judgment in this case, and granted summary judgment to defendants on plaintiffs’

remaining NEPA claims and their claims under the Endangered Species Act, the Migratory

 

' The State of l\/larylandjoined the case as a defendant-intervenor in July 2015. July 15, 20l5 l\/linute Order
on l\/lot. to Intervene.

Bird Treaty Act, Section 4('[') of the Department of Transportation Act, and the Federal
Transit Act. Final Judgment [Dkt. # 142]. At that time, l informed the parties that l would
issue an opinion explaining my reasoning by the end of this week. Order on l\/lot. to
Expedite at 2 [Dkt. # l4l]. This memorandum opinion explains my reasons for that
judgment in detail.
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 and the movant
is entitled to judgment as a matter of law.” Whenever the Court sits in review of agency
action under the APA, its 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). 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.”
Sl`erm Club v. Maz`nella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006). 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.” Fundfor Animals v. Babbz`lt, 903 F. Supp. 96, 105 (D.D.C. l995) (citing
MarS//l v. Oregon Nat. Res. COw/zcl`l, 490 U.S. 360, 378 (l989)).

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 Fczrm Muz‘. Auzo Ins. Co., 463 U.S. 29, 43 (l983). Nevertheless, the Court must

3

satisfy itself that the agency “examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action, including a ‘rational connection between the facts found and the
choice made.”’ Icl. (quoting Burlington Truck Lines v. Um`tecl States, 371 U.S. 156, 168
(1962)). An agency’s action is arbitrary and capricious if it “has relied on factors which
Congress has not intended it to consider, 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.” Id.
ANALYSIS

I. National Environmental Policy Act (“NEPA”)

A. Plaintiffs’ NEPA Claims Challenging the Alternatives Analysis/Draft

Environmental Impact Statement and the Final Environmental Impact

Statement lack merit.

The National Environm ental Policy Act sets forth procedures intended to ensure that
agency decision-makers “carefully consider[] detailed information concerning significant
environmental impacts” and make the public aware of those environmental effects before
the proposed action is chosen. Robertson v. Metliow Valley Cill'zens Councl`l, 490 U.S.
332, 349 (1989); see also Theoclore Roosevelt Conservation P’shl`p v. Salazar, 616 F.3d
497, 503 (D.C. Cir. 2010). The Council on Environmental Quality “CEQ” has promulgated
regulations implementing NEPA that are binding on all agencies. 40 C.F.R. §§ 1500-08.

As part of the NEPA process, a federal agency must prepare an Environmental
lmpact Statement (“EIS”) whenever a proposed government action qualifies as a “major

Federal action[] significantly affecting the quality of the human environment.” 42

4

U.S.C. § 4332(C). The EIS must include a “full and fair discussion of [the project’s]
significant environmental impacts and shall inform decision makers and the public of the
reasonable alternatives which would avoid or minimize adverse impacts or enhance the
quality ofthe human environment.” 40 C.F.R. § 1502.1.

ln September 2003, MTA and FTA published a Notice of lntent to prepare an
Environmental lmpact Statement “to address the need to improve transit access, reduce
travel times and improve connectivity in response to regional growth, traffic congestion,
and land use plans” for the Bi-County Transitway in Montgomery and Prince George’s
Counties. Notice of lntent to Prepare an Environmental lmpact Statement (EIS), 68 Fed.
Reg. 52,452, 52,452 (Sept. 3, 2003). In 2008, after conducting hundreds of meetings with
the public about possible alternatives, FTA and MTA published an Alternatives
Analysis/Draft Environmental lmpact Statement (“AA/DEIS”). AR1_012023-28. The
AA/DEIS studied eight alternative projects in detail: a no action alternative, a traffic
systems management (“TSl\/l”) alternative, three alternatives involving bus rapid transit
(“BRT”), and three light rail alternatives_a high investment alternative, a medium
investment alternative, and a low investment alternative, AR1_011994~012028. In
August 2009, Maryland announced that it had chosen the medium investment light rail
alternative (with elements from the high investment alternative) as the Locally Preferred
Alternative for the project. AR1_001945. ln August 2012, MTA issued a reevaluation of
the project because more than three years had passed since the AA/DEIS’s publication, and
FTA concurred with the re-evaluation. AR2__061614. ln September 2013, l\/ITA and FTA

released a Final Environmental linpact Statement, which examined the Locally Preferred

5

Alternative and included the agencies’ responses to thousands of public comments about
the project. AR1_001884-011943. Finally, in March 2014, the FTA’s Regional
Adininistrator signed a Record of Decision approving the Locally Preferred Alternative.
AR00001-32.

Plaintiffs raise a number of claims challenging the sufficiency of the AA/DEIS and
the FEIS. When Courts review agencies’ environmental impact statements, they apply a
“rule of reason” to assess “wlzi`cli alternatives the agency must discuss, and the extent to
which it must discuss them.”’ Citizens Against Bw"lington, Inc. v. Busey, 938 F.2d 190,
195 (D.C. Cir. 1991). The Court’s obligation is simply to determine that the agency has
taken a “hard look” at the project and “has adequately considered and disclosed the
environmental impact of its actions.” Nevada v. Dep’t of Energy, 457 F.3d 78, 93 (D.C.
Cir. 2006). Generally, an agency’s alternatives analysis should be upheld “so long as the
alternatives are reasonable and the agency discusses them in reasonable detail.” Citz'zens
Agal`nst Burlington, ]nc., 938 F.2d at 196, and courts will not “‘tlyspeck’ an agency’s
environmental analysis, looking for any deficiency no matter how minor.” Theoa’ore
Roosevelt Conservation P ’shl`p, 661 F.3d at 75.

Plaintiffs raise a number of complaints about the AA/DEIS and FEIS, arguing inter
alia that MTA and FTA failed to respond adequately to public comments about the Proj ect,
failed to clearly articulate the environmentally-related differences between the alternatives,
and failed to examine various aspects and/or environmental impacts of the Preferred
Alternative in sufficient detail. Pls.’ Mem. in Supp. of Mot. for Summ. J. at 27-39

[Dkt. # 47-1]. l have reviewed the administrative record carefully in light of plaintiffs’

6

arguments Although 1 need not discuss in detail each discrete issue that plaintiffs raised,
l am convinced that the FTA reasonably considered and the proj ect’s possible alternatives
and has carefully considered the environmental impacts of the project Plaintiffs do not
identify any fatal flaw in the AA/DEIS or the FEIS; instead, their claims boil down to an
argument that the agencies did not consider certain issues with the level of detail they
would have liked, or did not reach the substantive conclusion they desired, but that is not
sufficient As just one example, plaintiffs argue that the defendants did not sufficiently
explain the stormwater effects of the project. Pls.’ Mem. in Supp. of Mot. for Summ. J. at
36-37 [Dkt. # 47-1]. But the record shows that the defendants did consider and explain
the project’s stormwater effects during the NEPA process, see, e.g., AR1_002120-23, and
subsequently developed a detailed, comprehensive Concept Stormwater Management
Report after the Preferred Alternative was selected, as they are permitted to do.
AR5'_000718-001325. Plaintiffs’ argument simply boils down to a claim that the agencies
should have assessed the project’s stormwater effects in more detail and at an earlier stage
than they did. 1 disagree The law only requires that defendants take a “hard look” at the
project’s environmental impacts during the NEPA process, and it is clear to me that they
did so.

ln addition, plaintiffs argue that l\/ITA refused to provide some of the data
underlying ridership estimates “on the basis it was ‘proprietary’ or gave out information
and data that was insufficient or unreadable and even unusable by experts.” Pls.’ Mem. in
Supp. ofl\/lot. for Summ. J. at 29 (citing AR1_010972-75). In July 2014, MTA responded

to a public information request and provided the Town of Chevy Chase with travel

7

ridership forecast data and three reports relying on the data. That same information was
then provided to the plaintiffs as part of the administrative record. AR2_219964-65.
l\/ITA, however, did not purchase and provide the Town of Chevy Chase (or plaintiffs) with
a copy of Cube, the commercially available software that they used to run their ridership
models. Plaintiffs rely on 40 C.F.R. § 1502.21, which states that “material based on
proprietary data which is itself not available for review and comment shall not be
incorporated by reference [into an EIS],” and argue that defendants are inappropriately
withholding relevant data or providing it in an unreadable format. But the regulation is
inapposite to the situation here. Defendants did not rely on or withhold any “proprietary
data”; they made their ridership data available to the plaintiffs and told them how they
could purchase their own license to run the proprietary software. NEPA obligates agencies
to make information reasonably available to the public; it does not obligate government
agencies to purchase and provide commercially available software for private parties.

B. With the Exception of WMATA Metrorail’s Safety and Ridership
Issues, Plaintiffs Have Not Identif`ied Any NeW Circumstances or
Information that Necessitate a Supplemental Environmental Impact
Statement.

Even after the preparation of an FEIS, an agency is obligated to prepare a
supplemental EIS (SEIS) if there remains “major Federal action to occur and if the new
information is sufficient to show that the remaining action will affect the quality of the
human environment in a significant manner or to a significant extent not already

considered, a supplemental ElS must be prepared.” Marslz v. Oregon Nal‘. Res. Councl`l,

490 U.S. 360, 374 (1989). This obligation, of course, is not triggered “every time new

information comes to light,” z`a’. at 373 (1989), but only when “new information provides a
seriously different picture of the environmental landscape. ” Nat ’l Co)n)n. for the New River
v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004).

When reviewing an agency’s decision to create or forego an SEIS, the court’s review
is limited, because the “determination as to whether information is new or significant
requires a high level of technical expertise, and courts must defer to the informed discretion
of the agency.” Kleppe v. Si`erra Club, 427 U.S. 390, 412 (1976); see also Blue Ria’ge
Envtl. Def League v. NRC, 716 F.3d 183, 195 (D.C. Cir. 2013). As a result, the court
should “carefully review[] the record and satisfy[] [itself] 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 378.

1n July and ()ctober 2015, plaintiffs provided the agency with information that
plaintiffs believed warranted the preparation of SEIS and asked the agencies to prepare an
SEIS. 1 have reviewed the materials that plaintiffs presented, and the agencies’ responses
to them. With the exception of the new information about WMATA Metrorail’s safety and
ridership issues, for which 1 have already ordered the preparation of SEIS, l find that none
of the information is so clearly significant that the failure to prepare an SEIS as to these
issues is arbitrary and capricious

1. Governor Hogan’s Changes to the Purple Line Project Do Not
Require an SEIS.

ln June 2015, Maryland Governor Larry Hogan announced a number of “cost-

saving” changes to the Purple Line Project. AR4_007432~50. On July 14, 2015, plaintiffs

submitted a request for an SEIS that argued that six of those proposed changes
encompassed “significant new circumstances” warranting an SEIS: (1) the elimination of
“Green Track” plantings underneath the Purple Line tracks; (2) a 25% reduction in peak
train service when the Project opens; (3) allowing a standard bridge to be built over Rock
Creek rather than a parabolic steel box bridge; (4) a decision to make LEED compliance
optional for the project’s buildings; (5) a decision that shared lanes will not require full
width repaving; and a (6) requirement that Montgoiriery County will play a greater role in
providing the alternate interim Capital Crescent Trail. AR4_007411-26. In September
2015, FTA advised plaintiffs that it had reviewed the materials and would not prepare an
SEIS. AR4_000001-2.

1 have reviewed the six changes, and l find that defendants’ conclusion that they do
not present significant new circumstances was neither arbitrary nor capricious The
elimination of Green Track and the decision to make LEED compliance optional for the
project’s buildings are both related to the environmental consequences of the project, but
the record shows that neither Green Track nor LEED compliance were required, essential
elements of the FEIS. See, e.g., AR1_002120; AR1_001962; AR1_000033-42;
AR4_002858. The decision to reduce peak service when the project initially opens has no
bearing on the peak services frequency discussed in the FEIS, which discussed service in
“horizon year” 2040. AR4_002855. Plaintiffs do not point to any clear evidence showing
that a standard bridge over Rock Creek, rather than a parabolic steel box bridge, will have
significant environmental impacts on the project. Lastly, plaintiffs do not explain how no

longer requiring full-width pavement replacement for shared lanes will have any

10

environmental impacts, nor do they articulate any reason why giving Montgomery County
more responsibility over the alternate interim trail will have any environmental impact on
the project.

2. None of the Issues Identified in Plaintiffs’ October 9, 2015
Request Mandate an SEIS.

Plaintiffs submitted a renewed request for an SEIS on October 9, 2015.
AR5_006469-7821. ln January 2016, defendants responded to the October request and
explained to the plaintiffs that they were declining to prepare an SEIS. AR5_000001~43.
With the exception of the new information detailing WMATA Metrorail’s ridership decline
and safety issues, the record shows that the agency took a hard look at the information and
reasonably concluded that none of the information presented in the letter requires the
preparation of an SEIS.

As part of their request, plaintiffs submitted five declarations or memoranda
addressing the following issues: (1) Purple Line ridership issues (Allen Memorandum,
AR5_006696); (2) the Project’s cost estimates and potential increases (Lysy Declaration,
AR5_006669); (3) the FEIS’s wetlands analysis impact (Collinson Declaration,
AR5¢000663-68); (4) the project’s noise impacts (MacGlashan Declaration,
AR5_006678-89); and (5) a catchall, conclusory criticism of the project that predicted
project failure (Saggese Declaration; AR5_0006690-95). However, a review of the
declarations and the prior administrative record shows that the agencies already considered
the issues or criticisms raised in the declarations, and therefore they do not constitute “new

information.” See, e.g., AR1_001970-77 (assessing ridership issues); AR1_002363-68

11

(assessing project costs); AR1_002114, AR1_005476 (considcring wetlands impact);
AR5!0006678-89 (conducting noise analysis).

Plaintiffs also submitted a “Stormwater Runoff and Water Pollution” paper as part
of their request, but none of the information in that document constitutes the sort of “new
information” that would require FTA to supplement its EIS. AR5_006702-81. For
example, plaintiffs argue that recent requests for proposals (RFPs) related to the project
reveal that private partners affiliated with the Proj ect will need to obtain permits related to
the storage of hazardous materials and will be required to develop “evacuation plans and
routes should any of these hazardous materials escape into the environment.” Pls.’ Mem.
in Supp. of Mot. for Summ. J. at 24 [Dkt. # 47-1]. But it is clear from the record that the
agencies considered the risk of hazardous materials and the need for mitigation and
remediation issues in the original FEIS process AR1_002126-31, AR1_002166-67.
Plaintiffs also raise concerns about the need for local variances related to stormwater
storage, but the record shows that the agencies already considered this issue. AR1_002004;
AR1_005519; AR1_002166.

II. Federal Transit Act, 49 U.S.C. § 5309

Maryland is seeking a significant amount of federal funding for the Purple Line
through the “New Starts” component of the FTA’s Capital lnvestment Grant program.
ARl__012149~51. Under 42 U.S.C. § 5309, the FTA is statutorily required to rate a
proposed project and determine that it meets specific criteria before it can issue any “New
Start” funding. Plaintiffs allege that defendants failed to make those required findings in
the Purple Line’s March 2014 ROD and have therefore violated § 5309.

12

However, plaintiffs confiate the overlapping but distinct requirements of NEPA and
§ 5309. Plaintiffs argue that the FTA must make its § 5309 findings “concurrently” with
the NEPA analysis and include the § 5309 findings in the Project’s ROD, which they
characterize as the formal decision as to “whether or not to approve federal grant money
before the project.” Pls.’ Reply in Supp. ofMot. for Summ. J. at 17-18. 1 disagree. Section
5309 and its implementing regulations both clearly presume that the FTA will have the
benefit of all NEPA analysis before making § 5309 findings, which indicates that all NEPA
analysis must be completed before, not concurrently with, § 5309 findings See 49 U.S.C.
§ 5309(d)(2)(A) (stating that a FTA can issue findings allowing a project to advance to
engineering phases “at the completion of the process required under the National
Environmental Policy Act”); 49 C.F.R. § 61 1.203(a) (“To perform the statutorily required
evaluations and assign ratings for project justification, FTA will evaluated information
developed locally through the planning and NEPA processes.”). The ROD represents the
conclusion of the NEPA analysis process lt is separate from the FTA’s decision to grant
funds under § 5309, which occurs in a separate full-funding grant agreement (“FFGA”)
that follows 49 U.S.C. § 5309(k)(2). Defendants have not executed a Full Funding Grant
Agreement for the Purple Line Proj ect.

ln sum, plaintiffs allege that the defendants have not made the necessary § 5309
findings, but defendants have not yet executed the FFGA that obligates them to make those
findings Therefore, plaintiffs’ claim “rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all,” and is therefore not ripe for judicial

decision. In re Aiken Cty., 645 F.3d 428, 435 (D.C. Cir. 2011).

13

III. Section 4(1) of the Department of Transportation Act

Section 4(f) of the Department of Transportation Act prohibits the FTA from
approving any “program or project . . . which requires the use of any publicly owned land
from a public park” unless there “is no feasible and prudent alternative to the use” and the
program “includes all possible planning to minimize harm to such park.” 23 U.S.C. §
138(a). ln their motion for summary judgment, plaintiffs argue that defendants violated
Section 4(f`) in three primary ways; (1) by failing to evaluate the project’s impacts on Elm
Street Park in Bethesda under the “no feasible alternative” standard; (2) by failing to assess
the Purple Line’s impacts on the Georgetown lnterim Branch Trail “and its forested buffer
between Bethesda and Lyttonsville”; and (3) by concluding that the Purple Line’s use of
parks is a’e minimis, even though the defendants recognize that the private partners need to
obtain a special use permit from the National Park Service. Pls Mem. in Supp. ofl\/lot. for
Summ. J. at 39~43 [Dkt. # 47-1].2 All three ofplaintiffs’ arguments fail. How so?

Elm Street Park is a small, 2.1-acre park in Bethesda, Maryland that qualifies as a
Section 4(f) park. AR1`001673. ln order to connect the Capital Crescent Trail to the Park
as part of the Purple Line Proj ect, MTA will temporarily occupy 0.02 acres of the park for

construction easements and will “use a portion of an existing path, an undeveloped corner

 

2 In their summary judgment papei's, plaintiffs also point to the FEIS’s “Noise Analysis Summary”,
ARl _003580, and note that “Defendants admit that 13 parks will be affected by Purple Line noise.” Mem.
in Supp. of Pls.’ l\/lot. for Summ. J. at 43 [Dkt. # 47-1]. However, they do not move beyond this barebones
assertion to articulate any clear legal theory as to how the FTA’s analysis of noise impacts demonstrates a
violation of Section 4(f), and the Court will not conjure up arguments the plaintiffs did not articulate.
Coleman v. Disl. ofCo/uml)ia, 794 F.3d 49, 65 (D.C. Cir. 2015) (“lt is not enough and should not be enough
merely to mention a possible argument in the most skeletal way . . . , and then leave the court . . . to do
counsel’s work.” (internal quotation marks omitted)).

14

ofa playground, and a grassy area adjacent to the path.” AR1_001673-75. Plaintiffs argue
that defendants failed to evaluate the impacts on the park under the “no feasible alternative
standard” and thus violated Section 4(f). Pls.’ Mem. in Supp, of Summ. J. at 43 [Dkt.
# 47-1]. However, plaintiffs apply the wrong standard. The regulations governing Section
4(f) permit the FTA to conclude that a “temporary occupancy” of park land is “so minimal
as to not constitute a use within the meaning of Section 4(f),” and thus exempt it from the
“no feasible alternative” standard. 23 C.F.R. § 774.13(d). ln order for the agency to
conclude that a temporary occupancy is not a use, the following factors must be present:
(1) the “duration must be temporary”; (2) the “scope ofthe work must be minor”; (3) there
are “no anticipated adverse physical impacts” nor any “interference with the protected
activities, features or attributes of the property”; (4) the land must be “fully restored” upon
completion; and (5) there must be documented agreement from the officials who control
the resource. Ia’. The FTA considered these factors and concluded (with Montgomery
County’s concurrence) that the Purple Line Project only involves a temporary occupancy
of Elm Street Park. AR1H001642, AR1_00177. This conclusion is supported by the
record, and is neither arbitrary nor capricious

Plaintiffs also argue that the FTA did not properly assess the impacts of the Purple
Line Project on the “[Georgetown Branch Interim] Trail and its forested buffer between
Bethesda and Lyttonsville.” Pls.’ Mem. in Supp, of Summ. J. at 43 [Dkt. # 47-1]. The
Georgetown Branch lnterim Trail is a “temporary recreational trail that currently exists
within the Georgetown Branch right of way.” AR1_001664. The right-of-way is a former

branch of the Baltimore & Ohio Railroad that was transferred to Montgomery County.

15

Def`s.’ Mem. in Supp. of Cross-Mot. for Summ. J at 40 [Dkt. # 55]. ln 1995, the
Montgomery County Council adopted a resolution stating that the “section between
Bethesda and Silver Spring remains designated as a transportation corridor in which an
interim trail is permitted . . . .” AR1_001664. The regulations implementing Section 4(f)
clearly state that “when a property is formally reserved for a future transportation facility
temporarily functions for park . . . purposes in the interim,” then the interim activity does
not subject the property to Section 4(f). 23 C.F.R. § 774.1 1(h). Here, because Montgomery
County clearly reserved the right of way for a future transportation project, the FTA
properly concluded that it was not subject to Section 4(f).

Lastly, plaintiffs argue that the “need to seek a special use permit from park
authorities” undermines FTA’s decision that the use of parks is ole minimis Pls.’ l\/lem. in
Supp, of Summ. J. at 43 [Dkt. # 47-1]. Although plaintiffs do not clearly articulate their
argument, defendants surmise that they are referring to the crossing at the Baltimore-
Washington Parkway, which will in fact require the National Park Service to issue a special
use permit. Defs.’ Mem. in Supp. of Cross-l\/lot. for Summ. J at 40 [Dkt. # 55] (citing
AR1_001709-12). To the extent that this is plaintiffs’ argument, it fails Construction of
the Purple Line Project will temporarily use less than 4 acres of parkway land, and less
than 3 acres of parkway road, and will permanently use 0.61 acres of Parkway property.
Ia’. The regulations implementing § 4(f) state that a park property is exempt from the “no
feasible alternative” standard whenever the FTA determines that the use of a park will be
de minimis_i.e., that the “use will not adversely affect the features, attributes, or activities
qualifying the property.” 23 CFR § 774.3(b); ia’. § 774.17(5). Here, l\/ITA committed to

16

implement mitigation measures and to exchange land with the National Park Service, and
concluded (with the Park Service’s agreement), that the Parkway property would not be
adversely affected and was therefore a’e minimis That determination was neither arbitrary
nor capricious, and defendants are entitled to summary judgment on plaintiffs’ § 4(f)
claims

IV. Endangered Species Act

The Endangered Species Act (“ESA”) establishes a process for identifying and
protecting plant and animal species that are “threatened” or “endangered.”
16 U.S.C. §§ 1533-1544. As relevant here, the Secretary of the lnterior is responsible for
“listing”_i.e., formally identifying_threatened and endangered species, and administers
the statute through the U.S. Fish and Wildlife Service (“FWS”). Ia’. § 1533(a)(1); 50 C.F.R.
§ 402.01(b).

Pursuant to § 7 of the ESA, federal agencies are required to consult with FWS to
make sure that any proposed agency action is “not likely to jeopardize the continued
existence of any endangered species or threatened species or result in the destruction or
adverse modification of[the species’ critical] habitat . . . .” 16 U.S.C. §1536(a)(2). lfFWS
advises the agency that the proposed action’s area includes neither a listed species nor their
critical habitat, then there is no need for ESA consultation between FWS and the agency.
50 C.F.R. § 402.12(d)(1); Ctr. for Biological Diversity v. U.S. Dep’t of]nterior, 563 F.3d
466, 474-75 (D.C. Cir. 2009). However, the agency must consult with FWS_either
formally or informally_if it determines that its proposed action “may affect listed species
or critical habitat.” 50 CFR § 402.14(c). lf informal consultation leads the agency to

17

determine that the action is “not likely to adversely affect the listed species or critical
habitat,” and FWS concurs with that conclusion in writing, then the consultation process
concludes Ici. § 402.13(a). lf, however, the agency determines that the action is likely to
adversely affected a listed species or its critical habitat, then the agency must engage in
formal consultation, which requires the agency to prepare a “biological assessment” of the
action and requires FWS to issue a “biological opinion” as to whether the action is likely
to “jeopardize the continued existence of any listed species or destroy or adversely modify”
critical habitat. Io’. § 402.14(h). ln addition, agencies may need to reopen the consultation
process when “new information reveals effects of the action that may affect listed species
or critical habitat.” Ia'. § 402.16(b).

Whereas § 7 of the ESA governs the consultation process for federal agencies
undertaking major actions, § 4 of the ESA governs the process for identifying and listing
threatened and endangered species Under § 4, members of the public can petition FWS
and request that a species be listed as threatened or endangered. 16 U.S.C. §1533(b)(3)(A).
The petition is subject to a review process, and FWS must ultimately decide whether listing
the species is “warranted,” “not warranted,” or “warranted but precluded”_i.e., placing
the species on a candidate list but deferring a final listing determination until later. Ia’. §
1533(b)(3)(B)(i-iii); Nat’l Ass’n ofHome Buila’ers v. U.S. Fish ana’ Wildlife Serv., 786
F.3d 1050, 1051 (D.C. Cir. 2015). When a species is listed as “warranted but precluded,”
FWS must “implement a system to monitor effectively the status” of the species and, if
necessary, exercise its emergency listing authority “to prevent a significant risk to [the

species’] well-being.” 16 U.S.C. § 1533(b)(3)(C)(iii).

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The Hay’s Spring ainphipod is a small crustacean that occurs in springs and seeps
adjacent to Rock Creek in Washington, D.C. FWS_482. lt has been listed as an
endangered species since 1982. Ia’. The Kenk’s ainphipod is another small crustacean that
is known to occur in five spring sites in Maryland and the District of Columbia. FWS_483.
The Kenk’s ainphipod is a “warranted but precluded” candidate species for listing. Ia’.

ln October 2011, FWS responded to a request from MTA and advised the agency
that “no federal proposed or listed endangered or threatened species are known to exist
within the [Purple Line Project] impact area,” and that no biological assessment or further
ESA § 7 consultation was required. FWS_5. ln late 2013, after receiving public comments
about the Hay’s Spring and Kenk’s amphipods, FTA and MTA undertook further informal
consultation with FWS about the species FWS_3-6, 66-70. In January 2014, FWS
confirmed that neither species is known to be present in the Purple Line Project Area, and
that the Purple Line is expected to have no effect on either species FWS_94-95. Plaintiffs
raise several arguments alleging that FTA and FWS violated the ESA (and by extension,
the APA) with respect to their treatment of the amphipods, but plaintiffs’ misunderstand
the agencies’ obligations under the statute, and defendants are entitled to summary
judgment on their claims

First plaintiffs argue that FWS violated the ESA by issuing a “no effect”
determination for both ainphipod species and thereby “failing” to conduct formal
consultation for the Hay’s Spring ainphipod and “a conference” for the Kenk’s amphipod.
Am. Compl. ll 130 [Dkt. # 20]. Plaintiffs also argue that FTA should have completed a

biological assessment of the Purple Line’s cumulative impacts on the amphipods.

19

Pls.’ Mem. in Supp. of Mot. for Summ. J. at 44-45 [Dkt. # 47-1]. But this puts the cart
before the horse. As discussed above, formal consultation and a biological assessment are
only required once the agency determines that the propose action is likely to adversely
affect a listed species or critical habitat. See 50 C.F.R. § 402.12(d)(1), § 402.14(b)(1),
§ 402.14(h). lf the agency determines during the course of informal consultation that the
project is not likely to have an adverse effect, then “no further action is necessary.” Ia’.
§ 402.14(b)(1). That is exactly what happened here. MTA, FTA, and FWS engaged in
informal consultation, and concluded that the Purple Line Proj ect would have no effect on
either species, because neither species is known to occur in the project area, and their
distance and separation from the project area render any adverse effects unlikely.
FWS_94-95. Plaintiffs cannot show that this “no effect” determination was arbitrary and
capricious, and thus their claim fails

Second, plaintiffs argue that the agencies should have reinstated consultation after
new information called into question the assumptions underlying FWS’s earlier “no effect”
determination Specifically, plaintiffs argue that the elimination of “Green Track” under
the Purple Line’s rails will result in increased stormwater runoff that may harm the
amphipods, and argue that their own Stormwater Report and the MTA’s Concept
Stormwater Management Report also presented relevant new information about the
project’s stormwater effects that could alter the FWS’s prior determination about the
amphipods. Pls Mem. in Supp. of Mot. for Summ. J at 45 [Dkt. # 47-1]. This argument
is unavailing The record shows that the agencies considered the removal of Green Track

and the plaintiffs stormwater-related submissions and concluded that they did not present

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information that changed their earlier conclusion about the Project and the amphipods.
AR5_5~6; AR5_12-14; AR5W20-21. Plaintiffs do not offer evidence showing that this
determination was arbitrary or capricious, and thus their claim fails

Lastly, plaintiffs argue that FWS violated the ESA by failing to monitor effectively
the status of the Kenk’s amphipod. Pls.’ Mem. in Supp. of Mot. for Summ. J. at 45
[Dkt. # 47-1]. As mentioned above, the Kenk’s amphipod is a “warranted but precluded”
candidate species, which obligates FWS to monitor the species’ status and, if necessary,
make use of its emergency listing power to “prevent a significant risk to [the species’] well-
being.” 16 U.S.C. § 1533(b)(3)(C)(iii). Contrary to plaintiffs’ protestations, however, the
record shows that FWS has in fact been monitoring the Kenk’s amphipod. FWS has
considered more than 52 surveys for the Kenk’s amphipod, conducted at 45 sites in
Washington and Maryland. FWS_1441, 1452. FWS coordinates with state and local
governments, as well as other federal agencies, and solicits information from academies
and non-governmental organizations to ensure that it has the “best scientific and
commercial data” available regarding the Kenk’s amphipod, and the agency’s annual
published Candidate Notice of Review (“CNOR”) affirmatively asks the public to “submit
any new information” regarding the species FWSH965-66, 971; see also FWS_lOl l. The
record shows that FWS is in fact monitoring the Kenk’s amphipod, and thus its conclusion
that emergency listing is not warranted right now, FWS_965-66, is a reasoned decision that
is neither arbitrary nor capricious

As a result, defendants are entitled to summary judgment on Count ll of the

Amended Complaint.

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V. Migratory Bird Treaty Act

The Migratory Bird Treaty Act (“l\/IBTA”) renders it unlawful to “pursue, hunt,
take, capture, [or] kill” any migratory bird “unless and except as permitted by regulations”
promulgated by the Department of the lnterior. 16 U.S.C. § 703(a). Plaintiffs argue that
the Purple Line Proj ect will likely lead to many deaths of migratory birds protected by the
MBTA. Am Compl. 11 135 [Dkt. # 20]. As a result, plaintiffs allege that the “FTA’s
authorization for and funding of the Proj ect without obtaining, or ensuring that the project
proponent obtains, a permit to ‘take’ migratory birds” violates the MBTA, and by
extension, the APA. Ia'.

Plaintiffs may sue federal agencies like FTA to enforce the MBTA, but they must
do so through the APA. Am. Bira’ Conservancy v. FCC, 516 F.3d 1027, 1031 (D.C. Cir.
2008) (“The court has held that the MBTA applies to federal agencies.”); Defena’ers of
Wildlife v. Jackson, 791 F. Supp. 2d 96, 119 (D.D.C. 2011) (“lndividual plaintiffs may
enforce the Migratory Bird Act against government agencies, but must do so through the
review provision of the APA).

When courts in our Circuit have permitted claims seeking review of-agency action
that allegedly violates the MBTA, they have done so where the federal program a’irectly
causes the taking of migratory birds See Humane Soc’y v. Glickman, 217 F.3d 882
(D.C. Cir. 2000) (reviewing Agriculture Department program of capturing and killing
Canadian geese); Ctr. for Biological Diversity v. Pirie, 191 F. Supp. 2d 161, 165 (D.D.C.
2002) (reviewing military exercises that killed migratory birds), vacated as moot sub nom.
Ctr. for Biological Diversity v. Englana’, 2003 WL 179848 (D.C. Cir. Jan. 23, 2003). Here,

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FTA’s role in the Purple Line Project is much more limited_the agency is simply tasked
with deciding whether the project qualifies for a funding grant that will cover part of
Maryland’s construction costs_and there is no allegation that any action by FTA will
directly result in the taking of migratory birds The Court is unaware of any decision in
our Circuit holding that the MBTA’s take prohibition extends to a federal agency that
authorizes third-party activity that may allegedly cause “take.” See, e.g., Pul). Employees
for Envtl. Responsibility v. Beaua'reau, 25 F. Supp. 3d 67, 117~18 (D.D.C. 2014) (holding
that agency “did not violate the “MBTA” merely by approving a project that, if ultimately
constructed, might result in the taking of migratory birds); see also Frienols of the Bouna’ary
Mtns. v. Army Corps. ofEng’rs, 24 F. Supp. 3d 105, 114 (D.Me. 2014) (“The relationship
between the [agency’s] regulatory permitting authority and any potential harm to migratory
birds appears to be too attenuated to support a direct action against the [agency] to enforce
the MBTA’s prohibition on ‘takes.”’). As a result, federal defendants are entitled to

summary judgment on Count 111 of the Amended Complaint.

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CONCLUSION
For all the foregoing reasons, and the reasons set forth in the Court’s earlier
opinions,3 plaintiffs’ motion for summary judgment is DENIED IN PART and GRANTED
in PART, and federal defendants’ and defendant-intervenors’ cross-motions for summary

judgment are GRANTED lN PART and DENIED IN PART.

4

m

RicHAer.J...i£EoN
United States District Judge

 

3 Aug. 3, 2016 Mem. Op. and Order [Dkts. ## 96, 97]; Nov. 22, 2016 Mem. Op. and Order
[Dkts. ## 109, 110]; May 22, 2017 Mem. Op. and Order [Dkts. ## 138, 139].

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