United States District Court, D. Minnesota
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For Plaintiff: Lewis A. Remele, Jr., and J. Scott Andresen, BASSFORD REMELE, P.A., Minneapolis, MN; and Thomas L. Johnson and Joy Reopelle Anderson, GRAY PLANT MOOTY MOOTY & BENNETT, P.A., Minneapolis, MN.
For Federal Transit Administration, Defendant: Craig R. Baune, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Minneapolis, MN.
For Metropolitan Council, Defendant: Charles N. Nauen, David J. Zoll, and Kristen G. Marttila, LOCKRIDGE GRINDAL NAUEN P.L.L.P., Minneapolis, MN; and Ann K. Bloodhart, METROPOLITAN COUNCIL: OFFICE OF GENERAL COUNSEL, St. Paul, MN.
MEMORANDUM OPINION AND ORDER ON MOTIONS TO DISMISS
JOHN R. TUNHEIM, United States District Judge.
Plaintiff Lakes and Parks Alliance of Minneapolis (" LPA" ) brings this action against defendants Federal Transit Administration (" FTA" ) and Metropolitan Council (" Met Council" ). The Met Council is a Minnesota transportation planning organization, tasked with planning, constructing, and operating a future light rail transit route -- the Southwest Light Rail Transit project (" SWLRT" ) -- that would connect downtown Minneapolis to the southwestern Twin Cities. Although the Met Council and FTA are in the midst of the environmental planning process under the National Environmental Policy Act (" NEPA" ), the Met Council has also engaged in the municipal consent process, under state law, with communities along the proposed light rail route.
The LPA brings this action, alleging that by obtaining municipal consent with so much of the NEPA approval process still ahead, the FTA and Met Council are violating NEPA. The LPA also alleges that the Met Council is violating the Minnesota Environmental Policy Act (" MEPA" ), along with the state's laws governing municipal consent of light rail projects. Because sovereign immunity bars the LPA's claim against the federal government, the Court will grant the FTA's motion to dismiss. The Court concludes the LPA has no implied cause of action under MEPA and will grant the Met Council's motion to dismiss as to that claim. However, the Court concludes a cause of action exists under NEPA and the light rail municipal consent statutes and will deny the Met Council's motion to dismiss as to those claims.
I. OVERVIEW OF PARTIES AND COMPLAINT
The LPA is a Minnesota non-profit corporation. (Am. Compl. ¶ 4, Nov. 3, 2014, Docket No. 12.) Individual members of the LPA live or work near and/or frequently use and enjoy the environmental resources in the Kenilworth Corridor area in Minneapolis. ( Id.)
The FTA is an agency within the U.S. Department of Transportation that provides financial and technical assistance to local public transit systems. ( Id. ¶ 5.) The FTA is the lead federal agency for the SWLRT. ( Id.) The Met Council is the regional policy-making body, planning agency, and transit services provider for the Twin Cities metropolitan region. ( Id. ¶ 6.) The Met Council is the responsible governmental unit for the environmental review of the SWLRT, and the entity responsible for planning, designing, acquiring, constructing, and equipping the SWLRT. ( Id.)
The LPA is seeking declaratory and injunctive relief pursuant to the National Environmental Policy Act (" NEPA" ), the Minnesota Environmental Policy Act (" MEPA" ), and Minnesota Statute § 473.3993 et seq. (" Minnesota Light Rail Transit Statutes" or, when referring to the provisions that govern municipal consent, the " municipal consent statutes" ). ( Id. ¶ 1.) In Count I, the LPA alleges that the defendants violated NEPA by moving forward with the municipal consent process on the SWLRT before the completion of a full environmental review. ( Id. ¶ ¶ 42-52.) In Counts II and III, the LPA alleges that by undertaking a premature municipal consent process, the Met Council also violated MEPA and Minnesota Statute § 473.3994 (" Municipal Consent Statute" in the Minnesota Light Rail Transit Statutes). ( Id. ¶ ¶ 53-69.)
II. THE SOUTHWEST LIGHT RAIL TRANSIT PROJECT
The SWLRT is a proposed light rail line that would run from downtown Minneapolis through the communities of St. Louis Park, Hopkins, Minnetonka, and Eden Prairie. ( Id. ¶ 12.) Funding for the SWLRT is provided by the FTA, the state of Minnesota, the Counties Transit Improvement Board, and the Hennepin County Regional Railroad Authority (" HCRRA" ). ( Id. ¶ 13.)
The current plans call for the SWLRT to pass through the Kenilworth Corridor. ( Id. ¶ 14.) The corridor is an allegedly environmentally sensitive area approximately one and one-half miles in length between Cedar Lake and Lake of the Isles in Minneapolis. ( Id.) The corridor contains a popular bicycle and pedestrian trail, along with existing freight rail tracks. ( Id.) Under the current plans, SWLRT trains would pass through the southern half of the Kenilworth Corridor in two tunnels, then emerge from the ground to pass over the channel connecting Cedar Lake and Lake of the Isles (" Kenilworth Channel" ) on a new bridge before continuing through the northern portion of the corridor above ground. ( Id. ¶ 15.) The freight rail tracks would remain in the corridor and would pass over the channel on a separate new bridge. ( Id.)
The FTA has provided financial assistance to the Met Council related to the SWLRT. (Decl. of Sheila Clements (
" Clements Decl." ) ¶ 3, Nov. 17, 2014, Docket No. 34.) Specifically, the SWLRT project has received one grant from FTA in the amount of $534,375 for Alternative Analysis. ( Id.) FTA has not awarded any other grants for the SWLRT project. ( Id.)
III. ENVIRONMENTAL REVIEW PROCESS FOR THE SWLRT
NEPA requires federal agencies to consider the environmental impacts and prepare an Environmental Impact Statement (" EIS" ) for all " " major Federal actions significantly affecting the quality of the human environment.'" Sierra Club v. U.S. Forest Serv., 46 F.3d 835, 837 (8th Cir. 1995) (quoting 42 U.S.C. § 4332(2)(C)). The parties do not dispute that the SWLRT is a major governmental action that requires preparation of an EIS pursuant to NEPA. ( See Def. FTA's Mem. in Support of its Mot. to Dismiss (" FTA Mem." ) at 5, Nov. 17, 2014, Docket No. 32.)
A. The Scoping Process for the SWLRT Project
The first step in preparation for an EIS is the Scoping Process. 40 C.F.R. § 1501.7. A Scoping Process for the SWLRT project was performed in the fall of 2008 by the HCRRA, which was responsible for conducting the first portion of the environmental review. (Am. Comp. ¶ 23.) The results of the Scoping Process were included in a Scoping Summary Report dated January 2009. ( Id.) The Scoping Summary Report set forth the alternatives to be studied and analyzed in the draft EIS (" DEIS" ). ( Id. ¶ 24.) None of the alternatives proposed for study at that time included the construction of any tunnels in the Kenilworth Corridor. ( Id.) The HCRRA unanimously voted to accept the SWLRT Scoping Summary Report on January 27, 2009 as its Scoping Decision. ( Id.)
B. The Draft Environmental Impact Statement
The next step in the environmental review process is the DEIS. 40 C.F.R. § 1502.9(a). Federal regulations dictate that a DEIS must " [r]igorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated." 40 C.F.R. § 1502.14(a).
In October 2012, a DEIS was drafted and released to the public. (Am. Compl. ¶ 25.) Written comments on the DEIS were accepted from October through December of 2012. (Decl. of Maya Sarna (" Sarna Decl." ) ¶ 5, Nov. 17, 2014, Docket No. 33.) Nearly 1,000 public comments were received during the public review and comment period following the release of the DEIS. (Am. Compl. ¶ 25.)
The DEIS considered seven alternatives for the SWLRT, which included three strategies for dealing with the Kenilworth Corridor. ( Id. ¶ 26.) The three strategies included:
(1) rerouting the existing freight rail traffic through the City of St. Louis Park to provide adequate room for the SWLRT in the Kenilworth Corridor; (2) rerouting the existing freight rail
through the City of St. Louis park and running the SWLRT through the Midtown Corridor instead of the Kenilworth Corridor; or (3) co-locating the SWLRT, freight rail, and bicycle/pedestrian trail at-grade through the entire Kenilworth Corridor.
Id. ¶ 26.) None of the alternatives provided for the construction of tunnels in the Kenilworth Corridor. ( Id.)
The co-location alternative was the only alternative that did not require re-routing freight rail traffic through St. Louis Park. Under the other alternatives, freight rail traffic would have been rerouted through St. Louis Park to make room for the SWLRT. ( Id. ¶ 26.) Many St. Louis Park residents expressed their concerns with such rerouting. ( Id. ¶ 30.)
However, the 2012 DEIS concluded that the co-location alternative would not adequately preserve the environment and protect the quality of life in the area. ( Id. ¶ 31.) Despite the DEIS's preference for re-directing freight rail through St. Louis Park, after the DEIS was completed, the U.S. Army Corps of Engineers performed additional analysis and the FTA determined that re-locating the freight rail line was not feasible and including a tunnel for the light rail tracks in the Kenilworth Corridor might alleviate some of the environmental concerns associated with the co-location alternative. (Sarna Decl. ¶ 9.)
After completion of the DEIS, responsibility for the environmental review process under MEPA, including the completion of the Final Environmental Impact Statement (" FEIS" ), was transferred from the HCRRA to the Met Council. (Am. Comp. ¶ 27.) In July 2013, the Met Council and the FTA gave notice that they intended to publish a Supplemental DEIS (" SDEIS" ), which would evaluate potential environmental impacts resulting from changes in the proposed design that were not documented in the DEIS. ( Id. ¶ 28; Sarna Decl. ¶ 9.) The notice stated that the scope of the SDEIS would include, but was not limited to, the following areas: Eden Prairie LRT alignment and stations; the location of the LRT operations and maintenance facility; freight rail alignments; and other areas where the FTA and the Metropolitan Council determined additional information was needed. (Am. Compl. ¶ 28.) The SDEIS will also be available for public comment. (Sarna Decl. ¶ 10.)
In early 2014, new options were discussed, including moving the SWLRT into shallow or deep tunnels through the Kenilworth Corridor while keeping the freight rail tracks and bicycle/pedestrian trails on the surface. ( Id. ¶ 32.) In April 2014, the Met Council approved as the " locally preferred alternative" a plan that routed the SWLRT through the Kenilworth Corridor in two shallow tunnels, with trains emerging from the tunnels to pass over the channel between Cedar Lake and Lake of the Isles (" Tunnel Plan" ). ( Id. ¶ 33.) This was the first time that the Tunnel Plan had been mentioned, as it was not included in the Scoping Summary Report or DEIS. ( Id.) To date, the FTA has not made its NEPA determination regarding the SWLRT. (Sarna Decl. ¶ 11.)
IV. THE MUNICIPAL CONSENT PROCESS
After the selection of the Tunnel Plan, the Met Council commenced the municipal consent process. (Am. Compl. ¶ 34.) " Municipal consent" is required for light rail transit projects by Minnesota Statute § 473.3994, which states that each city and county in which a light rail transit route is proposed to be located must hold a public hearing and vote to approve or disapprove the physical design component of the preliminary design plans for the project. Minn. Stat. § 473.3994, subds. 2-3.
In late April 2014, the Met Council submitted the Tunnel Plan to Hennepin County and to the cities of Minneapolis, St. Louis Park, Hopkins, Minnetonka, and Eden Prairie for public hearings and approval. (Am. Compl. ¶ ¶ 33-34.) The City of Minneapolis and the Met Council entered into negotiations regarding potential changes to the project. ( Id. ¶ 35.) In July 2014, the City of Minneapolis and the Met Council announced an agreement under which the tunnel to the south of the Kenilworth Channel would remain in the plans, but the tunnel north of the Channel would be eliminated (" South Tunnel Deal" or " South Tunnel Plan" ). ( Id.) Under the South Tunnel Plan, the SWLRT, freight rail service, and the bicycle/pedestrian trail would all be co-located, at-grade, north of the Kenilworth Channel. ( Id.) Essentially, the South Tunnel Plan includes parts of the co-location alternative, which was rejected by the 2012 DEIS. ( Id. ¶ 31.)
The City of Minneapolis held a public hearing on the proposed South Tunnel plan on August 19, 2014. ( Id. ¶ 36.) No DEIS analyzing the proposed project was available for public review before or after the hearing. ( Id.)
By August 29, 2014, all six local governments had approved the proposed SWLRT plan, with the City of Minneapolis approving the South Tunnel Plan modification. ( Id. ¶ 37) The City of St. Louis Park approved the SWLRT plan, but also signed a Memorandum of Understanding (" MOU" ), which stated that " no further study of the feasibility of rerouting freight traffic to the MN& S Route in St. Louis Park will be undertaken, except ...