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Lakes and Parks Alliance of Minneapolis v. The Metropolitan Council

United States District Court, D. Minnesota

February 27, 2018


          Lewis 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.




         This is 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.

         In the 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.

         In the 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 properly reviewed.

         Now, in 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 municipal-consent process.

         This is 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.

         BACKGROUND [1]


         The 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.

         “Municipal 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.[2]

         Federal 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.


         In 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.

         The FTA 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.

         In late 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.

         On 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 ...

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