WHEREAS: Indian River Neighborhood Association (IRNA) undertook, as a “Friend of the Court,” to file an Amicus Brief in support of the appeal Appellant Indian River County (County) made to the United States DC Circuit Court (Appellate Court) in connection with the Virgin Trains higher speed intercity passenger train project between West Palm Beach and Orlando (Phase 2 Project); and
WHEREAS: The County appeal challenged the validity of a ruling made by the Federal DC Court (District Court) in favor of a motion for summary judgment brought by All Aboard Florida Holdings LLC (AAF) and United States Department of Transportation (USDOT) and other Federal Defendants (collectively Appellees); and
WHEREAS: the District Court ruling, among other things, concluded that as a matter of law USDOT’s allocation of $1.15 billion in private activity bonds (PABS) for the Phase 2 Project was lawful under applicable federal statutes; and
WHEREAS: the Amicus Brief focused solely on the allocation issue and advanced substantial and compelling arguments as to why the District Court ruling as to that issue was a reversible error; and
WHEREAS: initially AAF had no objection to the filing of the Amicus Brief – as is customary in the case of Friend of the Court filings -, but when AAF read the brief, it reversed itself and opposed the brief’s filing primarily on the grounds that the Amicus Brief key arguments had not been raised in the District Court; and
WHEREAS: a three-judge panel of the Appellate Court acted on its behalf as to the issues raised in AAF’s opposition to the filing of the Amicus Brief and in requests of the Appellees for an extra month to file their briefs in the appeal; and
WHEREAS: the IRNA filed a carefully reasoned Brief in Response to AAF’s opposition to the filing of the Amicus Brief, and
WHEREAS: the three-judge panel, which normally relents to any such opposition, nevertheless took the extraordinary action of ordering the filing of the Amicus Brief and granting the Appellees an extra month to file their briefs in the appeal; and
WHEREAS: a different three-judge panel of the Appellate Court thereafter assumed jurisdiction over the appeal and, after hearing oral argument on the appeal on September 24, 2019, affirmed the District Court’s ruling on the allocation issue; and
WHEREAS: in the “Opinion for the Court”, the three judge-panel advanced reasons for its ruling that solely addressed and attempted to rebut only the merits of the commendable reasons advanced in the County’s Briefs for the appeal without regard however to the merits of the key clinching arguments raised in the Amicus Brief; and
WHEREAS, the only way the County can ultimately bring to a halt the Phase 2 Project and eliminate its existential threat to the County and its residents is to ultimately prevail in its appeal on the allocation issue and thereby effectively render taxable the interest on the $1.15 PABS and $900 million of additional PABs subsequently issued for the project
WHEREAS: The County Attorney’s Office has recommended in a Memorandum (County Memo), dated December 31, 2019, that the County abandon it’s appeal by failing to seek review of the Appellate Court ruling on the allocation issue- notwithstanding the above recitals and the fact that the County still has $466,069.38 of an additional $1 million the County Board of Commissioners (County Board) allocated to “fight the proposed project” (as revealed in the County Memo ).
NOW THEREFORE BE IT RESOLVED by the IRNA Board of Directors that the County Board is strongly urged not to abandon its lawsuit but to instead petition for a writ of certiorari for Supreme Court review – focused solely on the allocation issue.