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Originally published Thursday, September 16, 2010 at 7:19 PM

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Rail foes challenge I-90 plan

Bellevue mall developer Kemper Freeman and others brought a case before the state Supreme Court on Thursday to try to block the state from selling the center lanes of the Interstate 90 floating bridge to Sound Transit to hold a light-rail line.

Seattle Times transportation reporter

OLYMPIA — As long as the Interstate 90 floating bridge serves highway traffic, it's unconstitutional for Washington state to sell the center lanes to Sound Transit, opponents argued Thursday before the state Supreme Court.

Several justices appeared intrigued by this latest challenge to the regional light-rail program, brought by Bellevue mall developer Kemper Freeman, trucking supporters and the pro-roads Eastside Transportation Association.

Sound Transit argued that it will reimburse the Department of Transportation by paying for two carpool lanes, to replace the two express lanes that would be closed for light-rail construction in five years.

Voters approved the I-90 route two years ago as part of a sales-tax increase to fund the new East Link line from Seattle's International District/Chinatown Station to downtown Bellevue and Overlake by the early 2020s, as well as lines to Lynnwood and north Federal Way.

The cost of the east line was estimated at $2.6 billion.

That vote wasn't even mentioned in court Thursday. Instead, the arguments focused on whether the state Department of Transportation has constitutional authority to make a $153 million, 40-year deal with the regional transit agency.

The state constitution requires that gas taxes be devoted to highway purposes. Phil Talmadge, a former Supreme Court justice and attorney for rail opponents, argued that at 142,000 vehicles a day, the bridge is certainly not surplus — and therefore, a sale or lease is forbidden.

"For the state to argue the center lanes are no longer needed for highway purposes, it almost fails the straight-face test," he said.

Justice Richard Sanders mentioned that he drove across Lake Washington when the center I-90 lanes were closed for maintenance, and "it was the most terrible gridlock I've ever seen."

However, Chief Justice Barbara Madsen wondered if it was proper for the court to even rule, as there is not a final sale of land under way. Talmadge pointed to an August statement of intent between the state and Sound Transit. Bryce Brown, senior assistant attorney general, argued that the state is allowed to lease its lands as part of its role to administer state highway funds.

Justices mentioned the concept of "deference" — meaning that Washington courts have supported local government's right to make judgment calls, such as whether a project serves a public need, or where land should be condemned for construction. Talmadge answered there's no deference if a deal is unconstitutional.

Sound Transit's chief counsel, Desmond Brown, explained the new carpool lanes would be finished using Sound Transit's money, so that by the time light-rail construction blocks the center roadway in 2015, there will still be the same eight total road lanes.

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"The only result is that you can move more people, and you have the same number of traffic lanes available," he said of the benefit of having eight traffic lanes plus light rail on the bridge.

He also displayed language from multigovernment agreements in 1976 and 2004 saying I-90 would be available for rail transit. The entire I-90 crossing from Seattle to Bellevue cost about $1.5 billion, predominantly federal money, two decades ago, DOT officials said Thursday.

After the hearing, Bryan Boehm, representing American Container Transport of Ellensburg, said trucking would be more difficult, as some bridge lanes will be narrowed from 12 feet to 11 feet.

The court sometimes takes months to issue an opinion.

The agency has prevailed against other high-profile legal threats — by winning the power to collect taxes indefinitely to cover more than $1 billion in cost overruns in the early 2000s; beating initiative promoter Tim Eyman so the transit car-tab tax will stay in effect until 2028; and fending off a federal case claiming it discriminated against minority communities in Rainier Valley by running trains along the ground instead of in a tunnel.

Mike Lindblom: 206-515-5631 or mlindblom@seattletimes.com

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