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US Supreme Court won’t hear case against Brigh tline

Joshua Solomon

Treasure Coast Newspapers USA TODAY NETWORK – FLORIDA

INDIAN RIVER COUNTY — The U.S. Supreme Court won’t hear Indian River County’s appeal of its lawsuit against Brightline and the Federal Railroad Administration.

The denial marks an end to the county’s most high-profile case against the higher-speed passenger railroad. It could have resulted in Brightline losing access to billions of dollars in tax-exempt private-activity bonds — a financial model it also is using to finance a similar rail line between Los Angeles and Las Vegas — and short-circuited its expansion from West Palm Beach to Orlando International Airport.

The ruling, which was announced Monday, was expected, county officials said.

“We knew it was going to be an uphill battle,” Indian River County Attorney Dylan Reingold said.

The legal effort had been seen as the county’s last chance to keep its lawsuit alive after previous losses. It is also the same case that led to a settlement with Martin County in November 20 18, which ensured the county would get a station on the Treasure Coast and the company would pay for some safety improvements.

“The Supreme Court’s decision to deny Indian River’s petition closes out the county’s repeated and baseless attempt to disrupt our efforts of connecting Florida by passenger rail,” Brightline spokesman Ben Porritt said in a statement.

Private citizens donated more than $200,000 to finance the bid to the Supreme Court, bringing in high-end, well-connected Washington lawyers to argue their case.

After losing its case in the U.S. Court of Appeals for the District of Columbia in December, the Indian River County had put to bed its legal actions on the private-activity bonds case. But a group of residents, primarily from Indian River Shores, told the County Commission to not close the door on the case.

Led by Jack Pr eschlack, the residents said they had consulted with legal experts, including Judge J. Michael Luttig, a retired circuit judge on the U.S. Court of Appeals, who once interviewed for a seat on the Supreme Court.

They were told there was a chance, albeit a very small one, to be heard by the Supreme Court, if they argued the case in the framework of a longstanding legal issue in the courts.

The new attorney for the county, Jeffrey Lamkin, said the Brightline case was an opportunity for the court to weigh in on the “constitutional responsibility ‘to say what the law is.’” The issue, he argued, involved how much room federal agencies have to interpret the law or if that should return back to the lower courts.

In addition to the slim chances of being heard by the Supreme Court in the first place, the current circumstances in the nation perhaps made chances even slimmer, Lut tig told TCPalm.

“It would be impossible to overstate the unforeseeable, historically unprecedented and all-but insuperable obstacles that evidently were ordained to be erected in our path, a path that was unobstructed when we began this mission but months ago,” Luttig said in a statement. “It’s a wonder that the Supreme Court could see its way clear to accept any case for review at all.”

In total, Indian River County has spent $3.8 million of taxpayer money in legal expenses since 2014, according to county expense reports. It has an additional $421,000 of previously approved money it can spend on further litigation.

Indian River County remains in a lower-stakes court case against Brightline. The county’s legal team is arguing local governments should not be left to pay for railroad crossing and safety improvements that are a byproduct of the higher-speed passenger railroad going through their communities.

“We are still pushing hard on all of the safety requirements that would be needed,” Reingold said.

If the county had settled along with Martin County — which spent $4 millionin a much shorter window — two years ago, it would have restricted its ability to pursue this case or other legal actions, Reingold said. The settlement, though, could have given brought concessions from Brightline for safety improvements.

A settlement also would have restricted the county’s ability to publicly critique Brightline.

“Some things you don’t settle with,” said Commissioner Bob Solari, one of the most vocal opponents of Brightline. “That was basically settling with a bad actor.”

Brightline expects to complete its higher-speed railroad between Miami and Orlando by late 2022. Construction has continued even as passenger service was suspended during the coronavirus pandemic. The company has reported financial losses during the pandemic, but has told investors it is still in good standing.

“We continue to explore locations for a Brightline station in the Treasure Coast,” Porritt said, “and are encouraged by the tremendous amounts of support we have received in the region.”

Joshua Solomon is a politics and transportation reporter covering the Treasure Coast. You can reach him at 772-692-8935 or josh ua.solomon@ tcpalm.com.

Brightline Holdings LLC is a subsidiary of Fortress Investment Group LLC. New York-based Fortress has a management contract with Gannett Co., the publisher of TCP alm, Treasure Coast Newspapers, The Palm Beach Post and Florida Today.

The legal effort had been seen as the county’s last chance to keep its lawsuit alive after previous losses.

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