DEBORAH S. REAMES State Bar No. 117257
ANNE C. HARPER State Bar No. 176202
426 17th Street, 5th Floor
Oakland, CA 94612
Tel: (510) 550-6725; Fax: (510) 550-6740
Attorneys for all Plaintiffs

ALAN M. RAMO State Bar No. 063425
HELEN H. KANG State Bar No. 124730
Environmental Law & Justice Clinic
Golden Gate University School of Law
536 Mission Street San Francisco, CA 94105-2968
Telephone: (415) 442-6693; Fax: (415) 896-2450
Attorneys for Plaintiffs Communities for a Better Environment and Our Children's Earth Foundation

SUMA PEESAPATI State Bar No. 203701
Communities for a Better Environment
1611 Telegraph Ave., Suite 450
Oakland, CA 94612
Telephone: (510) 302-0430; Fax: (510) 302-0438
Attorney for Plaintiff Communities for a Better Environment

MARC S. CHYTILO State Bar No. 132742
P0 Box 92233
Santa Barbara, CA 93190
Telephone: (805) 682-0585; Fax: (805) 682-2379
Attorney for Plaintiff Transportation Solutions Defense & Education Fund







Case No. C-0l-0750 TEH


Date: March 24, 2003
Time: 10:00 a.m.
Judge: Hon. Thelton E. Henderson





Balla v. Idaho State Board of Corrections, 689 F.2d 461 (9th Cir. 1989) 4

Citizens for a Better Environment v. Deukmejian, 731 F. Supp. 1448 (N.D. Cal. 1990) 9

Citizens for a Better Environment v. Deukmejian, 746 F. Supp. 976 (N.D. Cal. 1990) 9

Go-Video, Inc. v. Motion Picture Association of America, 10 F.3d 693 (9th Cir. 1993) 7

Hutto v. Finney, 437 U.S. 678 (1978) 9

Sekaquaptew v. MacDonald, 544 F.2d 396 (9th Cir. 1976), cert. denied, 430 U.S. 931 (1977) 7

Spallone v. US., 493 U.S. 265 (1990) 9

Stone v. City and County of San Francisco, 968 F.2d 850 (9th Cir. 1992) 7,9


For reasons known only to the Metropolitan Transportation Commission ("MTC"), MTC has resisted the implementation of Transportation Control Measure 2 ("TCM 2") for nearly twenty years. Now, MTC has failed to comply with this Court's July 19, 2002 Order Granting Injunctive Relief ("Order") and November 19, 2002 Final Judgment incorporating that Order ("Judgment"). In its Order and Judgment, the Court requires MTC to amend its Regional Transportation Plan ("RTP") “to specify how it will achieve the target ridership increase through its funding allocations," and explicitly requires MTC to provide in the RTP Amendment the "expected ridership gains" for each project MTC intends to fund in order to achieve the required ridership increase. Order at 18. Instead, MTC sets forth only the total number of riders, both existing and new, associated with each transit project, thereby obscuring the very information necessary to determine whether MTC will achieve the ridership increase required by TCM 2 and by this Court.

The calculation of the expected ridership gain regionally on a per-project basis is an important step in the process of implementing TCM 2 because only with this information can the public and MTC consider ridership increases as a factor in deciding whether or not to allocate public transportation funds toward a particular project. The very purpose of TCM 2, to reduce the amount of air pollution in the Bay Area by getting people out of their cars and onto public transit, requires the development of transit projects that will attract new riders. MTC's highly politicized process of allocating transportation funding, however, has ignored such a basic consideration. MTC has admitted that it does not make a practice of evaluating ridership on a per-project basis. RTP Amendment Attachment E at 201. Bayview Advocates suspect that this may be why, despite a 30% increase in the population of the Bay Area and the expenditure of billions of transit dollars, ridership levels over the past 20 years have remained virtually flat.

In response to Bayview Advocates' charges that it is in contempt of this Court's Order, MTC implies that the Order is somehow vague or ambiguous because the term "ridership gains" was not defined. MTC then proceeds to redefine the word "gain" to mean "total" and explains that this interpretation of the term is more meaningful because it would be "simply impossible to compare, on an apples to apples basis, any version of an incremental ridership gain estimate to the absolute, court mandated, regional ridership target for 2006." Opp. at 7. MTC does not assert that it would have been impossible to comply with the Court's Order, an argument that would have been undermined by MTC's own experts who are clearly familiar with the concept of projecting "ridership gains." Instead, MTC explains that determining regional ridership gains is difficult because "ridership gains associated with an individual project...could in some cases overstate the project's incremental contribution to regional ridership if the new or improved service were to draw riders from other competing transit services in the area." Opp. at 6.

It is for this very reason that MTC notes in its RTP Amendment that regional transit ridership estimates "must be generated through a regional travel model, such as BAYCAST." RTP Amendment Attachment E at 197. However, in its Opposition, MTC argues that running its regional travel demand computer model to determine the projected ridership gains would require a significant amount of time and effort and was not specifically required by the Order. Opp. at 5, fn 4. MTC asserts that by providing the total number of riders to be associated with each project upon completion, regardless of whether any of these riders are new and would therefore increase regional ridership, it "substantially complied" with the Court's Order. MTC states that this approach was reasonable because the overall target increase required by the Court was expressed as an absolute number, 544.8 million, instead of a percentage increase over current numbers. 1

Bayview Advocates, however, are concerned that MTC has failed to comply with the Court's Order for quite a different reason. It appears that contrary to its prior representations, MTC cannot demonstrate from a list of projects currently included in the RTP that MTC will achieve the required ridership increase by November 2006. MTC not only cannot identify the increase in ridership resulting from these projects, but for several of the larger projects, it cannot even project total ridership until well after 2006. Apparently, MTC included this list of projects solely because the Court required it to identify specific projects; it certainly has not demonstrated that these projects will achieve the requisite increase. Instead, MTC is relying on "a larger array of factors that will achieve the 2006 target" such as population growth, job growth, increased service frequencies, and enhanced customer service programs. MTC Response to Comments ¶5. Given current downward economic trends in population and job growth, and recent dramatic cuts in services and fare increases by transit operators throughout the Bay Area, Bayview Advocates are justifiably alarmed that, in contravention of the Court's Order, MTC is not even making an effort to increase regional ridership by funding individual projects that will promote increased levels of ridership. If MTC is instead relying on economic trends and increased services to achieve the required increase in ridership -- the precise approach on which it has unsuccessfully relied for the past 20 years in passively projecting that ridership will increase without any proactive MTC planning and funding efforts -- then MTC will certainly fail to achieve the required 15% increase in regional ridership by 2006.

Bayview Advocates have initiated these contempt proceedings now in the hope that they and MTC will not be back before this Court in 2006, with the TCM 2 increase yet to achieved, and MTC repeating its now familiar refrain that "due to external factors beyond its control" it was "impossible" to achieve the required 15% increase in ridership. Instead, Bayview Advocates are hoping that MTC's efforts can be redirected now toward taking the affirmative planning and funding steps necessary to ensure that the TCM 2 ridership target will be attained by the 2006 deadline and maintained thereafter.

As demonstrated below: (1) MTC has violated the Court's specific and definite Order requiring MTC to amend the RTP to "include descriptions of the specific projects that MTC will fund in order to achieve the required ridership increase by November 9, 2006" and directing that "each project description shall include...expected ridership gains;" (2) MTC's claim that the only meaningful interpretation of "ridership gains" expected from a project improving a transit service is the "total" ridership associated with that transit service defies reason; and (3) MTC has fallen far short of taking "all reasonable steps" to comply with this Court's Order. Accordingly, MTC should now be compelled. An assessment of the projected ridership gains for each project is necessary to assure Bayview Advocates, the public, and this Court, that MTC will indeed achieve a 15% increase in regional transit ridership over 1983 levels by November 2006, especially given MTC's startling admission that it is relying on economic factors such as job and population growth to achieve the required increase.



"Civil contempt is appropriate when a party fails to comply with a specific and definite court order." Balla v. Idaho State Board of Corrections, 689 F.2d 461 (9th Cir. 1989). Here, the Court ordered MTC to amend its RTP to include a "description of the specific projects that MTC will fund in order to achieve the required ridership increase by November 9, 2006; each project description shall include an implementation schedule, along with estimated costs and expected ridership gains." Order at 18. The Order is clear. It requires MTC to provide the public and the Court with expected ridership gains associated with each project offered in its RTP Amendment that it will fund in order to achieve the required increase.

Given the fact MTC prepared the initial draft of the Joint Proposed Judgment that was adopted into the Court's Final Judgment, MTC could have requested that the term "ridership gains" be defined differently at that time if it perceived any difficulty with reporting ridership gains in such a fashion. Even later, when Bayview Advocates submitted their comments on the Draft RTP Amendment pointing out MTC's failure to address the requirements of the Court's Order, MTC could have requested clarity from the Court at that time. Instead, MTC unilaterally decided to provide something other than what the Court's Order required.

In the Amendment to the RTP, MTC proffers several reasons why "ridership estimates for individual projects are at best related only indirectly to regional transit ridership" and concludes that "[a]s a result, when it comes to regional transit ridership projections, there is little if any forecasting value in individual project ridership estimates." RTP Amendment Attachment E at 197. But the reason for MTC's reluctance to reveal the individual project ridership estimates is made plain when it states: "Any improvements to transit service over the next few years will be 'on the margin' of an already extensive transit system already in operation...[i]introducing new projects today, moreover, is unlikely to impact transit ridership by 2006 due to the time required to develop, fund and implement these projects." Id. In other words, contrary to its past representations, MTC cannot demonstrate that the existing projects in the RTP will indeed achieve the 15% ridership increase required by TCM 2 and by this Court. Instead, MTC is relying on "a larger array of factors that will achieve the 2006 target: growth in population and jobs in a transit operator's service area, new routes or increased service frequencies not identified as separate RTP 'projects', improved system reliability, enhanced customer service programs, etc." MTC Response to Comments ¶ 5.

Bayview Advocates have good reason to be troubled by MTC's reliance on "growth in population and jobs" in predicting that it will achieve the required increase in transit ridership by November of 2006. The Bay Area economy has yet to recover from the downward spiral of the past two years. 2 Of equal concern is MTC's reliance on assumptions of "new routes or increased service frequencies," given the fact every major transit operator in the Bay Area has instituted dramatic cuts in service and increases in fares since the Court issued its remedial Order, and more are under consideration. See Attachment A, Summary of Bay Area Transit Operator Service Cuts and Fare Increases: 2002-2003. Of the seven major transit agencies in the Bay Area, including AC Transit, BART, Caltrain, Golden Gate Transit, SamTrans, MUNI and VTA, all but MUNI have raised their fares within the past twelve months. See Attachment A. And MUNI has proposed a 12.5% fare hike for September of 2003. Id. Moreover, every single major transit agency has also cut services, some by as much as 10%, again with more cuts proposed. Id. All experts agree, including the expert MTC itself utilized in the remedies litigation in this case, that transit ridership levels are most sensitive to exactly these two factors, fares and service levels. 3 Just as lowering fares and increasing services and reliability nearly guarantee increased ridership, increasing fares and cutting services has the opposite effect. Id.

MTC has not only violated this Court's Order by failing to present the required information regarding "expected ridership gains" for each project listed in the RTP Amendment, it has misled Bayview Advocates and the Court by asserting that no new projects need be added to the RTP in order to achieve the required ridership increase because existing projects already contained in the RTP will achieve the required increase. 4 MTC Remedies Opposition at 8. Despite the Court's order to amend the RTP to "include descriptions of the specific projects that MTC will fund in order to achieve the required ridership increase by November 9, 2006," MTC is now maintaining that these projects will not achieve the required ridership increase, and that MTC is instead relying on a "larger array of factors" that are nothing more than outdated assumptions based on economic growth and expanded transit services, both of which have declined dramatically over the last two years.


Interestingly, MTC never pretends to be unaware of what information the Court was actually seeking when it required "expected ridership gains." In fact, MTC states in its Opposition Brief that "MTC was and is well aware that [its approach] is not the only way to characterize ridership 'gains.' MTC recognizes that its approach does not necessarily take into account potential indirect effects of the projects on regional transit ridership, both negative and positive." Opp. at 6.

Yet MTC goes to great lengths in its Opposition Brief to explain that interpreting "expected ridership gains" as the total number of riders associated with a new transit project, not the actual number of new riders attracted to the service or facility, is "preferable" because the target increase required by the Court is expressed in an absolute number, not as a percentage increase. This interpretation, however, is problematic for several reasons.

First, as MTC admits in its Opposition, there can be a vast difference between the number of net new riders a certain service attracts to public transit, and the total number of people who use that service. Opp. at 9. The number of annual riders on the BART to SF0 extension, for instance, is projected to be substantial. 5 Many of these riders, however, will be coming from other modes of transit, such as buses. SamTrans ridership will be negatively affected in a significant way. So, overall regional transit ridership will not increase by the same number as the "total" riders using BART to SF0.

Second, MTC argues that the number of people who use "new" projects, such as BART parking lots, is "essentially equivalent" to the number of new riders gained because they would not be drawn from competing modes of transit. Opp. at 2. This is not entirely true, however, as some people who may drive to an enlarged BART parking lot may currently take the bus there. Similarly, an additional bus on a service route may carry some additional "new" riders, but will certainly carry existing riders who would have taken an earlier or later bus. It is for this reason that the effects on other modes of transit must be taken into account when calculating "ridership gains." Third, MTC's self-described "preferred approach" fails to comport with established law that directs a party to interpret an order in the context of its purpose. "For the protective order to comply with common sense, a reasonable reading must connect its prohibitions to its purpose." Go-Video, Inc. V. Motion Picture Ass 'n of America, 10 F.3d 693, 695 (9th Cir. 1993). Here, the Court ordered MTC to achieve gains in public transit ridership above historical levels: "[a]s should already be evident from the Court's discussion above, the Court intends to order MTC to comply with TCM 2 - i.e. to achieve 15% regional transit ridership increase over 1982-83 levels." Order at 13 (emphasis added). This plain statement from the Court highlights the fundamental purpose of the Court Order - to force MTC to achieve relative gains in ridership, as required by TCM 2.

It is for this reason that Bayview Advocates originally brought this litigation. In order to accomplish the purpose of TCM 2, Bayview Advocates believe that funding decisions must take into account a project's contribution to regional ridership levels - and this requires a calculation of the "expected ridership gain" for particular projects.


The Ninth Circuit's rule with regard to contempt has long been whether the defendant has performed "all reasonable steps" within its power to insure compliance with the court's orders. Stone, 968 F.2d at 856. Sekaquaptew v. MacDonald, 544 F.2d 396, 404 (9th Cir. 1976), cert denied, 430 U.S. 931 (1977). In the RTP Amendment, MTC states:

"It is important to note that regional transit ridership estimates must be generated through a regional travel model, such as BAYCAST, which has been validated against observed transit operator ridership data. Such models take into account the synergies between transit operators, the impact of boarding on one system on the boardings of another, and in general the regional impacts of individual projects." RTP Amendment Attachment E at 197.

However, MTC argues in its Opposition Brief that running its regional travel demand computer model to determine the projected ridership gains would "consume at least one hundred days of modeling time" Opp. at 5. Indeed, the Declaration of Charles L. Purvis sets forth in detail how MTC would go about running the model and making adjustments to improve the accuracy of its generated estimates. Later in its Opposition, however, MTC claims that for 31 of the 34 projects contained in its RTP Amendment, the difference between absolute ridership estimates and estimated increases in ridership has "no significant impact" and that the numbers are "roughly equivalent." Opp. at 8. These contradictory positions make it difficult for Bayview Advocates to understand and reconcile MTC's arguments. On the one hand, MTC argues that producing the mandated ridership increase estimates would be extremely burdensome. On the other hand, it argues that for almost all the projects listed in its RTP Amendment, the estimates of projected ridership gains would be roughly equal to its total ridership estimates that it produced already. If the former is true, MTC should have applied to the Court for relief from this aspect of the Order rather than disobey it, as Bayview Advocates argued in their moving papers. If the latter is true, it begs the question of why MTC did not express these existing, and therefore readily-available, estimates as "gains" in the first place.

In any event, the fact remains that MTC has the capacity to provide estimates of projected ridership gains in a relatively efficient and cost-effective manner. Given the fact that the implementation of TCM 2 is nearly twenty years overdue, Bayview Advocates do not believe requiring MTC to spend some three months using its model to obtain the best estimates of expected ridership gains is onerous. Nevertheless, even if MTC were not required to run its model, it is reasonable for a transportation planning agency, with in-house transit experts, to use the best available data, scientifically-acceptable methodologies, and current economic projections in determining such information, using the transit operators and congestion management agencies as appropriate. As evidenced by the information presented in the RTP Amendment, MTC failed to take all reasonable steps in complying with the Court's Order that it provide "expected ridership gains" for each project.


Federal courts have broad equitable remedial powers. Stone, 968 F.2d at 861. Of course, federal courts should "exercise the least possible power adequate to the end proposed." Spallone v. U.S., 493 U.S. 265, 280 (1990). Courts have long recognized, however, that when the least intrusive measures fail to rectify the problems, more intrusive measures are justifiable. Id. at 280, see also Stone, 968 F.2d at 861. For this reason, there is "heightened deference to the district court's exercise of discretion where the court has been overseeing a large, public institution over a long period of time." Stone v. City and County of San Francisco, 968 F.2d 850, 856 (9th Cir. 1992); see also Hutto v. Finney, 437 U.S. 678, 688 (1978) (substantial deference must be given to a district court's "years of experience with the problem at hand").

This Court is well versed in MTC's persistent reluctance to comply with the 1982 Bay Area ozone attainment plan. When considering injunctive relief in previous, multiyear litigation between MTC and some of the plaintiffs herein back in 1990, this Court observed: "[A]s we have responded to this similar refrain before, [MTC's] past history, and the Court's experience with this litigation, convinces us that continuing judicial oversight at the remedial stage is necessary to ensure timely compliance." Citizens for a Better Environment v. Deukmejian, 746 F.Supp. 976, 982 (N.D. Cal. 1990); see also Citizens for a Better Environment v. Deukmejian, 731 F.Supp. 1448, 1461 (N.D. Cal. 1990). More than twelve years later, little seems to have changed. Even when issuing its remedial order in this case, the Court disclosed that it "remains unconvinced that MTC is specifically committed to implementing TCM 2." Order at 12. It further explained that, "given that MTC has failed to comply with TCM 2 for nearly fifteen years and continues to deny that TCM 2 requires actual achievement of a ridership increase, this Court finds it prudent to regularly monitor MTC's progress toward full implementation of TCM 2." Id. at 18.

There can be no credible dispute that MTC has failed to comply with this Court's Order that the agency amend its RTP to provide "the expected ridership gains" to be obtained through each of "the specific projects that MTC will fund in order to achieve the required ridership increase by November 9, 2006." Order at 18. Thus, Bayview Advocates respectfully request that this Court grant their instant motion and issue an Order to Show Cause as to why MTC should not be held in contempt and required to take specific remedial steps ordered by the Court.

Should the Court find MTC in contempt, MTC should be ordered again to provide the required information that is so essential to determining whether MTC is indeed on track in allocating public funds to ensure that the TCM 2 ridership increase will at long last be attained and maintained. It has now become clear that more explicit direction from the Court is necessary. MTC should therefore be further ordered to base its regional ridership gain estimates on the best available data and most current economic and demographic projections, and, if necessary to produce reliable estimates, to utilize MTC's "BAYCAST" model, regional modeling methodologies employed by the county congestion management authorities or other scientifically sound methodologies.

Bayview Advocates additionally request that the Court reconsider, in issuing any order in response to this contempt motion, whether further remedial relief is in fact necessary to ensure that TCM 2 is achieved. In its Order, the Court notes that it "agrees with Plaintiffs that MTC would be well-advised to set interim ridership milestones to be achieved by 2004 and 2005." However, since TCM 2 "does not provide any timetable by which that increase must be incrementally achieved," the Court declined to impose such milestones "in this remedial order." Id. MTC, of course, has chosen not to set any such milestones. Moreover, serious questions as to whether MTC will in fact achieve the TCM 2 increase have now been raised by MTC's own RTP Amendment, evidenced by (1) its failure to demonstrate through regional ridership estimates that the RTP in fact includes projects that will accomplish the TCM 2 increase, (2) its apparent reliance on the abstract "larger array of factors that will achieve the 2006 target" and (3) MTC's opposition papers, which reveal that the agency does not have a proactive and specific plan for achieving that increase. These questions are in turn greatly compounded by the fact that the Bay Area's regional transit system is slashing services and increasing fares, the two most influential factors in determining transit ridership. Under these circumstances, Bayview Advocates ask the Court to exercise its discretionary authority to direct MTC to set interim milestones. Bayview Advocates fear that it is only with enforceable milestones in place that the residents of the San Francisco Bay Area will have any assurance that the TCM 2 ridership increase will be achieved by 2006, nearly 20 years later than promised by MTC back in 1982.

Finally, Bayview Advocates request that the Court impose sanctions on MTC in the amount it considers reasonable and necessary to compel that agency's compliance with the Court's Order and that it award to Bayview Advocates the attorneys fees and costs it has incurred in bringing this motion.


Bayview Advocates believe that the Court's resolution of this contempt motion could well be pivotal in determining whether the TCM 2 ridership increase - now a modest goal, in light of the 30 percent population increase since 1982 - is in fact finally realized by the Court-ordered deadline of November 9, 2006.

This Court has recognized the crucial role the RTP plays in shaping the regional transit system available to residents of the San Francisco Bay Area and the extent to which people make use of it. As the Court emphasized, the RTP "represents the transportation policy and action statement of the MTC for addressing the region's transportation needs over the next 25 years." Order at 18 (quoting MTC's 2001 Conformity Analysis). "As such," the Court concluded, "it is important for the RTP to include a statement on how MTC intends to implement TCM 2" - i.e., "how it will achieve the target ridership increase through its funding allocations." Id. The very point of the RTP Amendment was to allow MTC to demonstrate convincingly that it has allocated public funding to specific projects already that, by themselves, would raise regional ridership to the TCM 2 level by 2006 or, should MTC be unable to make such a showing, to force the agency to reallocate its funding to new projects that would ensure this result. No piece of information could be more critical to determining that MTC has funded the proper array of projects to achieve TCM 2 than a sound estimate of "the expected ridership gains" to result regionally from those projects. Yet MTC has failed to provide just that information.

Clearly, further intervention by this Court is necessary.

Dated: March 17, 2003

Respectfully submitted,

Attorneys for Plaintiffs

1 Of course, this "absolute number" was simply the Court's multiplication of the ridership level it determined from 1982/83 by the 15% increase required by TCM 2.

2 "Federal Reserve Reports from Twelfth District [West Coast] contacts indicate continued sluggish economic growth in much of the region during January and early February .... Persistent weak demand and ample supply in labor markets continued to damp wage and salary pressures in the District in recent weeks." Federal Reserve Beige Book, 3/5/03.

3 See the following declarations submitted during the remedies litigation: Amici's McCleary Dec at 2-4; MTC expert Martin Wachs, "Policy Implications of Recent Behavioral Research in Transportation Demand Management," Journal of Planning Literature, Vol. 5, No. 4 (May 1991), McCleary Dec, Ex. B at 33438 (e.g. "changes in [transit fares] do seem to have strong influences on travel decision-making" (337); "Applications of behavioral science to transportation planning give greatest emphasis to travel time and travel cost as the characteristics of travel modes most likely to influence choices made by commuters" (338)); Bayview Advocates' Rubin Dec at ¶¶ 70-72.
achieve the required increase.

4 In compliance with a Consent Decree and Settlement Order respectively, both AC Transit and MUNI, which collectively carry more than half of all Bay Area transit riders, identified projects that they determined would, if fully funded by MTC, help increase regional ridership levels by 2006. MTC, however, refused to fund any of these projects that were not already included in the RTP.

5 Of course, given the recent declines in air travel and reductions in airline labor forces, this number is likely to be far lower than originally projected.

NB from Attachment A, “Service Cuts and Fare Increases: 2002-2003” would not scan well and is not included in this html document.