Federal Judge Calls Latest Arguments by Purple Line Opponents a ‘Real Stretch’

Says he’ll announce by Friday whether tree clearing can continue on Georgetown Branch Trail


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John Fitzgerald speaks with reporters after the hearing in U.S. District Court for the District of Columbia Wednesday afternoon

Andrew Metcalf

U.S. District Court Judge Richard Leon is expected to decide as early as Friday whether to stop the construction team building the Purple Line from removing trees on the Georgetown Branch Trail, part of the light-rail’s proposed route, while a lawsuit is litigated.

A group of longstanding opponents of the Purple Line has filed its second lawsuit designed to stop construction of the line and was seeking a temporary restraining order Wednesday from Leon to prevent Purple Line Transit Partners from cutting down trees along the trail, which runs from Bethesda to Silver Spring. 

The state signed a 36-year, $5.6 billion contract with Purple Line Transit Partners last year to build, operate and maintain the 16.2-mile light-rail line. If completed, it will stretch from downtown Bethesda to New Carrollton in Prince George’s County.

Leon said he plans to rule on the opponents’ request for a restraining order as early as Friday. If granted, the order would prevent crews from cutting trees on the trail for two weeks.

He also set a briefing schedule for the plaintiffs and defendants to debate the plaintiffs’ request for a preliminary injunction that, if granted, would prevent the trees from being removed while the new lawsuit is adjudicated.

However, Leon told David Brown, the opponents’ attorney, “this is a stretch, a real stretch” while evaluating the opponents’ latest claims that Maryland and the federal government violated the Highway Act by funding the Purple Line at the expense of Metro and other parts of the regional transportation network.

The lawsuit is the latest filed in Leon’s court by the plaintiffs—Town of Chevy Chase residents John Fitzgerald and Christine Real de Azua and the trail group Friends of the Capital Crescent Trail. The first case filed in 2014 is under review by the U.S. Court of Appeals in D.C.

Erin Henson, a spokeswoman for the Maryland Department of Transportation, described the plaintiffs' latest effort as an abuse of the judicial process.

"Their tactic is to delay, delay, delay in an effort to get us to abandon a critical project for the National Capital Region--something that will never happen," Henson said.

The Court of Appeals already granted a stay requested by the state in that case to reinstate the Purple Line’s federal approval after Leon revoked it in August 2016. The stay has allowed the state to sign a full funding grant agreement with the federal government so it can access $900 million in federal funds for the Purple Line and move forward with construction.

Leon said he gave the plaintiffs an “A for creativity” for their latest arguments, but seemed skeptical about their merits, given the Court of Appeals is considering elements of the previous case. The appeals court is weighing Leon’s order calling for a new environmental analysis to determine what impact Metro’s ridership decline and safety issues would have on Purple Line ridership.

“It’s in the Court of Appeals,” Leon said. “District judges in this court are very respectful of that fact.”

Purple Line Transit Partners closed the Georgetown Branch Trail on Tuesday to begin the tree clearing process. The approximately 3.5-mile trail runs between downtown Bethesda and residential neighborhoods west of downtown Silver Spring. Christopher Doherty, a spokesman for the team, said crews will clear shrubs and brush along the trail over the next two weeks and then begin cutting down trees on Sept. 18.

The plaintiffs sought the restraining order to prevent the removal of the trees. A preliminary injunction would halt tree cutting for an even longer period of time, but it would also allow the state and federal government to appeal the injunction to the Court of Appeals. Fitzgerald, who also serves as an attorney in the case, said the plaintiffs plan to raise other possible legal violations that have cropped up recently in their briefing for the preliminary injunction.

“We start with the most egregious, most threatening, most harmful things before us,” Fitzgerald said. “But there are several other things. So when [Leon] sees that whole list in the larger briefing we’ll file soon, I think he’ll be more impressed that he does indeed have jurisdiction to stop very bad things.”

Leon also asked the plaintiffs to file a brief for the injunction by Tuesday and asked the state and federal government to file their briefs by Sept. 15. He scheduled a hearing on the injunction for at 11:30 a.m. Sept. 19.

Leon asked Albert Ferlo, an attorney representing Maryland, whether he could ask state officials to stop tree cutting until Sept. 24 to give him an opportunity to rule on the injunction. Ferlo said Purple Line Transit Partners controls the construction schedule and he wasn’t sure if Maryland officials had the authority to ask the team to stop.

Ferlo estimated additional construction delays would cost the state about $430,000 per day. He also said portions of the trail would not be opened because construction will be taking place along the length of it. Chevy Chase and county officials have called for crews to open parts of the trail where active construction isn't taking place.

“It’s a construction site, we can’t have people on the trail,” Ferlo said.

Leon asked Ferlo to send a letter by the end of Thursday stating whether the tree clearing on the trail could be delayed until Sept. 24.

Montgomery County has budgeted funds to enable Purple Line crews to construct a new, paved trail to replace the Georgetown Branch Trail and extend it into downtown Silver Spring along the light-rail line.

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