Construction reps question why their bids for Southwest Light Rail were rejected

The Southwest Light Rail Transit line would run from the existing Green Line that currently ends in downtown Minneapolis to Eden Prairie, passing through St. Louis Park, Hopkins and Minnetonka on the way. (Submitted map)

A federal court of appeals ordered the dismissal of a lawsuit opposed to the Southwest Light Rail Transit line.

The Lakes and Parks Alliance of Minneapolis, a group of residents opposed to the light rail line’s proposed route, sued the Federal Transit Administration and the Metropolitan Council in 2014 over the plan to run the line through the Kenilworth Corridor between Cedar Lake and Lake of the Isles.

Judge John Tunheim, chief judge of the United States District Court for the district of Minnesota, ruled against the group last year. Previously, the court had dismissed all of the alliance’s claims against the FTA and all but one allegation that the Met Council had violated a federal environmental regulation.

The federal law bans any action that would limit the choice of reasonable alternatives prior to the federal government issuing a record of decision that found that federal government’s National Environmental Protection Act had been followed during an environmental impact statement process. The law states that an agency may not “predetermine” or “irreversibly and irretrievably” commit itself to a specific route before the completion of an environmental review process.

The appellate court ruled that the law did not apply in cases in which only a state or local government remained as a defendant as opposed to a federal agency.

The alliance had argued that the Met Council had violated the federal law by working on the environmental review after cities along the line and Hennepin County provided municipal consent for the proposed route.

Tunheim ruled in 2015 against the alliance’s motion but said that the Met Council had come close to violating the federal law that prevents an agency from predetermining a route before all alternatives could be reviewed.

The alliance asked Tunheim to intervene again after the Met Council completed the environmental review.

“This is a close case,” Tunheim said in his 2018 ruling. “State law, while well intentioned, severely restricts the Council’s ability to move light-rail projects forward during the planning and design phases because the state’s municipal-consent regime effectively gives veto power to every local government along the project’s proposed route. At the same time, and in potential conflict, federal law requires the Council not to limit reasonable alternatives until the final environmental review is complete. For the Council, walking that tightrope is difficult.”

Ultimately, Tunheim said memorandums of understanding the Met Council made with St. Louis Park and Minneapolis regarding the route were non-binding.

“If the agreements with Minneapolis and St. Louis Park were binding and they limited environmental review to a single route, Tunheim said he would be compelled to determine that the Met Council had predetermined a route in a way that violated the federal environmental law.

However, Tunheim wrote, “Ultimately, after careful consideration of the (alliance’s) claims in this case, and a thorough review of the factual record developed by the parties, the Court has determined that the (agreements) the Council signed with Minneapolis and St. Louis Park are what the Council says they are: promises that can be broken.”

Appeals court ruling

The Lakes and Parks Alliance appealed the ruling in favor of the Met Council to the U.S. Court of Appeals for the Eighth Circuit, which ordered the case dismissed in a July 1 filing.

Circuit Judge Bobby Shepherd wrote for the three-judge panel that the district court lacked jurisdiction to hear the Lakes and Parks Alliance case.

Shepherd noted that the Met Council had an active role in Minnesota’s mandatory municipal consent process that required it to seek the approval of each city and county along the light rail line’s route before construction could begin.

The Met Council took the first steps toward preparing the federally required Environmental Impact Statement in 2008. The council began seeking municipal consent for a route through the Kenilworth Corridor in Minneapolis in 2014, about the same time that the Lakes and Parks Alliance began to assert that the environmental review process did not comply with federal and state law, the ruling states. The environmental process had not been completed yet at the time.

The district court’s dismissals of all claims against the FTA and most of the claims against the Met Council occurred in 2015, Shepherd’s ruling states. After the council released a final Environmental Impact Statement in 2016, the parties filed competing motions that eventually led to Tunheim’s ruling.

The appellate court ruled that Congress did not create a private right of action to enforce federal law in regard to the environmental law, though.

The ruling states that “there is no indication that Congress sought ‘to provide a remedy for private individuals who may be injured by a violation’” of the environmental law, as it quoted a past ruling involving a transit authority in Atlanta.

The district court had circumnavigated the precedent by referring to another court decision that implied a right to stop “state action” involving the environmental law. However, Shepherd wrote that ruling did not apply because all claims relating to a federal agency had already been dismissed in the Lakes and Parks Alliance case. He also wrote that it did not apply because the alliance had filed the case prior to a final agency action and because of a precedent in the circuit that expressly rejects the possibility of action regarding the federal environmental law when the only defendant is a state agency. The past circuit ruling says that the federal environmental law “thus focuses on activities of the federal government and does not require federal review of the environmental consequences of private decisions or actions, or those of state or local governments.”

As a result, Shepherd said the Lakes and Parks Alliance “has no cause of action through which it could state a plausible claim.”

The alliance, he said, “failed to cite any case in which a state agency, as the sole defendant in a lawsuit, was ordered to reconduct environmental review. Therefore, the LPA has no live controversy for us to resolve, and we lack jurisdiction over the matter.”

He concluded by saying the alliance “does not have a viable cause of action” and instructed the district court to dismiss the case.

Construction is underway

Construction relating to the Southwest Light Rail line is already underway, with tree removal, major utility relocation, earthwork and other activities ongoing along the route between downtown Minneapolis and Eden Prairie.

Impacts include the planned closure of Louisiana Avenue at Cedar Lake Regional Trail beginning Wednesday, July 17. The road is expected to remain closed for up to five days for bridge demolition.

Other street closures are slated for late summer. They include Excelsior Boulevard between Jackson Avenue North and Milwaukee Street and Blake Road at the Cedar Lake Trail and a freight rail crossing. The Cedar Lake Trail is closed through Hopkins and St. Louis Park until the fall of 2021.

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