Today's IV, Inc. v. Fed. Transit Admin., Case No. LA CV13-00378 JAK (PLAx)

• Decision Date: 12 September 2014
• Docket Number: Case No. LA CV13-00453 JAK (PLAx),Case No. LA CV13-00396 JAK (PLAx),Case No. LA CV13-00378 JAK (PLAx)
• Court: U.S. District Court — Central District of California
• Parties: Today's IV, Inc. v. Federal Transit Administration, et al. Japanese Village, LLC v. Federal Transit Administration, et al. 515 555 Flower Associates, LLC v. Federal Transit Administration, et al.

Today's IV, Inc. v. Federal Transit Administration, et al.

Japanese Village, LLC v. Federal Transit Administration, et al.

515 555 Flower Associates, LLC v. Federal Transit Administration, et al.

Case No. LA CV13-00378 JAK (PLAx)

Case No. LA CV13-00396 JAK (PLAx)

Case No. LA CV13-00453 JAK (PLAx)

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

September 12, 2014

CIVIL MINUTES - GENERAL

Present: The Honorable JOHN A. KRONSTADT, UNITED STATES DISTRICT JUDGE

Andrea Keifer

Deputy Clerk

Not Reported

Court Reporter / Recorder

Attorneys Present for Plaintiffs:

Not Present

Attorneys Present for Defendants:

Not Present

Proceedings: (IN CHAMBERS) ORDER RE PLAINTIFF TODAY'S IV, INC. AND 515/555 FLOWER ASSOCIATES, LLC'S MOTION FOR INJUNCTIVE RELIEF (DKT. 101)

PLAINTIFF JAPANESE VILLAGE LLC'S MOTION FOR RECONSIDERATION (DKT. 107)

DEFENDANTS' MOTIONS TO STRIKE PORTIONS OF DECLARATIONS (DKT. 112, 114)

I. Introduction

515/555 Flower Associates, LLC ("Flower Associates"); Japanese Village, LLC ("Japanese Village"); and Today's IV, Inc., doing business as Westin Bonaventure Hotel and Suites (the "Bonaventure") (collectively, "Plaintiffs") are present or former owners of real property that is located near the route of the planned Regional Connector Transit Corridor Project (the "Project").¹ The Project involves the construction of a new subway line in the City of Los Angeles that will connect certain existing rail stations.

These actions arise from the June 29, 2012 decision of the Federal Transit Administration ("FTA"), approving the Project. Plaintiffs named several defendants.² They claimed that Defendants acted arbitrarily and capriciously in violation of the Administrative Procedure Act, 5 U.S.C. § 706 ("APA"), and the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA") in analyzing the environmental impact of the Project. In connection with these allegations, Plaintiffs brought a joint Motion for Summary Judgment ("Plaintiffs' SJ Motion"). The Federal Defendants and the Metro Defendants filed separate Cross-Motions for Summary Judgment (the "Defendants' SJ Motions"). On May 29, 2014, the Court granted in part and denied in part those motions. The Court granted Plaintiffs' SJ Motion with respect to their claim that the FEIS failed adequately to explain why Open-Face tunneling alternatives were rejected on the Lower Flower Segment, and granted Defendants' SJ Motions with respect to all other claims raised in the Motions. Dkt. 96.³

At the time it issued the Order on the summary judgment motions (the "SJ Order"), the Court deferred ruling on Plaintiffs' request for injunctive relief. It ordered the parties to meet and confer about the request for injunctive relief and file statements presenting their collective and/or respective views about whether specific, injunctive relief should be granted, and if so, its scope and the conditions, if any, pursuant to which it should be granted. Dkt. 96 at 47-48. On June 27, 2014, the parties filed these remedy statements. Defendants' Remedy Statement, Dkt. 100; Plaintiffs' Remedy Statement, Dkt. 101. At that time, the Court took the request for injunctive relief under submission.

On July 1, 2014, Japanese Village filed a Motion for Reconsideration of the SJ Order (the "Motion for Reconsideration"). Dkt. 106. Defendants filed motions to strike portions of certain declarations that were filed with the Motion for Reconsideration (the "Motions to Strike") (collectively, the "Motions"). Dkt. 112, 114. On September 8, 2014, the Court conducted a hearing on the Motions. For the reasons stated in this Order, the Motions to Strike are GRANTED and the Motion for Reconsideration is DENIED. The Request for injunctive relief is GRANTED IN PART.

II. Factual Background⁴

A. Overview of the Project

The subway line that is to be constructed as part of the Project would "directly link 7^th Street/Metro Center Station (the Metro Blue Line terminus and Metro Expo Line terminus) located at 7^th and Figueroa Streets, to the Metro Gold Line near Little Tokyo/Arts District Station at 1^st and Alameda Streets." Final Environmental Impact Statement ("FEIS") ES-2, AR6021. Metro and the FTA expect that connecting the Blue and Gold Lines as proposed in the Project will result in reduced congestion on existing subway lines and buses as well as reduced motor vehicle traffic on nearby roadways. For these reasons, Defendants contend that the Project will result in significantly better subway service in the most highly-concentrated employment area in downtown Los Angeles. FEIS 1-28. The subway route begins at 7^th and Flower Street and then proceeds north on Flower Street to 2^nd Street. It then continues east on 2^nd Street to Central Avenue, where it turns north to intersect the Gold Line at 1^st and Alameda Streets. FEIS 4-446, AR6673.

Metro proposes a variety of construction methods for the Project. Much of the construction will be undertaken below ground using a closed-face Tunnel Boring Machine ("TBM"). This device is designed to minimize noise, dust, and other impact at the surface level during construction. AR6673; AR10154. Other construction will be at ground level. Thus, an open trench method called "Cut and Cover" ("C/C") is planned for the construction of the subway line that will be placed below South Flower Street between 4^th to 7^th Streets (the "Lower Flower Segment"). AR19692, Exh. 4; AR19166, Exh. 5; Dkt. 66-1 at 22; Dkt. 56-1 at 10-11. The C/C method involves digging a trench at the surface and then covering most of it with concrete decking. Dkt. 66-1 at 22; AR10148. The Flower Associates and Bonaventure properties are located on the Lower Flower Segment. The proposed subway route travels north from 2^nd street to Central and Alameda streets in Little Tokyo, where it is to proceed beneath the Japanese Village. A station is planned at the intersection of 1^st Street and Central Avenue; this location is across the street from the Japanese Village parking garage.

///

///

/// The following map reflects the route and construction methods that were proposed in the FEIS:

Image materials not available for display.

FEIS 4-446, AR6673

Several business and property owners objected to the use of C/C construction along the Lower Flower Segment. AR18827. Metro responded that the use of TBM, instead of C/C, "south of 4^th Street would not be practicable due to the need to remove tie-backs ahead of the [TBM]." AR8164. Certain property owners argued that two open-face tunneling methods could potentially be used through tiebacks: the Sequential Excavation Method ("SEM") and the "Open-Face Shield" method. AR18410-24; 27728-36; MSAR15815-16; AR38730-42. A member of Metro's Tunnel Advisory Panel ("TAP"), Harvey Parker, also raised the possibility of using these methods in December 2010. MSAR15815-16. And, in August 2011, an expert retained by Metro to conduct a value engineering study, concluded that, "[t]here is new, open-faced technology available for TBMs that could cut through tie-backs." MSAR16557. However, VMS noted that Metro "will not entertain Open Face TBM operations due to previous problems with such a construction method on the Red Line." MSAR16537.

Between February 2011 and June 2012, Metro also conducted a series of studies, which concluded that Open-Face Shield tunneling and SEM would not be feasible on the Lower Flower Segment. See AR17663-772; AR82410-27; MSAR17236-54. These studies state that, because the soil beneath the Lower Flower Segment "consist[s] primarily of interlayered silty clays, sandy silts, clayey sands, and silty sands with some sand layers containing variable gravel, and few cobbles," (AR82418), the ground would be "unstable and . . . subject to fast raveling, running, or flowing," (AR82421). Metro noted "[t]his is the classic scenario where a sinkhole at the ground surface can be expected," (AR17814), which would "shut down the entire street for an extended period of time." AR20116. To avoid this problem, engineers would have to improve the ground for Open-Face tunneling by "grouting from the ground surface." AR82421, 20138. In addition, "utilities would need to be relocated in order to avoid conflicts with the grouting pipes to be installed." AR20115. Ultimately, Metro concluded that, if all of these steps were taken, Open-Face tunneling "would have similar impacts to Flower Street as the [C/C] method," AR82420, and that Open-Face tunneling was "an unacceptable risk." AR20124. These studies showed that, due to the soil conditions, SEM would be subject to the same constraints and would present the same risks of street closures and danger to workers as Open-Face Shield tunneling. FTAR19507; AR20116, 20137, 82421-22, MSAR17249.

Metro approved the Project on April 26, 2012, and adopted C/C as the construction method along the Lower Flower Segment. AR15676-82. On the same date, the Board approved an amendment to the Project to include the use of TBM under Flower Street between 4^th and 5^th Streets if it could be done within the existing budget. FTAR5941; FTAR12432.

On June 29, 2012, the FTA issued its ROD approving the Project and the FEIS. FTAR14399-408. The FTA stated, "with the execution of the MMRP [mitigation monitoring and reporting plan] in Attachment A, all reasonable steps are being taken to minimize the adverse environmental effects of the Project, and where adverse environmental effects remain, no feasible and prudent alternative to such effects exists." Id.

B. The SJ Order

On May 29, 2014, the Court granted in part and denied in part the SJ Motions. The Court denied Plaintiffs' SJ Motion with respect to all of the claims made by Japanese Village. Id. at 32-47. These included claims that the FEIS failed adequately to analyze the impact of Project construction on noise and vibration levels in Japanese Village as well as the impact on parking near Japanese Village. Id. The Court granted Plaintiffs' SJ Motion with respect to their claim that the FEIS failed adequately to explain why Open-Face...