Streetsblog Asks Metro Board to Waive Attorney Client-Privilege on Najarian’s 710 Big Dig Motion

SBLA Metro 710 Priviledge

At last week’s Metro Board meeting, County Attorney Charles Safer responded to an April motion by Board Member Ara Najarian containing questions on the I-710 Gap Closure Project. The Najarian motion sought the answers to three basic questions concerning the relationship between Caltrans and Metro on this project.

Specifically, Najarian sought to see who was the final decision maker on the project, who would be liable to defend the EIR for the project in court, and whether or not there is an MOU concerning the project between the two agencies.

As the County Attorney and Metro Board of Directors are refusing to answer these basic questions to the public, Streetsblog is formally requesting that Metro reverse its position and waive attorney-client privilege. If they don’t, Streetsblog may seek other avenues to get the information disclosed to the public.

That the item even appeared on the agenda is almost completely due to Najarian’s vigilance. Last Friday’s draft agenda didn’t include discussion of his April motion, despite a request that it be returned in 90 days, and he had to push just to get it discussed at all.

At last week’s meeting, it was revealed that Safer’s answers to these questions were not going to be made available to the public. Safer cited attorney-client privilege, leaving the Metro Board to decide whether or not such basic questions could be given to the public. As the report is still not public, the public can only speculate on what was in the report that required the Board to keep it from the public.

Here’s my speculation: the report could reveal that in the opinion of the County Attorney both Metro and Caltrans have broken state law.

When Najarian first introduced his motion, he did it because Caltrans, not Metro, is listed as the lead agency for the project. Despite this, it is Metro, not Caltrans, who is paying CH2M Hill to complete the environmental documents provided under CEQA. There is no Memorandum of Understanding between the two agencies that is approved by the Metro Board of Directors.

California Public Resources Code section 21100(a) says “All lead agencies shall prepare, or cause to be prepared by contract, and certify the completion of, an environmental impact report on any project which they propose to carry out or approve that may have a significant effect on the environment. . . . .”

This means that the “lead agency” (Caltrans) has to prepare, or contract for the preparation of, the EIR. Metro (which is not the lead agency) cannot prepare, or contract for the preparation of, the EIR.

To make this even more clear, the Guidelines for compliance with CEQA in Title 14 of the California Code of Regulations provide in section 15084(a) (titled “Preparing the Draft EIR”) “The draft EIR shall be prepared directly by or under contract to the Lead Agency. . . . ” Title 14, California Code of Regulations section 15002(k)(3) similarly provides that “the Lead Agency . . . prepares an EIR. (See: Sections 15080 et seq.).”

When two or more agencies are working together, section 15050 provides that “one public agency shall be responsible for preparing an EIR or Negative Declaration for the project. This agency shall be called the Lead Agency.”

Taken together, if Caltrans is indeed the lead agency and the decision maker, than Caltrans has to prepare the EIR itself (or contract itself for its preparation). Metro cannot legally contract with CH2M Hill to prepare the EIR, but claim that it is not the legal agency.

Metro and Caltrans put themselves into a difficult situation. Either Metro has to now admit that it is the “lead agency,” notwithstanding its prior statements that it is not, or Caltrans as lead agency has to fund the EIR. There is no case law on such situations that I can find, but those opposing the I-710 Big Dig are already ruminating that either Metro is going to have to step up and make the decision on whether or not to go forward with the tunnel or Caltrans may have to start the environmental process over again.

Given the information publicly available that states that Metro and Caltrans have clearly violated state law and the secrecy with which Metro is now holding the answers to some pretty basic questions; we have to assume that Metro is indeed hiding something. If they’re not, it would be very easy for them to prove me wrong…just release the memo from Safer to the general public.

  • Juan Matute


  • J. SooHoo

    Thank you for covering this, Damien. In the past 2 weeks, at 4 different Metro-sponsored meetings, we have heard 3 versions of the answers to these questions from Metro staff. It is clear that confusion reigns and that the agencies involved are not even cognizant of the regulatory code you cite.

  • Go Damien! Go !!!

  • Joe Cano

    From what we have seen so far, it appears SR 710 project manager Michelle Smith & her boss Doug Failing are playing hide & seek with the truth. I have Michelle Smith on video making statements that Metro has hired CH2M HIll to draft the EIR & Mike Antonovich stating that the deciding authority is Caltrans on the 710 project. Based on state code quoted by Mr. Newton this is a clear violation of state law. Michelle Smith & Doug Failing would not be so smug if they were facing jail time for lying to the public & misuse of public funds.

  • Vicki Kea

    Damien, you have hit the nail on the head! Thanks for the article and the letter to the Metro Board. Now we will see what they do with it.

  • calwatch

    I don’t really buy this argument since I am familiar with the EIR process. Look, entities pay for EIRs all the time. In fact, most private developers pay for EIRs for their private development projects. That doesn’t mean the private developer is the “lead agency” for the project.

    Per this handout – – it is not incompatible for one organization to fund the EIR and the project, while the other acts as the “lead agency” certifying the EIR. Metro is simply the funding agency, like how the stadium developers funded the EIR for their project. Caltrans is the lead agency for CEQA. If the adopted alternative is, for example, BRT, and Metro decides not to fund it, there is no project. Similar, Metro could redirect funds from the tunnel to the BRT alternative, while Caltrans could certify the tunnel as the environmentally superior alternative. Then unless Metro affirmatively moves to BRT there is no project.

    County Counsel is a black box which, like most attorneys, refuses to share its opinions with anyone, much less the general public. Only the Chair of the Board, or a majority of the Board, can direct Counsel to share their pinion. The default position is not to give anyone any ammunition, not just for this project, but potentially for future projects.

    As noted, the CH2M Hill agreement covers the environmental work, and although Metro is paying the tab, Caltrans had input in its selection.

    So the question is, is there a partnering or cooperative agreement between Caltrans and Metro. There probably is a funding agreement – This Board action delegated authority to the CEO to execute a funding agreement with Caltrans. No Metro Board action would have then been required. “Authorize the Chief Executive Officer to execute a Funding Agreement with Caltrans and others should additional funds become available.” Much like a private developer Metro is also paying for Caltrans’ time. This agreement would also be public record, provided you know what to ask for.

    So overall it is an esoteric piece of environmental regulation, but it has been explained in past, publicly available Metro documents. The process is not significantly different from other public or private projects on other agencies’ right of way, where the project proponent pays the “lead agency” for their time and hires someone to do the EIR at the lead agency’s behest.

  • calwatch

    That is absolutely correct – Metro is paying the bill while Caltrans is the -lead agency. There is no violation of law. The most recent large project example is the Industry Stadium. The developers (Majestic) paid for the EIR, and the consultant was selected mutually between Majestic and the City of Industry. The City, however, remained the lead agency for the project. Here is a sample from a freeway interchange project in Fresno – – note clearly the divisions in roles in the environmental (“PA/ED”) phase.

    What is probably in the funding agreement is some indemnification language which requires Metro to pay Caltrans for all its legal costs. These agreements are fairly standard, although one should probably obtain the Metro-Caltrans agreement for whatever language is there.

  • Sylvia

    I agree with Damien Newton. If Metro is doing things by the book and has nothing to hide then release the memo to the general public.

  • calwatch

    The Najarian motion only asked for the CEO to provide an accounting of what happened ( – which took place. For Najarian to ask County Counsel if he is dissatisfied with the CEO’s response goes beyond the scope of the original motion.

  • Sylvia

    Your links make no sense. This was Najarian’s motion: Item # 60: RECEIVE response to Najarian Motion regarding Caltrans and MTA’s roles and responsibilities as it relates to the 710 North EIR/EIS.
    What is Metro hiding??

  • unclechumley

    It never ceases to amaze me the lengths Metro goes through to keep information from the public beginning with not informing property owners adjacent to alternative routes of their plans. This is a multi-billion dollar project but major aspects are unknown to all but a few. Antonovich said that everybody knows that Caltrans is in charge per a previous meeting. But his comment misses the point: all of the assumptions including the relationship between Caltrans and Metro should be documented as a matter of public record. We have a right to know.

  • calwatch

    Item #70 was Najarian’s original motion. He got the answer to it at the April meeting. But, Najarian wasn’t happy with the answer and wanted County Counsel to answer his questions in open session. Counsel refused to do so without the permission of the rest of the board.

    “That the item even appeared on the agenda is almost completely due to Najarian’s vigilance. Last Friday’s draft agenda didn’t include discussion of his April motion, despite a request that it be returned in 90 days, and he had to push just to get it discussed at all.”
    This is facially incorrect. The Najarian motion from April asked for a response from the CEO, which he got (the handout linked above). As you can see from Item #70 he didn’t ask for it in 90 days – in fact the CEO gave him the answer at the meeting in the form of that handout memo.

  • Sylvia

    Where is the Memorandum of Understanding (MOU) between Metro and Caltrans for the SR-710 North project? The High Desert Corridor Project has an MOU. That’s all Najarian was asking for. Not Metro’s interoffice memos stating that it’s the case. Calwatch — Must work for Metro and is trying to defend their actions. The public has the right to know!

  • Caltransylvania

    Thank you Streetsblog, for your letter to Metro. As a taxpayer, I am offended at the shenanigans the Metro board has pulled regarding the 710 toll tunnel. This is the latest card trick. The Measure R money we all voted for in the half cent sales tax has 780 million currently, for transportation projects. Metro is planning to spend the whole amount on 710 toll tunnel “studies”, that were already done in 2006. Check the records. There is so much more we could do with the funds to solve transit probs now. This 710 toll tunnel thing is nothing more than a multi- layered money grab, with Metro as the Casino, and Caltrans as the gambler. There is a Caltrans audit to back up the corrupt practices they have engaged in, all on the taxpayer dime. They shouldn’t be trusted with the largest transportation boondoggle in the world, at this time. I hope Mayor Garcetti has the wisdom to help put a stake in the heart of this project, once and for all. The alternatives for goods movement are clean, modern, and reflects the intelligence of the 21st century. Stay tuned

  • John From Pasadena

    I agree with Sylvia. A written MOU is a pretty basic. These are public agencies and the public needs to know what exactly is the written agreement between Metro and CalTrans regarding the SR-710 North project. It also seems to me that Calwatch is a shill for Metro, otherwise his / her defense of Metro would not be coming on so strong.

  • Jane D

    CalWatch…if these agreements are fairly standard, then why not release them to the public? Why claim attorney-client privilege as the reason for not releasing a “standard agreement?” And in this case…who is the client? Caltrans? or Metro? It seems the people of California are the client. I watched the proceedings and heard Ara Najarian’s questions which he posed in many different ways as to receive some sort of public answer. It doesn’t seem that difficult for the Metro Board to answer a simple question as this.

  • Jane D

    Again, then why could there not be a simple answer to that effect? If, as you say, it is a “funding agreement” between CalTrans and Metro, then why couldn’t the CEO state that in a public meeting? Does the funding agreement replace a Memorandum of Understanding? I think not. Let me also say that in this atmosphere of distrust of public agencies, County Counsel did nothing to dispel the notion that public agencies are spending public money without adequate accounting, and are keeping their actions private…such as citing attorney-client privilege.

  • CV Gal

    Clear up the confusion. Release the memo!

  • HighNoon

    It doesn’t seem to me that you are comparing apples to apples, Calwatch. The City of Industry was the lead agency as a matter of necessity, Majestic (or any private developer) can not be the lead agency. The example you site is irrelevant. That is not the case here as I don’t believe we yet know who the lead agency is, whereas anyone monitoring the stadium deal would know who the lead agency is.

    One primary purpose of CEQA is disclosure, and if no wrong-doing has taken place, why have these agencies gone so far out of their way to say everything but that? Whether or not something illegal is happening here, there is not doubt in my mind it is being done in a manner that lacks transparency and a focus on the best interests of la county residents.

  • calwatch

    What an ad hominem attack. You can meet me at many Streetsblog events, I am not and have never been employed by Metro nor its predecessors. This is the kind of stuff that turns people off from the 710 opponents.

  • calwatch

    Again – the relationship is clearly stated here in

  • calwatch

    How about in this recent Caltrans carpool lane project then? Read the agreement:

    The PCTPA (Placer County) prepared the EIR and EIS. Caltrans reviews the document. (Items 38-52)

    The standard agreement calls for Caltrans to have five working days before any disclosure of public documents, to allow for them a chance to object. All of these agreements are standard and non-creative, in fact Caltrans has an agreement generator that comes up with this stuff.

    Again, this indicates a fundamental misunderstanding of the environmental process, which Metro has not done a great job of clearing up in public (although the memo response to Najarian was pretty clear). That does NOT mean, however, that what Damien is suggesting Counsel indicated that something was illegal – it is the standard practice on all projects on the state highway system.

  • calwatch

    The agreement has a five day window for the other party to object. I already filed a PRA with Caltrans for the agreement, now that I know what to look for.

  • calwatch

    I wasn’t at the meeting, but the CEO cannot be expected to know every minute detail of every project. Agreements are considered on a higher level than the MOU. Read the Project Development Preparation Manual.

  • calwatch

    “Taken together, if Caltrans is indeed the lead agency and the decision maker, than Caltrans has to prepare the EIR itself (or contract itself for its preparation). Metro cannot legally contract with CH2M Hill to prepare the EIR, but claim that it is not the legal agency.”

    This is incorrect. From the Caltrans Project Development Project Manual:

    “However, if

    another agency is the project sponsor, Caltrans can use information prepared by the

    sponsor. The local entity may draft the environmental document, but Caltrans must still

    review and analyze the content of the draft.”

    Caltrans is a participant in the development of the EIR, and had seats on the selection committee of the RFP. Caltrans will review the EIR in its administrative draft phase and the EIR will not go out without Caltrans approval. This is a standard process, clearly layed out in multiple Caltrans manuals.

  • unclechumley

    Your link goes to an internal memo. As others have pointed out in these posts, show us the MOU. This is not an unreasonable request.

  • unclechumley

    If you don’t work for Metro or Caltrans or related entities, then you are part of the public like the other commentors here. It seems that you have some knowledge of the EIR process. However you have employed this knowledge to defend Metro’s actions making you an apologist whether or not that was your intention. Defending bureaucratic practices and procedures does not always get to the truth. In fact that can often hide it. We who are opposed to the 710 are after the truth. I trust you are as well.

  • I know Calwatch, having first met him at fare hike hearings for Foothill Transit in 2006. He’s a smart guy and knows his stuff when it comes to things such as EIR’s better than I do.

    That being said, I think he’s wrong. If Caltrans’ manual and CEQA guidelines aren’t in agreement, then I have to think the CEQA guidelines would win out.

    Najarian’s nobody’s fool. Part of me thinks that he knows the answers to these questions and just wants them out in the open.

    I spoke with him yesterday when preparing the article (ultimately the story changed from just covering the motion and controversy to covering our formal request).

    I also find it highly unlikely that, if I am correct, anyone at Metro would go to jail over something such as this. I’m not a Doug Failing or an Antonivch hater and appreciate that each has made contributions to the Livable Streets Movement in one way or another.

  • John From Pasadena

    I agree with unclechumley’s statement above. We are just looking for the truth and I believe that Metro and CalTrans are being way less than transparent. So, what are they hiding???

  • John From Pasadena

    OK, so Calwatch does not work for Metro. But the only other times I have seen such vigorous support for a Metro position has been on Metro websites. So I am thinking others were thinking the same thing as I was about Calwatch.

  • calwatch

    So? I’m interested in the facts and not political grandstanding, on either side. Najarian promised the City Selection Committee that he would let the EIR play itself out. Najarian’s questions were answered by the CEO in the response to Item #70 back in April.

    The CEQA guidelines are just that – guidelines – and do not have to force of law. The standard practice for ALL locally originated Caltrans projects is for the local agency to pay for the EIR, and for Caltrans to review the administrative draft and administrative final EIRs before they get released to the public. While I wasn’t at the Board meeting, if County Counsel wanted to hide the agreement between Caltrans and Metro, that is against the Public Records Act; but the standard agreement has a standard clause that requires both parties to be notified upon disclosure of any public records. I have no reason to doubt that a standard cooperative agreement wasn’t used, because Caltrans staff is very uncreative and chooses to use settled processes.

    Najarian is on the record as opposing the 710 project. Streetsblog even gave him an award for doing so. He needs to stick to the facts and let the process play itself out, like he promised the San Gabriel Valley cities which led the revolt against him.

  • Jan SooHoo

    Asking for a clarification of the respective roles and responsibilities of Caltrans and Metro in the SR-710 Study is in no way in conflict with Najarian’s agreement to let the EIR/EIS be completed. In fact, the motion asking for such clarification was supported overwhelmingly by the Metro Board of Directors. So, please don’t assert that by asking for the clarification Najarian is somehow breaking a promise.


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