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Town of Portsmouth v. Lewis

United States District Court, D. Rhode Island

December 3, 2014

TOWN OF PORTSMOUTH, RHODE ISLAND, Plaintiff,
v.
MICHAEL P. LEWIS in his official capacity as Director of the Rhode Island Department of Transportation, RHODE ISLAND DEPARTMENT OF TRANSPORTATION, DANIEL J. BERMAN in his official capacity as Division Administrator of the Federal Highway Administration, VICTOR MENDEZ in his official capacity as Administrator of the Federal Highway Administration, FEDERAL HIGHWAY ADMINISTRATION, BUDDY CROFT in his official capacity as Executive Director of the Rhode Island Turnpike and Bridge Authority, and RHODE ISLAND TURNPIKE AND BRIDGE AUTHORITY, Defendants

For Town of Portsmouth, Plaintiff: Kevin P. Gavin, LEAD ATTORNEY, Law Office of Kevin P. Gavin, Portsmouth, RI; Terence J. Tierney, Newport, RI.

For William A. Kelly, Plaintiff: Thomas R. DeSimone, DeSimone & DeSimone, Providence, RI.

For Michael P. Lewis, in his official capacity as Director of the RI Department of Transportation, RI Department of Transportation, Defendants: Howard A. Merten, Jeffrey H. Gladstone, Robert K. Taylor, LEAD ATTORNEYS, Partridge, Snow & Hahn LLP, Providence, RI.

For Daniel J. Berman, in his offical capacity as Division Administrator of the Federal Highway Administration, Victor Mendez, in his official capacity as Administrator of the Federal Highway Administration, Federal Highway Administration, Defendants: Michael P. Iannotti, Richard Myrus, LEAD ATTORNEYS, United States Attorney's Office, Providence, RI.

For Buddy Croft, in his official capacity as Executive Director of the RI Turnpike and Bridge Authority, RI Turnpike and Bridge Authority, Defendants: Brian J. Lamoureux, Rebecca Murphy, William E. O'Gara, PANNONE LOPES DEVEREAUX & WEST LLC, Providence, RI; Howard A. Merten, LEAD ATTORNEY, Partridge, Snow & Hahn LLP, Providence, RI.

For Town of Tiverton, Town of Bristol, Interested Parties: Andrew M. Teitz, Gina A. DiCenso, LEAD ATTORNEYS, Ursillo, Teitz & Ritch, Ltd., Providence, RI.

Page 234

MEMORANDUM AND ORDER

Ronald R. Lagueux, Senior United States District Judge.

This matter is before the Court on Defendants' motion to dismiss the Town of Portsmouth's Complaint because it is now moot. Plaintiff Town of Portsmouth filed its Amended Verified Complaint (" the Complaint" ) for declaratory and injunctive relief in April 2013, seeking to enjoin Defendants' plan to impose tolls on the newly-constructed Sakonnet River Bridge. In June 2014, the Rhode Island General Assembly enacted legislation which prohibited tolling on the Sakonnet River Bridge after June 30, 2014. R.I. Gen. Laws § 24-12-40.F. Consequently, there is no longer a live controversy before the Court, and the Court holds that the matters herein are moot for the reasons explained below.

Background

The 1956-built Sakonnet River Bridge was a toll-free span that crossed the river connecting the towns of Tiverton and Portsmouth, Rhode Island. In 1999, due to the Bridge's deteriorated condition, the State of Rhode Island's Department of Transportation (" the DOT" ), along with the Federal Highway Administration, initiated a review of options to restore or replace the Bridge. As required by federal law, the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (" NEPA" ), the DOT and the Federal Highway Administration prepared and issued a Draft Environmental Impact Statement in 2001,

Page 235

which described and assessed the options, including restoration of the existing bridge, construction of a new bridge in one of three possible locations, and no course of action. A proposal for imposing tolls on the Bridge was included as a means to generate revenue for the project. A period of public comment followed, during which the public expressed significant opposition to the prospect of tolls on the Bridge. The State's governor at the time, Donald Carcieri, also opposed the toll.

In 2003, the DOT and the Federal Highway Administration issued a Final Environmental Impact Statement, which did not include a proposal for tolls. Several months later, the Federal Highway Administration issued a Record of Decision, adopting the Final Environmental Impact Statement. The Record of Decision recommended that a new bridge be built, and stated that, " The use of toll collection as a finance means has been eliminated fro further consideration at the direction of the Governor of the State of Rhode Island." [ECF Doc. # 12-4, ¶ 9.0].

During the next ten years, the new Sakonnet River Bridge was designed and constructed, financed by State and federal money. The new Bridge opened officially in September 2012 -- with no tolls. The same year, Rhode Island's General Assembly enacted legislation that mandated the transfer of responsibility for the Bridge from the DOT to the newly-created Rhode Island Transit and Bridge Authority (" RITBA" ). Because the State was confronting crises in both its finances and its transportation infrastructure, the legislation allowed RITBA to impose tolls on the Bridge in order to generate revenues to maintain highways and bridges State-wide. On January 31, 2013, the DOT issued a three-thousand-plus-page Final Environmental Impact Statement Reevaluation, which considered the impact of the construction and operation on the Bridge of an " All Electronic Toll Collection" system, consisting of an arch, or gantry, over the roadway with an electric eye to read a gizmo on the windshields of passing cars - generally known as an E-Z Pass system. The Final Environmental Impact Statement Reevaluation exhaustively detailed the toll system's potential effects on the area's air and water quality, wildlife, wetlands, groundwater, ecology, transportation patterns, river navigation, noise, neighborhood cohesion, architectural resources, pedestrians, public transportation, and many other related topics.

The Federal Highway Administration then issued a Revised Record of Decision approving the DOT's Reevaluation. The Revised Record of Decision stated that, because " no new significant environmental impacts, not previously addressed in the FEIS [the 2003 Final Environmental Impact Statement], have been identified as a result of the analysis of the proposed tolling," no supplemental environmental impact statement was required by NEPA. [ECF Doc. # 12-9, p. 1]. The DOT transferred control of the Bridge to RITBA, which announced its intention to construct the electronic tolling system and to start charging tolls in July 2013. Drivers from out-of-state were to be charged $3.75 to cross the Bridge, ...


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