This morning, Judge Frank Roesch (of Alameda County Superior Court) heard arguments in the Lewis v. Metropolitan Transportation Commission case we discussed two weeks ago. The petitioners (former BART directors Lewis and Nakadegawa, and TRANSDEF) sought a preliminary injunction of MTC’s and ACTIA’s total allocation of about $315 million to the BART extension to Warm Springs, seeking to have those discretionary actions reversed as an illegal expenditure of public funds. However, Judge Roesch denied the preliminary injunction and took the case under submission, so none of the funding for BART to Warm Springs has been disturbed. In order to grant a preliminary injunction, Judge Roesch considered the irreparable harm that would be incurred by both parties by granting or not granting the injunction — and he appeared to be sympathetic to MTC’s and ACTIA’s arguments that the irreparable harm to them (by delaying and increasing the cost of the project) exceeded, or at least balanced, the irreparable harm to petitioners by proceeding with the project. Although BART was not listed as a party to the lawsuit, BART was also present and defended the project as being an important source of construction jobs. That said, if money is improperly allocated to a project, declaring the status of that project as shovel-ready is rather beside the point.
Each side also addressed its likelihood of success with respect to the underlying claim. As described in this earlier post, there is a separate argument for each agency. MTC’s $91 million shift from Dumbarton Rail to Warm Springs was permitted if the shift was between projects that are “in the same corridor.” MTC justified its decision to move the funds on the ground that I mentioned at the end of this post — namely, that the legislation governing Regional Measure 2 funds could interpret the phrase “in the same corridor” quite broadly, as relieving congestion in a certain corridor, rather than being physically placed within that corridor. The legislature was interested in decreasing bridge congestion and increasing regional connectivity. Of course, it is very much the case that Dumbarton Rail — which would link numerous disconnected rail operators in the South Bay and is parallel to a bridge — is a superior match to this intention than the BART extension. But the more broadly you interpret the language, the easier it is to argue that MTC’s decision was legitimate.
In the case of ACTIA, the discussion concerned allocation of 2000 Measure B money funds. ACTIA did not have the discretion to allocate money to Warm Springs until full funding was assured for a BART extension into Santa Clara County. The intention has of course been that this would be the full extension through Milpitas and Downtown San Jose, with a terminus in the City of Santa Clara. However, the ballot language indicated an extension into the county was what was needed — implying that only a portion of the extension, as long as it reached Santa Clara County, would satisfy the “full funding assured” requirement. A VTA staff memo from Carolyn Gonot (PDF) has surfaced indicating that VTA can indeed fund the $1.7 billion extension to Milpitas without the $750 million of New Starts federal funding that the FTA has not yet approved. In other words, the federal grant would be applied just to the next segment of the line, from Milpitas to Berryessa. VTA must also secure the federal grant in order to trigger the flow of funds from 2008 Measure B. (Note, however, that the lawyer on the petitioner’s side conceded that the funding to Milpitas was assured, even though the VTA staff memo was merely that — a memo — but not actually approved by the VTA Board.) Although an extension to Milpitas would include merely one of the six planned stations, it still qualifies as a fully funded extension into Santa Clara County. And that suffices to bolster ACTIA’s discretionary allocation of $224 million to Warm Springs. Weighing the discussion on both sides about these points, Judge Roesch denied the preliminary injunction.