Updated – 7 p.m. – For the second time in the past month, U.S. District Court Judge Richard Leon did not rule on whether to allow tree cutting to take place along the Purple Line route.
Instead, Leon asked the federal government to provide him with supplemental information that shows why the Federal Transit Administration decided to provide the project with a full funding grant agreement worth $900 million.
The request came during a hearing in a new case brought by the same plaintiffs pursuing a different case against the Purple Line since 2014—Town of Chevy Chase residents John Fitzgerald and Christine Real De Azua and the trail group Friends of the Capital Crescent Trail. The plaintiffs are seeking a preliminary injunction to prevent trees from being cut down for Purple Line construction until both cases can be adjudicated.
The lack of a decision means tree cutting along the Georgetown Branch and other parts of the Purple Line could begin as scheduled Wednesday morning. Leon asked that the two sides in the case negotiate as to whether tree cutting should take place.
Outside the court room, Albert Ferlo, an attorney for the state, said he could not make the decision whether to allow tree cutting. Fitzgerald, who is also an attorney in the case, urged Maryland officials not to move forward with tree cutting, at least temporarily, until the judge can issue a ruling.
Chris Doherty, a spokesman for Purple Line Transit Partners, which is building the light-rail line, said in an email Tuesday evening, "Given the uncertainties on the timing and nature of future rulings from the court, Purple Line Transit Partners and its contractors will resume clearing work on Monday, September 25."
However, he said the trail will remained closed and that it is an active construction zone.
Leon said he would issue an appealable order soon—although he didn’t give a time frame—and would issue a full written opinion in about a month.
The plaintiffs allege Maryland has failed to adequately fund the existing transportation’s network—particularly Metro—and therefore should not have received the grant from the federal government.
Attorneys for the state and federal government on Tuesday contended that the new case remains intertwined with arguments being weighed in the original case by a higher court—the D.C. Court of Appeals—and therefore the District Court lacks jurisdiction to rule on it.
The appeals court has granted a stay of Leon’s earlier decision to vacate the project’s federal approval. The stay allowed the state to begin construction on the 16.2-mile light-rail line and secure the federal grant agreement in late August. The trail was closed five days after construction began.
The appeals court is now weighing whether to require the Federal Transit Administration to conduct a new environmental analysis of the project to determine if Metro’s ridership decline and safety problems could affect ridership on the Purple Line. Leon ordered the new analysis earlier this year.
Both sides are scheduled for oral arguments in front of the appeals court on Nov. 1.
On Tuesday, Tyler Burgess, a Department of Justice attorney, argued that the plaintiffs are attempting to bring the same case that’s now before the Court of Appeals.
“The D.C. Circuit has said very clearly this project should go forward,” Burgess said.
But Leon responded that he’s not so sure. He noted that the higher court has not vacated his order calling for a new environmental analysis.
However, the court’s decision to reinstate the project’s federal approval seems to him that it is disagreeing with his reasoning to vacate it, he said.
But Leon then pressed for more information about the reasons why U.S. Transportation Secretary Elaine Chao decided to sign the grant agreement. Leon said he did not see findings in the grant agreement and inquired as to how the government decided to provide the $900 million in federal funds—$151 million of which has already been given to the state for the project.
Burgess said the findings are in other documents and the grant agreement itself is largely boilerplate language. She said she doesn’t believe there have been previous legal challenges to a federal funding grant agreement because plaintiffs generally challenge the record of decision (the project’s federal approval) or environmental impact statements related to transit projects.
“We think the findings requirement has been ignored,” David Brown, an attorney for the plaintiffs, said in response.
Ferlo said delaying tree cutting would cause a cascading effect that would likely affect the project’s construction schedule. He said there are about 6,000 interlocking steps to complete construction and the federal government requires that the project be completed by 2022 under the funding agreement.
He said delaying tree cutting for a month would increase the project’s cost by about $13 million.
Leon asked that the federal government provide him with the grant agreement findings by the end of the day Wednesday.
However, he said he still believes “it’s a stretch” that his court has jurisdiction over the case since the Court of Appeals is also weighing the other lawsuit.
The plaintiffs believe Leon has jurisdiction. They said they couldn’t raise the adequate funding issue in the previous case until after the federal government signed the funding agreement.
“It’s a new violation. Sorry,” Fitzgerald said outside the courtroom. “Does the metropolitan region have the ability to repair and operate [the transportation network] with no reduction in service? We’ve seen official reductions in service over and over again.”
He added that Leon could issue an order as soon as Wednesday and he’s concerned tree cutting will commence soon.
“If a five-year project has to go forward, there’s no reason that for one day you can’t leave 80-year-old trees standing,” Fitzgerald said. He added that even if it takes a week or two for Leon’s order to be issued, the state should wait before cutting down trees.
When asked whether he or Friends of the Capital Crescent Trail might organize a protest on the trail to prevent the trees from being cut down, Fitzgerald didn’t think it would be legal.
“[The trail’s] been closed,” Fitzgerald responded. “So to go protest the illegal cutting of trees, or what we feel is illegal, is itself a violation of the law. So that’s why we’re in court.”