Portsmouth to highway officials: We still think bridge tolls illegal

Letter to state, federal agencies keeps town’s legal options open, manager says

By Jim McGaw
Posted 1/22/19

PORTSMOUTH — The tolls are long gone from the Sakonnet River Bridge, but that doesn’t mean they couldn’t return some day.

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Portsmouth to highway officials: We still think bridge tolls illegal

Letter to state, federal agencies keeps town’s legal options open, manager says

Posted

PORTSMOUTH — The tolls are long gone from the Sakonnet River Bridge, but that doesn’t mean they couldn’t return some day.

With that in mind, the Town of Portsmouth is seeking to keep its legal options open if push comes to shove over any re-emergence of a vehicle levy to cross over the span connecting Portsmouth and Tiverton.

In a Jan. 18 letter addressed to state and federal highway officials, Town Administrator Richard Rainer, Jr. formally reiterated what local officials first declared back in 2013: The implementation of tolls on the bridge are illegal under federal law.

The letter was addressed to Carlos C. Machado, the division administrator of the Federal Highway Administration (FHWA); Peter Alviti, Jr., director of the R.I. Department of Transportation (RIDOT); and Buddy Croft, executive director of the R.I. Turnpike and Bridge Authority (RITBA).

On Tuesday, Mr. Rainer said the letter was a “purely administrative” move in order to preserve the town’s ability to file suit under the federal Administrative Procedures Act (APA) to prevent any future tolls.

“It’s because the statute of limitations runs out in April, so we had to get the letter out,” Mr. Rainer said. “Once that statute of limitations window closes, we’’ll never be able to redress this again.”

Town Solicitor Kevin Gavin has brought the issue to the Town Council’s attention, he said. 

“I don’t think there’s any concern that this could happen, but we’re keeping our options open. We don’t ever want to be in the position that we can’t redress this,” said Mr. Rainer.

Town’s position

The town first made its position clear in a March 15, 2013 letter to FHWA and RIDOT, stating that the tolls then proposed for the new Sakonnet River Bridge were illegal under the “freedom from tolls” provision of the Federal Aid Highway Act (FAHA), and in violation of the National Environmental Policy Act (NEPA) and applicable federal regulations. 

“Neither FHWA nor RIDOT acknowledged or responded to the letter,” Mr. Rainer stated in his Jan. 18 letter.

On April 22, 2013, FHWA issued a revised record of decision (ROD) — “without mentioning the legal issues raised by the town,” Mr. Rainer pointed out — that approved the implementation of tolls on the bridge. 

The town then sued FHWA, RIDOT and RITBA in U.S. District Court, challenging the legality of the tolls. The court ruled that the town’s claims for injunctive relief and restitution became moot when the state decided in 2014 to discontinue a toll on the bridge, a judgement that was affirmed by the First Circuit Court of Appeals in February 2016.

The merits of the town’s claims, that the tolls were illegal under the FAHA and/or NEPA, were also not addressed by the federal court, Mr. Rainer stated in his letter.

The revised ROD from April 2013, then, still keeps the door open for future tolls on the bridge, the administrator said.

“Although there is no toll being charged at the present time, RIDOT and RITBA continue to have the requisite federal authority to reinstitute tolls at any time in the future, in the event the governor and General Assembly decide to do so,” Mr. Rainer stated in the letter.

Under the APA, the town may bring legal action over the revised ROD and its granting of federal tolling authority. However, any suit would have to be filed before the six-year statute of limitations expires in April, he said.

“The town is not comfortable with simply assuming or hoping that the state will not — once again — change its mind about charging and collecting tolls on this bridge,” Mr. Rainer stated in the letter.

The letter requests that FHWA issue and publish in the Federal Register a formal notice that revokes the April 2013 revised ROD, and asks for a response by Feb. 8, 2019.

“If we do not receive a response, we will have to assume the town’s request for rescission is denied and that your intent is to keep the federal tolling authority intact, in order to preserve the prospect of the state reinstitution tolls on this bridge,” Mr. Rainer stated in conclusion.

The new Sakonnet River Bridge replaced the original 1956 span in 2012. While a toll of up to $5.25 per vehicle was originally proposed for the new span, a 10-cent levy was implemented beginning in August 2013.

In the face of mounting local opposition, the toll eventually ceased altogether in June 2014, and the tolling gantry was removed in February 2016.

Sakonnet Bridge, Sakonnet River Bridge

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