admirable the judges of the united states court of appeals for the eighth circuit hear ye hear ye hear ye united states court of appeals for the eighth circuit it's now in the morning of one point to make a quick announcement judge erickson who is a member of this panel was unavoidably prevented from  participating this morning but i want to cancel and others that are here that he will fully participate in the case and will listen to the arguments that are recorded here as all of the arguments are and as i said his participation will be will be just as if he were here in court this morning so with that i think we'll dispense with the announcement of the four calendar we've got a full morning of arguments and so with that we spoke would you call our first case yes your honor the first case this morning eighteen sixteen eighty six eighteen seventeen sixty five minnesota lakes and parked alliance of minneapolis etc persons of the metropolitan morning your honor you may proceed when you're ready thank you may please court this appeal comes to you after the district court dismissed summary judgment my clients need to environmental challenge to the southwest light rail project here in minnesota reversal of the district court summary judgment decision is appropriate in this case because the record demonstrates that the met council the agency responsible for conducting the environmental review prematurely eliminated reasonable alternatives not because of a careful evaluation of the environmental risks as nepa requires but because of the steady drumbeat of political expedien because this challenge is about the prior political conduct of a state actor rather than a technical challenge to that environmental analysis the narrow an implied cause of action that was recognized by the district court in this case was both appropriate and necessary counsel you would agree that this court has never recognized that cause of action before would not correct there there is no precedent in this case that deals with these facts we certainly acknowledge that the eighth circuit has previously held that there is no private right of action underneath however the court has not precluded any nepa claim such as this where a state actor was in a position to any potential federal remit under the a p a so do we if we accept your argument are we overruling previous cases or are you asking us to overrule previous cases no i don't believe that there is any previous case that have to be overruled i believe that it is it is a unique circumstance that has not been before the court and i don't believe that any of the previous cases preclude that outcome and we think that the district court correctly recognized this in applying the reasoning clear up something for my benefit if you will if we look at that the operative complaint in this case is and is an amended complaint correct greg if we look at that amended complaint what's the relief we're asking for a declaration that the met council has violated the new regulations that it's obligated to comply with and enjoin it from further construction on the project until a final environmental impact statement ha satisfied well really from a practical standpoint isn't that a relief and a possibility now because of the the f d a has already issued as i understand it the record of decision and the final environment environmental impact study has been has been completed and been and been approved and i this is this is and those things were done by the federal transit administration correct aren't correct and the and they're not a party correct they're no longer at heart what what can the court really do at this point well that hasn't the ship sailed so to speak no i don't believe it has your honor and it's not an impossibility because the regulations certainly allow for any for a a supplemental environ pac statement to be released if there any changes in circumstances that require further consideration i do believe that a court order in this case finding that the council had it in appropriately politically pre determined the outcome would constitute the circumstances that would allow for a supplemental environmental impact statement to you even though the rot has already issued that's that's not uncommon what's your best case that we could go to to see where this this kind of relief in this in this procedural posture has been granted in this procedural posture you mean after the post r are in a unique procedural posture in this case in that the most of the cases that have dealt with that have have been in the context of the a p a where a challenge has been made to the final federal agency action and the court has overturned a decision within that context i don't have a case to point to where there was a challenge to the state actors conduct in the court considered outside of the context of the a p come the fact that there are no cases suggestive that perhaps congress didn't intend the statute to work the way you want it to work i don't think that's the case here and i think it's more indicative of the unique scenario that we're in the in this scenario the met council was in a unique position where it was essentially wearing three different hats and i haven't seen any similar case that has dealt with a state actor that had these three ha it was the cold lead agency responsible for drafting the environmental impact statement it was also the state agency responsible for constructing and implementing the program and importantly it was the state agency responsible for shepherding the process through a highly political state approval process and we believe that it was that third hat that that third role that the met council played that interfered with its first responsibility which was to create a environmental impact statement complying with new regulations but your client still could have raised in the book claim under the a p a correct correct although if you look at the procedural posture of this case the lawsuit was filed  n two thousand and fourteen september of two thousand and fourteen before the met counsel had even issued a supplemental draft environmental impact statement if that point there there was no possibility filed against the f d a at that point we were two years into this case and it became clear that the the conduct that we were challenging was outside the scope of what the review well just as you did your client submit comments in the public notice and comment in other words did you supplement the administrative record during this process to facilitate your ability to challenge it under the a p a well no again if you look at the procedural posture of the case the the final environmental impact statement was issued in may two thousand and sixteen and we were in the midst of discovery in this case we hadn't even received all of the documents that had been requested until after the comment period for the final impact statement had passed discovery continued after the rot issued conduct and we believe that the district court you know correctly recognized that this case was not just a placeholder that was to buy time until the rot issued well i mean the district  acknowledge that this limited cause of action was simply to ensure that forget specifically i'm going to miss court a little bit but essentially the federal right was not of this rated right correct so the federal right was not eviscerated during this time period and then you had an opportunity to exercise you that federal right and yet your client chose not to that's what i'm struggling with a bit well and again it's because the conduct that is being challenged here is the prior you know political conduct the state agency this is not a technical challenge to the adequacy of the specific analyses in the environmental impact statement the the a in issuing the rot in reviewing the f b i s it is not looking into the political motivations of the met council in preparing the draft the supplemental draft impact statement that was it issue in the final impact statement that was released the the a p a is intended to review whether the federal agency action complies with need and what our argument is here is that the f d a was not able to do so because the the environmental review that it was analyze it was it was tainted by political pre determination and that the report that it was looking at in the first place was not effective because the you know as the new regulations require the environmental impact statement needs to be issued at an early enough time so that it can practically service an important contribution to the decision making process not used to rationalize or justify a decision that was already made and that is what we say happened in this case and it was the discovery into the met council's conduct in the political negotiations that occurred during the municipal consent process that we believe is what violated nepa it that point it was clear that the reasonable alternatives had been eliminated before this case or before the review was ever issued before an environmental review of the plan that was eventually selected had even been issued and we believe that was the that conduct is outside the scope of the a peer review which is why we don't think it is necessary in this case but well shouldn't be should the f d a be a party to all of this if you're seeking  f from the court that brings this project to a halt and you want some things redone here shouldn't the shouldn't the f d a be a party to that doesn't that they have a they have a place at the table so to responsible for at least some of these task like the environmental impact study but it allows local in today's governmental entities to have a part in the process ultimately under the purview of the of the f t a how do you get around the the that the thought that the f d a should be involved in this well again we're not saying that the f d a you know the you as a seems to be the ideal mechanism to challenge a project like this and how the project was was handled that that that involves the that the federal government play or understand or honor it and we're not saying that the f d a is review of the final environmental impact statement was itself improper that's that's why we're not challenging identified in the summary judgment record is occurring as early as october twenty thirty but isn't that a question for the f d a to address well i believe that's outside the scope of what's reviewed in the a p a challenge and in fact if you look at the twenty a j letter that was submitted by the met counsel in this case the save our sound case that demonstrates precisely the difficulty that would be presented in an a p a challenge where the court was not willing to supplement the record with evidence of the communications in settlement negotiations that the plaintiff in that case believed showed that there had been a pre determination the court was only interested in the the federal agencies review of the environmental analysis itself so just to be clear i mean the relief you're seeking here is and new restarting in the process correct do you agree that the met council cannot accomplish that on its own i did well i don't believe that it can accomplish that i believe that it can request permission to conduct a supplemental environment sam just about it my rebuttal time so unless you have any other questions i'll save the rest of my time for well we've asked a lot of questions out of additional rebuttal if you want to take a minute or two if there's a point you'd like to make before you sit down  one point i'd like to make before i i sit down then is that you know just looking at the timeline we believe that one of the clearest indicators of how this was a decision that was made based on you know political expediency rather than the environmental review is if you look at the significant shift in the preferred alternative that occurred from the draft environmental impact statement issued in two thousand and twelve where the agency responsible for preparing the draft impact statement had selected the relocation what's referred to as route three a as the preferred local alternative it considered co location  which is the route that eventually has been selected as the route for the southwest light rail project and demanded in adequate to preserve the environmental quality and quality of life in the area the when the met council took over responsibility for environmental review it quickly shifted the preferred alternative to co location the you know what had previously been identified as inadequate to preserve the environment quality of life in october two thousand and thirteen it had already selected that as the you know approved route and had indicated that all of the other options were off the table and it submitted it to mean a simple consent in spring of two thousand and fourteen all of this was far in advance of the supplemental draft environmental impact statement which was the first environmental review of that new preferred alternative which didn't come out until may twenty fifth the fact that all of the other options according to the met council had been eliminated had been rejected had been dismissed before the initial environmental review of the preferred alternative we think is a significant shift the demonstrates that political pre determination so unless you have any other further questions i'll reserve t jurisdiction or originally is that this court is well aware the federal court is a court of limited jurisdiction and the lower court went beyond that when he created the brand new unprecedented action for a state player number two if the court gets passed that the the the the l p s failure to timely challenge the empty age rod renders its claim moot i mean the f d a has got to be in the courtroom and that's the whole purpose of the original claim that was approved by the lower court to be kind of a placeholder intil the defender will remedy was was available in other words at the in the final agency counsel what do you make of your opponent's argument that the a process is not suited to address some of the evidence that's being alleged here related to the politics surrounding the process here would what's your response to that claim that you know this is just not an appropriate forum to address those sorts of issues i disagree your honor the process in the in an a p a process doing how it's been done not just in the eighth circuit but every circuit in the land could allow for that kind of information you know it's it seems like the discovery is the reason for this unprecedented cause of action where in fact there can be data practice requests and requests to supplement the administrative record there there can be a lot of this information is public and can be presented either in comments to the to the final e i a s or as part of the proceeding that should have gone if they wanted to pursue this with including all the parties who should be part of it there's also a process under the law that allows a party to say request supplementation to a federal judge in certain circumstances in their limited circumstances but the certainly in this case the judge you would believe would allow that given how he ordered and in any event we never record because there was never a challenge so it's unknown whether his information would have been part of the administrative record that the political side of it is kind of interesting to hear it it sounds like it was an even environmental claim as it was argued just now by the a lawyer talking about a political claim but this has an environmental basis nepa is an environmental basis and the issue boils down to if you skipped a third issue is whether there was a  irreversible and irretrievable decision commitment to a particular course of action and that the court analyzed thoroughly as a as a trial court not once but twice and found under the law using all the laws including the law on the fourth circuit and six the ninth and tenth and eleventh determined there was no such binding commitment there is no you haven't you have a case where that your third your third point they are the claim that there was an irreversible commitment premature commitment to a course of action do you have a case where where that was that kind of claim was  case that's one the national audubon society versus navy cases another and the case that we presented the coroner twenty eight j just a few days ago which is from six weeks ago in the fourth circuit is exactly on point because if a plaintive wants to challenge that there was pre determination prior to the finalization of f b i s or the rod it can do it in the proper proceeding under the a p a after there's a final agency action with the f d a in the courtroom that has been done countless times i think we cite all those cases and by the way the lower court analyzed i think each and every one of those cases during the in the diff the two thousand fifteen summary judgment order and then went on and said there was nothing new in two thousand and eighteen and decided in favor of my client so absolutely your honor there's no there's no barrier to the to a plaintive saying hey you should toss out this environmental review because there was pre determination before an and that's been done countless times what do you do you would you concede that there that there's merit to the point that the district court made that they are in in the in the right circumstance it would be appropriate for an action to be brought  during the ongoing of the of the process in order to prevent  project could be such that by that point it can't be as a practical matter it's not going to be altered or reversed and so there could be in up in the right track situation a need chance to review the final environmental impact statement an issue it's rod it's it and it's never been done before ever and the reason you don't need that your honor is that each and every one of the points that you just made judge shepherd can be made in the proper setting which means after final agency action in an a p action with the federal government as one of the parties and the flipside of course if it's made in this setting where it's just against a state actor with this unprecedented nepa action against an in a private party the federal government is not even in the courtroom now you can say it's moot because they didn't appeal in time you can say you can apply prevention mootness because you know the federal government's not in the courtroom where you can also rely your honour's on the case law that says that even if a state actor has done things that arguably is improper the federal government it's always a backstop because there's no indication they were involved in the political discussions there's no indication they had a year on that that in any of that and yet they independently analyzed the environmental documents to determine whether was adequate and review of the f b i s and ultimately as a judge sheppard as you asked earlier issued their record a decision which was not appealed so not only is the federal government on the court room but the federal government had the opportunity and did look the stuff over issue its own record decision well dana any of the cases that she that she sided to they involve situation in which anything close to this meant municipal consent procedure and requirement was was involved i'm going to answer in two ways your honor  not in the terms of municipal consent but if you look at the what i call the purple line case which is the d c circuit case about the coalition that was challenging the d c light rail transit you can see that that court talked about the process necessary on a kind of public works project like this a two billion dollar biggest one ever in the state of minnesota that requires their bid to be involvement of local government and all the way through in order to effectively get the best project for the metropolitan area so on that well that's why answer i have the second answer is no not exactly like that because that mean a civil consent process was not binding and the fact the matter is in the case is that at the time and where there was pre determination your honor those are in cases where there was a binding commitment made by a party that made the environmental review empty if you memorandum of understanding and none of them obligated the metropolitan council to build this route so i would answer in two ways your honor that the put the law in case the d c circuit exactly talks about this kind of process and in fact that could trial court very thoroughly went through all the cases a pre determination and determined that this political process which is not part of the environmental process of this political process did not result in a binding commitment as opposed to the cases that had to roman previously you know just as a matter of the factual record how many municipalities or involved in the municipal consent honor so and if you get if you look at the cases and forget about the cases look at the regulations it's obligatory on the part of the of the project promoter if you want to call the metropolitan council that and the f d a to bring in those parties to make sure there's not a bunch of environmental or you dani end up with x and no one has weighed in on the kind of the realities of x you know how where the stations are and all that kind of stuff bad is the process it's complicated it's costly it's involved politics in no question about it but it doesn't involve any of those things in a binding commitment sort of way because the environmental review is off  side and it's done properly but metropolitan council and always overseen in this case by the f d a now if i may or honor let me talk a little bit about the second issue and that's the  you know if you look at the i think judge corpus you pulled out the evisceration of the federal remedy language and there's language like that in the original order of march sixth two thousand and fifteen and then similar language was in the several orders of the trial and other matters and it was very clear that this unprecedented private action underneath which i think would not only require overturning a circuit law but probably law throughout the land was at most just a bridge to the point where the federal remedy could be utilized and the reason for that your honour's is it all goes back to the limehouse decision of the fourth circuit in that case there was a final agency decision it was an e p a everything was done properly and the federal government and the state entity are all parties to this challenge about adequacy of the environmental review and the fourth circuit said we think we can enjoin the state underneath as if in a form a pendant jurisdiction to to allow the challenge to the environmental review to proceed without knowing about in this case roads being constructed it's kind of a logical decision in fact it's not unusual in other circuits they don't go to neat but they just say they have that basis to include the state entity as part a to make sure there is not action while the challenge is proceeding all right so it was a bridge it was a bridge and the language of the court was very clear because this was this unprecedented limited narrow action not signed to be a broad ranging cause of action which is what the plaintiffs now are the balance now are using it as but rather as a bridge to when there is final agency action and a rod so we get to that point and sixteenth two thousand and sixteen and the law is clear twenty three u s c one thirty nine l i think it is one that there is a one hundred fifty day time period to appeal you've got to keep these these m moving from the publication the federal register and that was all done properly december twenty second was the last day for them to for the lp a the talent to preserve the federal amadie they had already got the benefit of this case know i believe it's twenty three u s c one thirty nine c subsection l one your honor and it's a shortened it's a shortened statue limitations because of the policy that we can't wait forever because these things proceed you've got to if you're going to have an objection a challenge to the adequacy of an environmental dogma got to do it right away they didn't do it that they also could have challenged state law if the case was only against the metropolitan council there's a state version of nepa called the minnesota environmental protection app or me and that has a thirty day time period again you've got to keep the process moving that time came and went to in september of two thousand and sixteen no meet the challenge so he ended up with his limited narrow action that benefited the plaintiffs appellant here in that they you know kind of did this pre that jurisdiction unprecedented but then they didn't take advantage of what the lower court offered and i do want to comment about discovery your honour's because if you hear the the advocate for l p it sounds like somehow the metropolitan council the later in produce discovery in a way so they couldn't provide it in response because judge copas you asked about whether there was comments made by the the plaintive the  t for the final environmental impact statement the fact the matter is is that the lower court ordered in may two thousand and sixteen that discovery be provided and by june in other words within a month or so a little less than a month is my memory we provided thousands of documents including i think all the emails that i have been produced for the lower court and part of the record here all that was done and you remember that the rod was not issued in till july two thousand sixteen so the fact the matter is is that the plaintiffs follow the plaintiff below the pollen here had the discovery there was some extent is covered that went beyond that but that was mostly third party discovery and didn't doesn't even relate for the most part to this claim so we did what we had to do we responded to discovery up because we want happy about it because we thought this is a ministry of record case but we were ordered to do it we did it and and we did it in a timely fashion we did it in time for them to utilize that discovery for objections or comments about the adequacy of final environmental impact statement so your honour's let me just go back to the three issues it is the position of the metropolitan council that this court sitting as one of limited jurisdiction simply doesn't have the jurisdiction to do what the lower court allowed to have happen here it would be allowing a direct federal claim against a non federal actor with no federal party in the action and a private right of action underneath which as judge kobus pointed out that's not the law in the eighth circuit or really any place and that's unprecedented prior to finally age and set action again unprecedented not under the a p a again and president except for that little bit of pendant jurisdiction language in that line house case and also by the way based on a regulation that you've read a lot about fifteen zero zero one a and b which but letter law says if there's not jurisdiction under the statute regulations under the statute don't provide a cause of action that's the alexander versus sandoval case that is the cause of action this court is being asked to approve and that would be the first time ever not just here but in any jurisdiction in this country and i think that the court should not do that but if it does then we reach the moon is issue number two and then if the court determines or has not moved us because of the failure to appeal on time then we get into the facts in the law of the pre determination and the lower court  did a very thorough job we had an argument in summary judgment monday after friday decision that there was jurisdiction and we all worked really hard to to argue and we presented all the cases the court pretty much the same case now with the one exception the new one which supports save our sound of the first fourth circuit and four months later the court said there was no no a basis for summary judgment for the plaintiff gave the plain identifying one kate the case that i believe is important for the court to look at which i think is outside of what opposing counsels represented as the case law about the binding commitment requirement for pre determination  international snowmobile manufacturers association the norton case of the district of wyoming this case was cited in all of the briefs this was a case where the court found that the the re had been political pre determination of a decision regarding whether snowmobiles would be allowed in yellowstone park in one of the things that the court focused on was the fact that a draft environmental impact statement had come out indicating that the agency was inclined to allow snowmobiles and seven months afterwards a senior agency official essentially now is publicly that no they're  not going to be any more snowmobiles in yellowstone and that there hadn't been any environmental study in between the draft environmental impact statement and that public declaration to justify such a significant shift  n preferences what the court said was that you know given these definitive statements that it was clear that the final environmental impact statement in the rod they were issued were nothing more than pro forma compliance with the requirements of we believe that that's the case here and that was not a case that required some contractual commitment to establish pre determination and so for  the district court did believe that some sort of contractual commitment was required and you know we did argue that the m o use that were negotiated and signed during the municipal consent process were binding and in fact we presented evidence from former mayor betsy hodges when she contacted the met council addressing the argument that they made in this very case that the him oh you was somehow non binding and that the city of minneapolis certainly did consider that him oh you to be a binding agreement what's important to keep in mind is that the m o u was not requiring the met council to  it's not that the m r u itself was requiring them to go with the colocation route it's that they were trying to convince the city of minneapolis to drop it opposition to co location and had to agree to certain modifications to that route in order to secure their agreement to drop that opposition we do believe that that was a binding commitment and indeed the city of minneapolis believed it was a binding commit signed mediation agreement is binding in that that's an issue that wasn't necessarily briefed or argued below but i do believe that you know that a lot don't support the fact that the signed memorandum of understanding at the end of the result of the mediation between the parties was binding the one thing that i'd like to close with is that you know everyone agrees the need his purpose is entirely certain protections are entirely procedural that the purpose of those procedural requirements those procedural protections is to ensure that a fully informed and well considered decision takes place and to disclose to the public what the agency had considered in the environmental concerns of its decision making we believe that that is what was missing here the elimination of alternatives was motivated by opposition from st louis park about not wanting freight rail to be relocated through th polity and that the environmental impact statement demonstrates that kind of political pre determination which is why we believe that in order that the process be restarted requiring an impact statement to  consider an objective evaluation free of that previous taint is appropriate thank you thank you counsel case has been well argued this morning and i appreciate the efforts of