TO: Commissioners
FR: General Counsel
DATE: July 22, 2002
WI: 1801

RE: U.S District Court Northern District San Francisco/Oakland Division: Case No. C-01-0750 TEH:

Bayview Hunters Point Community Advocates, et al. v. Metropolitan Transportation Commission, et at (TCM 2 case)

A hearing was held on Monday, June 10, 2002, in the subject TCM 2 case, to consider plaintiffs' motion for injunctive relief. As you recall, the Court had previously ruled, in an order dated November 9, 2001, that Transportation Control Measure 2 in the Bay Area's 1982 Federal Clean Air Plan requires transit ridership in the region to be increased by 15 percent. Pending before the Court at the hearing was the issue of remedies in light of that earlier finding. We argued principally that no agency can guarantee an exact transit ridership number, and therefore an injunction would not be an appropriate remedy. Copies of our opposition brief setting forth all of our arguments, as well as copies of plaintiffs' briefs, were previously forwarded to you.

We received today, July 22, 2002, the Court's decision on the remedies it is imposing to implement its November 2001 finding.

The ruling grants injunction relief in the following form:

1. MTC, by November 9, 2006, must increase the region's transit ridership to 544.8 million annual boardings. That is 15% over the 1982 baseline of 473.7 million boardings.

The Court remains unwilling to accept our argument that we cannot "guarantee"
ridership, and repeats that TCM 2 itself requires MTC to get transit ridership up by 15 percent. Therefore, until the TCM is amended, the Court is saying that it is in essence powerless to relieve MTC of that obligation. We did prevail on getting the Court to agree to our 1982 baseline ridership numbers, to an adjustment of Muni's inaccurate 1982 ridership numbers, and to our estimate of what a 15 % ridership increase over our baseline ought to be. Our analysis for the 2001 RTP projected that we will be able to get to the increased ridership percentage, but not if we have to use plaintiffs' numbers.

2. MTC is ordered to amend the RTP, by January 17, 2003, to include a section listing the projects thus will help implement TCM 2.

The Court does not require a wholesale amendment to the RTP, and it specifically rejected plaintiffs request that MTC be enjoined from approving the TIP (scheduled for this Wednesday) or any future amendments to the TIP. The RTP amendment that is required by January 17, 2003, is to add a section showing the specific projects to be funded and the estimated increases in ridership that each project will bring to help get the region to 15%.

3. MTC is required to make quarterly reports to the court for the next 4 years detailing the progress towards complying with the 15% ridership target

In summary, the decision does not require us to go through a whole new TCM 2 consultation and implementation process. It does not require any major surgery to the current RTP, and as noted already, it allows us to continue to use and adopt the TIP.

A copy of the decision is attached.

While the ruling is not unexpected given the Court's earlier finding, and while the remedies being imposed are manageable, we nevertheless are disappointed that the Court believes that MTC can somehow guarantee transit ridership increases.

We have a closed session scheduled at your July 24th Commission meeting to go over the decision in detail and to review with you the legal options available to contest the erroneous underlying TCM 2 ridership obligation finding and to discuss how we will implement the remedies being imposed by this decision.
Please do not hesitate to contact me if anyone has any questions before the 24th.

S/Francis Chin
FC: It
A:\7-22-02 CourtOrder Transmit TCM2.doc
cc: Steve Heminger
Ann Flemer
Therese McMillan
Chris Brittle
Dianne Steinhauser
David D. Cooke Esq.