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Judge’s ruling due on bridge lawsuit

"A Thurston County judge any day now could deal a devastating blow, either to the forces opposed to construction of a new Tacoma Narrows Bridge or to the bridge itself.Superior Court Judge Daniel Berschauer announced in November he expected to rule by mid-January on a motion to dismiss a lawsuit filed against the state Department of Transportation by the Peninsula Neighborhood Association, which opposes the bridge. The Gig Harbor-based citizens group filed its suit in July and the state responded in September with a motion for summary judgment, asking that the association’s case be thrown out.Berschauer originally intended to rule on the motion in November but delayed his decision until this month because of the complexity of the case. Among other things, the lawsuit challenges the constitutionality of the Public-Private Initiatives Act by which the state plans to build the bridge. Berschauer’s ruling could take any number of forms but, in general, his options fall into three categories:• He could reject the motion to dismiss and order both parties to present their case in a full-blown trial.• He could approve the state’s motion and dismiss Peninsula Neighorhood Association’s lawsuit out of hand.• Or he could make a summary judgment in the association’s favor, which would set the bridge project back for years if not kill it entirely.Both sides agree the first option is the least likely. “The only reason to go to trial is if the facts of the case are in dispute,” said Deborah Cade, an assistant state attorney general who is handling the defense. “In this case, we don’t need a jury to sort out who’s telling the truth because both sides essentially agree on the facts,” she said. “What we disagree on is the law, and the judge can rule on that. I guess we could go to trial, but it would be a waste of time and judges don’t usually like to waste time.”If Berschauer agrees with Cade and decides to render a summary judgment, it would represent a major setback for whichever party is on the short end of the verdict. Both sides gathered for a preliminary hearing in November, during which Berschauer asked questions and announced he would hand down his ruling in January.Based on that meeting, the state and Peninsula Neighborhood Association both expressed optimism the decision would go their respective ways.“You can never be sure how these things will turn out,” Cade said, “but of all the points (the association) raised in its suit, the judge only asked questions about one issue. He seemed satisfied with my answers and apparently recognized the rest of their case had no merit.”Association attorney Shawn Newman sees it entirely differently. “The foundation of our case is the lack of public oversight, so we made that the very first complaint in our lawsuit,” he said. “The judge focused in on that issue like a laser beam, and (Cade) couldn’t answer any of his questions. He had no reason to address any other issues if he could rule in our favor on the basis of public oversight alone.”Under terms of the Public-Private Initiatives Act, the state can sign contracts with private companies to build and maintain large projects like roads and bridges. The private company, in turn, funds the construction by selling bonds, which it pays off by charging tolls.Peninsula Neighborhood Association’s strongest argument against the Narrows Bridge project, Newman believes, is that the state ceded too much control to United Infrastructure Washington, the subsidiary of San Francisco-based Bechtel Corp. with which the state signed a contract last year to build the new bridge.“The way the contract is worded, United Infrastructure can raise tolls whenever it wants to,” Newman said. “The only group they have to answer to is a citizen’s advisory panel, whose members are hand-picked by United Infrastructure. That’s not the kind of public oversight the legislature had in mind when it passed the act, and it’s a violation of the state constitution.”“The state has a valid contract with United Infrastructure,” Cade countered. “Any citizen who has a complaint about the way United Infrastructure conducts its business has the right to sue the Department of Transportation to make it enforce the terms of that contract. I explained that to the judge and he seemed satisfied.”Cade and Newman agree whichever side comes up on the short end of the judge’s ruling will be at a disadvantage. Although any decision likely will be appealed, the standards in appellate courts are even tougher to meet.If the ruling goes against the association, its members would be faced with the challenge of holding together a loosely structured group of private citzens and continuing to fund its legal team through the appeals process. Should the group prevail, the state would be forced to scrap or rewrite the Public-Private Initiatives Act and negotiate a second contract with United Infrastructure. In the meantime, progress on the bridge would come to a grinding halt.“The stakes are very high,” Newman said. “But we’re prepared to play out this hand to the last card.”"

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