Skip to Content

Support MinnPost

Met Council gets a win, and some words of sympathy, in latest Southwest LRT ruling

Chief Judge John Tunheim
MinnPost photo by Peter Callaghan
Chief Judge John Tunheim’s order was based on his assessment of whether the alignment of Southwest LRT — along with deals the Met Council was required to make with the cities along the way — was a fait accompli.

It’s almost as though U.S. District Court Judge John Tunheim is starting to feel sorry for the Metropolitan Council.

“This is a close case,” Tunheim wrote last week in his most recent ruling from the three-and-half-year old lawsuit brought by a group of Minneapolis residents against the Metropolitan Council over the Southwest Light Rail Transit project.

“State law, while well intentioned, severely restricts the [Met] council’s ability to move light-rail projects forward during the planning and design phase 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 ruling favoring the Met Council is the latest and maybe final development in what has been a drawn-out fight. Or as Tunheim called it: “the third chapter of this continuing dispute.”

The suit, brought by a group known as the Lakes and Parks Alliance and claiming that the environmental review performed for Southwest LRT was illegal, was first filed in late 2014. After a hearing in February 2015, the judge issued his first order in the case in August 2015. A reconsideration hearing was held last October, and Tunheim’s most recent order — giving the Met Council what could be a final victory — was issued last week.

But no one really feels sorry for the Met Council, the regional planning and transit agency that critics almost always preface with “unelected.” Tunheim’s order was based on his assessment of whether the alignment of Southwest LRT — along with deals the Met Council was required to make with the cities along the way — was a fait accompli. If it had been — if the council had simply gone through the motions of considering environmental impacts instead of considering whether an alternative route was better — he could have made the agency start the process over.

He didn’t.

“Because the court will find that the council did not irreversibly and irretrievably commit itself to a specific light-rail route, despite giving appearance that it did, the court will deny the [Lakes and Parks Alliance] motion, grant the council’s motion and enter judgment for the council,” he wrote.

While the Lakes and Parks Alliance could appeal, the order clears one of the myriad obstacles standing between the Met Council and starting work on the $1.858 billion, 14.5 mile extension of the Green Line between downtown Minneapolis to Eden Prairie.

A concerned court

In this latest go round, the Met Council argued — and Tunheim ultimately agreed — that while there was plenty of evidence that the council and staff had long preferred the alignment that was chosen, they had left the process open enough to stop or change plans had the environmental review of the project identified insurmountable obstacles.

That route passes through — and under — the Kenilworth Corridor between Cedar Lake and Lake of the Isles. In order to accommodate freight tracks through the narrow passage, light rails tracks will have to be buried in a cut-and-cover tunnel on that part of the route.

Both the route and the tunneling were acutely problematic to a group of residents that lived near the Kenilworth Corridor and who ultimately organized as the Lakes and Parks Alliance.

In 2015, after the filing of the suit by the Lakes and Parks Alliance against the Met Council, Tunheim found that while the regional body had come close to pre-judging the environmental process, it hadn’t crossed the line into predetermination, though the opinion was not without reservations.

“The LPA is correct and the court is still concerned, given the statements of political and Met Council leaders throughout the municipal consent process … that a political and bureaucratic drumbeat has begun that will lead inexorably to exactly the choice the Met Council wants,” he wrote.

“The court remains concerned that the Met Council has done more than express a preferred alternative and has ‘gone too far’ and has effectively committed itself to a specific route.”

Politics, policy and ‘intemperate’ language

Tunheim kept the case in front of him and invited the neighbors to come back if either the Met Council messed up the final steps toward getting environmental approval from the federal government — or if new information was discovered. While the project was getting the necessary approvals from the feds, the neighbors and their lawyers discovered some rather embarrassing communications between elected and appointed officials regarding the project.

In October 2013, for example, Met Council member Adam Duininck wrote to then-council Chair Susan Haigh about the sentiment of one of the cities he represented, Minneapolis. The city disagreed with the co-location of light rail and freight rail in the Kenilworth Corridor, and was upset that the council had let St. Louis Park veto a plan to route the freight line through that city.

“Even if the policy didn’t make sense, even though cost/impacts were different, the politics about having more options alive longer would have been important cover for us at the Council,” Duininck wrote Haigh. “From the first briefing I received on SWLRT, it was overwhelmingly clear where the staff recommendation was headed. That sense of it being a foregone conclusion is the primary driver of why Minneapolis believes the process has not been fair.”

Later, the Met Council negotiated another side agreement, known as a memorandum of understanding, with Minneapolis in order to obtain municipal consent, despite the city’s continued misgivings about co-location.

Lakes and Parks Alliance lawyers argued that the agreements with Minneapolis and St. Louis Park were evidence that the route selection was preordained — and the environmental review wouldn’t have changed it. But Tunheim ruled that the agreements weren’t legally binding and that, as the Met Council had argued, the agency could break them if the environmental reviews required it.

That led to a second inflammatory email, this one from Minneapolis Mayor Betsy Hodges to Duininck, who had by then become the Met Council chair.

“I understand that the Met Council’s defense in the lawsuit from resident’s re: Southwest LRT is that the Met Council’s agreements with Minneapolis are not binding agreements,” Hodges wrote. “Please note two things: first, the city of Minneapolis in no uncertain terms considers them to be binding and second, that’s not a great way to demonstrate partnership. Please note, in the spirit of that partnership, I am sending this message to you and not to Judge Tunheim.”

In asking for a reconsideration of the case, Lakes and Parks Alliance lawyers hoped that those communications might push Tunheim to rule against the agency, especially given the concerns the judge expressed in 2015. During oral arguments last October, an attorney for the Lakes and Parks Alliance, Lewis Remele, told Tunheim that his previous ruling had given the Met Council two paths: fix it or proceed on. “They chose Door No. 2,” Remele said.

For his part, the Met Council’s attorney in the case, Charles Nauen, dismissed the Duininck and Hodges emails (along with the others) as politics, not policy, even if they “contain intemperate language.”

“Their new facts are political comments and efforts to make the project go,” Nauen said. “That’s allowed.”

Besides, he argued, the federal government sets up a window to challenge environmental reviews once it receives them and the Lakes and Parks alliance missed the deadline, making the case moot. “The plaintiff has self-eviscerated its remedy,” Nauen told Tunheim. “The [final environmental impact statement] is adequate because it has not been challenged.”

Ultimately, Tunheim wasn’t impressed with the new information. “None of the evidence produced or events occurring since the court’s first summary-judgment order change any of the critical facts that the court identified and relied on in denying the [Lakes and Parks Alliance] first motion of summary judgment,” he wrote. “All told, these facts show that the council did not engage in predetermination.”

At the end of the lastest order, Tunheim returned to the theme that he opened the opinion with — that the Met Council has it tough.

“The court understands the council’s difficult task,” he concluded. “The state’s municipal-consent process enables local government to attempt to hold light-rail projects hostage if they oppose any part of the project.

“And such a scheme can significantly interfere with the goals of a proper regional planning process that appropriately considers the environmental impact of development.”

Get MinnPost's top stories in your inbox

Related Tags:

About the Author:

Comments (6)

Picking the best route

I went to almost all the early public meetings and learned about the process of environmental review and about municipal consent. The Kenilworth route was immediately opposed by a group of neighbors, but many people in other parts of the city (especially North Minneapolis) and the suburbs supported it. This route, 3A, was eventually selected because it best met standard transit criteria: cost, ridership, travel time, serving transit-dependent people especially reverse commuters, avoiding duplication of existing service, and minimizing disruption of historic neighborhoods. These were carefully and patiently explained by Met Council staff and engineering consultants.

It became apparent that the Council could try to persuade the TC&W RR to relocate but couldn’t “promise” this outcome because it doesn’t have the power to force it.

As an eyewitness, it seems incorrect to say that the process was flawed or predetermined. It seems wrong to dishonor the testimony of the many people who don’t agree with the group that brought the lawsuit.

Regional planning

Judge Tunheim's observations quoted at the end of the article point out a very fundamental problem with our metropolitan planning or lack thereof. Municipalities need to have their needs and views given all due consideration, but it's wrong to let that process lame regional needs that deserve priority. (Although I'm not necessarily saying that the Met Council's Southwest Rail planning was good.)

Similarly it's wrong to let municipalities have their way with projects that consume funds that should help satisfy regional needs but do not. An example is the current Gold Line project that uses transit funds to promote local development (so the advocates--real estate interests?--hope) rather than help meet regional transit needs.

I believe the Met Council does have the power to say no to the Gold Line, although sadly there's no indication it might. But in general the Met Council needs more authority, tempered by greater transparency and accountability to the general public. That's why the commissioners ought to be elected to that body at the polls.

Conflict

Interesting that Tunheim finds in favor of the Met Council.....when the Met Council is one of his wife's many clients.

Not that interesting

And ludicrous to suggest that tenuous contact had any impact to a high profile case like this.

Basis of decision: "Promises that can be broken"

Here is the key section of the Tunheim decision — it's found in the "Conclusion" section. It explains exactly why Tunheim decided the Memorandums of Understanding (which were the basis of the City of Minneapolis's municipal consent) were not binding:

"Ultimately, after careful consideration of the LPA's claims in this case, and a thorough review of the factual record developed by the parties, the Court has determined that the MOUs the Council signed with Minneapolis and St. Louis Park are what the Council says they are: promises that can be broken. If the MOUs were binding and they limited environmental review to a single route, the Court would be compelled to find improper predetermination under NEPA."

So — those MOUs — you remember — the ones produced by high-level, high-stakes, high-pressure, highly visible negotiations that even had to be mediated by a retired judge — those MOUs were not binding, made to be broken. A reasonable person would wonder: why bother with them?

Here's the Met Council-City of Mpls joint news release announcing them: https://content.govdelivery.com/accounts/MNORGMETC/bulletins/c19675

Note that it says the "The tentative agreement will become final after it has been approved and signed by both the Met Council and City of Minneapolis." Well, they were approved and signed.

The City didn't simply vote municipal consent up or down; it demanded a detailed, written agreement. It agonized over agreement, which the joint Met Council-City of Mpls news release characterized as "final." Betsy Hodges understood it was binding. So when is final not final? When is a written agreement that you sign with the understanding that it is binding — not?

Merriam Webster:

1a : not to be altered or undone all sales are final
b : of or relating to a concluding court action or proceeding final decree

Mind-boggling.

Tough day for the NIMBYs

At least they jacked up the cost by delaying the project. Too bad there isn’t a way to make them pay for it.