'We were certain that we had to alert the court that the city was not acting in accordance with its sworn testimony at trial' - Attorney for ART opponents
ART Foes’ Injunction Request Denied
THIS UPDATES AN EARLIER STORY ON THE STATUS OF ART’S FEDERAL FUNDING
BY DENNIS DOMRZALSKI
The U.S. Tenth Court of Appeals on Oct. 25 refused to halt construction on Mayor Richard Berry’s $119 million Albuquerque Rapid Transit project along Central Avenue.
The court said that ART opponents weren’t entitled to an injunction, but didn’t explain why.
ART opponents had filed an emergency motion on Oct. 20 seeking an injunction to halt the full-blown construction along Central Avenue that began last week. The plaintiffs in the lawsuit against ART said they filed the motion as a way to alert the court that the city had begun construction before the project had been funded.
“We knew it was a difficult legal burden to meet, but we were certain that we had to alert the court that the city was not acting in accordance with its sworn testimony at trial [regarding the construction schedule],” said attorney Yolanda Gallegos, one of the attorneys representing the plaintiffs.
In a brief filed with the court on Oct. 4, the FTA said that it had not yet made a final decision on whether to approve the city’s grant application for ART.
The city has repeatedly said that since ART has been included in President Obama’s proposed budget, funding is pretty much guaranteed. Congress has yet to approve Obama’s budget.
The appellate court had had imposed an injunction on ART construction on Aug. 1, but lifted it on Aug. 19.
Oral arguments for the plaintiffs’ request for a preliminary injunction are scheduled for Nov. 14 in Denver.
Feds Have Not OK’d ART Funding
City Funds at Risk if Washington Doesn’t Come Through
BY DENNIS DOMRZALSKI
While construction crews are ripping up Central Avenue for Mayor Richard Berry’s $119 million Albuquerque Rapid Transit Project, the Federal Transit Administration has dropped a bombshell that could derail the project.
And here it is: The FTA has yet to approve the city’s application for a federal grant for ART.
That stunning revelation, and the fact that the ART construction is causing the havoc that opponents said it would, has prompted the project’s opponents to ask the U.S. Ten Circuit Court of Appeals to once again halt ART in its tracks.
An FTA attorney, Dave Gunter, confirmed on Oct. 21 to John Boyd, one of the attorneys for ART opponents, that it has not approved money for the project and that the city is spending money at its own risk.
“John—Your understanding below is incorrect. FTA has approved the environmental analysis for the project by determining that no further NEPA analysis is required for FTA funding. But FTA has not yet decided whether it will grant the funding,” Gunter said.
“I am informed that FTA’s letter of no prejudice makes no legal commitment to fund the project and that no federal money is currently being spent. The letter just provides that if the project is ultimately funded, the City will be able to seek reimbursement of money that it spends before the decision is made, but the City bears the risk that FTA’s decision will be different.”
Lawyers for ART’s opponent s filed an emergency motion Oct. 20 with the U.S. Court of Appeals in Denver asking the court to reinstate a temporary injunction it imposed on ART on Aug. 1 and then lifted on Aug. 19.
The appellate court has given the city and the FTA until 3 p.m. on Oct. 24 to reply.
The revelation that the FTA has yet to approve the city’s $69 million Small Starts grant first came in a brief the FTA filed in the case on Oct. 4.
“A key reason for limiting judicial review to the administrative record is so that the agency has the first opportunity to consider relevant information,” the FTA’s brief said. “That process continues here. Plaintiffs have provided the Rowangould and Lusk declarations [plaintiffs’ traffic studies] to FTA, and FTA is considering those submissions before it makes a final decision on the City’s grant application.”
Attorney Yolanda Gallegos, who along with Boyd represents the plaintiffs, the Coalition to Make ART Smart, said she was shocked by the FTA’s revelation.
“Until it filed its brief in the U.S. Court of Appeals a few days ago, the FTA had not alerted the Court or the public that it had not yet approved the City’s Small Starts grant application,” Gallegos told ABQ Free Press. “For the FTA to allow this project to proceed to the stage of ripping up Central Avenue reveals a shocking willingness to forfeit the historic legacy of Central Avenue and the historic districts that line it when it hasn’t even finished its own review process.
“The Mayor’s decision to accelerate his original construction schedule to begin right before the holidays not only contradicts the sworn testimony of his chief operating officer, but seems intended to avoid the jurisdiction of the U.S. Court of Appeals and the results of the November advisory vote on ART. Under these circumstances, we were obliged to ask the Court to reinstate it injunction.”
Gallegos said Boyd emailed one of the FTA’s attorneys on Oct. 19 and asked what the agency meant by saying it sill hadn’t approved the city’s grant application. The lawyer didn’t respond until the next day, after Gallegos and Boyd had filed their emergency request for another injunction. The FTA’s attorney wrote Boyd to say that it looked like the question was moot because the emergency motion had been filed. But on Oct. 21, Boyd got Gunter’s reply.
ABQ Free Press emailed Joan Griffin, who heads the private public relations firm that is doing PR for ART, three questions about the FTA’s brief: Why did the city proceed with construction when the FTA has yet to approve the grant application? Why did the city not tell the public that the FTA has yet to approve the Small Starts grant? Will the city halt ART construction now that it knows that the FTA has yet to approve the Small Starts Grant?
“The City Administration has been clear with the City Council and the public that work was proceeding in advance of receiving a Small Starts Grant Agreement. It is standard industry practice for Small Starts and New Starts projects to move forward with construction prior to receiving a signed construction grant agreement from the FTA once a project has completed the NEPA process and been recommended for funding in a Presidential budget. The ART Project received a signed Categorical Exclusion from the FTA in August of 2015 (completing the NEPA process) and was included in the President’s budget in February of 2016.
The plaintiffs’ motion said that ART construction, which involved crews tearing out the medians along Central, is causing all the negative effects that opponents said it would.
“The effect of the construction, which began on Tuesday of this week [Oct. 17], is a lengthy traffic jam, with drivers urged by the City to seek alternate routes,” the plaintiffs’ motion said. “But the current construction activities, which reduce Central in the Nob Hill and other areas to single lanes in either direction, mimic ART’s design, which will permanently reduce Central to single lanes in either direction in those same areas. Thus the current lane closures are likely to predict traffic conditions after ART is complete and the single lanes in the Nob Hill and other commercial areas have become permanent.
“Now, as a result of lane closures that will become permanent when ART is complete, Central Avenue is a lengthy traffic jam and the City is encouraging divers to seek alternate routes.”
The motion also said that the city accelerated ART’s construction, which wasn’t supposed to occur in Nob Hill until after the holidays, in order to make moot the plaintiffs’ request for a preliminary injunction. The appellate court has scheduled oral arguments in the plaintiff’s case for Nov. 14.
“The City’s decision to speed up demolition and construction activities in Nob Hill and other areas is an attempt limit the ability of this Court to accord effective and meaningful relief to the Coalition in the event that the Court agrees that the defendants have violated NEPA [National Environmental Policy Act],” the motion said. “By altering the demolition and construction so that Central’s medians will be demolished before this Court acts, should it agree that the FTA and City violated NEPA, the City is ‘playing fast and loose’ not just with the plaintiffs, but with the courts as well, by speeding up the schedule it announced.”
Dennis Domrzalski is an associate editor at ABQ Free Press Weekly. Reach him at email@example.com
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