November 19 2002

Hon Tom Pico, Chair
Alameda County CMA
1333 Broadway, Ste 220
Oakland, CA 94612

RE: Filing of an Amicus Curiae brief with the Federal Ninth Circuit Court of Appeals in Support of MTC relative to Bayview Hunters Point et al v. Metropolitan Transportation Commission

Dear Chairman Pico:

The filing of final judgment in the case of Bayview Hunters Point et al v. Metropolitan Transportation Commission by Judge Thelton Henderson of the Federal District Court is imminent. Our Authority appreciates the past participation of eight of the nine Bay Area Congestion Management Agencies/Countywide Transportation Planning Agencies in filing it friend of the court Amicus Curiae brief in the subject case. This letter requests your participation in the filing of a second Amicus Curiae brief in support of MTC's arguments before the Ninth Circuit Court of Appeals. We are also requesting a contribution of $1,000 to $2,000 from your agency towards preparation of the brief, which out legal firm has agreed to cap at a cost not to exceed $15,000.

In the original filing, our Authority contributed in excess of $40,000 in legal fees Alameda CMA contributed approximately $17,000, and the remaining agencies contributed their staff and legal counsel time reviewing declarations in preparation of the filings and the Amicus Curiae brief. Consequently, we are asking for your help with this second filing.

Judge Henderson's ruling, while less onerous than it might have been, holds MTC responsible under provisions of the Clean Air Act for attainment of a 15 percent increase in regional transit ridership, compared to the 1982 base year, based on the court's interpretation of transportation control measure (TCM)2 adopted by the region. There are at least four areas of concern regarding the ruling: (1) MTC cannot realistically be held responsible for transit ridership levels, which depend on the individual mobility decisions of millions of prospective riders every day; (2) the region already invests 77 percent of the funding identified in MTC's regional transportation plan in public transit - further increasing the funding percentage could have negative consequences for other social objectives; (3) the economic downturn has resulted in decreased transit ridership since 2000, as the job base has declined, demonstrating the limitations of linking MTC decisions directly to transit ridership levels; and (4) neither MTC, the Federal Transit Administration (FTA) or the Federal Highway Administration (FHWA) agreed with the court's interpretation of the original TCM as mandating the increase - is was merely a "target" expected to be achieved as a result of identified led capital investments. Consequently, MTC has decided to appeal and would appreciate the filing of a second Amicus Curiae brief by the CMAs on its behalf with the Ninth Circuit Court of Appeals.

If your board wishes to support the filing of an Amicus Curiae brief in the Ninth Circuit Court of Appeals, please have your staff contact Bob McCleary so that we can decide whether or not to authorize oar legal counsel to prepare the appropriate documents. We would appreciate hearing from you by the end of November, if possible, as time is of the essence. Thank you in advance for your consideration of this request.

Donald P. Freitas

Hon. Sharon Brown, Chair, MTC
Steve Heminger, MTC
Authority members