Town of Portsmouth v. Lewis

• Decision Date: 03 December 2014
• Docket Number: C.A. No. 13–267L.
• Citation: 62 F.Supp.3d 233
• Court: U.S. District Court — District of Rhode Island
• Parties: 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.

62 F.Supp.3d 233

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.

C.A. No. 13–267L.

United States District Court, D. Rhode Island.

Signed Dec. 3, 2014.

Kevin P. Gavin, Law Office of Kevin P. Gavin, Portsmouth, RI, Thomas R. Desimone, Desimone & Desimone, Providence, RI, Terence J. Tierney, Newport, RI, for Plaintiff.

Howard A. Merten, Jeffrey H. Gladstone, Robert K. Taylor, Partridge, Snow & Hahn LLP, Michael P. Iannotti, Richard Myrus, United States Attorney's Office, Brian J. Lamoureux, Rebecca Murphy, William E. O'Gara, Pannone Lopes Devereaux & West LLC, Providence, RI, for Defendants.

MEMORANDUM AND ORDER

RONALD R. LAGUEUX, Senior 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, 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 from 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, while Rhode Island drivers with a Rhode Island E–Z Pass transponder would be charged only 75 cents for unlimited daily crossings. On April 23, 2013, this lawsuit was filed.

The Complaint

In its Complaint, Plaintiff alleges that the residents and businesses of the Town of Portsmouth would suffer substantial and irreparable harm if tolls were imposed on the Bridge, thereby restricting, disrupting and violating residents' right to travel. Further, Plaintiff alleges that tolling would have a ripple effect throughout Rhode Island by increasing the cost of living and doing business in Newport County and the East Bay. In Count I of its Complaint, Plaintiff seeks an injunction against the imposition of tolls on the Sakonnet River Bridge and a declaratory judgment that the tolls would violate the ‘freedom from tolls' provision of 23 U.S.C. § 301.¹

Count II alleges that Defendants did not follow proper NEPA procedures when they proceeded to reevaluate the 2003 Record of Decision, or alternatively when they produced the January 2013 Final Environmental Impact Statement Reevaluation. Again, Plaintiff seeks an injunction against the imposition of tolls, and a declaratory judgment that the DOT and the Federal Highway Administration's administrative processes are capricious, violate NEPA, and are consequently invalid.

The travel of the case

The parties appeared before this Court on Plaintiff's Motion for Preliminary Injunction on June 5, 2013. Following oral argument, the Court denied Plaintiff's Motion from the bench. The Court cited Ross–Simons of Warwick, Inc. v. Baccarat, Inc., 66 F.Supp.2d 317, 326 (D.R.I.1999), for the four findings that must be made if the Court is to grant a request for a preliminary injunction: 1) irreparable harm will result if the injunction is not granted; 2) the harm must outweigh the harm to the opposing party if the injunction is granted; 3) the plaintiff must demonstrate that its side is likely to succeed on the merits; and 4) the injunction will not be adverse to the public interest.

In its bench decision, the Court pointed out that because the Freedom from Tolls provision, 23 U.S.C. § 301, provided no private right of action, there was no likelihood that Plaintiff could prevail on Count I of its complaint.² See Endsley v. City of Chicago, 230 F.3d 276, 280 (7th Cir.2000). Moreover, this Court opined that the federal Tax Injunction Act, 28 U.S.C. § 1341, would likely serve to prevent the Court from interfering with the State of Rhode Island's efforts to impose taxes to support its governmental functions.

The Court ruled that Plaintiff had failed to show that it would suffer irreparable harm if the State began to impose tolls on the Bridge prior to a trial on the merits of its claims. On the other hand, the State stood to lose an estimated $4 million of revenue if it was unable to charge tolls during the busy tourist months of July and August. The Court noted that the State's interests reflect those of the public, as set forth by the General Assembly in the legislative findings incorporated in The East Bay Bridge System Act of 2012, R.I. Gen. Laws §§ 24–172, which stated, inter alia:

(6) The State has sufficient financial resources to complete the construction of the new Sakonnet River Bridge and to demolish the existing Sakonnet River Bridge, but does not have sufficient financial resources to assure future maintenance and operation of the Sakonnet River Bridge.

Plaintiff appealed the Court's ruling to the First Circuit Court of Appeals the following day, and hearings on other pending motions were temporarily postponed.³

Plaintiff filed a Motion for an Injunction pending its Appeal, which was denied by the Court on June 27, 2013, based on the same reasoning articulated from the bench on the motion for preliminary injunction. In July, Plaintiff withdrew its First Circuit appeal, with Defendants' assent. On October 16, 2013, Plaintiff's Motion to file a Second Amended Complaint came on for hearing before this Court. Plaintiff argued that it must be permitted to add a Count III to its complaint, alleging that Defendants' plan to use revenues from the Sakonnet River Bridge to help maintain highway facilities throughout the State was in violation of 23 U.S.C. § 129(a)(3), which section sets forth the permissible uses for toll revenue on federally-funded projects. The motion to add the...