2017 | Transportation

Buoyed by Lawsuit, Purple Line Opponents Want Trail Formally Recognized as a Park

Two of the plaintiffs in the federal lawsuit that has delayed the project likened their efforts to those of a Supreme Court justice who spurred the creation of the C&O Canal National Park

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A group of toddlers walk along part of the trail in Bethesda where the Purple Line will be built.

Andrew Metcalf

A small group of opponents of the Purple Line are comparing their fight against the light-rail line to that of Supreme Court Justice William O. Douglas’s fight to turn the C&O Canal into a national park.

Douglas, who died in 1980, fought in the 1950s against a federal plan to build a parkway along the C&O Canal in Maryland. His efforts sparked a movement to have the canal property named a national park, and in 1971, Congress passed the Chesapeake and Ohio Canal National Historical Park Act.

The Purple Line opponents—the advocacy group Friends of the Capital Crescent Trail and Chevy Chase residents John Fitzgerald and Christine Real de Azua—have sought to derail the project for a variety of reasons. Currently, they are the plaintiffs in a federal lawsuit that hinges on their argument that Metro’s well-documented safety issues and ridership decline could impact Purple Line ridership.

Citing the Metro issues, a federal judge withdrew federal approval for the project in August, delaying the start of construction. Now the plaintiffs and the transit agencies that are the defendants in the case await the judge’s ruling about whether more study is needed about the Purple Line’s environmental impact. The light-rail line, which would run from Bethesda to New Carrollton, would run in part along the route of the Capital Crescent and Georgetown Branch trails in Bethesda and Silver Spring.

The plaintiffs say that ultimately they are seeking the same goal as Douglas—they want the trail to become a park.

“This being recognized as a park is the end game,” Ajay Bhatt, president of Friends of the Capital Crescent Trail, said as he and Fitzgerald walked the trail in Chevy Chase before discussing their case in a conference room inside Bethesda’s Air Rights Building last week.

Bhatt explained how in the mid-1950s the U.S. government planned to build a parkway next to the C&O Canal in Maryland—the government had bought the 185-mile canal right of way in 1938.

At the time, automobile use was surging and President Dwight Eisenhower was developing his plan for the Interstate Highway System. The Washington Post editorial board endorsed the plan for the parkway along the Potomac River.

Meanwhile, Douglas, an avid walker who enjoyed Sunday hikes along the canal and cherished the open space as a natural asset, heard about the Post’s endorsement and invited the paper’s editors and reporters to hike along the canal with him. The National Park Service recounts the hike on its website as a transformational moment.

“As the hike progressed, one man’s effort to save a piece of wilderness became a big news story,” the park service wrote. “Wire services spread word of the hike to thousands of newspapers across the country. Time magazine ran a story. Movie theaters showed a newsreel of the hike.”

Last week, Bhatt and Fitzgerald, in a possible nod to Douglas, invited a reporter to walk the trail with them and two other Purple Line critics—former World Bank economist Frank Lysy and Takoma Park resident Len Scensny.

Rain was falling lightly as the group entered the trail from Elm Street Park in the Town of Chevy Chase, where Bhatt and Fitzgerald live.

Bhatt’s property abuts the trail where the Purple Line would run. Previously, he was involved in a lawsuit with Montgomery County after it was found a fence in his backyard stood in a portion of the trail right of way. The county told him and others in a similar situation to take their fences down. Bhatt took the case to court, lost once, appealed it, and then lost again.

Along the trail, the trees were starting to bud thanks to a warm February. A group of seven toddlers waddled by, holding onto a rope under the guidance of two women from a nearby day care.

“These little guys do this twice a day,” Fitzgerald said. He wondered where they would walk if the Purple Line is built along the trail, resulting in a train passing by their day care every five minutes or so.

Montgomery County is planning to rebuild the Capital Crescent and Georgetown Branch trails next to the Purple Line at a cost of about $57 million. The rebuilt trail would run alongside the train tracks from Bethesda to downtown Silver Spring, but the Purple Line opponents worry the trains will be noisy and smelly and the path won’t be as serene as the current version. Bhatt referred to the proposed version as an “asphalt path” and was careful not to call it a trail.

“What is the value of this as a park?” Bhatt asked about the existing trail. “There’s a tremendous amount of value here… in a way it’s invaluable.”

He said it would be impossible to put a price on the railroad right of way that was converted into the trail because it’s not possible to recreate a similar trail in the area, given the dense suburban and urban development surrounding it.

“We can’t just buy 20 acres, 3 miles long, 100 feet wide to build a park inside the Beltway,” Bhatt said.

The county purchased the right of way from the freight train company CSX in 1988 for $10.5 million, according to a report from that time. In 1990, the county approved the Georgetown Branch Master Plan Amendment that designated the right of way for use as a trail or for transportation and states using it for transit “could be an important element of the county’s long-term transportation system.”

The right of way was made into a trail after the freight tracks were removed in 1996. The paved Capital Crescent Trail extends 7 miles toward the Potomac River and into Georgetown in Washington, D.C., while the unpaved gravel Georgetown Branch trail extends from downtown Bethesda to west of downtown Silver Spring.

Last year, Gov. Hogan signed a 36-year, $5.6 billion agreement with Purple Line Transit Partners—the private team of finance and construction companies—to design, build, operate and maintain the light-rail line. The project plan calls for 21 stations along the route, four of which are located at existing Metro stations in Bethesda, Silver Spring, College Park and New Carrollton.

A map of the proposed Purple Line route. Via Maryland Transit Administration (click to expand)

Construction on the light-rail line was scheduled to begin at the end of 2016, but the ongoing lawsuit has prevented that from happening.

Among the smart-growth crowd, which sees the Purple Line as an asset that will reduce traffic congestion on clogged roads and better connect neighborhoods with job centers—Fitzgerald and Bhatt are pariahs. They are often described as NIMBYs (the acronym for Not In My Backyard) who are fighting a project that would benefit the broader community because of their own personal concerns.

But Fitzgerald, a former attorney who litigated cases for years on behalf of Defenders of Wildlife, said it’s not the opponents who have delayed the transit project. Instead, he says, it’s the fault of the state and federal transit administrations for not following federal law to protect the area’s natural resources.

“When you tell us, when anybody tells us, that as long as the executive has approved it and the legislature has approved it, that’s fine, just go away, then we might as well tear up the Constitution,” Fitzgerald said.

Purple Line lawsuit plaintiffs Christine Real de Azua, left standing, John Fitzgerald, seated behind piece of paper, and Takoma Park resident and Purple Line critic Len Scensny, seated right, at a Purple Line-related public hearing in October. Credit: Andrew Metcalf

But critics of the lawsuit say the Purple Line opponents are reaching for any argument they can find to stop the rail line from being built regardless of whether the arguments have merit.

“The lawsuit is an attempt to sabotage the transit project by throwing a variety of different critiques against the wall and seeing what sticks,” said Greg Sanders, the vice president of the advocacy group Purple Line NOW. “Ultimately, they oppose a project in their neighborhood.”

When the plaintiffs first filed the lawsuit in U.S. District Court in D.C. in August 2014, their case focused on an argument that the federal government failed to adequately account for rare, small, shrimp-like creatures called amphipods that may exist near streams in the proposed path of the Purple Line.

About eight months later, after failing to find the amphipods in the area, the plaintiffs amended their lawsuit to question state ridership estimates and claim that state transit officials mischaracterized the impact of stormwater runoff.

The plaintiffs raised the issue of Metro’s problems in an Oct. 9, 2015, letter to then-U.S. Transportation Secretary Anthony Foxx. Five days later the plaintiffs submitted a second amended complaint to the court that mentioned Metro’s safety issues in one paragraph, but focused on changes to the project that Hogan made to save state funds, according to court records.

The plaintiffs submitted a third amended complaint Jan. 20, 2016, that focused on the environmental effects of Hogan’s decision to eliminate the green track, which is basically a grass bed that grows underneath the tracks and can help prevent stormwater runoff.

Out of all those arguments and others, U.S. District Court Judge Richard Leon found the Metro issues to be the most compelling and decided to revoke the project’s federal approval in August 2016.

The federal government is planning to contribute $900 million to the project, but the Full Funding Grant Agreement that will transfer the money to the state has not been signed due to Leon’s decision. The decision has also stopped any construction activities that would result in permanent changes, although some pre-construction work such as design and soil borings are taking place along the route.

Leon wrote in his opinion that the transit agencies developing the project “wholly failed to evaluate the significance of the documented safety issues and decline in [Metro] ridership.”

Since then, attorneys for the state and federal government have responded that while Metro’s issues may cause some decline in Purple Line ridership, the light-rail project should still be built because of its benefits in providing a reliable east-west transportation system between Montgomery and Prince George’s counties. The Federal Transit Administration analyzed Metro ridership and determined even if the rail system didn’t exist, the Purple Line would still have about 50,000 weekday riders by 2040 if it’s built.

The plaintiffs have also continued their fight since successfully delaying the project with the Metro argument. Last week, they held a fundraiser for the lawsuit that Fitzgerald said attracted about 60 people—although he would not say how much they raised.

The plaintiffs have also filed a request for more than $500,000 in attorney’s fees, which they could receive if they win the case and the judge agrees the federal government should cover their cost.

Earlier this month, they sent a letter to new U.S. Transportation Secretary Elaine Chao detailing new issues. In the letter, the plaintiffs claim the Purple Line will take riders away from Metro—a possible violation of the Federal Highway Act. The letter also notes that water pumping undertaken by crews preparing for construction at the Bethesda Purple Line station site has the potential to disrupt the water table. In addition, the plaintiffs charge that clear-cutting trees to make way for the train would harm Barred Owls that build their nests during the spring and summer in trees along the trail.

They’ve also long insisted that improving existing bus service or adding an east-west bus rapid transit system on existing roads would be a much cheaper, less environmentally harmful alternative to building the Purple Line.

“This project is not what people think it’s going to be,” Bhatt said.

In the meeting, Bhatt and Fitzgerald pointed to Lysy’s economic analysis, which found that building a bus rapid transit system would be cheaper even if the state never charged any riders to use it.

The plaintiffs are requesting the federal government evaluate the concerns they’ve raised by conducting a new supplemental environmental impact statement (SEIS) that would also consider alternatives to the light-rail such as bus rapid transit. That process could take more than six months and would include additional public hearings. Leon has yet to issue a ruling on whether a new SEIS is needed and has not indicated when he may rule on the issue.

For now, Fitzgerald and Bhatt said they hope people will understand their desire to formally recognize the entire trail as a park.

“We can have a world-class park that extends all the way from downtown Silver Spring into Georgetown,” Bhatt said. “You’re not going to get back those trees once you take them down.”