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

The federal judge’s order was based on whether the alignment of Southwest LRT had been a fait accompli.

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.
MinnPost photo by Peter Callaghan

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.”

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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.

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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.

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“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.”