The Disastrous Legacy of Mel Spitz and Isabel Hacker

Beverly Hills School Board member Mel Spitz recently wrote an editorial where he attempted to explain why the School Board failed to timely file an appeal with regard to the School District’s subway litigation. As a parent of a child currently attending Beverly Hills High School, as a former School Board President, and as an attorney who has practiced environmental and regulatory law, I found Mr. Spitz’s explanation strained and disingenuous.

In 2011, the Los Angeles County Metropolitan Transportation Authority (Metro) unilaterally moved the route of the Purple Line subway from Santa Monica Boulevard to travel under Beverly Hills High School (BHHS). Previous School Boards have strongly opposed the route traveling under BHHS classroom buildings, through an unmapped oil field, with dozens of abandoned oil wells filled with methane gas. Not only does this pose serious health and safety risks to students, teachers and the community but also the noise and vibrations from an operational subway beneath BHHS would forever negatively impact student learning.

The School District filed a lawsuit against the Federal Transportation Authority (FTA) and Metro arguing that those agencies violated the provisions of the National Environmental Policy Act (NEPA). NEPA requires agencies like FTA/Metro to carefully consider the environmental impacts of their actions before proceeding. NEPA not only ensures comprehensive environmental analyses but also eliminates the premature investment of resources and taxpayer dollars into construction projects that may result in negative environmental consequences. This prohibition serves to prevent predetermined outcomes of environmental analyses.

In August 2016, United States District Court Judge George H. Wu ruled that FTA/Metro violated both the provisions of NEPA and Section 4(f) of the Department of Transportation Act by failing to perform critical federal environmental analyses prior to approving the new route under BHHS. Judge Wu also ordered FTA/Metro to do an analysis of other alternative routes which do not require tunneling beneath BHHS. Judge Wu specifically stated in his ruling that it’s a “very close question” whether FTA/Metro chose the location of the Century City station before finishing its original Environmental Impact Statement (EIS). The “close question” that Judge Wu referred to in his ruling is a legal concept called “predetermination.” The “predetermination” in this case was whether FTA/Metro intended all along to route the subway under BHHS to gain access to the Century City station before an EIS was completed in violation of federal law.

In 2017 the School District sought to enjoin FTA/Metro to ensure that the court ordered Supplemental EIS was completed before any federal funds were expended and construction contracts were implemented. Judge Wu denied the School District’s motion for Preliminary Injunction. The School District then appealed that ruling to the United States Court of Appeals for the Ninth Circuit (Ninth Circuit).

On August 8, 2017 the Ninth Circuit denied issuing the Preliminary Injunction finding that, “actual construction is not scheduled to begin until January 2018.” However, the Ninth Circuit also specifically stated that, “We may only reach the question of predetermination if the School District has properly challenged final agency action. At this point, however, the School District’s challenge is premature.” The Ninth Circuit explicitly left the door open for the School District to appeal on the issue of whether FTA/Metro unlawfully “predetermined” the route under BHHS once Judge Wu had entered his final judgment.

The reason the Ninth Circuit left the door open for the School District to appeal the issue of “predetermination” was that it had already ruled on a similar matter in the case of Metcalf v. Daley, 214 F.3d 1135 (2000). In Metcalf, the court found improper predetermination where the agency signed two written agreements binding them to support the proposal under consideration before preparing an EIS. In Metcalf, the Ninth Circuit held that the agencies had violated NEPA by making an “irreversible and irretrievable commitment of resources” prior to completing the environmental review. The Ninth Circuit understood that review of evidence outside the environmental review itself is proper where there is a claim of predetermination. This is exactly the factual circumstances found in the School District’s NEPA action against FTA/Metro.

On May 18, 2020, Judge Wu entered his final judgment in the NEPA litigation thereby enabling the School Board to appeal back to the Ninth Circuit on the issue as to whether FTA/Metro had illegally predetermined the route under BHHS. The table was now set for the School Board to finally obtain its hard-fought redress from the Ninth Circuit. Unfortunately, the School Board failed to timely proceed with an appeal to the Ninth Circuit. An appeal that the Ninth Circuit had already indicated it would entertain on the issue of “predetermination.”

What excuse did Mel Spitz give for the School Board’s failure to appeal? He asserts that an appeal to the Ninth Circuit would “cost about $500,000.” As an appellate attorney with nearly thirty years of experience I can tell you Mel Spitz’s cost estimate is inaccurate and overinflated. Attorneys’ fees for an appeal that has already been fully briefed would cost half that amount.

Mel Spitz has a long history of overstating the truth to justify his false narratives. During his time on the board Mel Spitz was often confused about district budgets and finances. Over the three years I served with Mel Spitz, he erroneously claimed that the School District was deficit spending, would have to file for bankruptcy, and would be taken over by the state in receivership. Five years later, and none of those dire financial scenarios ever happened.

Mel Spitz also asserted that the School District has expended "about $20 million" dollars of taxpayer bond monies on legal fees battling Metro. Once again, Mel Spitz overstates the truth to justify his own false narrative. We can look no further than to Board President Isabel Hacker for the true cost of litigation. On March 15, 2018 Board President Isabel Hacker unwittingly disclosed the actual FTA/Metro litigation costs in the amount of $4,976,284 proving her colleague Mel Spitz wrong on the numbers.

By not appealing, Mel Spitz and Board President Isabel Hacker have guaranteed that the School District will never recover any attorneys’ fees with regard to the Metro litigation. If the additional cost of an appeal to the Ninth Circuit is about 1% of the total already spent on attorneys’ fees, as Mel Spitz contends, why wouldn't they spend 1% more to get 100% back? Why spend any amount of taxpayer money in the first place if you were not going to follow through with an appeal to the Ninth Circuit to protect the health and safety of students and staff from serious impairment?

Mel Spitz is also being willfully deceitful when he stated that “even if the School District were successful in the Ninth Circuit, the court would not change the location of the staging area.” After a combined fourteen years on the School Board, it is inconceivable that Mel Spitz fails to understand that the NEPA suit was not merely about relocating the Metro staging area, but rather the purpose of the NEPA litigation was always about obtaining a ruling from the Ninth Circuit that FTA/Metro predetermined its route under the BHHS in violation of federal law. A ruling that could change the alignment of the subway from under BHHS classroom buildings.

The abject failure of leadership on the part of board members Mel Spitz and Board President Isabel Hacker by not appealing to the Ninth Circuit has handed Metro a win for no reason and to the detriment of our students, teachers, and community in perpetuity. Just last month the Ninth Circuit ruled that President Trump could not transfer military funds to build his border wall. If the Ninth Circuit has the judicial power to stop a President, it surely has the power to stopped FTA/Metro from tunneling under BHHS classroom buildings.

If there is no clear and present danger to students and teachers as Mel Spitz and Board President Isabel Hacker’s actions suggest by not appealing to the Ninth Circuit, why did they recently direct the Superintendent to remove the portable classrooms adjacent to Metro’s staging area?

One thing is certain, as it takes three members to direct any board action, Mel Spitz and Board President Isabel Hacker convinced at least one other School Board member to abandon an appeal to the Ninth Circuit. Their failure to take the final legal action necessary to ensure that students, staff, and residents would be safe from environmental hazards such as carcinogenic materials, diesel particulates, and the risks associated with tunneling through abandoned oil wells filled with methane gas will be Mel Spitz and Isabel Hacker’s disastrous legacy.