VERO BEACH, FLA — Indian River County commissioners have decided not to appeal a recent decision on Virgin Trains USA’s use of private activity bonds to the U.S. Supreme Court.
The commissioners — who have spent $3.5 million in taxpayer funds to challenge the Federal Railroad Administration’s environmental review process and approval of Virgin’s use of private activity bonds to fund expansion to Orlando — voted 4 to 1 to not advance the litigation to the U.S. Supreme Court, the TC Palm newspaper reports.
The decision comes after the U.S. Court of Appeals in Washington, D.C., agreed with a previous ruling that rejected Indian River’s arguments [see “Appeals court affirms Virgin Trains’ right to use private activity bonds,” Trains News Wire, Dec. 31, 2019]. According to the paper, the county had spent $544,000 in 2019 alone in its unsuccessful appeal even after its attorney had advised against continuing the legal challenge.
The attorney, Dylan Reingold, said Monday, “The likelihood of success is low (in an appeal to the U.S. Supreme Court),” and Commission Chair Susan Adams told other commissioners, “It is our responsibility to take seriously the recommendation of our counsel.”
However, Indian River County will continue to challenge its continuing obligation under a long-standing agreement with the Florida East Coast Railroad to pay for maintenance of 21 highway grade crossings. Virgin, whose current Miami-West Palm Beach service is still marketed as Brightline, is in the process of upgrading them with encroachment detection and quad gates as it reinstalls a second main track and signaling that will enable 110-mph operation for the Miami-Orlando “Phase 2” extension under construction.
Indian River contends that the pact is with Florida East coast, and Virgin can’t be considered a third-party beneficiary in the deal, even though the passenger operator has agreed to pay for upgraded crossing protection installation on the West Palm Beach-Cocoa, Fla., segment. A ruling on that is expected later this year.
