Case 1:14-cv-01471-RJL Document 133-1 Filed 03/31/17 Page 1 of 7

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 MARYLANDS 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.

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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 regions Metrorail system, and therefore vacated the Federal

Transit Administrations (FTAs) 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 Courts August 3, 2016 ruling, Defendants filed motions to alter or amend the

judgment to allow the Federal Defendants to consider new information regarding Metrorail

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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

FTAs 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 Courts

November 22, 2016 order, the Defendants filed the administrative record supporting FTAs

determination, and the Federal and State Defendants each filed renewed motions for summary

judgment urging the Court to uphold FTAs 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

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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 States 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 States 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 FTAs ROD, the Court sought to ensure that FTA considered new

information regarding Metrorail safety and ridership issues before executing the Full Funding

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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 Courts 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.

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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

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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