Michigan DOT moves to build missing ramp as local media picks up on its obstructionism - FHWA made scapegoat ADDITION

Now exposed as a principal obstructionist in the Gateway Project, Michigan Department of Transportation is at last moving to build the  S32 missing ramp that the local press had previously hung on the bridge company. MDOT says in a statement that it will begin work on the ramp "within several weeks" and it should be completed before Memorial Day holiday weekend.

The state is "expediting a contract for the work," the statement says.

Until the local media picked up on the fact that the ramp is a missing MDOT ramp, rather than a missing DIBC (bridge company) ramp, MDOT made no moves to complete the S32. So long as its unfinished status was being blamed on the bridge company it served the department's purposes well in its campaign to vilify, to fine, and to jail bridge company officials.

The last part isn't quite right. MDOT officials thought the Jailin Judge Edwards went rather too far sending bridge company people to jail January 12. The judge who previously served them well now faces the prospect of serious defeat in the appeals court for playing so fast and loose with due process.

MDOT may lose Judge Edwards

MDOT risks the prospect of a non-partisan judge being given the Gateway case in place of Jailin Judge Edwards who exudes a loathing of bridge company people, and has always given MDOT everything it wanted.

No longer useful as a 'stick' to beat DIBC that missing S32 ramp is now to be finished with the last of the steel I-beams and given its concrete deck. S32 will plug into the S02 ramp completed by the bridge company to the extent of DIBC property last fall.

MDOT has rolled out a couple of excuses for not performing its obligations under the Gateway Plaza contract, by long leaving the S32 ramp unfinished.

First we were told it was because MDOT did not have legal title to the land and couldn't install the needed piers for the southern end of S32. But legal title had not been asked for until recently. Since 2007 MDOT has had the right to install the piers and to other work on S32 under a "customary easement" or right of access.

We've got a copy from a letter from the state attorney general's transportation division as late as August last year saying the easement is sufficient. There was also a court order for a customary easement or access rights, no suggestion property had to be 'deeded' or granted.

Stall, blame, stall, blame, switch, blame, flip, stall, blame, switch again, double back, blame - perfected prevarications

MDOT didn't want to accept that easement because it would require the work to be done and the ramp opened by a specified date. The department didn't want to be held to a deadline because the lack of the ramp was a useful 'stick'. Deadline conditions would deprive it of such a stick.

Judge Edwards, no less, issued an order for easement rights August 11, 2011 without any deadline conditions - to oblige MDOT.

Then MDOT changed their tune and said they had to have the property deeded to them.

Actually back in March 2007 a formal certification was issued stating: "This certifies that MDOT has legal and physical possession of all right of way required for this project."

An exception was two landlocked properties owned by Walter Lubienski since acquired, and which didn't affect the S32 ramp anyway. It authorized the project to proceed while keeping off the Lubienski properties, and the certification concluded: "All ROW (right of way) was acquired in accordance with FHWA (rules.)"

When MDOT asked for more property for the S32 rather than using the available easement rights DIBC agreed. But MDOT wouldn't accept Yes for an answer and kept stalling by failing to specify exactly what should be deeded and how. (Great work for lawyers all along here.)

That was finally sorted out last year, but there was still no movement by MDOT to build the missing S32.

Feds invoked now

Now FHWA is invoked as the reason for the delays - although back in 2007 MDOT formally certified it had all the property needed in accord with federal rules.

The feds as the reason for the delays in the S32 ramp doesn't pass a laugh test. S32 is a 2-lane four span elevated ramp over five sets of piers. For many months it has been built with four of the five needed piers and with steel girders over three of the four spans. Only thing they haven't started on is the deck.

You get this far - about two-third built - then worry about land titles and a federal permit? Not likely.

If titles and permits are a genuine worry you don't let the contractor start work as he clearly did on the S32.

Clearly MDOT halted work on S32 to put pressure on the bridge company, knowing it had a one-eyed local media and a  judge who'd all play along together with blaming the villain bridge owner Matty Moroun for the unfinished S32.

Jeff Cranson head of communications at MDOT told us: "We don't have any motive to delay this project."

But they do.

A very strong motive.

In the past three or four years MDOT have completely embraced the downstream bridge project called DRIC or NITC and instead of partners they see DIBC as rivals. There was no DRIC project back when the Gateway project was hatched 15 years ago.

The whole rationale of the Gateway project when the contract was signed in 2004 was to make the best of the investment in the Ambassador Bridge, to make that bridge work more efficiently with more space for border processing and with better connections to the big  I-75/I-96 expressways.

Second span central to Gateway concept

Also to provide for a second span right alongside the old.

Facilitating a second span alongside the Ambassador is the second of the three major objectives listed in the 2004 contract for the Gateway Project Gateway project.

MDOT obstructionist

MDOT is a the principal obstructionist of the Gateway contract - making change after change in what they say they want, blocking ramps with Jersey barriers and leaving ramps like S32 half built, and litigating endlessly. They've decided they don't like the contract they signed in 2004 and they're trying every way to avoid implementing it. They see the bridge company now as more a rival than a partner. So the more expense they can force on the company for rebuilds and tear-downs the better.

The local media and the judge have bought into the fantasy that the Contract of 2004 was a commitment by DIBC to a set of blueprints that DIBC has been trying ever since to avoid building to. There never were blueprints in the original contract. It was a contract to work together and it divided territorial responsibility. It made DIBC the primary designer and implementer of its plaza part and MDOT primary decisionmaker in the public domain just off the I-75.

They were cast in the contract as equal partners obliged to consult and get the approval of one another, mostly to provide good connections. The contract was never, as local media shills for MDOT suggest, a matter of the company being obliged to do whatever the department tells it to do.

Former FHWA chief counsel speaks on the dispute

Marcus Lemon former chief counsel at FHWA who has been following the case from the McKenna Long law firm says he hopes that FHWA and MDOT's agreement to move forward with the missing ramp is a sign of a more constructive approach. He says the local courts and the media have exacerbated the conflict, not even attempting to be fair as between the bridge company and the department.

He says there is a lack of leadership at all levels in Michigan presently that puts issues in the courts that are far better settled by negotiation between respectful equals.

"I would like to see someone in a position of authority, such as a member of the Legislature, or another intermediary, step up and take the lead to bring the parties together face to face to resolve the issues at hand. We need a setting in which there can be some give and take.

"It must be possible to bring this whole Gateway controversy to an acceptable conclusion without such passion and courthouse drama."

Lemon says there is large excess capacity at the existing Michigan-Canada crossings and no financial or political prospect for an expensive new bridge downriver. So, he says, the need is to work together on affordable measures to improve existing bridge operations.

ADDITION - comment by Michigan DOT

Michigan DOT spokesman Jeff Cranson:

"We of course want the entire Gateway project to be running and functional and, now that we have the land promised since 2006, will do our part. If the other party in the contract does theirs, yes, everything will be open.

"Surely you understand that significant federal dollars are at stake and not doing things according to their terms and the contract terms could put the FHWA money in jeopardy. It was their exception this week that allowed the State of Michigan to go ahead and build the ramp. Perhaps you have sources there who can explain.

"We are eager to give the taxpayers what their $230 million paid for. The state never would have entered this contract if they didn't want to provide a safer, more efficient means for travelers and commerce to use the bridge."

TOLLROADSnews 2012-01-26 ADDITION Jan 27 16:00