United States District Court, D. Minnesota
A. Remele, Jr., BASSFORD REMELE, Joy R. Anderson and Thomas
L. Johnson, GRAY PLANT MOOTY, for plaintiff.
Charles N. Nauen and David J. Zoll, LOCKRIDGE GRINDAL NAUEN
PLLP, and Ann K. Bloodhart, METROPOLITAN COUNCIL, OFFICE OF
GENERAL COUNSEL, for defendant.
MEMORANDUM OPINION AND ORDER ON CROSS-MOTIONS FOR
R. TUNHEIM CHIEF JUDGE.
the third chapter of this continuing dispute between a group
of Minneapolis residents and the Twin Cities regional
policymaking and planning agency concerning a $1.8 billion
light-rail project - reputed to be the largest public-works
project in the state's history.
first chapter, the Lakes and Parks Alliance of Minneapolis
(“LPA”) brought claims against the Metropolitan
Council and the Federal Transit Administration
(“FTA”) alleging violations of state and federal
law, including the National Environmental Protection Act
(“NEPA”). The Court dismissed all the claims in
the LPA's action except a single cause of action under a
federal environmental regulation against the Council.
second chapter, the Court denied LPA's motion for summary
judgment. The LPA argued that the Council had violated a NEPA
regulation because the Council completed the federally
mandated environmental review after engaging in municipal
consent - a state-mandated process of securing prior approval
from all county and municipal governments through which a
proposed light-rail project will run. The Court concluded
that the LPA had not shown that it was entitled to summary
judgment on the record at that time, but noted that the
Council appeared to have come close to violating federal law
by predetermining the route before all alternatives could be
the third chapter, the Court considers the second round of
summary-judgment motions. The LPA renews its motion after
taking discovery and after the Council completed the
environmental review. The LPA argues that the Council
committed itself to a specific light-rail route before
completing the final environmental review and that the
Council's actions concerning that decision amounted to an
irreversible and irretrievable predetermination of a
particular light-rail route in violation of federal law. The
Council cross-moves for summary judgment, arguing that it did
not irreversibly and irretrievably commit itself to a
specific light-rail route as a result of the
a close case. 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. The Court's task here, however, is not to
consider the wisdom of the Council's decisions and deals,
but rather, is limited to deciding whether the Council
violated federal law. Because the Court will find that the
Council did not irreversibly and irretrievably commit itself
to a specific light-rail route, despite giving the appearance
that it did, the Court will deny the LPA's motion, grant
the Council's motion, and enter judgment for the Council.
OVERVIEW AND LEGAL BACKDROP
Council is leading the effort to build a new light-rail line
that connects downtown Minneapolis with the southwestern Twin
Cities suburbs (“SWLRT”). LPA I, 91
F.Supp.3d at 1111. The SWLRT's proposed route goes
through the Kenilworth Corridor - a one-and-a-half mile strip
of land in Minneapolis. Id. The Corridor presently
contains a freight-rail line and a biking/running path.
Id. The final proposed route keeps freight traffic
in the Corridor at grade, and has the SWLRT travel in a
tunnel through the southern half of the Corridor and at grade
through the northern half (the “South Tunnel
Plan”). Id. at 1114.
consent” is required for light-rail 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. The Council is empowered to mediate and
resolve disputes about the plans, and the Council must
consider a disapproving entity's proposed amendments to
the plans before continuing the planning and design phases of
the light-rail project. Id.
law, specifically NEPA, requires federal agencies to consider
the environmental impacts of 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)). Because the FTA - a
federal agency - will partially fund the SWLRT project, the
project is a major governmental action that requires
preparation of an EIS pursuant to NEPA. LPA II, 120
F.Supp.3d at 963.
BUILD-UP TO THE SOUTH TUNNEL PLAN
2009, the Hennepin County Regional Railroad Authority
(“HCRRA”) issued the Scoping Summary Report, the
first step in the environmental-review process. LPA
I, 91 F.Supp.3d at 1112. That Report did not include any
analysis of tunnels in the Corridor. Id. In October
2012, the HCRRA issued the Draft Environmental Impact
Statement (“DEIS”), the next step in the process.
The DEIS also did not include any analysis of tunnels in the
Corridor. Id. at 1112-13. Rather, the DEIS evaluated
three strategies for the Corridor: (1) (the preferred
strategy) reroute freight rail through St. Louis Park and
locate the SWLRT at grade in the Corridor, (2) reroute
freight rail through St. Louis Park and locate the SWLRT
outside the Corridor, or (3) co-locate freight rail and the
SWLRT at grade in the Corridor. Id. The DEIS
concluded that strategy (3) - co-location at grade - would
not adequately preserve the environment in the Corridor.
Id. at 1113.
and U.S. Army Corps of Engineers, however, determined that
the first strategy (relocation) was not technically feasible
because the rerouting of freight-rail traffic might, among
other things, endanger aquatic resources. LPA II,
120 F.Supp.3d at 965. They suggested that routing the SWLRT
through tunnels in the Corridor might alleviate the
environmental concerns associated with routing the SWLRT
through the Corridor at grade raised in the DEIS.
Id. Additionally, St. Louis Park opposed the
prospect of relocated freight-rail traffic through its city.
Id. at 964-66. Its city manager stated that St.
Louis Park would likely not support freight-rail relocation
in the municipal-consent process. (Aff. of Joy R. Anderson
(“Anderson Aff.”) ¶ 6, Ex. 5 at 2-3, Apr.
28, 2017, Docket No. 135.) In July 2013, the Council and FTA
announced that they would issue a Supplemental DEIS
(“SDEIS”), the scope of which would include
“freight rail alignments” and which would
evaluate the environmental impacts of proposed routes not
included in the DEIS. LPA II, 120 F.Supp.3d at 965.
2013, the Council began to advocate for a plan that included
locating the SWLRT in the Corridor but in one or more
tunnels, and keeping the existing freight rail in the
Corridor at grade along with the biking/running path. For
example, the Council's then-chair, Susan Haigh, emailed
Governor Mark Dayton in August 2013, stating that routing the
SWLRT outside of the Corridor had already been
“rejected” as the local-government alternative,
and that routing the SWLRT in the Corridor was the
local-government “consensus.” (Anderson Aff.
¶ 9, Ex. 8.) A few days later, Minneapolis Mayor R.T.
Rybak wrote a letter to Haigh, stating that Minneapolis
“only agreed to support placing [SWLRT] on the
Kenilworth Corridor on condition that [Hennepin] County's
promise to not allow co-location with freight would be
fulfilled, ” and that Minneapolis “need[s] a rock
solid guarantee” that co-location at grade “will
not happen.” (Id. ¶ 7, Ex. 6 at 2.) When
freight rail was first located in the Corridor several years
ago, it was intended to be a temporary situation
(id. ¶ 20, Ex. 19 at 10-11), so Minneapolis
objected when the Council indicated that freight-rail traffic
would not be rerouted as part of the SWLRT Project.
October 2, 2013, Council staff recommended routing the SWLRT
through two shallow tunnels in the Corridor and keeping
freight-rail traffic in the Corridor. (Id. ¶
11, Ex. 10 at 2.) In an email to Haigh on October 6, 2013,
Council member Adam Duininck stated, “From the first
briefing I received on SWLRT, it was overwhelmingly clear
where the staff recommendation was headed” with respect
to relocating freight-rail traffic, and “[t]hat sense
of it being a ...