VERO BEACH, FLA — Indian River County commissioners have decided not to appeal a recent decision on Virgin Trains USA’s use of private activity bonds to the U.S. Supreme Court.
The commissioners — who have spent $3.5 million in taxpayer funds to challenge the Federal Railroad Administration’s environmental review process and approval of Virgin’s use of private activity bonds to fund expansion to Orlando — voted 4 to 1 to not advance the litigation to the U.S. Supreme Court, the TC Palm newspaper reports.
The decision comes after the U.S. Court of Appeals in Washington, D.C., agreed with a previous ruling that rejected Indian River’s arguments [see “Appeals court affirms Virgin Trains’ right to use private activity bonds,” Trains News Wire, Dec. 31, 2019]. According to the paper, the county had spent $544,000 in 2019 alone in its unsuccessful appeal even after its attorney had advised against continuing the legal challenge.
The attorney, Dylan Reingold, said Monday, “The likelihood of success is low (in an appeal to the U.S. Supreme Court),” and Commission Chair Susan Adams told other commissioners, “It is our responsibility to take seriously the recommendation of our counsel.”
However, Indian River County will continue to challenge its continuing obligation under a long-standing agreement with the Florida East Coast Railroad to pay for maintenance of 21 highway grade crossings. Virgin, whose current Miami-West Palm Beach service is still marketed as Brightline, is in the process of upgrading them with encroachment detection and quad gates as it reinstalls a second main track and signaling that will enable 110-mph operation for the Miami-Orlando “Phase 2” extension under construction.
Indian River contends that the pact is with Florida East coast, and Virgin can’t be considered a third-party beneficiary in the deal, even though the passenger operator has agreed to pay for upgraded crossing protection installation on the West Palm Beach-Cocoa, Fla., segment. A ruling on that is expected later this year.
Regarding the part of the comment quoting local Indian River opposition as say that they didn’t want tax money going to benefit a private company…..what do they think happens at almost all airports? Tax money (to build and maintain and operate airports) is spent to benefit the airlines (private companies) that operate out of it. What is it about passenger trains that makes people get silly like this?
There’s no pleasing Indian River County, when this gets settled then they’ll probably bring up some other non-sense. Though in 10 years they may be begging for a stop and suing to get a second.
Mister Rice:
It isn’t quite as cut-and-dried as you make it out to be.
Suppose that such an agreement is in place, that the county agrees to provide a service to the railroad. Whether this service is compensated by the railroad to the county is immaterial to the argument.
Now suppose that the railroad (for whatever reason) does not avail itself of this service when they are entitled to do so. Then, after a while of not garnering the fruits of the agreement, the railroad attempts to assert its rights under the agreement.
The county could then return with an argument that by not insisting that the county provide to the railroad the fruits of the agreement the railroad has abrogated the right to do so.
This is a form of “use it or lose it” contracture, but it has real world consequences. I have no idea if anything like this is in play between Indian River County and Brightline, but if so you can see why both parties would rather zealously want to adhere to the terms of the agreement.
The above comments are generic in nature and do not form the basis for an attorney/client relationship. They do not constitute legal advice. I am not your attorney. Tim, Tim, Benzedrine. Hash, boo, Valvoline. First, second, neutral, park. Hie thee hence, thou leafy narc.
@Anna Harding: The FEC has crossing agreements with the county and municipalities their railroad crosses.
Those agreements define what the government entity is on the hook for when it comes to crossings. Typically, if a railroad wants to remove or add a rail to the ROW, they have to notify the entity involved, just as if the highway department is widening a road, they have to work with the rail carrier. That is why there is an agreement.
But a county can’t block a railroad from adding another set of rails.The agreements state that the railroad has the preceding rights. If the county doesn’t like it, it is within the rights of the RR to close the crossing. Though they typically don’t want that to happen.
It was implied several times early in the Indian River County Board meetings about Brightline, that the FEC could force Indian River to build viaducts or overpasses if they couldn’t resolve the funding differences in paying for the crossings.
The hotheads in those meetings were appalled that Indian River would be on the hook to pay for the updated crossings. Just like Miami-Dade was all worked up when they passed a “no horn” quiet zone resolution on the FEC, under the agreement FEC sent them the bill to convert to a quiet zone. They complained too. They wanted the horns to stop, but they didn’t want to pay either.
I have conversed directly with the “Freedom and Liberty” coalition people who object to Brightline and paying for the crossing updates.
Of course FEC doesn’t want to rip out crossings.
But it was Indian River who chose to lawyer up first and contest the activities.
It was an Indian River internal counsel who warned the board that if you get nuclear, the FEC has extraordinary rights.
It was the Indian River highway department head who asked for permission (and got it) to keep discussing the requirements with FEC while the legal stuff took their path.
Brightline/FEC has shown a large degree of restraint in their dealings with the local authorities. There were plenty of people in Broward County who had many of the same questions as Indian River, but they stayed rational and were able to negotiate terms that were favorable to both parties.
Let me know if that offers more cut and less dry view of the situation.
Indian River County has an agreement with FEC to maintain crossings. If FEC wants to expand services, even if by contract to a 3rd party, Indian River County is on the hook. That is why it is called predecessor rights. If Virgin Rail wants to contribute, that is exactly what it is, a contribution, not an obligation.
If Indian River County had taken the $500k they spent on lawyers and spent it towards crossings they wouldn’t be here talking about it.
I have read the local papers and I know their position. The residents do not want tax dollars going to benefit a private company. But they don’t seem to understand what a civic obligation is, so here we are.
Do they get a station? Maybe they don’t need any station stops in that county anyways.
In the words of the immortal Three Amigos (the movie amigos): “No dough, no show.”
I don’t actually have the facts on this. And sometimes I come back to these local government / transit articles just to see which non-local residents are posting which anti-this or what anti-that philosophical position.