Case 1:17-cv-01811-RJL Document 43 Filed 12/05/17 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT *

TRAIL, et al.,
*

Plaintiffs, *

v. *

FEDERAL TRANSIT ADMINISTRATION, * Civil Case No. 17-CV-1811 (RJL)

et al.,
* Hon. Richard J. Leon

and *

MARYLAND DEPARTMENT OF
TRANSPORTATION, *

Defendants. *

* * * * * * * * *

THE STATE OF MARYLANDS MOTION TO DISMISS FOR LACK OF SUBJECT

MATTER JURISDICTION AND FAILURE TO STATE A CLAIM,
PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)(1) AND 12(b)(6)
 Case 1:17-cv-01811-RJL Document 43 Filed 12/05/17 Page 2 of 2

Defendant the State of Maryland respectfully moves for the Court to dismiss Plaintiffs

Complaint in its entirety. ECF No. 1. For the reasons stated in the accompanying Memorandum,

Plaintiffs claims against the State of Maryland should be dismissed under Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure.

Dated: December 5, 2017 Respectfully submitted,

BRIAN E. FROSH
Attorney General of Maryland

JULIE T. SWEENEY
Assistant Attorney General
Maryland Transit Administration
6 St. Paul Street, Suite 1200
Baltimore, MD 21202-1614
Telephone: 410.767.3844
Email: JSweeney@mta.maryland.gov

ALBERT M. FERLO
Perkins Coie LLP
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: 202.654.6200
Facsimile: 202.654.6211
Email: aferlo@perkinscoie.com

Attorneys for Defendant Maryland Department

of Transportation

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 Case 1:17-cv-01811-RJL Document 43-1 Filed 12/05/17 Page 1 of 33

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT *

TRAIL, et al.,
*

Plaintiffs, *

v. *

FEDERAL TRANSIT ADMINISTRATION, * Civil Case No. 17-CV-1811 (RJL)

et al.,
* Hon. Richard J. Leon

and *

MARYLAND DEPARTMENT OF
TRANSPORTATION, *

Defendants. *

* * * * * * *

THE STATE OF MARYLANDS MEMORANDUM OF LAW

IN SUPPORT OF ITS MOTION TO DISMISS
 Case 1:17-cv-01811-RJL Document 43-1 Filed 12/05/17 Page 2 of 33

TABLE OF CONTENTS

Page

INTRODUCTION ......................................................................................................................... 1
FACTUAL BACKGROUND ........................................................................................................ 3
A. Background Facts....................................................................................... 3
B. This Litigation............................................................................................ 4
1. Allegations Regarding Standing .................................................... 5
2. Allegations Regarding NEPA Compliance.................................... 6
ARGUMENT ................................................................................................................................. 8
I. Standard of Review ................................................................................................ 8
II. Statutory Background .......................................................................................... 10
A. The Federal Transit Act ........................................................................... 10
B. The National Environmental Policy Act .................................................. 10
III. Plaintiffs Lack Article III Standing to bring their grant agreement Claims. ....... 11
A. Plaintiffs Lack Constitutional Standing Because They Have Failed
to Establish a Causal Connection Between Their Alleged Injury
and FTAs Execution of the Grant Agreement and That Their
Injuries Could Be Redressed By Setting Aside the Grant
Agreement. ............................................................................................... 12
B. Plaintiffs are Outside the Zone of Interests for the Grant
Agreement Claims. .................................................................................. 17
IV. Plaintiffs NEPA Claims Should be Dismissed Based on the Expiration of
the Statute of Limitations and the Application of Res Judicata. ......................... 20
A. Challenges to the August 2013 Final EIS and March 2014 ROD
Are Barred by the Statute of Limitations in 23 U.S.C. 139(l). ............. 20
B. Res Judicata Bars Consideration of Claims Decided in Friends I. ......... 22
C. Mitigation Measures Are Not Enforceable By Third Parties................... 24
CONCLUSION ............................................................................................................................ 25

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CASES

Abulhawa v. U.S. Dept. of the Treasury,

239 F. Supp. 3d 24 (D.D.C. 2017) ...............................................................................11, 13, 17

Alaska Forest Assn v. Vilsack,

883 F. Supp. 2d 136 (D.D.C. 2012) .........................................................................................13

Allen v. McCurry,
468 U.S. 737 (1984) .................................................................................................................14

Allen v. Wright,
449 U.S. 90 (1980) ...................................................................................................................23

Ashcroft v. Iqbal,
556 U.S. 662 (2009) ...................................................................................................................9

Assn of Data Processing Serv. Orgs. v. Camp,

397 U.S. 150 (1970) ...........................................................................................................12, 17

Atherton v. D.C. Office of the Mayor,

567 F.3d 672 (D.C. Cir. 2009) ...................................................................................................9

Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .............................................................................................................9, 24

Biodiversity Conservation Alliance v. BLM,

404 F. Supp. 2d 212 (D.D.C. 2005) .........................................................................................11

Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534 (1986) ...................................................................................................................8

Citizens to Preserve Overton Park v. Volpe,

401 U.S. 402, 415-16 (1971) ...................................................................................................11

Clapper v. Amnesty Intl USA,

568 U.S. 398 (2013) .................................................................................................................15

Coeur dAlene Lake v. Kiebert,

790 F. Supp. 998 (D. Idaho 1992) ...........................................................................................24

Consumer Fedn of Am. v. FCC,

348 F.3d 1009 (D.C. Cir. 2003) ...............................................................................................13

Crossroads Grassroots Policy Strategies v. Fed. Elections Comn,

788 F.3d 312 (D.C. Cir. 2015) ...................................................................................................9

DaimlerChrysler Corp. v. Cuno,

547 U.S. 332 (2006) .................................................................................................................11

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TABLE OF AUTHORITIES
(cont.)

Page(s)
Drake v. FAA,
291 F.3d 59 (D.C. Cir. 2002) ...................................................................................................23

EEOC v. St. Francis Xavier Parochial Sch.,

117 F.3d 621 (D.C. Cir. 1997) ...................................................................................................9

El Paso Nat. Gas Co. v. United States,

605 F. Supp. 2d 224 (D.D.C. 2009), affd, 632 F.3d 1272 (D.C. Cir. 2011) .............................8

Florida Audubon Society v. Bentsen,

94 F.3d 658 (D.C. Cir. 1996) .....................................................................................................2

Fraternal Order of Police v. Gates,

562 F. Supp. 2d 7 (D.D.C. 2008) .............................................................................................10

Grand Council of Crees v. FERC,

198 F.3d 950 (D.C. Cir. 2000) .................................................................................................18

Grand Lodge of Fraternal Order of Police v. Ashcroft,

185 F. Supp. 2d 9 (D.D.C. 2001) ...............................................................................................8

Gustave-Schmidt v. Chao,
226 F. Supp. 2d 191 (D.D.C. 2002) .........................................................................................10

Hazardous Waste Treatment Council v. EPA,

861 F.2d 277 (D.C. Cir. 1988) .................................................................................................18

Herbert v. Natl Acad. of Scis.,

974 F.2d 192 (D.C. Cir. 1992) ...................................................................................................9

Highland Vill. Parents Grp. v. U.S. Fed. Highway Admin.,

562 F. Supp. 2d 857 (E.D. Tex. 2008) .....................................................................................21

Hunt v. Wash. State Apple Advert. Commn,

432 U.S. 333 (1977) .................................................................................................................13

Ibrahim v. District of Columbia,

463 F.3d 3 (D.C. Cir. 2006) .....................................................................................................23

In re Interbank Funding Corp. Sec. Litig. v. Radin Glass & Co.,

629 F.3d 213 (D.C. Cir. 2010) ...................................................................................................9

Indian River County v. Rogoff,

201 F. Supp. 3d 1 (D.D.C. 2016) .............................................................................................19

Indian River Cty. v. Rogoff,

110 F. Supp. 3d 59 (D.D.C. 2015) ...........................................................................................12

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TABLE OF AUTHORITIES
(cont.)

Page(s)
Jerome Stevens Pharm., Inc. v. FDA,
402 F.3d 1249 (D.C. Cir. 2005) .................................................................................................9

Lexmark Intern., Inc. v. Static Control Components, Inc.,

134 S.Ct. 1377 (2014) ..........................................................................................................9, 18

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) .................................................................................................................11

Lujan v. Natl Wildlife Foundation,

497 U.S. 871 (1990) .................................................................................................................17

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak,

567 U.S. 209 (2012) ...........................................................................................................12, 17

Moms Against Mercury v. FDA,

483 F.3d 824 (D.C. Cir. 2007) ...................................................................................................8

Monumental Task Comm., Inc. v. Foxx,

157 F. Supp. 3d 573 (E.D. La. 2016), affd sub nom. Monumental Task
Comm., Inc. v. Chao, 678 F. Appx 250 (5th Cir. 2017) .........................................................21

Natl Parks Conservation Assn v. Manson,

414 F.3d 1 (D.C. Cir. 2005) .....................................................................................................12

National Assn of Home Builders v. U. S. Army Corps of Engrs,

417 F.3d 1272 (D.C. Cir. 2005) ...............................................................................................11

Noe v. Metropolitan Atlanta Rapid Transit Auth.,

644 F.2d 434 (5th Cir. 1981) ...................................................................................................25

Page v. United States,

729 F.2d 818 (D.C. Cir. 1984) .................................................................................................23

Randolph v. ING Life Ins. & Annuity Co.,

486 F. Supp. 2d 1 (D.D.C. 2007) ...............................................................................................8

Rapid Transit Advocates, Inc. v. S. Cal. Rapid Transit Dist.,

752 F.2d 373 (9th Cir. 1985) ...................................................................................................19

Robertson v. Methow Valley Citizens Council,

490 U.S. 332 (1989) ...........................................................................................................10, 11

SEC v. First Jersey Secs.,

101 F.3d 1450 (2d Cir. 1996)...................................................................................................23

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TABLE OF AUTHORITIES
(cont.)

Page(s)
Simon v. Eastern Kentucky Welfare Rights Organization,
426 U.S. 26 (1976) ...................................................................................................................16

Spannaus v. U.S. Dept of Justice,

824 F.2d 52 (D.C. Cir. 1987) ...................................................................................................21

Theodore Roosevelt Conservation Pship v. Salazar,

605 F. Supp. 2d 263 (D.D.C. 2009) .........................................................................................11

Theodore Roosevelt Conservation Pship v. Salazar,

616 F.3d 497 (D.C. Cir. 2010) ...........................................................................................10, 11

Thompson Metal Fab, Inc. v. U.S. Dept of Transp.,

289 F.R.D. 637 (D. Or. 2013) ..................................................................................................21

Vermont. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,
435 U.S. 519 (1978) .................................................................................................................10

West v Lynch,
845 F.3d 1228 (D.C. Cir. 2017) ...............................................................................................15

STATUTES

5 U.S.C. 702 (Administrative Procedure Act) ......................................................2, 12, 17, 22, 24

16 U.S.C. 703 - 712 (Migratory Bird Treaty Act) ......................................................................1

16 U.S.C. 1531- 1544 (Endangered Species Act)........................................................................1

23 U.S.C. 138 ................................................................................................................................1

23 U.S.C. 139(l) ....................................................................................................................20, 21

26 U.S.C. 142(m) ........................................................................................................................19

42 U.S.C. 4321 - 4345 (National Environmental Policy Act) ....................................................1

42 U.S.C. 4332(2)(C) ..................................................................................................................11

49 U.S.C. 303 ..........................................................................................................................1, 22

49 U.S.C. 5301 ......................................................................................................................10, 18

49 U.S.C. 5301 - 5309 (Federal Transit Act) ..............................................................................1

49 U.S.C. 5309 ..............................................................................................................................1

49 U.S.C. 5309(d)(2)(A)(iii) ...................................................................................................5, 10

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TABLE OF AUTHORITIES
(cont.)

Page(s)
49 U.S.C. 5309(f)(1)(C) ................................................................................................................4

OTHER AUTHORITIES

40 C.F.R. 1502.9(c)(1)(ii) ...........................................................................................................20

40 C.F.R. 1505.3 ...........................................................................................................................5

79 Fed. Reg. 18113 (Mar. 31, 2014) ..............................................................................................21

Fed. R. Civ. P. 12(b)(1)..............................................................................................................8, 25

Fed. R. Civ. P. 12(b)(6)..........................................................................................................8, 9, 24

5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure
1350 (2d ed.1987) ......................................................................................................................9

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Defendant Maryland Department of Transportation (hereinafter Maryland or the

State) hereby submits this Memorandum in Support of its Motion to Dismiss under Rule

12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject matter

jurisdiction and failure to state a claim.

INTRODUCTION

Friends of the Capital Crescent Trail, John Fitzgerald, and Christine Real de Azua

(collectively Plaintiffs) have filed their second challenge to Marylands Purple Line Project

(hereinafter the Project or the Purple Line). The first lawsuit raised a host of issues, alleging

violations of the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 - 4345, the

Federal Transit Act, 49 U.S.C. 5301 - 5309, Section 4(f) of the Department of Transportation

Act, 23 U.S.C. 138 and 49 U.S.C. 303, the Endangered Species Act, 16 U.S.C. 1531-

1544, and the Migratory Bird Treaty Act, 16 U.S.C. 703 - 712. Friends of the Capital

Crescent Trail, et al. v. Federal Transit Administration, 14-cv-1471 (Friends I). Friends I is

currently on appeal before the United States Court of Appeals for the District of Columbia

Circuit (Nos. 17-5132, 17-5161, 17- 5174, 17-5175).

In this second lawsuit, Plaintiffs raise two counts challenging the Purple Line. In the first

count, Plaintiffs allege that the Federal Transit Administration (FTA) did not properly make

the findings required under Section 5309 of the Federal Transit Act, 49 U.S.C. 5309, before

approving the Projects New Starts programs Full Funding Grant Agreement (the Grant

Agreement) under the New Starts Program. Compl. 82-91 (ECF 1). In the second count,

Plaintiffs again allege that FTA violated NEPA by failing to prepare a supplemental

environmental impact statement (supplemental EIS) that considered purportedly new

information. Id. 92-99. As a remedy, Plaintiffs again ask this Court to vacate the Record of

Decision (ROD) issued by FTA on the Purple Line, order FTA to prepare a supplemental EIS,
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and set aside the Grant Agreement executed by FTA and the State. This Court should dismiss

the Complaint in its entirety with prejudice.

As to the first count, Plaintiffs lack standing to challenge FTAs compliance with the

requirements of the New Starts funding statute, and their claims should therefore be dismissed

for lack of subject matter jurisdiction. To establish standing, Plaintiffs must plead facts

sufficient to establish that their alleged injuries are fairly traceable to FTAs action in executing

the Grant Agreement, and that the injuries alleged can be redressed by a favorable decision on

the stated claim. The allegations in Plaintiffs Complaint fail to establish either of these two

required elements for constitutional standing. In addition, because Plaintiffs assert their claim

under the Administrative Procedure Act (APA), 5 U.S.C. 702, the Complaint must state facts

that show that they are within the zone of interests protected by the statute. As more fully

explained below, the purpose of Section 5309 is to promote transit projects that receive federal

funding, not to protect against environmental or aesthetic effects of such transit projects.

Plaintiffs allegations do not place their claims within the zone of interests protected by the New

Starts program.

As to the second count, Plaintiffs NEPA claims should be dismissed on two separate

grounds. First, claims relating to the adequacy of the Final Environmental Impact Statement

(Final EIS) issued by FTA in August 2013, and the ROD, approved by FTA in March 2014,

were filed beyond the 150-day statute of limitations and are therefore barred. Second, to the

extent Plaintiffs NEPA claims are based on the sufficiency of the Final EIS and ROD, those

claims are barred by res judicata.

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FACTUAL BACKGROUND

A. Background Facts

This Court is familiar with the Project and the history of these proceedings, so the State

will only briefly review them here. The Purple Line is a 16.2-mile light rail transit project that

will provide transit service in and between Montgomery and Prince Georges Counties in

Maryland. Compl. 40. The purpose of the Project is to provide faster, more direct and more

reliable east-west transit service connecting major areas of activity in Bethesda, Silver Spring,

Takoma/Langley Park, College Park and New Carrollton. Id. 41. The Project is being

developed by the Maryland Transit Administration (MTA), a modal agency of the Maryland

Department of Transportation. Id. 40. The Purple Line will provide better connections to

Metrorail services located in the corridor and improve connectivity to the communities in the

corridor located between the Metrorail lines. Id. 41.

FTA issued a Final EIS for the Project on August 28, 2013. Compl. 43. FTA issued a

ROD for the Project in March 2014. Id. On August 3, 2016, this Court vacated the ROD,

finding that FTA had failed to take the required hard look at whether new information about

Metrorail safety and ridership issues would greatly impact the Purple Lines ridership and thus

the basis for approving the selected alternative. Friends I, ECF No. 96. The Court also ordered

FTA to prepare a supplemental EIS addressing that single issue. In November 2016, the Court

amended its August 2016 order, allowing FTA to determine whether a supplemental EIS was

warranted, but denied the request to reinstate the ROD. Friends I, ECF No. 110.

FTA completed its analysis of Metrorail safety and ridership issues in December 2016,

and concluded that a supplemental EIS was not needed. Friends I, ECF No. 113. On May 22,

2017, the Court rejected FTAs determination, finding that FTA had failed to consider three

declarations from Plaintiffs, and therefore ruled again that a supplemental EIS was needed on

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Metrorail safety and ridership issues. Friends I, ECF No. 138. On May 30, 2017, the Court

issued a final judgment rejecting every other claim Plaintiffs asserted, including challenges to the

underlying ridership estimates for the Purple Line. Friends I, ECF No. 142. The State

immediately appealed the district courts final judgment on the supplemental EIS issue, and, on

July 19, 2017, the Court of Appeals granted the States motion for a stay pending appeal. ECF

19-1. In so ruling, the Court of Appeals stated that the State has satisfied the stringent

requirements for a stay pending appeal. Id. The Court of Appeals order reinstated the ROD,

which allowed the Project to receive New Starts funding and proceed to construction.

On August 22, 2017, the FTA and MTA signed the Grant Agreement for the Purple Line

project. ECF 6-1. The Grant Agreement provided Maryland immediate access to $200 million

in funds toward the construction of the Purple Line and stated the FTAs intention to provide a

total of $900 million toward the total project cost of $2.4 billion. ECF 6-1 at 12 of 44.

Construction activities have been underway on the Purple Line since the morning of August 28,

2017. ECF 19-5 at 8. As of September 15, 2017, MTA had received grant funds of

approximately $151 million. ECF 19-5 at 6.

B. This Litigation

On September 5, 2017, Plaintiffs filed a new complaint challenging FTAs approval of

the Grant Agreement and challenging FTAs compliance with NEPA. ECF 1. The Complaint

asserts two separate violations of law. The first count challenges FTAs compliance with the

Federal Transit Act in connection with the approval of the Grant Agreement. Compl. 82-91.

Plaintiffs claim that FTA violated 49 U.S.C. 5309 by signing [a Grant Agreement] before

completing the NEPA process. Compl. 85. Plaintiffs also assert that FTA violated 49 U.S.C.

5309(f)(1)(C) by failing to determine that local resources are available to recapitalize,

maintain, and operate the overall existing and proposed public transportation system. Compl.

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86. Plaintiffs final claim under the Federal Transit Act asserts a violation of 49 U.S.C.

5309(d)(2)(A)(iii), based on an allegation that FTAs review of the several factors governing the

execution of a Grant Agreement was not based on an objective and rational comprehensive

review of any reasonable evidence of record. Compl. 88-91.

Plaintiffs second count challenges FTAs compliance with NEPA, asserting yet again

that FTA was required to prepare a supplemental EIS. Compl. 92-99. Plaintiffs claim that

FTA must prepare a supplemental EIS based on new circumstances of [sic] available

transportation options and economics and the very significant new information concerning the

likely actual ridership and costs of the project. Compl. 94. Plaintiffs further allege that

these new transportation options and economics require a supplemental EIS due to the fact

that the information was either unknown or improperly assessed to a grave degree. Id.

Plaintiffs allege that new information in the form of declarations by self-styled experts

demonstrate that FTA failed to assess Project-caused impacts upon, or uses of, parks or park-

like areas, and historic buildings and sites. Compl. 95. Plaintiffs also assert that a

supplemental EIS is needed to explain how the Project will comply with the Clean Water Act,

the Migratory Bird Treaty Act and other laws. Compl. 97. Finally, Plaintiffs allege that the

FTA and Maryland have failed to implement mitigation commitments included in the ROD in

violation of 40 C.F.R. 1505.3. Compl. 98.

1. Allegations Regarding Standing

The individual Plaintiffs premise their claim to standing to bring the challenge to the

Grant Agreement on their claimed use of the Metrorail system. Compl. 7 (Azua) and 13

(Fitzgerald). Mr. Fitzgerald claims that he has been subjected to smoke from the trains within

the stations and delays caused by malfunctions. Compl. 13. Ms. Azua alleges that while

using the Metrorail system she has experienced some of Metros electrical fires and other

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failures hampering timely and safe access to downtown DC . Compl. 7. Ms. Azua also

alleges that the Project would also impair her ability to use a properly capitalized, maintained,

and safely operating WMATA and regional transportation system. Compl. 8. Mr. Fitzgerald

alleges that his ability to use the WMATA Metrorail system is impair[ed] by the Project

because the Project is competing for and by definition reducing funding and/or raising the price

and scarcity of the personnel, management, and material needed to repair, operate and maintain

[the WMATA] system and the regions transportation network as a whole. Compl. 13.

The organizational Plaintiff, Friends of the Capitol Crescent Trail (Friends), limits its

allegations of harm to its members ability to continue to enjoy walking, running, biking, and

observing wildlife. along the Georgetown Branch portion of the Projects corridor. Compl.

3. 1 The Complaint makes clear that the organizational goals of the Friends group are dedicated

to preserving parkland, open space, and quality of life in Montgomery County, Maryland. Id.

Neither Friends nor the individual Plaintiffs allegations are sufficient to establish a causal

connection between their alleged impairment in the use of the Metrorail system and FTAs

execution of the Grant Agreement.

2. Allegations Regarding NEPA Compliance

Plaintiffs Complaint contains a series of allegations that are apparently intended to

support their NEPA claims. Paragraphs 53 through 59 allege that new information relating to

direct costs and exaggerated ridership has been produced by several experts. 2 Plaintiffs

1
Plaintiffs Complaint references the Georgetown Branch portion of the Projects corridor as the
Capital Crescent Trail. However, as this Court recognized in Friends I, the correct reference
for this portion of the Project is the Georgetown Branch. See Friends I Opinion of June 9, 2017
at 15 (ECF 149).
2
The State does not concede that the authors of the several declarations upon which Plaintiffs
rely to support their claims are experts entitled to provide opinion evidence to this Court.
However, for the purposes of this Motion to Dismiss, the State will accept as true Plaintiffs
characterization of the authors of the declarations and publications as experts in the field

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claim that a January 2017 declaration by Dr. Lysy challenges the ridership forecasts used in

the Alternatives Analysis/Draft Environmental Impact Statement (AA/DEIS) prepared jointly

by MTA and FTA for the Purple Line. Compl. 54. The Complaint does not attach or

otherwise identify the January 2017 declaration. The Complaint next alleges that Dr. Lysy

prepared an analysis in July 2017 comparing tables in the Technical Appendix to the FEIS with

publicly posted Project ratings. Id. 55. In paragraphs 56 through 58 of the Complaint,

Plaintiffs point to other unidentified revelations concerning ridership projections used by MTA

and FTA in the Final EIS. Id. 56-58. Plaintiffs allege that the Final EIS failed to adequately

evaluate environmental justice impacts of the Project, pointing to an analysis prepared by a

transportation blogger. Id. 62. Plaintiffs also allege that the EIS process did not consider

the possibility that there was an excessive number of transit centers or hubs in Prince Georges

County . Id. 64.

Plaintiffs also assert new information regarding other environmental harms and risks

allegedly flowing from implementation of the Project. Relying on a declaration from an

experienced environmental lawyer, Plaintiffs allege that FTA and MTA did an extremely poor

job of characterizing the hazardous substances that may be present along the Georgetown

Branch portion of the Purple Line corridor. Compl. 67-69. The Complaint also alleges that

the Final EIS was inadequate in assessing noise impacts to schools (id. 70), historic sites (id.

71), and parks, watersheds and wildlife. Id. 73-81.

proffered. If the Court denies the Motion to Dismiss, the State intends to file a motion to strike
references to expert declarations by challenging the qualifications of the authors of the
declarations and publications as experts for the purposes of this litigation.

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ARGUMENT

Pursuant to Federal Rule of Civil Procedure 12(b)(1), all of Plaintiffs claims under the

Federal Transit Act, 49 U.S.C. 5301 through 5309, should be dismissed for lack of standing

or because Plaintiffs are not within the zone of interests protected by the statute. Plaintiffs

various NEPA claims are barred by the statute of limitations or by the operation of res judicata

should be dismissed under Rule 12(b)(6).

I. STANDARD OF REVIEW

In responding to a motion to dismiss under Rule 12(b)(1), Plaintiffs shoulder the burden

of establishing the Courts jurisdiction. Grand Lodge of Fraternal Order of Police v. Ashcroft,

185 F. Supp. 2d 9, 13 (D.D.C. 2001). This Courts jurisdiction is limited to exercising only the

power that is authorized by Article III of the Constitution and the statutes enacted by Congress

pursuant thereto. El Paso Nat. Gas Co. v. United States, 605 F. Supp. 2d 224, 227 (D.D.C.

2009), affd, 632 F.3d 1272 (D.C. Cir. 2011) (quoting Bender v. Williamsport Area Sch. Dist.,

475 U.S. 534, 541 (1986)). Thus, the jurisdictional requirements of Article III must be present

before [the Court] may proceed to the merits. Id. (quoting Moms Against Mercury v. FDA, 483

F.3d 824, 826 (D.C. Cir. 2007)).

The Court has an affirmative obligation to ensure that it is acting within the scope of its

jurisdictional authority, Grand Lodge, 185 F. Supp. 2d at 13, and must dismiss a case when it

lacks subject matter jurisdiction, Randolph v. ING Life Ins. & Annuity Co., 486 F. Supp. 2d 1, 4

(D.D.C. 2007). The Court must view Plaintiffs factual allegations in the Complaint with

closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to

state a claim. Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure 1350 (2d ed.1987)). Additionally, the Court

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may consider material beyond the allegations of the complaint in assessing whether it has

jurisdiction to hear the case, so long as it still accepts those allegations as true. See Jerome

Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Natl Acad. of

Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

Because the zone of interests test does not implicate jurisdictional considerations, that

portion of the States motion based on Plaintiffs failure to establish that the injuries asserted are

not proximately caused by violations of the statute is brought under Fed. R. Civ. P. 12(b)(6).

Lexmark Intern., Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1387 n.4 (2014);

Crossroads Grassroots Policy Strategies v. Fed. Elections Comn, 788 F.3d 312, 319 (D.C. Cir.

2015). When addressing a motion to dismiss under Rule 12(b)(6), the Court must accept

allegations in the complaint as true, but those allegations must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556

U.S. 662 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Atherton v.

D.C. Office of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009). The Court is not required to take

as true legal conclusions or [t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements contained in Plaintiffs Complaint. Ashcroft, 556

U.S. at 678-79. Rather, for Plaintiffs case to survive dismissal, their allegations must be more

than speculation and contain sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face. Id. (quotation and citation omitted); see Twombly, 550 U.S. at 555;

In re Interbank Funding Corp. Sec. Litig. v. Radin Glass & Co., 629 F.3d 213 (D.C. Cir. 2010).

In considering the motion to dismiss under Rule 12(b)(6), the Court should consider only the

facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the

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complaint, and matters about which the Court may take judicial notice. Fraternal Order of

Police v. Gates, 562 F. Supp. 2d 7, 11 (D.D.C. 2008) (quoting Gustave-Schmidt v. Chao, 226 F.

Supp. 2d 191, 196 (D.D.C. 2002)).

II. STATUTORY BACKGROUND

A. The Federal Transit Act

The Federal Defendants opposition to Plaintiffs Motion for a Temporary Restraining

Order (ECF 6) contains a complete description of the provisions of the Federal Transit Act

relevant to the claims raised in the Complaint and the State incorporates that discussion here.

But, one key concept relating to the purpose of that statute bears repeating. In Section 5301,

Congress expressly stated the purpose of the grant program: It is in the interest of the United

States, including the economic interest of the United States, to foster the development and

revitalization of public transportation systems with the cooperation of both public transportation

companies and private companies engaged in public transportation. 49 U.S.C. 5301.

Although the Secretary must determine that the Project is justified based on a comprehensive

review of its environmental benefits, consideration of other environmental impacts of the Project

is left to the NEPA process. See 49 U.S.C. 5309(d)(2)(A)(iii).

B. The National Environmental Policy Act

NEPA requires federal agencies to evaluate the environmental effects of their proposed

actions and provide that assessment to the public so that they may also play a role in both the

decisionmaking process and the implementation of that decision. Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 349 (1989); see also Theodore Roosevelt Conservation Pship v.

Salazar, 616 F.3d 497, 503 (D.C. Cir. 2010) (It is an essentially procedural statute, meant to

ensure a fully informed and well-considered decision, not necessarily the best decision.)

(quoting Vermont Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519,

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558 (1978)). NEPA does not mandate particular outcomes, but requires only that the agency

takes a hard look at the effects of the proposed action and compare the proposal to other

reasonable alternatives. Theodore Roosevelt Conservation Pship, 616 F.3d at 503; see 42

U.S.C. 4332(2)(C).

A courts review of an agencys NEPA compliance is limited to determining whether

the decision was based on a consideration of the relevant factors and whether there has been a

clear error in judgment. Biodiversity Conservation Alliance v. BLM, 404 F. Supp. 2d 212, 216

(D.D.C. 2005) (quoting Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415-16

(1971)). The Court must not substitute its judgment for that of the agencys, as NEPA merely

prohibits uninformedrather than unwiseagency action. Theodore Roosevelt Conservation

Pship v. Salazar, 605 F. Supp. 2d 263, 271-72 (D.D.C. 2009) (quoting Robertson, 490 U.S. at

351).

III. PLAINTIFFS LACK ARTICLE III STANDING TO BRING THEIR GRANT

AGREEMENT CLAIMS.

Standing is a prerequisite to a federal courts subject matter jurisdiction. National Assn

of Home Builders v. U.S. Army Corps of Engrs, 417 F.3d 1272, 1286 (D.C. Cir. 2005).

Plaintiffs have the burden to establish each element of standing, Lujan v. Defenders of Wildlife,

504 U.S. 555, 561 (1992), and standing is determined on a claim-by-claim basis,

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006). To satisfy constitutional standing at

the motion-to-dismiss stage, a plaintiff must sufficiently allege a concrete and particularized

injury that is fairly traceable to the challenged action of the defendant and likely to be

redressed by a favorable decision. Abulhawa v. U.S. Dept of the Treasury, 239 F. Supp. 3d

24, 32 (D.D.C. 2017) (quoting Lujan, 504 U.S. at 560-561). For an injury to be particularized, it

must affect the plaintiff in a personal and individual way. Lujan, 504 U.S. at 561 n.1. To

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establish traceability, Plaintiffs must show a substantial probability that [FTAs] action

created a demonstrable risk, or caused a demonstrable increase in an existing risk, of injury.

Natl Parks Conservation Assn v. Manson, 414 F.3d 1, 6 (D.C. Cir. 2005) (quoting Florida

Audubon Society v. Bentsen, 94 F.3d 658, 669 (D.C. Cir. 1996)); Indian River Cty. v. Rogoff, 110

F. Supp. 3d 59, 68 (D.D.C. 2015).

Plaintiffs face an additional hurdle when their cause of action is based, as here, on

Section 702 of the APA. In such an action, a plaintiff must also establish that the injuries alleged

are arguably within the zone of interests to be protected or regulated by the statute that [they

say] was violated. Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567

U.S. 209, 224 (2012) (quoting Assn of Data Processing Serv. Orgs. v. Camp, 397 U.S. 150, 153

(1970)). Plaintiffs have failed to meet these standing requirements.

A. Plaintiffs Lack Constitutional Standing Because They Have Failed to

Establish a Causal Connection Between Their Alleged Injury and FTAs
Execution of the Grant Agreement and That Their Injuries Could Be
Redressed By Setting Aside the Grant Agreement.

As outlined above (pages 6-7), neither Friends nor the individual Plaintiffs allegations

are sufficient to establish a causal connection between the standing to assert claims relating to

FTAs execution of the FFGA.

Any claim to standing premised on the injuries arising out of the use of the Metrorail

system cannot support standing for Friends to challenge the decision to provide funding under

the New Starts funding program. Friends itself alleges that its purpose is limited to protecting

the trail, not to protect the interest of Metrorail riders. Compl. 3 (Friends is dedicated to

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preserving parkland, open space and quality of life in Montgomery County, Maryland). 3

Whether the Washington Metropolitan Transit Authority is properly capitalized or safely

operating is irrelevant to Friends organizational purpose. See Consumer Fedn of Am. v. FCC,

348 F.3d 1009, 1011 (D.C. Cir. 2003) (holding that where a plaintiff is an association, it may sue

in its own right or on behalf of its constituents but must separately establish standing by showing

that the interests at stake are germane to the organizations purpose, and neither the claim

asserted nor the relief requested requires members participation in the lawsuit) (quoting Hunt

v. Wash. State Apple Advert. Commn, 432 U.S. 333, 343 (1977)); see also Alaska Forest Assn

v. Vilsack, 883 F. Supp. 2d 136, 146 (D.D.C. 2012) (an organization may not pursue the claims

of individual members that are wholly unrelated to the purposes of the organization).

The individual Plaintiffs also lack standing, notwithstanding their alleged use of the

Metrorail system. Their assertion of standing is based on the speculative premise that FTAs

approval of the Grant Agreement will somehow reduce funding for Metrorail. Metrorail is

funded primarily by Virginia, Maryland and the District of Columbia. Plaintiffs Complaint

provides only conjecture that the States decision to proceed with the Purple Line will cause a

reduction in the level of funding contributed by the State to Metrorail or will reduce federal

funding to Metrorail. 4 Such speculative claims, resting on a chain of hypothetical future events,

are plainly insufficient to establish that the claimed violation of the law has caused the alleged

injury. See Abulhawa, 239 F. Supp. 3d at 34 (plaintiffs challenging Department of Treasurys

granting of tax-exempt status to organizations supporting settlement efforts in the West Bank

3
Friends purpose, as expressed on its website, is to sav[e] the Trail as a world-class linear
park. Friends of the Capital Crescent Trail, About Us, http://savethetrail.org/who-we-are-2/
(last visited Dec. 4, 2017).
4
To the extent Plaintiffs are alleging some environmental injury, those injuries cannot be traced
to the Grant Agreement. At best, those injuries might be traceable to the D.C. Circuits
reinstatement of the ROD, which Plaintiffs do not (and cannot) challenge in this proceeding.

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lacked standing because the causal link between Treasurys action and their alleged injury was

too weak and attenuated).

Here, there is nothing but conjecture to support a claim that the decision to provide

federal funding to the Project by executing the Grant Agreement has caused the problems that

Plaintiffs allege to have experienced in using the Metrorail system. As the Court observed in

Friends I, the problems that the Metrorail system is experiencing began long before FTA decided

to execute the Grant Agreement. 5 The more reasonable conclusion is that there is no link

between the decision to award federal funding to the Purple Line and the problems that the

Metrorail system is facing. Because Plaintiffs have not established a causal link between the

execution of the Grant Agreement and the problems they have experienced while using the

Metrorail system, Plaintiffs lack standing to bring their claims included in the first count of the

Complaint.

In addition, Plaintiffs have not established how their claimed injuries, alleged to have

resulted from their use of the Metrorail system, can be redressed by setting aside the Grant

Agreement. They allege that [r]eallocating or reprogramming the Projects Grant Agreement

funding and other funds and loans devoted to it could more effectively address the real

transportation and development needs . Compl. 65. However, Plaintiffs offer no

explanation or theory as to how the various entities responsible for funding the Purple Line to

reprogram or reallocate the funding designated for the Purple Line in a way that would

redress the injuries they claim to have suffered from their use of the Metrorail system.

5
In its August 3, 2016 opinion in Friends I, this Court noted that the Metrorail ridership issues
began as early as 2015. Friends I, August 3, 2016 Opinion at 7 (ECF 96). The Grant Agreement
was not signed until August, 2017. Compl. 47.

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Redressability focuses on the connection between the alleged injury and the judicial

relief requested. Allen v. Wright, 468 U.S. 737, 753 n.19 (1984). If the challenged conduct is

at best an indirect or contributing cause of the plaintiffs injury - i.e., if the injury may or may not

follow from the conduct, based on a chain of contingencies the plaintiff faces an uphill

climb in pleading and proving redressability. West v Lynch, 845 F.3d 1228, 1236 (D.C. Cir.

2017) (quoting Clapper v. Amnesty Intl USA, 568 U.S. 398, 410-411 (2013)). Here, Plaintiffs

are asking the Court to set aside the Grant Agreement, thereby preventing any further

expenditure of federal funds for the Purple Line. However, Plaintiffs present no allegations that

establish that the relief requested will redress the injury asserted. In paragraph 13 of the

Complaint, Plaintiffs allege that the Project impairs Mr. Fitzgeralds ability to use and rely on

the WMATA system by competing for and by definition reducing funds and/or raising the price

and scarcity of the personnel, management, and material needed to repair, operate and maintain

that system and the regions transportation network as a whole. Under Plaintiffs assertions, the

impairment to their use of Metrorail will be alleviated by (1) setting aside the FFGA, which

will (2) cause the State to abandon the Project, which will then (3) make more State and Federal

funds available to be spent on transportation projects, which will (4) cause the State and Federal

governments to use that newly found funding to repair, operate and maintain the Metrorail

system.

This chain of contingencies that attempts to link the signing of the Grant Agreement to

providing additional money for the Metrorail system is lengthy and entirely speculative. Even if

the Grant Agreement were set aside, the money dedicated to the Purple Line under the New

Starts funding program would not be available to be distributed to the Metrorail System, because,

as the Grant Agreement itself points out, full federal funding for the Project is subject to future

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Congressional appropriations. See ECF 6-1 at 12 of 44. If no further appropriations are made

for the Purple Line, there is no factual basis to assume that Congress would allocate those

unappropriated funds to the Metrorail system instead. Moreover, there is nothing to support a

claim that the State would provide additional funding to Metrorail above the funding that it is

currently providing. But unadorned speculation will not suffice to invoke the federal judicial

power. Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 44-46 (1976)

(finding that the complaint suggests no substantial likelihood that victory in the lawsuit would

result in the redressing the alleged injury). Plaintiffs speculative theory of Congress, the State,

or any other entity providing additional funding to the Metrorail system should the Court set

aside the Grant Agreement is plainly insufficient to support standing.

To the extent that the individual Plaintiffs or Friends seek to support standing to

challenge the Grant Agreement based on environmental harms they might incur from project

construction, their argument fails because such harms are not redressable by any relief available

in a suit challenging the Grant Agreement. First, because construction activity has been under

way since September, including clearing trees along the Georgetown Branch interim trail section

of the Purple Line corridor, overturning the Grant Agreement now will not redress the principal

environmental harms asserted by Plaintiffs, namely impacts to the Georgetown Branch right-of-

way. See Compl. 8 (the Project will impair Ms. Real de Azuas interests in the urban and

suburban forests along the [Georgetown Branch interim trail] .) and Compl. 14 (the Project

will permanently impair Mr. Fitzgeralds practical, professional, aesthetic and recreational link to

the forests along the Capital Crescent and Georgetown Branch trails.). While Plaintiffs

requested a preliminary injunction and temporary restraining order that would have halted

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construction activities, this Court denied that relief. ECF 28. Plaintiffs have not appealed that

decision, and construction activities have continued unabated.

Second, Plaintiffs nowhere allege that setting aside the Grant Agreement, should the

Court rule in Plaintiffs favor at the conclusion of the litigation, will result in restoration of the

environmental harms alleged in the Complaint. See Compl., Prayer for Relief, 3. Indeed, even

if the Court eventually ruled in Plaintiffs favor and ordered the funding provided under the

Grant Agreement to be returned, there is nothing in any of Plaintiffs allegations that indicate

that the alleged environmental harms would be redressed by such an order. Because the

prospective relief requested regarding the Grant Agreement simply will not result in the

restoration of the environmental conditions that underlie Plaintiffs Grant Agreement claims,

Plaintiffs have failed to meet the redressability prong needed to establish standing. See

Abulhawa, 239 F. Supp. 3d at 37 (to establish redressability plaintiffs must show that the relief

sought was the sine qua non for, or would significantly increase their likelihood of staving off

future injuries).

B. Plaintiffs are Outside the Zone of Interests for the Grant Agreement
Claims.

Because Plaintiffs raise their challenge to the Grant Agreement under the APA, they

must satisfy not only Article IIIs standing requirements but an additional test: the interest

[they assert] must be arguably within the zone of interests to be protected or regulated by the

statute that [they say] was violated. Patchak, 567 U.S. at 224 (quoting Assn of Data

Processing Serv. Orgs., 397 U.S. at 153); see Lujan v. Natl Wildlife Federation, 497 U.S. 871,

883 (1990) ([T]he plaintiff must establish that the injury he complains of . . . falls within the

zone of interests sought to be protected by the statutory provision whose violation forms the

legal basis for his complaint.). In this circuit, to meet the zone of interests requirement, a

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plaintiff must demonstrate either (1) that it is an intended beneficiary of the statute that forms the

basis of its claims, or (2) that there is some other indication that it is a peculiarly suitable

challenger to the administrative action at issue. Hazardous Waste Treatment Council v. EPA,

861 F.2d 277, 283 (D.C. Cir. 1988). Although the zone of interests is to be determined by

reference to the particular provision of law upon which the plaintiff relies, Grand Council of

Crees v. FERC, 198 F.3d 950, 956 (D.C. Cir. 2000), Congresss purposes in enacting the overall

statutory scheme are relevant if, like here, they help reveal its purpose in enacting the particular

provision. Id.; see also Lexmark Intern, Inc., 134 S.Ct at 1389 (Identifying the interests

protected by the [statute] requires no guesswork, since the Act includes an unusual and

extraordinarily helpful, detailed statement of the statutes purposes.).

Congress intent in enacting the New Starts program is expressed in the statutes opening

lines: [i]t is in the interest of the United States, including the economic interest of the United

States, to foster the development and revitalization of public transportation systems with the

cooperation of both public transportation companies and private companies engaged in public

transportation. 49 U.S.C. 5301(a). First among the statutes eight listed general purposes is

to provide funding to support public transportation. 49 U.S.C. 5301(b)(1). The second

purpose is to improve the development and delivery of capital projects. Id. 5309(b)(2). 6

Section 5309, entitled Fixed Guideway Capital Investment Grants, authorizes the provision of
6
The remaining general purposes are to: (3) establish standards for the state of good repair of
public transportation infrastructure and vehicles; (4) promote continuing, cooperative, and
comprehensive planning that improves the performance of the transportation network; (5)
establish a technical assistance program to assist recipients under this chapter to more effectively
and efficiently provide public transportation service; (6) continue Federal support for public
transportation providers to deliver high quality service to all users, including individuals with
disabilities, seniors, and individuals who depend on public transportation; (7) support research,
development, demonstration, and deployment projects dedicated to assisting in the delivery of
efficient and effective public transportation service; and (8) promote the development of the
public transportation workforce. 49 U.S.C. 5301(b)(3)-(8).

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such grants to transit systems, subject to certain conditions. The language of the section focuses

not on the substantive rights of local residents but rather on the obligations of the [grant]

applicants and the Secretary. They are primarily spending directives to the Secretary of

Transportation, specifying conditions under which grants may be made. Rapid Transit

Advocates, Inc. v. S. Cal. Rapid Transit Dist., 752 F.2d 373, 377 (9th Cir. 1985). The statutes

purposes are to protect the federal treasury and provide funding to assist state and local transit

agencies in need of funds, rather than to protect the general public against the environmental or

other effects of a proposed project.

Plaintiffs factual assertions do not place them within the zone of interests of the Federal

Transit Act, 49 U.S.C. 5301-5309, the statute that authorizes FTA to enter into FFGAs. The

interests they express service levels on an unrelated transit system, Metrorail, and the

environmental condition of the Georgetown Branch right-of-way are not the type of interests

that Section 5309 is intended to protect. See Compl. 7 and 13.

This case is similar to the situation addressed by the Court in Indian River County v.

Rogoff, 201 F. Supp. 3d 1 (D.D.C. 2016). There, plaintiffs challenged the Secretarys allocation

of bond authority for a rail project, alleging that the project was ineligible under the statutory

criteria for the bonding program, 26 U.S.C. 142(m). The Court dismissed this claim, holding

that plaintiffs stake in the project does not arguably fall within the zone of interests protected

or regulated by the statute that authorized the bonding program. Id. at 20. The statute was

intended to create a tax benefit for projects and had nothing to do with [plaintiffs] asserted

interests, nor does it protect (or regulate) those who would claim that public safety or other

related interests would be impaired by a bond allocation to an ineligible project. Id. at 21.

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IV. PLAINTIFFS NEPA CLAIMS SHOULD BE DISMISSED BASED ON THE

EXPIRATION OF THE STATUTE OF LIMITATIONS AND THE
APPLICATION OF RES JUDICATA.

Plaintiffs NEPA claims are subject to dismissal on several grounds. To the extent the

claims are asserted against the adequacy of the Final EIS and ROD, those claims are subject to

dismissal either based on statute of limitations or res judicata. Also, Plaintiffs claim that NEPA

has been violated based on an alleged failure to enforce mitigation measures must be dismissed

because mitigation measures in a ROD are not enforceable by third parties.

A. Challenges to the August 2013 Final EIS and March 2014 ROD Are Barred
by the Statute of Limitations in 23 U.S.C. 139(l).

In Paragraph 94 of the Complaint, Plaintiffs allege that because the August 2013 Final

EIS improperly assessed to a grave degree information relating to available transportation

options and economics, a supplemental EIS is needed. In Paragraph 95 of the Complaint,

Plaintiffs allege that declarations contained in their opposition to Marylands Motion for Stay

Pending appeal filed in Friends I, 7 as well as materials contained in what they characterize as

their March Petition, constitute significant new circumstances or information demonstrating

the need for a supplemental EIS under 40 C.F.R. 1502.9(c)(1)(ii). They claim that this new

information requires a supplemental EIS to the extent that Project-caused impacts upon, or

uses of, parks or park-like area, and historic buildings and sites were not adequately addressed

in the August 2013 Final EIS. Compl. 95. In Paragraph 97 of the Complaint, Plaintiffs

7
Paragraph 95 references a declaration by Dr. Lysy that was part of the June submission.
Plaintiffs never define the precise document that constitutes the June submission. Plaintiffs
did file an opposition to the State of Marylands motion for stay in Friends I on June 8, 2017.
Friends I, ECF 147. That document does include a declaration by Mr. MacGlashan, as
referenced in Paragraph 95, but does not include a declaration of Dr. Lysy. There is, however,
reference in that opposition to a previous declaration filed by Dr. Lysy at an earlier stage in the
Friends I litigation. See id. at 15. The referenced declaration was submitted as part of Plaintiffs
Response to Renewed Cross-Motions for Summary Judgment of Defendant and
Defendant/Intervenor. That document is Friends I, ECF 119-1 (Jan. 5, 2017).

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expressly challenge the accuracy of the explanation in the August 2013 Final EIS of how the

Project will comply with the Clean Water Act, the Migratory Bird Treaty Act and other

laws. All of these claims are an attempt to create a justification for a supplemental EIS

founded on an attack on the adequacy of the August 2013 Final EIS. The mere existence of new

opinions contesting the adequacy of the Final EIS, or the allegation, embedded in Paragraph 95

of the Complaint, that the Court did not consider a particular declaration in resolving the Friends

I litigation, does not allow the Plaintiffs to escape or avoid the operation of the statute of

limitations imposed under 23 U.S.C. 139(l).

Plaintiffs challenges to the FTAs August 2013 Final EIS and March 2014 ROD are

subject to a 150-day statute of limitations that applies to federal agency decisions approving

highway and public transportation projects:

Notwithstanding any other provision of law, a claim arising under

Federal law seeking judicial review of a permit, license, or
approval issued by a Federal agency for a highway or public
transportation capital project shall be barred unless it is filed within
150 days after publication of a notice in the Federal Register
announcing that the permit, license, or approval is final pursuant to
the law under which the agency action is taken.

23 U.S.C. 139(l)(1). Although this Circuit has not addressed the application of Section 139(l),

other federal courts have applied Section 139(l) to dismiss complaints that were filed after the

limitations period. See, e.g., Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573, 588

(E.D. La. 2016), affd sub nom. Monumental Task Comm., Inc. v. Chao, 678 F. Appx 250 (5th

Cir. 2017); Thompson Metal Fab, Inc. v. U.S. Dept of Transp., 289 F.R.D. 637, 643-44 (D. Or.

2013); Highland Vill. Parents Grp. v. U.S. Fed. Highway Admin., 562 F. Supp. 2d 857, 862-863

(E.D. Tex. 2008). Because a statute of limitations is a jurisdictional condition attached to the

governments waiver of sovereign immunity, it is strictly construed. See Spannaus v. U.S. Dept

of Justice, 824 F.2d 52, 55 (D.C. Cir. 1987).

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Claims challenging FTAs EIS and ROD should have been filed by August 28, 2014,

which was 150 days after publication of the required Federal Register notice establishing the

150-day statute of limitations for making such challenges to the EIS and ROD. 79 Fed. Reg.

18113 (Mar. 31, 2014). The Federal Register notice expressly covers decisions under NEPA and

Section 4(f) of the Department of Transportation Act, 49 U.S.C. 303. Id. at 18114. Given

publication of that notice, Plaintiffs new complaint is simply too late to provide this Court

jurisdiction to hear any claims attacking the adequacy of FTAs August 2013 Final EIS, the

March 2014 ROD, and FTAs determination under Section 4(f) relating to impacts on parks and

historic properties. Therefore, to the extent that the claims raised in Paragraphs 92 through 99 of

the Complaint challenge the adequacy of the August 2013 Final EIS and March 2014 ROD, they

should be dismissed with prejudice based on the expiration of the statute of limitations for those

claims on August 28, 2014.

B. Res Judicata Bars Consideration of Claims Decided in Friends I.

Some of Plaintiffs NEPA claims are also barred by the operation of res judicata. In

Friends I, Plaintiffs challenged FTAs compliance with Section 4(f), the Migratory Bird Treaty

Act, NEPA, and the Endangered Species Act. Friends I ECF 1. This is made most clear by the

Prayer for Relief in that Complaint, which asks for a declaration that Defendants have violated

Sections 101 and 102 of NEPA, Section 4(f) of the FHA, Sections 4 and 7(a)(1) and 2 of the

ESA, the MBTA (16 U.S.C. 703), and the [sic] Section 706(1) and (2) of the APA. Id. at 44.

Also, as outlined above at pages 7 to 8, the new information as alleged in the current

Complaint consists primarily of declarations previously filed with the Court in Friends I or new

analysis addressing the adequacy of the analysis of environmental impacts in the Final EIS at

issue in Friends I. Both the issue of the adequacy of FTAs August 2013 Final EIS and March

2014 ROD, as well as the issue of FTAs compliance with Section 4(f), were raised and fully

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briefed in the summary judgment papers filed by Plaintiffs in Friends I. In that case, this Court

found that FTA had complied with the requirements of Section 4(f) in approving the Purple Line.

Friends I, ECF 149 at 14-17. This Court also rejected all challenges to the adequacy of the 2013

Final EIS and 2014 ROD. Id. at 4-8. Because these issues were raised and decided in Friends I,

res judicata bars the same Plaintiffs from re-litigating those issues in this lawsuit.

Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a

second suit involving the same parties or their privies based on the same cause of action.

Ibrahim v. District of Columbia, 463 F.3d 3, 7 (D.C. Cir. 2006) (quoting Drake v. FAA, 291 F.3d

59, 66 (D.C. Cir. 2002)). Whether two cases implicate the same cause of action turns on

whether they share the same nucleus of facts. Drake, 291 F.3d at 66 (quoting Page v. United

States, 729 F.2d 818, 820 (D.C. Cir. 1984)); see also SEC v. First Jersey Secs., 101 F.3d 1450,

1463-64 (2d Cir. 1996) (A first judgment will generally have preclusive effect only where the

transaction or connected series of transactions at issue in both suits is the same, that is, where

the same evidence is needed to support both claims, and where the facts essential to the second

were present in the first. (alteration and citation omitted)). Thus, res judicata generally

prevents parties from relitigating issues that were or could have been raised in a prior action.

Drake, 291 F.3d at 66 (quoting Allen v. McCurry, 449 U.S. 90, 94 (1980)) (emphasis omitted).

Here, there is no doubt that this Court addressed the adequacy of the Final EIS and the

Section 4(f) analysis and determination in Friends I. Indeed, Plaintiffs reliance on declarations

filed as part of the Friends I lawsuit demonstrates that the very issues they raise here were in fact

before the Court during the prior litigation. In denying Plaintiffs Motion for Rehearing in

Friends I, this Court noted that defendants had, in my judgment taken a hard look at the

Purple Lines environmental impacts during the NEPA process, and that plaintiffs claims were

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legally insufficient arguments. Friends I, ECF 165 at 4. Because those issues were decided

in Friends I, Plaintiffs are barred from re-litigating them in this new Complaint. 8

C. Mitigation Measures Are Not Enforceable By Third Parties.

Finally, Plaintiffs also allege that Defendants failed to comply with mitigation

commitments made in the ROD, and that such failure violates the regulations implementing

NEPA, which they argue is in turn also a violation of the APA. Compl. 98. This count must

be dismissed. Neither the APA nor NEPA (nor NEPAs implementing regulations) confer a

private right of action to enforce a mitigation plan put forth in the ROD. And, to the extent

Plaintiffs claim constitutes an attack on the March 2014 ROD, the statute of limitations to

challenge the ROD has long passed. See supra, at 14-16.

In Coeur dAlene Lake v. Kiebert, 790 F. Supp. 998, 1010-11 (D. Idaho 1992), a federal

district court in Idaho faced a similar challenge where the plaintiffs alleged that the defendants

violated mitigation measures identified in the Final EIS after it was prepared. The district court

noted that plaintiffs offered no authority to support the existence of their asserted implied right of

action based on promises made in an FEIS and that nothing in NEPA itself suggests that

8
The Complaint references a March Petition that Plaintiffs allegedly sent to the Secretary of
Transportation. Compl. 46 and 52. Plaintiffs attempt to use this March Petition to support
both claims under the New Starts funding program and NEPA. Compl. 42. The details of the
content of the March Petition contained in Paragraph 52 of the Complaint appear to address
Plaintiffs New Starts funding claim. The March Petition is also mentioned in Paragraphs 63
and 79 of the Complaint. In Paragraph 69, Plaintiffs allege that new information in the form of
a different petition from Bradley Heard, a local attorney, addressing environmental justice
issues should be used to inform the Secretarys decision as to whether to conduct a broader
SEIS or to complete an FFGA. In Paragraphs 74 and 75, Plaintiffs allege that a permit
application for a water diversion filed with the Maryland Department of the Environment
requires preparation of a supplemental EIS to assess the impact of the proposed water diversion.
These allegations are too vague to support any claim that a supplemental EIS is needed and
therefore should be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. See Bell
Atl. Corp. v. Twombly, 550 U.S. at 570. Finally, allegations of revolutionary changes in
transportation technology over the past decade (Compl. 79) were previously raised in Friends
I as a justification for preparation of a supplemental EIS and were rejected by this Court and thus
barred by res judicata.

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such an action was ever contemplated by Congress. Id. See also Noe v. Metropolitan Atlanta

Rapid Transit Auth., 644 F.2d 434, 438 (5th Cir. 1981) (NEPAs legislative history indicates a

specific intent to deny relief to private individuals who may be injured when an environmental

impact statement is not followed.).

CONCLUSION

For the foregoing reasons, Plaintiffs lack standing to assert claims under the Federal

Transit Act, 49 U.S.C. 5301-5309, and therefore those claims (Complaint 82-91) should be

dismissed with prejudice for lack of jurisdiction pursuant to Rule 12(b)(1). Plaintiffs NEPA

claims (Complaint 92-99) are barred by the statute of limitations and res judicata and also

should be dismissed with prejudice.

Dated: December 5, 2017 Respectfully submitted,

BRIAN E. FROSH
Attorney General of Maryland

JULIE T. SWEENEY
Assistant Attorney General
Maryland Transit Administration
6 St. Paul Street, Suite 1200
Baltimore, Maryland 21202-1614
Telephone: 410.767.3844
Email: JSweeney@mta.maryland.gov

/s/ Albert M. Ferlo

ALBERT M. FERLO
Perkins Coie LLP
700 Thirteenth Street, N.W., Suite 600
Washington, D.C. 20005-3960
Telephone: 202.654.6200
Facsimile: 202.654.6211
Email: aferlo@perkinscoie.com

Attorneys for Defendant Maryland Department

of Transportation

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CERTIFICATE OF SERVICE
I hereby certify that on December 5, 2017, a copy of the foregoing document

was served via the CM/ECF system on all counsel of record.

Date: December 5, 2017 /s/ Albert M. Ferlo

Albert M. Ferlo

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 Case 1:17-cv-01811-RJL Document 43-2 Filed 12/05/17 Page 1 of 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

FRIENDS OF THE CAPITAL CRESCENT *

TRAIL, et al.,
*

Plaintiffs, *

v. *

FEDERAL TRANSIT ADMINISTRATION, * Civil Case No. 17-CV-1811 (RJL)

et al.,
* Hon. Richard J. Leon

and *

MARYLAND DEPARTMENT OF
TRANSPORTATION, *

Defendants. *

* * * * * * * * *

[Proposed] Order Granting Motion to Dismiss

THIS MATTER having come before the Court on the motion of Defendant, Maryland

Department of Transportation (MDOT), for an order dismissing the Complaint, and this Court

having review the motion, and being fully advised in the premises:

IT IS HEREBY ORDERED that MDOTs motion is GRANTED, and the Complaint is

Dismissed.

ENTERED this _____ day of ________, 2017.

BY THE COURT:

____________________________
Richard J. Leon
United States District Judge