Metro and Caltrans: Breaking the Law with their EIR Study on the 710 Tunnel Fiasco?

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(Mod: The public transportation oriented LA Streetsblog has been doing important research on the shadier aspects of the relationship between Metro, Caltrans and their efforts to bamboozle the public into accepting the construction of the 710 Tunnel through a possibly illegal EIR so-called process. Here is their story.)

Streetsblog Asks Metro Board to Waive Attorney Client-Privilege on Najarian�s 710 Big Dig Motion (link):�At last week�s Metro Board meeting, County Attorney Charles Safer responded to an April motion by Board Member Ara Najarian containing questions on the I-710 Gap Closure Project. The Najarian motion sought the answers to three basic questions concerning the relationship between Caltrans and Metro on this project.

Specifically, Najarian sought to see who was the final decision maker on the project, who would be liable to defend the EIR for the project in court, and whether or not there is an MOU concerning the project between the two agencies.

As the County Attorney and Metro Board of Directors are refusing to answer these basic questions to the public, Streetsblog is formally requesting that Metro reverse its position and waive attorney-client privilege. If they don�t, Streetsblog may seek other avenues to get the information disclosed to the public.

That the item even appeared on the agenda is almost completely due to Najarian�s vigilance. Last Friday�s draft agenda didn�t include discussion of his April motion, despite a request that it be returned in 90 days, and he had to push just to get it discussed at all.

At last week�s meeting, it was revealed that Safer�s answers to these questions were not going to be made available to the public. Safer cited attorney-client privilege, leaving the Metro Board to decide whether or not such basic questions could be given to the public. As the report is still not public, the public can only speculate on what was in the report that required the Board to keep it from the public.

Here�s my speculation: the report could reveal that in the opinion of the County Attorney both Metro and Caltrans have broken state law.

When Najarian first introduced his motion, he did it because Caltrans, not Metro, is listed as the lead agency for the project. Despite this, it is Metro, not Caltrans, who is paying CH2M Hill to complete the environmental documents provided under CEQA. There is no Memorandum of Understanding between the two agencies that is approved by the Metro Board of Directors.

California Public Resources Code section 21100(a) says �All lead agencies shall prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any project which they propose to carry out or approve that may have a significant effect on the environment. . . . .�

This means that the �lead agency� (Caltrans) has to prepare, or contract for the preparation of, the EIR. Metro (which is not the lead agency) cannot prepare, or contract for the preparation of, the EIR.

To make this even more clear, the Guidelines for compliance with CEQA in Title 14 of the California Code of Regulations provide in section 15084(a) (titled �Preparing the Draft EIR�) �The draft EIR shall be prepared directly by or under contract to the Lead Agency. . . . � Title 14, California Code of Regulations section 15002(k)(3) similarly provides that �the Lead Agency . . . prepares an EIR. (See: Sections 15080 et seq.).�

When two or more agencies are working together, section 15050 provides that �one public agency shall be responsible for preparing an EIR or Negative Declaration for the project. This agency shall be called the Lead Agency.�

Taken together, if Caltrans is indeed the lead agency and the decision maker, than Caltrans has to prepare the EIR itself (or contract itself for its preparation). Metro cannot legally contract with CH2M Hill to prepare the EIR, but claim that it is not the legal agency.

Metro and Caltrans put themselves into a difficult situation. Either Metro has to now admit that it is the �lead agency,� notwithstanding its prior statements that it is not, or Caltrans as lead agency has to fund the EIR. There is no case law on such situations that I can find, but those opposing the I-710 Big Dig are already ruminating that either Metro is going to have to step up and make the decision on whether or not to go forward with the tunnel or Caltrans may have to start the environmental process over again.

Given the information publicly available that states that Metro and Caltrans have clearly violated state law and the secrecy with which Metro is now holding the answers to some pretty basic questions; we have to assume that Metro is indeed hiding something. If they�re not, it would be very easy for them to prove me wrong�just release the memo from Safer to the general public.

Ron Kaye - MTA Secrecy and the 710 Fiasco: Eric & Zev, LA�s New BFFs (link)

(Mod: Columnist Ron Kaye has also written about the secretive and possibly illegal practices of Caltrans and Metro in this matter. Yet another pair of publicly funded state bureaucracies that somehow feel they are above having to inform the taxpayers about what exactly it is they are up to.)

The No on 710 coalition of groups that cuts across community and demographic lines from the Eastside of Los Angeles to the affluent hillsides of La Canada-Flintridge posted this statement with a 35-minute video of last Thursday�s meeting of the Metropolitan Transit Authority Board:

�Mike Anotonvich tries to sabotage Ara Najarian�s motion by having the county attorney claim �client attorney privilege regarding who make the final decision on the SR710 tunnel. The public has right to know & not let this backroom BS continue.�

Hard to beat the poetic force of those words.

Najarian, the Glendale Councilman and stalwart opponent of digging twin multi-billion tunnels more than four miles from Alhambra to Pasadena, submitted a motion and an amendment back in April demanding a full explanation of what�s going on with regards to the 710 extension that has been stymied for 60 years.

He wanted to know whether Caltrans or the MTA is in charge and whether there is a contractual relationship justifying the expenditures of tens of millions of dollars for an environmental impact study and massive community outreach program.

As I watched the video of the meeting provided by Joe from El Sereno for the No on 710 activists, I was struck by what was going on in the background.

Every time I looked up, there was the aging Zev Yaroslavsky � the man who coulda and shoulda been mayor of Los Angeles six or seven times over in the last 30 years � and the young newly-elected mayor Eric Garcetti in an intense mostly one-sided conversation.

As a guy whose support might have been more valuable than a former President, woman Senator or the fabulously rich or fabulously powerful like the unions, Yaroslavsky chose to avoid the hardships of battle as he has done for so long in so many ways.

�I have remained neutral in this election in thought, word and deed.�

But now that the election is over and an easily manipulated mayor is in place, Yaroslavsky appears in this video excerpted at various points in the 35-minute banter discussion of �why the nature of the relationship between Caltrans and the MTA is top secret, too hot for the public to handle, like spying on our phone calls and emails and snail mail and bank accounts and credit card charges and �National security is all that matters in a nation of frightened little people who protect themselves pretending they are zombies � or maybe they are.

It would seem the termed out Yaroslavsky has found his calling as a mentor to Garcetti, who was attending his first meeting of the MTA, as important a political body as there is because that�s where the money is.

But I digress: The questions before the MTA board posed by Najarian (710 - Motion April 25, 2013.) three months ago simply sought what would seem like simple answer: What�s the deal and why after all this time isn�t it clear with regards to the 710 extension?

Brilliantly � if you enjoy the tactics employed by dictatorial governments around the world, at least those that need to pretend they have some legalistic legitimacy � was the ruse chosen by the MTA to avoid public discussion of knowledge of what�s up.

They had their lawyer Charles Safer, who is actually the county�s lawyer rather than the MTA�s, respond to Najarian in writing so they could invoke the attorney-client privilege exemption under the California Public Records Act and keep their misfeasance and possible malfeasance from the public.

It is a specious assertion they made, one I challenged on Friday with emails demanding in emails to all board members and top MTA officials that they release the document in question under the CPRA as a matter of urgency. I haven�t heard back from any of them.

But I�ll bet you umpteen millions of dollars of Measure R taxpayer money that the money does its best to justify the lack of a legal relationship between the MTA and the state and to offer hollow arguments why illegality in the name of expediency is the only way they can move forward and trample on the rights and interests of hundreds of thousands of people.

You can read the transcript of what transpired during the MTA meeting on the subject (710 Transcript � Regular Board July � Item 60) or watch the start of the segment where a flabbergasted Najarian struggles to remain professional in the face of the indifference of others who dare to call themselves public servants.

One more thing ...

Time Warner Cable drops CBS in New York, L.A., Dallas (link)

Anybody notice?
http://sierramadretattler.blogspot.com"
Source : http://sierramadretattler.blogspot.com/2013/08/metro-and-caltrans-breaking-law-with.html

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