Freeman/ETA East Link Lawsuit Appeal Problematic

My 12/02 post explained the BBB lawsuit against Sound Transit should be a “slam dunk” since ST obviously violated federal environmental law by refusing to consider either a tunnel from I-90 through Bellevue or bus rapid transit across 1-90 Bridge.  Both options were “feasible” and “prudent” alternatives that would have eliminated the environmental damage with the current East Link light rail proposal.

The Freeman/ETA lawsuit is further along with their current attempt to appeal a Kittitas judge’s decision rejecting their I-90 lawsuit against Sound Transit.  That lawsuit contended that installing light rail on the floating bridge is unconstitutional because the bridge was built, in part, with gas-tax money. The state's 18th amendment bars the sale or lease of roads purchased with gas tax money for non-highway purposes.

The judge in Memorandum Decision (MD) No. 11 2001957 filed on March 5, 2012 concluded the money Sound Transit was committing for adding the 4^th lane to the outer bridge was adequate compensation for their confiscation of the center bridge for light rail.   The judge noted reimbursement of the federal-aid highway funds that paid for most of the construction of the center lanes of I-90 would not be required should the center lanes be used for light rail transit.

The second finding in the case was a rejection of the plaintiffs claim “The State’s decision that 1-90 center lanes will be no longer needed for a highway purpose and can be leased for light rail after two replacement I-90 HOV lanes are constructed is so arbitrary and capricious that it amounts to fraud or bad faith, requiring this court to abrogate such decision”.

The MD included the following response;  “WSDOT has determined that the center roadway will not be presently needed for highway purposes after the R8A project is completed.  This determination is based upon, including but not limited to the analyses contained in I-90 two way transit and HOV operations FEIS and ROD; I-90 two-way transit and HOV access point decision report:” and several others. 

My 5/15 and 5/16 posts explain in detail why the appeal on the decision “that the center roadway will not be needed for highway purposes” has a far better chance of winning than the “unconstitutional” claim.  Whether Freeman/ETA appeal on this basis remains to be seen.