Wednesday, August 9, 2017

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Ninth Circuit Says:

Appeal by B.H. Unified School District Is Premature

Effort Fails to Block Federal Funding of Extension of Metro’s Purple Line Which Will Go Under Beverly Hills High School

By a MetNews Staff Writer

The Ninth U.S. Circuit Court of Appeals yesterday dismissed an appeal by the Beverly Hills Unified School District as premature, another loss among many in connection with the planned installation of a subway beneath Beverly Hills High School, pictured above.

Another round was lost yesterday by the Beverly Hills Unified School District in connection with the planned installation of a subway under the Beverly Hills High School, with the Ninth U.S. Circuit Court of Appeals dismissing the school district’s appeal of the denial of a preliminary injunction as premature.

The immediate objective of the district’s latest action was to block the federal government from providing funds to a plan that includes a station at Constellation Boulevard and Avenue of the Stars, less than a mile from the high school, without first considering the seismic impact on the school. It has dropped its opposition to the line running under any part of the campus, but wants it redirected.

The school district was appealing from the denial on Jan. 12 by Judge George Wu of the Central District of California of a preliminary injunction against the Federal Transit Administration entering into a grant agreement with the Los Angeles County Metropolitan Transportation in connection with the planned westside expansion of the Purple Line, and to enjoin Metro from forming a “design/build” contract with a third party. Under the National Environmental Policy Act, the district argued, a supplemental environmental impact statement must be completed before the funding may take place.

Although the two contracts were executed following Wu’s ruling, the district asked the Ninth Circuit to remand the matter and order Wu to stop the funding.

No Final Order

In a memorandum opinion—signed by Ninth Circuit Judges Harry Pregerson and Kim Wardlaw, joined by District Judge Edward Chen of the Northern District of California, sitting by designation—the panel said the Beverly Hills Unified School District was not appealing from a final order.

Wu had no jurisdiction over issue the requested order, the judges said in their memorandum, because there has been no final agency action. The judges noted that the FTA represents that even with the commitment of funds and execution of the design/build contract, changes could still be made in the route.

“The district court did not clearly err in finding that such changes were possible,” the memorandum declared. “Accordingly, the agreements were not final agency action.”

The judges noted that the district court retains jurisdiction over the dispute and the final EIS can be presented to it.

“At this point, however, the School District’s challenge is premature,” the opinion said.

Immediate Action Unnecessary

In a footnote the judges remarked:

“Even if we had jurisdiction and found that the School District was likely to succeed on the merits, we would conclude that the district court did not abuse its discretion in denying a preliminary injunction under the traditional test for injunctive relief. The court correctly weighed the equities and hardships, as well as the public interest, given that actual construction is not scheduled to begin until January 2018.”

A combination of federal grants and loans of nearly $1.6 billion was announced in January. This will help fund the second phase the Purple Line extension, going from a station at Wilshire and La Cienega to Century City, with stops at Wilshire and Rodeo in Beverly Hills and Constellation and Avenue of the Stars.

Eventually, the line is to stretch from Koreatown to Westwood.

$10 Million Effort

Beverly Hills has reportedly spent about $10 million in fighting the plan. In its latest action, it contends the tunneling “will cause permanent and irreparable harm” to historic buildings.

At oral argument before the panel on July 14, New York attorney Jennifer Recine, representing the school district, told judges:

“The school supports the Purple Line extension. But it is critically important that in funding and constructing a popular and necessary project that the agencies are held to the same exacting environmental standard that we hope would be applied when another agency claims that a 10-lane highway or a nuclear power plant must be located next to an inner city elementary school, or in a habitat of an endangered species.”

She said Wu abused his discretion “in denying an injunction preventing the agencies from entering into two contracts, committing over a billion dollars….”

Pregerson’s Questioning

Pregerson—who participated from his chambers, rather than being in the courtroom—said of the planned route:

“That’s a good place to put it.”

Recine responded that there are “far more direct routes” between Wilshire and Rodeo and Century City. She said:

“They could still go beneath the school, which would be fine, but they wouldn’t go underneath the buildable area that would impact our ability to expand our recreational facilities and it wouldn’t go underneath historic buildings, putting at risk students who actually use those classrooms.”

Pregerson asked:

“What does Beverly Hills really want?”

The lawyer answered:

“What it wants is for the alignment to move across the campus to the Constellation station underneath the ball field.”

With her time, in rebuttal, running out, Recine read, at a pace, a letter from the CEO of Metro indicating that once the design/build contract was signed, changing the route would not be feasible. Pregerson, 93, bellowed at her:

“How do you think I can follow everything you say when you talk like you’re crazy?”

Recine apologized and slowed her pace.