Bridge advocates sue to save span
Group seeks public hearings, study of impact
BY AMANDA BELING Staff Writer
Advocates for the Highlands drawbridge filed suit in federal court last week, seeking to block the state Department of Transportation's plan to replace the historic bridge.

Highlands drawbridge

Citizens for Rational Coastal Development (CRCD) filed suit Sept. 21 in U.S. District Court, naming the U.S. Federal Highway Administration (FHWA), the state Department of Transportation (DOT), and the state Department of Environmental Protection (DEP) as defendants.

The complaint asks the court to invalidate the award of federal funds for the DOT project, which would demolish the existing drawbridge and build a replacement, fixed-span bridge. The plaintiffs are also seeking a public hearing and an environmental impact study of the project.

Tuesday, Stuart J. Lieberman, attorney for CRCD, a grassroots group that wants to preserve the existing bridge, left open the possibility of seeking an injunction to block the DOT from proceeding with the project.

"To ultimately get an injunction we will need to come in on an Order to Show Cause, which is a brief that will be written and sent to the court," said Lieberman.

"We styled our complaint where we have the right to seek an injunction and it's a strong probability for us."

A DOT spokeswoman said Sept. 12 the agency would begin accepting bids for the controversial bridge replacement project Nov. 1, and a contract will be awarded in late November/ early December with construction to begin as early as January.

The five-count complaint lists charges against the defendants, including failure to comply with federal laws, specifically the National Historic Preservation Act, Department of Transportation Act and the National Environmental Policy Act.

The first count of the complaint charges that the DOT violated the National Historic Preservation Act (NHPA), which requires an evaluation of impacts to sites that are either eligible to be or are listed on the National or State Historic Register.

"The law requires that the government thoroughly evaluate all available options for preserving national landmarks such as this bridge, and in this case there is no evidence that they did any of that," said Lieberman.

The second count deals with section 4(f) of the Department of Transportation Act of 1966, which allows the DOT to permit a transportation project to use a historic site or project as long as the agency performs "all possible planning to minimize harm to the … historic site."

However, the act requires that before any action is planned with regard to a historic structure, alternatives must be considered.

"The particular allegation here is that there are three avenues that the federal government is allowed to look at," Lieberman said.

"The first one is that they're allowed to keep the bridge and build a new one next to it. The second option is tearing the current bridge down and putting in the span, which is the least desirable alternative, and yet that's the only one they've really ever considered.

"Or they can do nothing and rehabilitate the bridge."

The third count claims the agency violated the National Environmental Policy Act (NEPA), which requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions.

One of the ways to meet this requirement is for federal agencies to prepare a detailed statement known as an Environmental Impact Statement (EIS).

"The government had an affirmative obligation to do an environmental impact study to thoroughly understand the environment consequences of this project and instead of doing the work, the DOT claims they had a legal right not to do it because they were exempt by Categorical Exclusion Documentation (CED), which was signed and approved in August 2005," said Lieberman.

He noted that the plaintiffs believe that the DOT's assertion is false.

"This happens all the time. It's very common and the problem is that the DOT is allowed to make the decision, and the only time it's challenged is when the community hires a lawyer to challenge it," he said.

Last week, CRCD co-Chairman Jim Parla said the exclusion the DOT is using means the agency is going to ignore the proviso that it conduct a full Environmental Impact Study (EIS) of the bridge replacement project.

"It's incomprehensible to us that the DOT thinks for a minute that they can use the CED, but we're going to let a federal judge decide that," he said.

The fourth count of the complaint deals with the DOT's failure to hold public hearings prior to reaching a decision on the bridge replacement.

"There's a statute that we quoted [49 U.S.C. § 5352 (b)] that indicates that when the federal government is giving a lot of money for capitol improvement, there has to

be a public hearing, and there wasn't one.

"I think that one is conditioned on the other. The federal government can't give the money without a public hearing," said Lieberman.

The fifth and final count of the complaint deals with section 4(f) inconsistency with NEPA.

"Section 4(f) only has three choices. When DOT claimed it was entitled to a CED, it asserted that it did a review on all the historic aspects of the bridge, but we don't believe those three options of that section satisfy NEPA.

"What we're saying here is that the government took an overly abbreviated approach to evaluating the options of the historic components of the bridge and because it was overly abbreviated, the DOT wasn't entitled to the CED," said Lieberman.

According to Lieberman, the integrity and preservation of the Highlands Bridge is not the only issue.

The bridge is situated close to historically significant structures, many of which are included, or have been deemed eligible for inclusion, on the National and State Registers of Historic Places.

The Highlands bridge was deemed eligible by the DOT for listing in the national and state registers during a routine survey in July 1991.

In the lawsuit, the plaintiffs maintain that the federal and state governments turned their backs on these historical resources in order to implement a new DOT program referred to as the Hyper Build Project, which was implemented in March 2005.

"It was designed to cut corners in order to get the approval and implementation of state road and bridge projects by ignoring due process, historic and other significant environmental concerns, and public input all to minimize costs associated with time delay," said Lieberman.

"The good thing is that the suit's filed, and everybody knows it's filed and everybody has to act accordingly. I think that when you're the government and you know that someone is challenging your actions it creates a heightened burden," he said.

Lieberman said the next step is for the DOT and the other agencies named to file an answer.

"We get to do some discovery and get all the documents … and look at them and understand this process that has been such a secret all this time.

"We will finally have a court-authorized basis for getting all of the documents that we want to review," he said.