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
JuNze 2017

rk, U.S. D'lstrict & Bankruptcy
grids for the D\strlct of Co\umb\a

Federal Defendants.
v.

STATE OF MARYLAND,

\/\/V\./VVVVVV\/\/"/V\/V

Defendant-Intervenor.

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MEMoRANDUM oPINIoN
(June 'Z}- , 2017) [Dkt. # 145]

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. ln March 2014, the Federal Transit Administration (“FTA”) issued a ROD
approving the Purple Line Project, a l6.2-mile light rail project in Montgomery and Prince
George’s Counties, Maryland. AR1_000001-03. ln August 2()14, Friends of the Capital
Cresoent 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: (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) 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].l

ln August 2016, upon consideration of the parties’ cross-motions for summary
judgment, l 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

 

‘ Plaintiffs filed suit against FTA, FWS, the Department of Transportation, and the Department of the lnterior
(collectively, “federal defendants”). Compl. [Dkt. # l]. The State ofl\/larylandjoined as a defendant-intervenor after
the filing ofthe complaint l\/Iinute Order (July 15, 2015).

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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, l vacated the ROD and remanded to the FTA to
prepare a supplemental environmental impact statement (“SEIS”) addressing these issues
as expeditiously as possible. Id. ln 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, l granted in part and denied in part their motions;
although l amended my judgment to give the FTA an opportunity to critically evaluate the
likely effects of Wl\/IATA’s ridership and safety issues and determine what level of
additional NEPA analysis was required for the Purple Line, l determined that reinstatement
of the ROD was unwarranted under the law of this Circuit. Nov. 22, 2016 l\/lem. 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-l\/lot.
for Summ. J. [Dkt. # 115]; Maryland’s Renewed Cross-l\/Iot. for Summ. J. [Dkt. # 116].
On May 22, l issued an opinion holding that the FTA had yet again failed to the take the
requisite “hard look” that Wl\/IATA Metrorail ridership and safety issues could have on the
project, and l 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, l granted

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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. Hola’er, 556 U.S. 418, 428 (2009); See also Caomo 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 “justify[ing] 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: (l) 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. Hola’er, 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); Washz`ngton Metro. Area Transit Comm ’n.
v. Holl'a’ay 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.
Nken, 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. ln 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,

 

2 The parties disagree about the specific contours of this inquiry. Maryland argues that it must simply
establish that a “serious legal question is presented by the agency action, not that success on the merits is a
mathematical probability,” while plaintiffs argue that Maryland must show that there is actually a likelihood
of success on the merits. Maryland’s Mem. in Supp. of Mot. at 4 [Dkt. # 145-1]; Pls.’ Opp’n at 7 n. 5 [Dkt.
# 147]. l\/laiyland is correct that our Circuit has held that a Court need not “find that ultimate success by
the movant is a mathematical probability, and . . . may grant a stay even though its own approach may be
contrary to the movant’s view of the merits,” in a case in “which the other three factors strongly favor
interim relief.” Washington Metro. Area Transil Comm’n. v. Holiday Tours, 559 F.2d 841, 843 (D.C.
Cir. 1977). Plaintiffs point out, however, that this sliding scale approach, in which the strength ofone factor
for equitable relief can compensate for a relatively weak showing in another, has been called into question
by our Circuit. See Davl's v. Pension Ben. Guar. Corp., 571 F.3d 1288, 1969 (D.C. Cir. 2009) (Kavanaugh,
J., concurring) (stating that “the old sliding-scale approach to preliminaly injunctions . . . is no longer
controlling, or even viable” in light of the Supreme Coult’S decision in Wim‘er v. Nat. Res. Def. Councl'l,
555 U.S. 7, 22 (2008)). This dispute does not need to be resolved today, because l find that Maryland fails
to make a strong showing of likelihood of success under either standard

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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. lnstead, 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. ln 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_000308-23; 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 into question MTA’s
conclusion that service improvements and a population growth render it reasonable to
assume that Metrorail will return to ridership growth. AR6_000308_10.

FTA included plaintiffs’ submissions in the administrative record and the FTA’s
final memorandum claimed that it had “considered and reviewed” plaintiffs’ submissions,

even though the record of the agency’s decision includes no discussion or analysis of the

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declarations AR6_000916. ln my May 22 opinion granting partial summary judgment to
plaintiffs, l found that this failure to respond to or assess those declarations was analogous
to the facts presented in our Circuit’s recent decision in Public Employees for
Environmental Responsibilily v. Hopper, 827 F.3d 1077 (D.C. Cir. 2016). ln that case,
plaintiffs challenged FWS’s decision to issue an incidental take statement under the
Endangered Species Act. Agreeing with plaintiffs, the district court vacated the take
statement and remanded to the agency to conduct an independent assessment of the
proposed mitigation measures. Ia’. at 1089. On remand, plaintiffs submitted data to the
FWS in support of a particular mitigation measure, but the FWS ignored those submissions.
On appeal, our Circuit Court concluded that the agency’s failure to consider the
submissions it received on remand was arbitrary and capricious Ial. at 1090. By similarly
failing to grapple with plaintiffs’ declarations here, l found that the FTA failed to take a
hard look at information in the administrative record that could inform the agency about
the effect that l\/[etrorail’s ridership and safety issues could have on the Purple Line Project,
and ordered the agency to prepare an SEIS. May 22, 2017 Mem. Op. at 10-11 [Dkt. #
138].

Maryland argues that my decision was in error for two alternative (and
contradictory) reasons_because the agency actually considered the declarations, or
because the agency never “reopened” the record (and were thus not required to consider
the declarations). Maryland’s Mem. in Supp. of Mot. for Stay at 13-14. Neither argument
is persuasive Put simply, in the absence of any real analysis of the plaintiffs’ expert

declarations, FTA’s bare assertion that it “considered and reviewed” plaintiffs’

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submissions here is wholly insufficient Furthermore, the fact that FTA affirmatively
included the plaintiffs’ declarations in the administrative record it presented to the Court
nullifies any claim that it did not “reopen the record” and thus was not obligated to consider
the information that plaintiffs submitted. As part of the administrative record, the
Government was obligated, at a minimum, to give them reasoned consideration, which it
did not.

Furthermore, Maryland argues that 1 abused my discretion when l declined in my
May 22 Memorandum Opinion to explicitly readdress_for a third time_their request to
reinstate the ROD. This argument, at best, is not persuasive ln this Circuit, the standard
violation for a NEPA violation is vacatur. Pul). Employeesfor Envtl. Resp. v. U.S. Fish &
Wildlife Serv., 189 F. Supp. 3d 1, 2 (D.D.C. 2016); Mem. Op., Stana’l'ng Rock Sioux Tribe
v. U.S. Army Corps ofEng’rs, No. 16-cv-1534, at 66 (D.D.C. June 14, 2017) [Dkt. # 239].
However, courts have discretion to depart from the presumptive remedy and remand to the
agency without vacating. When deciding whether to remand without vacatur, courts
consider “the seriousness of the order’s deficiencies (and thus the extent of doubt whether
the agency chose correctly) and the disruptive consequences of an interim change that may
itself be changed.” Allz'ea’-Sz'gnal, Inc. v. U.S. Nuclear Regulatory Comm ’n, 988 F.2d
146, 150-51 (D.C. Cir. 1993).

ln both my August 3rd and November 22nd opinions, I explicitly applied the Alliea’-
Signal factors and explained why it was inappropriate to remand without vacatur, despite
the disruption that would result from vacatur and a temporary delay in the construction of

the Purple Line, when the agency still needed to conduct critical analysis required by

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NEPA. See Aug. 3, 2016 Mem. Op. at 8-9 [Dkt. # 96]; Nov. 22, 2016 Mem. Op. at 8-11
[Dkt. # 109]. ln my May 22 opinion, l determined that an SEIS was still required, and thus
that the agency had not completed all of the necessary analysis that NEPA requires,
Because l had already explained why vacatur was warranted under these circumstances in
two separate opinions, l did not repeat myself for a third time. Maryland cites no legal
authority explaining why it was an abuse of discretion to forego repeating myself in my
May 22 Opinion. lt argues that there was a change of circumstances since my earlier
decisions that required a written reassessment of my vacatur decision_namely, that the
delay caused by vacatur resulted in high financial costs to the state and an increased risk to
the project’s viability. Mem. in Supp. of Mot. for Stay Dkt. at 11 [Dkt. # 145-1] (citing
Second Decl. of Charles Lattuca [Dkt. # 116-2]). Although those concerns are significant,
they are not new, and were before me when l previously addressed vacatur. See, e.g., Mem.
in Supp. of Maryland’s Motion to Alter or Amend the Judgment at 11-16 [Dkt. # 98-1]
(arguing that vacatur would lead to increased financial risks and heightened risk to the
project (citing First Decl. of Charles Lattuca [Dkt. # 98-3])).

II. Maryland Has Not Demonstrated the Kind of Possible Irreparable Harm that
Warrants a Stay.

The second factor the Court must considering in determining whether to grant a
stay of the final judgment is whether the applicant will be irreparably harmed by the stay.
Upon review of Maryland’s motion and its attached evidence, l find that the State has not
established that it is likely to suffer the type of harm that warrants an extraordinary exercise

of the court’s equitable powers.

ln its motion, Maryland argues that the lack of a valid ROD has prevented the State
from executing a Full Funding Grant Agreement with the FTA and receiving anticipated
federal funds, costing it approximately 813 million in its own funds for every month of
delay. Mem. in Supp. of Mot. for Stay at 12 [Dkt. # 145-1] (citing Decl. of Pete Rahn1111
66-71 [Dkt. # 145-2]). Although this amount is significant, it is axiomatic that economic
losses alone do not warrant emergency equitable relief. Wisc. Gas Co, v. FERC, 758 F.2d
669, 674 (D.C. Cir. 1985). The inquiry does not end here, though, because Maryland
argues that the delay_and the resulting costs expended by the state without federal
funding_increase the risk that the State will have to cancel the project altogether. Mem.
in Supp. ofMot. for Stay at 12 [Dkt. # 145-1].

On April 7, 2016, the State entered into a contract with the Purple Line Transit
Partners LLC (“PLTP”), a private sector entity tasked with financing, building, and
operating the Purple Line for a 30-year term. Decl. of Pete Rahn, 1111 29, 36, 38
[Dkt. # 145-2]. Since June 2016, PLTP has been performing preliminary non-construction
work at the State’s instruction. la’. 1111 44-45. Under the contract, PLTP is entitled to
additional compensation, and can eventually terminate the contract, if there is an extended
delay in Purple Line construction. Ia’. 1111 67-68, 72, 78. Because of these contract terms
and the state’s increased expenditures without federal funding, Maryland argues that the
project faces a heightened risk of cancellation. Mem. in Supp. of Mot. for Stay at 12 [Dkt.
# 145-1]; Rahn Decl.1111 64-65, 72-73.

However, Maryland entered into its contract with PLTP in April 2016, a little less

than two years after this suit was filed and almost two months after plaintiffs filed their

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motion for summary judgment. As a result, Maryland was explicitly on notice that
plaintiffs were asking me to vacate the ROD, and could have structured its public-private
arrangements to better protect its financial interests in the event of that possibility.
Furthermore, the State chose to expend funds on pre-construction activities during this
period and continued to do so after 1 vacated the ROD in August 2016. A stay pending
appeal is not intended to inoculate a party against the risks of litigation, nor is it the Court’s
role to grant emergency relief to protect a party from the consequences of its own fully-
informed decisions. Cf Cuomo v. U.S. Nuclear Regulatory Comm ’n, 772 F.2d 972, 977
(D.C. Cir. 1985) (holding that company’s decision to hire employees and purchase
materials without assurance that the project would go forward, and the resulting economic
harm to the company if the activity was stayed, were “self-imposed costs [that] are not
properly the subject of inquiry on a motion for stay”); Lee v. Chrz`stz'an Coal. of Am., Inc.,
160 F. Supp. 2d 14, 33 (D.D.C. 2001). As a result, Maryland has not shown the sort of
irreparable harm necessary to merit the granting of a stay pending appeal.
III. The Balance of the Harms and the Public Interest

Lastly, the Court must consider the balance of the harms and whether the granting
of a stay is in the public interest. For both factors, Maryland makes essentially the same
argument_that the public stands to gain helpful transportation benefits, economic
development, and increased jobs in the region as a result of the project, and that a stay
pending appeal will permit Maryland to obtain federal funding and proceed with
construction of the Purple Line project. But these are arguments about the merits of the

project itself, and thus miss the mark. The question for granting a stay is not whether the

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underlying project is, in the final analysis, in the public interest. Instead, the issue is
whether a stay pending appeal is in the public interest and whether the State should obtain
federal funding that is essentially non-refundable to go forward with irreversible project
construction now, while critical NEPA analysis remains incomplete. They have not made
that showing here !
CONCLUSION

For all the foregoing reasons, Maryland’s Motion for a Stay Pending Appeal and

Reinstatement of Record of Decision is DENIED. An Order consistent with this decision

accompanies this Memorandum Opinion.

im

RICHARD LE N
United States District Judge

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