Surely You’ve Heard All Aboard Florida is Now “Brightline” / 7-1 Odds / A Review of Lawsuits & Legal Actions


Image of All Aboard Florida’s, Rather Brightline’s, new Trains


But first, you may have already read that on October 12, 2015 Darrell Preston reported in Bloomberg‘s that All Aboard Florida “Faces Skeptical Investors” with respect to its sale of $ 1.75 billion in private activity bonds.

“We looked at it, but we are not going to be participating,” said Lyle Fitterer, managing director in Menomonee Falls, Wisconsin, for Wells Capital Management, which holds $38 billion of municipal securities. “It came down to a credit decision.”

Jim Colby, who manages about $1.6 billion of high-yield municipals at Van Eck Global in New York, said the deal didn’t draw his interest.

“It was not priced to demand,” Colby said. “That is about all I will say.”

Asked at a November 11, 2105 Indian River County Taxpayers’ Association meeting/luncheon if Brightline was a  done deal, County Commissioner Bob Solari gave the project seven to one odds of being a done deal.  But, he said “we will continue to fight it in earnest and over come these odds.”

Seven to one odds can be overcome.  The odds of Manchester United beating Swansea City at the Premium League (soccer) in the U.K. on August 30, 2015 were seven to one.  Swansea City beat Manchester United two to one.

Meanwhile, as also reported by Bloomberg on November 3, 2015, last week representatives from All Aboard Florida were in London attending the World Travel Market, the travel industries largest international trade show.

The trip “marks the company’s first major effort to market its passenger train project to tourism leaders across the globe.”

This is the 36th year of the trade show with an expected attendance of 51,000 people from the travel industry, media and governmental leaders.

According to All Aboard Florida’s Chief Marketing Officer Julie Edwards, “This is the start of educating and creating excitement in the tourism and hospitality industries both internationally and domestically,”

President & CEO Jorge Pesquera of “Discover The Palm Beaches,” Palm Beach County’s tourism marketing arm, who attended the show, said “Europeans are highly attuned to using train service between cities. All Aboard Florida’s participation is an enormous opportunity to show new transportation options for visitors in South and Central Florida.”

On November 9, @AllAboardFlorida tweeted “Meet @GoBrightline. Our express inter-city train that will change the way you see Florida.”

Against this background, here is a recap of the lawsuits and legal actions related to Brightline as summarized by “Citizens of the Train.”

Martin County Response to Final Environment Impact Statement (FEIS) September 24, 2014

The Final Environmental Impact Statement (FEIS) leaves the distinct impression that the Federal Railroad Association has made no attempt to understand, let alone address, the Project’s many significant flaws. In some cases, the FEIS flatly ignores concerns that have been raised about the Project, and in others it improperly assumes them away.

Indian River County Response to FEIS / September 24, 2014

Indian River County has reviewed the Final Environmental Impact Statement and Section 4 Determination with respect to the All Aboard Florida Project issued by the Federal Railroad Administration in August 2015. The County was disappointed to see that many of the flaws that it, and other commenters, pointed out with respect to the draft EIS were not corrected in the FEIS, and to learn that FRA has now submitted to the Florida State Historic Preservation Office a Determination of Effects under Section 106 of the National Historic Preservation Act without first satisfying the procedural and substantive requirements of that statute.

Martin County Lawsuit Against All Aboard Florida / August 21, 2014

On August 4, 2015, hours before the Florida Development Financial Corporation’s decision to issue the tax free bonds regarding the All Aboard Florida (AAF) passenger rail project, the Federal Railroad Administration (FRA) issued its Final Environmental Impact Statement (FEIS). However, Martin County believes the claim that the document is “final” is not actually true in several respects and needs public examination. `

Indian River County Lawsuit Against All Aboard Florida / March 30, 2015

The plaintiffs are Indian River County, Indian River County Emergency Services District and Old Vero Ice Age Sites Committee, Inc. Defendant is Peter M. Rogoff, Undersecretary of Transportation for Policy, US Dept. of Transportation. Indian River County filed the attached complaint and summons in the United States District Court for the District of Columbia on March 31, 2015 challenging the United States Department of Transportation’s approval of the allocation of $1,750,000,000 in private activity bonds to finance the proposed All Aboard Florida project.

Indian River County, along with the Indian River County Emergency Services District and the Old Vero Ice Age Sites Committee, Inc., are seeking an injunction to require the United States Department of Transportation to fully comply with the National Environmental Policy Act, the National Historic Preservation Act and Section 4(f) of the Department of Transportation Act of 1966 and prevent the issuance of such bonds for the proposed All Aboard Florida project until these statutes have been properly followed.

Martin County and Thomas Hewett Lawsuit Against All Aboard Florida         April 20, 2015

The lawsuit challenges the U.S. Department of Transportation USDOT on two main grounds: that the tax-exempt activity bonds were illegally granted before the completion of a final environmental impact statement process, and that AAF’s proposed project does not qualify for private activity bonds according to Florida law. The court is being asked to nullify USDOT’s approval of the bonds and permanently block the USDOT from approving private-activity bonds for AAF.

Summary of DOT’s Opposition to Martin County / April, 2015

Martin County’s Motion for Preliminary Injunction should be denied because DOT’s allocation of $1.7 billion in private activity bonds was legally proper. 26 U.S.C. Section 142(m)(1)(A) provides that private activity bonds may be allocated for “qualified highway or surface freight transfer facilities” which includes “any surface transportation project which receives Federal assistance under the same statute.

Summary of All Aboard Florida’s Response to Martin County                         April 2015

Martin County lacks standing to challenge the federal DOT’s exercise of tax exemption authority in giving $1.7 billion in private activity bonds to AAF. Martin County lacks constitutional standing because the injuries they claim would not result from any US DOT action, but instead from AFF’s independent decision to restore passenger rail service. Consequently, Martin County’s alleged injuries are not “fairly traceable” to the action taken by the federal government. Further, Martin County’s alleged injuries would not be redressed by the Court awarding a judgment in its favor as AAF is committed to move forward with its project, even if it is ultimately unable to sell tax-exempt bonds.

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