the morning i believe it's still morning i would like to reserve seven minutes for a bottle ok work your clock so the school supports the purple line extension but it is critically important that in funding instructing a popular and necessary project  the agencies are held to the same exacting environmental standards that we hope would be applied when another agency claims that a ten lane highway or a nuclear power plant must be located next to an inner city elementary school here this record abused its discretion on the law in fact in denying an injunction preventing the agencies from entering into to contract committing over a billion dollars to the construction of an alignment between the station to century earlier problems with fault lines now yes it's been in the papers for a week all right yes that's cracked so one of the areas that the agencies have been asked to review on is this the feasibility and completeness of its seismic exploration and it does appear in the last few weeks that there have been developments that there are significant fault and faulting activities including potentially directly beneath the school if they don't have that problem under the school well as of right now we do not have a problem under the school that is our position but c g s seems to think that maybe we do yes but they're going down sixty f t it's unclear to me based on the developments of this week whether or not the seismic activity will interfere with the alignment but that is part of what the agencies are supposed to be doing on remand which our position is that under the case  a circuit they are not free to do if they have massive commitments to construct a particular alignment they can't freely consider whether they ought to be constructing an alignment somewhere else for another reason well that's a good there are far more direct alignments that run directly from wilshire a day out to the to the constellation boulevard station they would still go beneath the school which would be fine they wouldn't go underneath the build a whole area that would impact our ability to expand our recreational facilities and they wouldn't go directly under historic buildings putting at risk students who actually use those classrooms council isn't that long been decided now i mean you didn't appeal from the talking about today is whether or not the the just a card abuse its discretion in not in joining entering into the agreement in conch the grant agreement and the design river two it was not in it was not an agreement i mean it was not a it was not an action that was final in the sense that it was we manned it and we would have had an opportunity in theory at the end of the process to appeal so it was not an appealable paper also an appealable paper under honolulu traffic either because unlike honolulu traffic the court here didn't issue a final judgment it specifically and explicitly retaine the presumptive remedy was based upon statements by metra those statements were about when it was going to do its sci ass and when it was going to enter into contracts the issue there was that we thought it was at requested we understood at the time that we entered into the motion seeking to enjoin that it was possible that the agencies would in fact do more go ahead and sign those contracts before we had the ability to even get them ruled did you ask for more than just we did in every single one of our notices and elsewhere we asked in addition to just in joining the execution of the contract we also asked the courts you set aside the contracts in the event they were already entered into or as possible here to simply enjoying the f d a from permitting its funding to be used for the design build contract so we asked for a variety of relief much of which is still available and under the american air case it doesn't matter if the exact relief that we ask for is no longer available as long as there is some relief that the court can provide that will effectively remedy we were given actually it was entered for us the issue was was the remedy that was given for the summary judgment in our favor correct we contend it was not cracked however instead of did in fact rob us of the ability to have an appealable paper in our hand to bring to this court now we didn't wait we didn't sit on that for two years what we did instead was we watched carefully and as soon as we agreement to go to the design build contract the design build contract here is the real problem it is the real problem because it is a contract between metro any third party to build an alignment litigants here underneath and under section four af is an objective process that's it's an action forcing statute and so what we're trying to do is make the agencies have in front of them at the time of the decision the full environmental analysis as this court found in peril one if you're engaging in activities that arc commit you to an outcome the environmental assessment you do afterwards is not useful it's not it can't operate to inform decision makers and so it needs to be set aside we're going to need to set this aside at the end anyway so we should set it aside now to preserve the schedule of the project well why are you going to have to  you're going to have to set it aside eventually because these contracts are in place and the decision that the f d a ultimately makes in the fall of this year about whether it can move the alignment will be wholly undermined by the fact that it is already committed to a particular alignment to the tune of over one point two billion dollars which is why you should have appealed the remedy order under all of the case law including pitt to we would not have done that but even if we should have appealed the remedy order it's not as as you suggested earlier it's not that we waited we didn't wait two years six months we waited two months to see whether the district court was going to live up to but i would point out that there's a disconnect between that and the legal theory that every hill's is relying on here under their legal theory the real problem is the moment at which the contract is signed they're saying that by signing the contract f d a has somehow committed to a particular alignment and if that is true if that's their legal theory then i think the court could find the case moot because the agreement is already signed and in fact they say that a lot of other things show that f d a has already committed to the sort of a part of their argument also is that the deeper and deeper they get into the funding in implementation the more committed committed the agencies are and therefore less and less likely for instance to really take equal hard look and give a full analysis and given the limited scope of review by the court the the nepa analysis there be prejudiced and put more and more into a box progressively over time that is their argument and so i would make two points in response to that first is that under this court's case law particularly wild west institute and national parks conservation association it's really a commitment of natural resources and not a commitment of financial resources that is an ears  vable commitment of resources for purposes of nepa so for example cutting trees or or threatening an endangered species that's not what we have here here f d a faces no financial liability if this decision is changed its participation far as of today f d a has dispersed about sixty five million of it most that much of that for activities that are related to the project as a whole not specific to any particular location so when you're point b that north or for there to be actual conduct there has to be an irretrievable you know it retrievable commitment and just sort of being biased your risk of being biased or taking a position having the mental state of not being totally you know open to the process is not irretrievable commitment that's right the legal question for purposes of pre determination is whether we have crossed a line from simple preference which is fine to pre determination which is not ok and one thing that the courts look at to decide whether that has taken place is whether the agency has given itself essentially incentives not to change its decision whether it has given itself incentives to rationalize a decision that's already been made and so i point out that here all the incentives are on the side of an open and objective nepa process on remain and this is a very public process the district court is supervising it closely beverly hills is lawyering this process within an inch of its life and there's essentially  reason for the court to find now that f d a has already made a decision here rather than have the district court wait for the administrative record to be compiled and look at that record to see whether f d a has taken i mean is that the incentive is there the more money that is spent on the one alternative the less likely they're going to find other alternatives through the yes process well it's true that the agencies f t and metro will have to justify whatever decision they make not on the basis of the money that they've already spent has said that he is going to look carefully at that it is not going to allow the agencies to justify their decision on the basis of money that's already spent but as judge progress and question pointed out there may be very good reasons to have the station location at constellation and not at the santa monica location it's ok for metro to have that preference and to make the decision on those factors i don't think that the facts here show that f d a is making a decision based on improper financial factors as opposed to the actual environmental consequences of the various alternatives but the other thing i would point out is that even if f d a were doing that this would not be the time for for beverly hills to bring its claim there is no final agency actually they're asking this court toward the relief not on the basis of what f d a has done but on the basis of what they are asking the court to predict that f d a will do in the future  and there is no fixed date but the coming period for the supplemental yes closes on monday beverly hills actually has an extra week past that as a special combination to them to make sure that we consider all the issues they want to bring to our attention after that it's likely to take a couple of months to come up with a final supplemental yes and we expect to have all of these issues back before judge lewis well in advance of any construction beginning and there will be no construction here until january twenty eighth at the earliest and what construction there will be at relates to the equities they say that there is no reason to allow these activities to keep going forward but in fact from metro's perspective i'm not here on mattress behalf but in the process they're saying this process can continue while we undertake important funding and planning activities that will allow us to keep this project on timely basis and if those get delayed the public will be harmed by a delay project but beverly hills doesn't have a countervailing concrete interest that is being imminently is imminently threatened with harm by the signing of the grant agreement or the design build contract judge who has committed to them and we we understand that this is part of this process that he will protect their interests by reviewing whatever f d a does on re before f d a is allowed to begin construction so it was within his discretion to say i'm not going to award a preliminary injunction now i'm going to wait until i have a chance to review this on the record and then decide whether an injunction is necessary before anything happens to beverly hills property but that would be based on his assessment of the adequacy of the yes supplemented under normal rules right yes it would be and that's a fairly differential standard that is the judge has to make sure the process is followed it's a procedural i mean it sounds like he maybe is threatening earth suggesting he would exercise or super super supervision  judge as take hold of and live and follow what they but day there's something to what just person a saying which is the judge will have a complete administrative record and he is now actively supervising this process will be able to see what the agency has done and so when we get there we will argue that he should defer to us on technical matters but if beverly hills wants to present its prejudgment claim to him at that time that really has we'll have the opportunity to do that and he can vacate the supplemental rod on the basis that it was prejudged he could he could take it on the basis that was prejudged today but beverly hills has to wait until there is a final agency action that they can challenge to  give them that relief and all of the cases in fact about predetermination have stopped an agency decision that has already been made not stop the nepa process while it is still going on what is actually going on with  design contract the the contractor to pray is undertaking pre construction activities like design activities my understanding is that the design for the washer a gas station which is not at issue here in the meantime they'll do things like property acquisition utilities location things that can be reversed and things that are not so things that are not such a financial commitment that they should lead to a presumption of bias in the process we judge who have to find in order to make the pre determination to find there was pre determination and noncompliance what was the standard of just review he would he would have to find well the standard of review i think agency has not prejudged the standard for that is whether the agency has made an irreversible and irretrievable commitment of resources that precludes it from taking an objective hard look at the environmental issues related to the various alternatives what we're hoping is that the administrative record will show to judge who that metro and f d a are taking an objective hard look as all of the incentives in this case lead them to do obviously these agencies would rather pay whatever penalties there are for a change to the existing design build contract than have that contract vacated go through another year of contract procurement and then have a higher bid at the end that would be much much more expensive to the agencies than changing this contract so our incentives are to take an objective and hard look and what we're asking this court to do is send beverly hills back to district court so that judge we can make that determination about a final agency action on the administrative record before he has to rule on that and not preempt the process by granting a pulmonary injunction  yes if now is not the time to look at it that's right if the judge would think that that is a problem that the nepa violation has occurred that may be violation is reparable he can simply hold it a violation has occurred and vacate the supplemental rod so just on the equities element of the preliminary injunction tast judge we did not abuse his discretion by denying an injunction i want to go back to an issue unless the court has more questions on the merits of the p r i i want to go back briefly to the question of whether this court even has jurisdiction to consider the p i of people begin with or whether this appeal is really an untimely appeal of the remedy order you know most preliminary injunction to preserve the status quo while the district court has time to consider the underlying claims but here now to address this argument that they couldn't have appealed the order then i think that i'll see valley which establishes this no appeal from remain or rule to begin with also establishes the exception that they could have taken advantage of if appealing a question after every man would have been that's right they wanted the original record of decision vacated and so their merits basis for the poor marion junction is a marriage question that they intend to raise later about the supplemental process but the remainder order and the relief that they want in the was really about whether the rod should have been vacated in the first place and alcee valley doesn't require them to resort to these procedural shenanigans like a post merits decision preliminary injunction to appeal that question just lets them appeal out right which is a logical denial of the p i they're allowed an interlocutory appeal and under i'll see value in honolulu traffic the same is true here they were immediately affected by the district court's failure to vacate the rod that the relief that they were seeking would only have been relevant during the remained itself and so they had an opportunity to come to this court before the remaining took place and see whether they could or should have been good to him in the you'll just partially just that part of the order would deny relief during the remaining without this really taking up the whole remained question yes in fact i don't want to commit the government on a hypothetical question but i think that would probably be the only part under alcee valley of the of the lord i that would be futile i'm sorry that's the only thing that would have been read that's the only thing ed in not they katie and given that he mandated for consideration in these other issues that's right and the court would have applied the california community is going to toxic standard which judge will also applied and i think the court would have come  and provide five hundred thirty jobs this project going to fight sixty four thousand jobs it was not an abuse of discretion for the district court to say planning for this project can continue as long as beverly hills concrete interests are not affected until after i have a chance to review this issue further and that was within his discretion i see that my time is up so let me close with this thought we're not trying to prevent beverly hills from making sure that f d a and metro comply with new but they are entitled to make sure that we comply with  media but they're not necessarily entitled to do it in this untimely attack on the remedy order or in a motion for a preliminary injunction right now that this report has said that it intends to protect beverly hills interest and we're simply asking this course this court to send the case back to the district court so that he can do that thank you its own decisions only agency is compelled to refashion their own rules face the unique prospect of being deprived of review altogether which is the third factor of the  it was on nad basis that we did not appeal what we did instead was we waited to see what judge we would do facts change after the room and order facts change that it took much longer to do the remount than was ever articulate approval on in terms of the grant that we would be executing it's a cardinal changed the what what those very really really want that is so it's very interesting i'm going to get to that because there was a fairly interesting explanation by my adversary about what's going on here what beverly hills wants is for this alignment to move across its campus to the constellation station underneath its ball fields that's what it wants now interestingly on july sixth twenty seventeen we received a letter from philip washington that explained that they would be unable to consider alternative alignment metro to constellation because of the existence of the design build contract he says and philip washington who is the c e o of metro who previously testified at record page for seven nine that once he entered into the full funding grant agreement metro could not consider other alignment just two days ago we received a july sixth letter from philip washington in response to the district's suggestion that we could reach a compromise on the placement of the alignment that would allow metro to run the alignment from wilshire were dayo to constellation boulevard but just under a different location which would have fewer negative impacts on the school district in response philip washington wrote to us and he told us that they could not consider any of those alternative alignments even to constellation boulevard and the reason they couldn't do that is because they had entered into the design build contract and that each month conservatively metro expend six million dollars towards the constellation alignment and they will be utterly an able to make any changes without suffering significant financial harm now i understand that judge who has taken the and this was articulated well enforced guardians which is it doesn't matter how good that if the f b i asked looks it doesn't matter how rational it is if ultimately that document could not ha even could not have given fair consideration to alternatives because the other the existence of these commitments very large commitment why can't why couldn't judge who find that at the time given exactly what you just said letters like it's important that the panel and the court consider this now in leaving the volpi which was in one circuit case decided in one nine hundred seventy one the issue was that no environmental analysis had begun whatsoever yet the federal government was using federal money or allowing money to be used to buy homes buy up homes in a particular area that was one of the areas where they might run a highway in explaining why it was not acceptable to wait to do the environmental analysis until later and continue to buy the properties the court said this to paraphrase in the language of need there is likely to be commitment of resources which will inevitably restrict the options either the highway planners will have to undergo a major expense in making alterations and a completed plan or the environmental harm will have to be intolerant too much environmental harm will have today if these contracts are set aside or the funding is stopped we have a chance to make this decision correctly now and not have to wait until remained to the moment that construction is about to begin