BY DENNIS DOMRZALSKI

While construction crews are ripping up Central Avenue for Mayor Richard Berry’s $119 million Albuquerque Rapid Transit Project, the Federal Transit Administration has dropped a bombshell that could derail the project.

And here it is: The FTA has yet to approve the city’s application for a federal grant for ART.

That stunning revelation, and the fact that the ART construction is causing the havoc that opponents said it would, has prompted the project’s opponents to ask the U.S. Ten Circuit Court of Appeals to once again halt ART in its tracks.

An FTA attorney, Dave Gunter, confirmed on Oct. 21 to John Boyd, one of the attorneys for ART opponents, that it has not approved money for the project and that the city is spending money at its own risk.

“John—Your understanding below is incorrect. FTA has approved the environmental analysis for the project by determining that no further NEPA analysis is required for FTA funding. But FTA has not yet decided whether it will grant the funding,” Gunter said.

“I am informed that FTA’s letter of no prejudice makes no legal commitment to fund the project and that no federal money is currently being spent. The letter just provides that if the project is ultimately funded, the City will be able to seek reimbursement of money that it spends before the decision is made, but the City bears the risk that FTA’s decision will be different.”

Lawyers for ART’s opponent s filed an emergency motion Oct. 20 with the U.S. Court of Appeals in Denver asking the court to reinstate a temporary injunction it imposed on ART on Aug. 1 and then lifted on Aug. 19.

The appellate court has given the city and the FTA until 3 p.m. on Oct. 24 to reply.

The revelation that the FTA has yet to approve the city’s $69 million Small Starts grant first came in a brief the FTA filed in the case on Oct. 4.

“A key reason for limiting judicial review to the administrative record is so that the agency has the first opportunity to consider relevant information,” the FTA’s brief said. “That process continues here. Plaintiffs have provided the Rowangould and Lusk declarations [plaintiffs’ traffic studies] to FTA, and FTA is considering those submissions before it makes a final decision on the City’s grant application.”

Attorney Yolanda Gallegos, who along with Boyd represents the plaintiffs, the Coalition to Make ART Smart, said she was shocked by the FTA’s revelation.

“Until it filed its brief in the U.S. Court of Appeals a few days ago, the FTA had not alerted the Court or the public that it had not yet approved the City’s Small Starts grant application,” Gallegos told ABQ Free Press. “For the FTA to allow this project to proceed to the stage of ripping up Central Avenue reveals a shocking willingness to forfeit the historic legacy of Central Avenue and the historic districts that line it when it hasn’t even finished its own review process.

“The Mayor’s decision to accelerate his original construction schedule to begin right before the holidays not only contradicts the sworn testimony of his chief operating officer, but seems intended to avoid the jurisdiction of the U.S. Court of Appeals and the results of the November advisory vote on ART. Under these circumstances, we were obliged to ask the Court to reinstate it injunction.”

Gallegos said Boyd emailed one of the FTA’s attorneys on Oct. 19 and asked what the agency meant by saying it sill hadn’t approved the city’s grant application. The lawyer didn’t respond until the next day, after Gallegos and Boyd had filed their emergency request for another injunction. The FTA’s attorney wrote Boyd to say that it looked like the question was moot because the emergency motion had been filed. But on Oct. 21, Boyd got Gunter’s reply.

ABQ Free Press Weekly emailed Joan Griffin, who heads the private public relations firm that is doing PR for ART, three questions about the FTA’s brief: Why did the city proceed with construction when the FTA has yet to approve the grant application? Why did the city not tell the public that the FTA has yet to approve the Small Starts grant? Will the city halt ART construction now that it knows that the FTA has yet to approve the Small Starts Grant?

As of 3:54 p.m. Oct. 21, Griffin had not responded.

Earlier this year, the FTA gave the city a “Letter of No Prejudice” for ART, which the city said gave it the authority to spend federal money on the project. But, even though ART is in President Obama’s budget for this yer, Congress has yet to appropriate any money for it. And, appropriations committees in both the House and Senate have recommended that funding for ART be cut from it’s original $69 million.

The plaintiffs’ motion said that ART construction, which involved crews tearing out the medians along Central, is causing all the negative effects that opponents said it would.

“The effect of the construction, which began on Tuesday of this week [Oct. 17], is a lengthy traffic jam, with drivers urged by the City to seek alternate routes,” the plaintiffs’ motion said. “But the current construction activities, which reduce Central in the Nob Hill and other areas to single lanes in either direction, mimic ART’s design, which will permanently reduce Central to single lanes in either direction in those same areas. Thus the current lane closures are likely to predict traffic conditions after ART is complete and the single lanes in the Nob Hill and other commercial areas have become permanent.

“Now, as a result of lane closures that will become permanent when ART is complete, Central Avenue is a lengthy traffic jam and the City is encouraging divers to seek alternate routes.”

The motion also said that the city accelerated ART’s construction, which wasn’t supposed to occur in Nob Hill until after the holidays, in order to make moot the plaintiffs’ request for a preliminary injunction. The appellate court has scheduled oral arguments in the plaintiff’s case for Nov. 14.

“The City’s decision to speed up demolition and construction activities in Nob Hill and other areas is an attempt limit the ability of this Court to accord effective and meaningful relief to the Coalition in the event that the Court agrees that the defendants have violated NEPA [National Environmental Policy Act],” the motion said. “By altering the demolition and construction so that Central’s medians will be demolished before this Court acts, should it agree that the FTA and City violated NEPA, the City is ‘playing fast and loose’ not just with the plaintiffs, but with the courts as well, by speeding up the schedule it announced.”