Case 1:14-cv-01471-RJL Document 135 Filed 04/10/17 Page 1 of 6

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 REPLY MEMORANDUM IN SUPPORT OF MOTION FOR

EXPEDITIOUS RULING ON PENDING SUMMARY JUDGMENT MOTIONS

The premise of the State of Marylands (State) Motion For Expeditious Ruling is that

the passage of time has changed the status quo in this case. With no decision from the Court on

the Federal Transit Administrations (FTA) determination not to prepare a Supplemental

Environmental Impact Statement (SEIS), and no decision on the remaining issues addressed in

the long-completed summary judgment motions, the mere passage of time may create the

outcome that Plaintiffs clearly seek - abandonment of the Purple Line project (the Project). It

would be an injustice to the people of the State and to the FTA not to have a decision on the

merits of Plaintiffs claims regarding the August 2013 Final Environmental Impact Statement

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and the March 2014 Record of Decision (ROD) in a timeframe that will not cause grave harm

to the Project. The State submitted this Motion to the Court to assure that the Court was

informed as to the effect of the prospective passage of time.

When the Court issued its August 3, 2016 Order vacating the ROD approving the Project,

it did so intending to preserve the status quo. As stated in the Courts August 3 Memorandum, a

temporary halt in the project would allow the FTA to engage in the requisite supplemental

analysis with respect to impacts of safety and ridership issues being experienced by the

Washington Metro on the viability of the Purple Line. The Court recognized that speed was of

the essence in reaching a resolution of the issues, stating that the State should prepare the

analysis as expeditiously as possible. Memorandum Order at 9. Contrary to Plaintiffs

implications, the Defendants began the requisite supplemental analysis immediately. The

analysis has been prepared, and FTA has issued a decision on the analysis and submitted that

analysis and decision to the Court. All issues are ripe for a decision.

When Plaintiffs filed this case in 2014, they failed to seek any preliminary injunctive

relief. Even when it became clear that the FTA and the State were about to sign the Full Funding

Grant Agreement (FFGA), Plaintiffs did not seek any form of preliminary injunctive relief. As

this Court noted in its August 3 Order, it chose to issue a decision that addressed the single flaw

it had identified in FTAs analysis and vacate the ROD, so that the FTA would not be able to

issue the FFGA. By doing this, the Court prevented the State from proceeding with construction

of the project. The Court clearly determined that a short delay would preserve the status quo.

The State takes the unusual step of filing this motion to inform the Court that further delay goes

beyond monetary delay damages and puts the entire project at risk. Without an expeditious

decision, there will be no justice on the merits.

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The mere passage of time causes grave harm to the State, Montgomery County, Prince

Georges County, and the businesses and citizens who are relying on the Project to create jobs

and to improve access to public and commercial facilities and neighborhoods. The loss of the

Project would be monumental, as are the potential monetary damages. As previously established

in the declarations filed by Charles Lattuca (ECF 98-3 and 116-2), each month of delay could

result in an estimated $13 million in additional cost. Also, as previously discussed, further delay

puts at risk the $400 million that the State has already invested in making this vital public transit

project a reality. In addition, termination of the Project could result in additional termination

costs and delay damages, resulting in a total cost in the range of $650 million. ECF 116-2 at 15.

Given the decades of study, broad public support, and the importance of the Project to the local

communities (see the amicus briefs and supporting declarations filed by Prince Georges County

- ECF 111 and Montgomery County - ECF 112), cancellation of the Project as a result of

litigation delays would cause severe prejudice to the interests of the public.

It is clearly in the public interest to reach a decision on the legal issues as expeditiously

as possible. Nothing in Plaintiffs response to the States motion provides a reason for the

Court to delay its decision. Contrary to Plaintiffs assertion, the State does not dispute that the

Court has the inherent power to control its docket. Plaintiffs are correct that the State is

confident that the FEIS and the additional analysis of the Metro rail issues are sufficient under

applicable law and that once the Court has an opportunity to review the full merits of the case, it

will rule in the States favor. However, even should the Court find a flaw in the process, it is in

the public interest for the Court to issue an expeditious final decision on the merits of the claims

raised in this case so that the State can take whatever further steps it deems necessary in its

efforts to pursue and implement this vital transportation project. If the Courts docket does not

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permit an expeditious review of the now completed supplemental analysis, which was the basis

for vacation of the ROD, the preservation of the status quo dictates that the ROD be reinstated

while this litigation remains pending.

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 47, 55, 56) and the

Defendants renewed motions for summary judgement (ECF 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.

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Dated: April 10, 2017 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
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 April 10, 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