Throwing in the towel: Indian River County gives up on further appeals in Virgin Trains fight

INDIAN RIVER COUNTY — The county will end its federal lawsuit against Virgin Trains USA, commissioners decided Tuesday.

They will, however, continue their fight for train safety.

More: Indian River County loses main fight against Virgin Trains in U.S. Court of Appeals

Despite urging from the some in the public to continue fighting their loss in federal court, commissioners voted 4-1 against pursuing any further appeals. Commissioner Tim Zorc cast the only no vote, saying the county needed to keep going to protect its investme

"I know we're very much on the underdog side here," he said. The county has spent about $3.5 million on the case, and now, he said is 1/10th away from the end.

"I'm hoping to doing something to take that last step, to say we've tried 100% of every option available to us," Zorc said.

The U.S. Court of Appeals last month ruled Virgin Trains legally can finance its private railroad project with government issued, tax-free private-activity bonds.

The county's appeal was unlikely to be heard by the U.S. Supreme Court, County Attorney Dylan Reingold told commissioners Tuesday.

More: Indian River County may accept its loss to Virgin Trains in federal court

"I believe we have presented very good points," Reingold said. "I think we were in the right, and I'm disappointed in the outcome."

Even Commissioner Bob Solari, historically the largest advocate of continuing the fight, agreed it was time to give up the battle. The Supreme Court is very choosy on what it hears, he said, and he doubted Indian River's case would be heard.

"As much as I might want to, unless I can hear something different from somebody else, I find it very hard to, given (the attorneys') recommendation and my incredibly limited understanding of constitutional law, to go ahead at this time," he said. "I think there still are many areas we can fight, and should fight. I'm not sure this is one of them."

The county needs to listen to its legal counsel, Commission Chair Susan Adams said.

"It is our responsibility to take seriously the recommendation of our counsel," she said. "They are the ones on the front lines."

Residents urged commissioners to fight on.

"You've gone too far to back out now," said Indian River Neighborhood Association board member Peter Seed of Indian River Shores. "You have a great case. The time to act is now. Let's not wave the white flag."

Continuing with the lawsuit would strengthen the county's position," developer Joseph Paladin said.

"This keeps the pressure on," Paladin said. "We need to continue moving forward."

Commissioners claimed victory in that they were able to stall expansion through the county a few years. Initially, the county was told the higher-speed trains would be running by 2017, Commissioner Joe Flescher said. The county's lawsuit has cost the railroad a lot of money, he said.

The county will continue focusing on its Circuit Court lawsuit over maintenance of the 21 crossings along the Florida East Coast Railway corridor within Indian River County. The lawsuit, filed last year, claims Indian River County should not be required to pay for crossing improvements that Virgin Trains — formerly Brightline — needs in order to run 32 higher-speed passenger trains daily.

"We may be costing them even more money," Flescher said.

More: Virgin Trains plan to replace St. Lucie River rail bridge finds support from Martin County

For decades, the county has maintained the crossings through an agreement with FEC, the freight railroad. But, the county claims in the lawsuit, that maintenance was part of an agreement it has with Florida East Coast Railway, not with Virgin Trains USA.

Virgin Trains, the suit claims, cannot be considered a third-party beneficiary of the county's agreements with FEC.

Reporter Joshua Solomon contributed to this report.

Virgin Trains is a subsidiary of Fortress Investment Group LLC. New York-based Fortress has a management contract with Gannett Co., the publisher of TCPalm and Treasure Coast Newspapers.