Hearing Friday on latest bridge lawsuit

Early returns on the latest Narrows Bridge lawsuit could be in by the end of this week. And those results will provide a strong indicator of whether the controversial project could be delayed once again, halted altogether — or none of the above.

As expected, Gig Harbor-based Citizens Against Tolls (CATs) filed suit Aug. 30 in Thurston County Superior Court, alleging a host of illegalities in the Washington Department of Transportation (WSDOT) contract with Tacoma Narrows Constructors, the private company expecting to build the $800 million tollbridge.

Judge Daniel Berschauer has scheduled a summary judgment hearing for Sept. 13 to consider the suit. Assuming Berschauer finds for the plaintiffs, the ruling would almost certainly force the state to put the construction project back on hold until the legal problems can be resolved once and for all.

But if Berschauer backs the state’s position, things could get even messier.

“If they rule aganst us on Friday, we’ll appeal to the state Supreme Court by Monday,” vowed CATs attorney Shawn Newman.

In the meantime, the Washington State Finance Committee is planning to meet on Sept. 18 to decide whether or not to issue construction bonds to pay for the new bridge. If the bonds are sold, for all intents and purposes the bridge project would have to move forward regardless of the legal challenges because the state is obligated to honor the bonds.

The question is whether the state would offer the bonds for sale — or whether anyone would buy them — knowing an appeal of CATs’ lawsuit was pending.

“I think (WSDOT is) looking for a victory at the trial level to help them persuade the state Treasurer’s office to issue the bonds now rather than waiting,” Newman said. “They’ll ultimately lose on appeal, but by that time the bonds will already have been sold. It’s a marketing tool.”

“We’re still reviewing the lawsuit and haven’t made any decisions about (issuing the bonds) yet,” said Bart Potter, a spokesman for the Washington State Treasurer’s Office.

“Whatever (the Treasurer’s Office) decides will have to be in the interests of the taxpayers, as well as the tollpayers and the bondholders,” said Lloyd Brown, communications manager for WSDOT’s Olympic region.

Judge Berschauer is already familiar with the case, having ruled in 1999 on the first lawsuit brought against the bridge. In that case, Berschauer dismissed a suit brought by the Peninsula Neighborhood Association alleging the contract to build the bridge violated several state laws.

But Berschauer’s decision was subsequently overturned by the state Supreme Court, which ruled unanimously that the contract was unenforceable. Bridge backers then spent the next year and a half persuading the state Legislature to repeal the laws WSDOT was shown to have broken.

“I would think the Treasurer would be very careful about issuing bonds for this project based solely on Judge Berschauer’s interpretation of the contract, knowing he’s already been overturned once,” Newman said.

Among other things, the latest lawsuit alleges:

• the state failed to comply with proper bidding procedures when it awarded the construction contract to Tacoma Narrows Constructors;

• the measure passed during this spring’s legislative session repealing the laws broken by WSDOT’s original contract was itself invalid because it contained more than one provision;

• the Referendum 49 bonds being used by the state to fund bridge construction can, by law, only be repaid with revenue obtained through gas taxes, motor vehicle excise taxes and license fees, not user fees or tolls; and,

• the Referendum 49 bond law itself is illegal because it wasn’t approved by a 60 percent vote in the state Legislature.

“Our goal is to quickly resolve all of these questions so we can keep the project on track,” said Linnea Laird, WSDOT’s project engineer for the Narrows Bridge. “We’re working closely with the Treasurer’s Office to see how they want to proceed with the bond sale, but no decisions have been made yet. We’re just going to see how the judge rules and go on from there.”

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