Bridge suit continues

Even as construction work on the second Tacoma Narrows Bridge gets under way, legal action to stop the project in its tracks continues.

Gig Harbor-based Citizens Against Tolls (CAT) on Thursday filed its opening brief with the Division II Court of Appeals in Tacoma, challenging the imposition of tolls, toll financing and the state’s contracting methods in the $800 million project.

Defendants in the case are the Washington State Treasurer, the state Department of Transportation (WSDOT) and the Washington State Transportation Commission.

CAT filed its original lawsuit on Aug. 30, hoping to prevent the state from issuing the first $158 milion in Referendum 49 bonds needed to finance the project. But Thurston County Superior Court Judge Daniel Berschauer dismissed the case on Sept. 13 and the state sold the bonds two days later.

A second bond issue, this one for $75 million, is scheduled for Jan. 22.

“There’s no reason for us to drop our appeal now,” said Randy Boss, CAT spokesman. “We have a very strong case. We expected to win before and we still expect to win.”

An earlier lawsuit against the bridge, this one filed in June 2000 by the Peninsula Neighborhood Association, was also thrown out by Berschauer, only to be reversed five months later in a unanimous decision by the State Supreme Court.

In that case, the court determined the state had broken its own law by attempting to impose a toll on the existing Tacoma Narrows Bridge, which had already been paid for with toll revenue. That decision set the project back a year and a half as the Washington state Legislature had to rewrite the law in question before work could commence.

Boss and other CAT officials were also prominent in that lawsuit, and PNA was represented in the case by Olympia attorney Shawn Newman, who is handling the current lawsuit for CAT.

“(Judge) Berschauer has already been overruled once before on this project, and we have every reason to believe he will be again,” Boss said. “It’s not our fault they decided to sell the bonds and proceed with the work before every legal challenge had been settled.”

The brief filed by CAT on Thursday challenges the project on five points:

• WSDOT allegedly awarded construction and consultant contracts that were not advertised or competitively bid. CAT contends the contracts are a violation of state law.

• EHB 2723, the bill passed by the state Legislature rewriting the laws shown to have been broken in the original lawsuit, allegedly violates the “single-subject” rule and is therefore illegal.

• The state proposes to use toll revenues to pay back the bonds sold to finance the project. But Referendum 49 bonds can only be repaid with excise taxes on motor vehicle fuels, not user fees such as tolls.

• WSDOT failed to prioritize the project by comparing it to other needed transportation projects in the state. If so, it would be a violation of state laws requiring “priority programming.”

• CAT also contends EHB 2723 violated the state Constitution, which prohibits enactment of legislation that revises or amends other laws without setting them forth at full length. Specifically, EHB 2723 failed to explicitly amend other state laws controlling how the Referendum 49 bonds will be paid back.

Boss said CAT will petition to bypass the appeals court and move the case directly to the state Supreme Court level. In the earlier lawsuit, the state made a similar request, arguing that the project would be adversely affected by any delays.

This time it’s the plaintiffs who want a quick decision and the state that would benefit by a delay.

“Our contention is that, if this project is so important that the earlier case had to jumped all the way to the Supreme Court, the same conditions are true now,” Boss said. “We’re going to use the same arguments they used last time.”

If CAT’s appeal is upheld, the state will either have to abandon the project after already selling $158 million worth of bonds to pay for it, take the money from other projects around the state, or go back to the Legislature and once again rewrite any laws shown to have been broken.

“Our group is energized,” Boss said. “We have enough money in the bank to continue the fight through the appeals process and we expect to prevail. We’re not going away.”

The state has 30 days to respond to CAT’s brief.

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