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Legal Action

Federal lawsuit against FTA and SFMTA (Muni)

  • Filed November 1, 2013 against Federal Transit Administration (FTA) and San Francisco Municipal Transportation Agency (SFMTA "Muni").
  • The Complaint. See below for a summary of the Complaint.
  • The case will be heard by Senior Federal Judge Thelton Henderson in San Francisco.
  • The attorneys representing are Nicholas Yost and Matthew Adams of Dentons law firm in San Francisco.

What we want

  • Cut the Pagoda Option from the Central Subway project to save taxpayer costs and protect historic North Beach neighborhood. The Pagoda Option proposes to drill two 2,100-foot unused tunnels into North Beach that are not part of the Caltrain to Chinatown line.
  • An end to ill-managed, unannounced, and unnecessary construction in North Beach.
  • By stopping the Central Subway at Chinatown Station, North Beach residents and businesses can participate in a legitimate process to plan transit northward, with EIRs, comments, etc. as was done with the current Subway project in 2008.
  • An end to unnecessary costs borne by SF taxpayers. Currently Muni and City costs for the Pagoda Option are $9.7 million, easily rising to $15 million by completion.
  • Use the Pagoda Option cost, $70 million, to reduce the Central Subway projected $400 million overrun by 2019. That'’s $70 million that will not need to be paid by SF taxpayers.

The lawsuit

  • Recent actions:
    Jan - Feb 2014, Meet with Defendants about options or possible compromises.
    Dec 17, Our attorneys met with Defendants FTA and Muni who suggested having a follow up meeting to discuss “options.”
    Nov 14, Complaint served on Defendants Federal Transit Administration (FTA) and Muni.
    Nov 1, Complaint filed against Federal Transit Administration (FTA) and San Francisco Municipal Transportation Agency (SFMTA ”Muni”).
  • Basis of the Complaint: Section 4(f) of the Department of Transportation Act of 1966.
Section 4(f) and its implementing regulations prohibit the approval of a transportation project that will use historic resources or parklands unless there is no feasible and prudent alternative and the project includes all possible planning to minimize harm.
  • Attorneys representing Nicholas Yost and Matthew Adams of Dentons law firm in San Francisco. Both have experience and success in environmental and preservation law. See below for more on the attorneys.
  • The case will be heard by Senior Federal Judge Thelton Henderson in US District Court in San Francisco. See below for more on Judge Henderson.

What you can do

We have a winnable case, top-notch lawyers and the best judge we could hope for. Please contribute to the legal fund by visiting the web site and click on Donate.

Complaint, summary and news articles

The Complaint (PDF, 10MB).

Summary of Complaint

[Excerpts from Courthouse News by Elizabeth Warmerdam, November 5, 2013.] and sued the Federal Transit Administration and the San Francisco Municipal Transportation Agency in Federal Court. The plaintiffs challenge "the so-called 'Pagoda Option,' a massive excavation project located in the heart of the historic North Beach area of San Francisco, within an historic district and adjacent or proximate to multiple properties and parks. The "Pagoda Option" is associated with but is not an essential part of a proposed subway (Central Subway Project) connecting San Francisco's South of market area with Chinatown. The 'Pagoda Option' represents a potential means of removing the tunnel-boring machines to be used for subway construction from the completed tunnel. This lawsuit does not challenge the whole subway project but rather the superfluous and historically destructive 'Pagoda Option.'"

"On October 25, 2013, more than five months after the FTA Determination and just six days before the deadline for claims seeking judicial review of the Pagoda Option, SFMTA issued a 'Construction Update' stating for the first time that the Pagoda Option includes a large excavation at 1455 Stockton Street, in North Beach. The excavated area will be at least 20 feet wide and 27 feet deep. None of defendants' environmental review documents - not the SEIS [Supplemental Environmental Impact Statement], not the ROD [Record of Decision], not the 'North Beach Retrieval Option Review,' not the Addendum, and not the FTA determination - disclosed or evaluated any construction activities at 1455 Stockton Street," according to the complaint.

This location, as admitted by the FTA and SFMTA, is an historic resource. A March 2008 "Historic Property Survey Report" attached to the ROD [Record of Decision] stated that the address was eligible for listing in the National Register of Historic Places for its historically significant architecture and as a significant contributor to the North Beach Historic District.

"The Cavalli Building, located at 1435-1445 Stockton Street is an historic resource within the North Beach Historic District. It is immediately adjacent to and will be impacted by the Pagoda Option excavation now planned for 1455 Stockton Street.

"The building at 635-39 Green Street (also known as 36 Card Alley) is another historic resource within the North Beach Historic District that would be impacted by the Pagoda Option excavation," the nonprofits say.

They claim the transportation agencies violated law by failing to evaluate the potential use of historic resources and by approving a transportation project that will use historic resources or parklands when feasible alternatives exist.

They seek an injunction requiring that the agencies take no action to implement the Pagoda Option and withdraw their approval of the Pagoda Option. They are represented by Nicholas C. Yost with Dentons US LLP.

Attorneys and Judge

 Nicholas C. Yost
Nicholas C. Yost
Partner, Dentons US LLP

Nicholas Yost served as general counsel of the White House Council on Environmental Quality in the Carter administration, drafting the federal government's regulations implementing the National Environmental Policy Act (NEPA). The objective was to force government agencies to consider the consequences of their actions in regard to the environment and to look for alternatives with less damaging environmental impact. He also assisted in developing California's NEPA analogue, the California Environmental Quality Act (CEQA).

He represented the Guam Preservation Trust to block the Marines from stationing five firing ranges at Pagat Village, a site sacred to the indigenous Chamarro people of Guam. "Our task is to persuade the government, by discussion if possible, and by litigation if necessary, to move the firing ranges elsewhere." He currently represents to halt a $5 billion federally-funded monorail project which failed to adequately consider the use of historic and cultural sites.

He practices under all environmental laws, representing clients before federal and state agencies on environmental matters. He currently acts as outside counsel to the congressionally-created federal agency, the Presidio Trust.

Nicholas Yost is the 2010 recipient of the American Bar Association's (ABA) Award for Distinguished Achievement in Environmental Law and Policy.

 Matthew Adams
Matthew Adams
Partner, Dentons US LLP

Matthew Adams' practice includes environmental, land use and natural resources law, with a particular focus on advising project developers, public agencies, Indian tribes and trade associations on the National Environmental Policy Act (NEPA), the National Historic Preservation Act (NHPA), the California Environmental Quality Act (CEQA) and other environmental impact assessment laws. He also has experience with the full range of land use, water and climate change issues arising in the context of infrastructure and energy projects. Matthew is also active in Dentons' Native American Law and Policy practice, and he regularly advises tribal clients on environmental and land use matters affecting Indian country. He also has considerable expertise related to the protection of indigenous cultural and historic resources, including recent NEPA litigation securing the protection of Chamorro Traditional Cultural Properties on the island of Guam.

 Thelton Henderson
Hon. Thelton Henderson
Judge, U.S. District Court
Northern District of California

Thelton Henderson has been assigned to the vs FTA and SFMTA action in the US District Court.

Throughout his distinguished career on the federal bench, Judge Henderson has ruled upon many of the most critical and difficult issues of our time. From halting the slaughter of dolphins by the tuna fishing industry, to striking down California's controversial affirmative action initiative, to his recent decision placing the California prison health care system under federal receivership, Thelton Henderson has demonstrated his conviction that the U.S. Constitution belongs to everyone.

Judge Henderson graduated from UC Berkeley's Boalt Hall. He has worked at the Civil Rights Division of the US Department of Justice, worked in private practice, and taught at Golden Gate Law School. He was appointed to his current position on the US District Court in 1980.

"Judge Henderson's name is synonymous with the highest principles of the law — civility, compassion and a recognition of human dignity." — Mary Louise Frampton, Director, Henderson Center for Social Justice at Boalt Hall

Web site updated September 7, 2014;