Reuben Schafir

On January 4, the U.S. Court of Appeals for the First Circuit issued its long-awaited opinion on the future of the Frank J. Wood Bridge, which straddles the Androscoggin River and connects Brunswick and Topsham. Almost two months after hearing the arguments of a small group of local preservationists who have relentlessly contested the Maine Department of Transportation’s decision to replace the rapidly deteriorating bridge, the court rejected every argument made in favor of preservation except one, upholding a ruling made by the federal district court in the district of Maine last year.

Who won the case? Well, it depends who you ask.

After nearly a decade of back-and-forth over the future of the bridge, whose condition continues to worsen, the ultimate verdict may very well come down to one question: does $7.1 million constitute a sum “of extraordinary magnitude?”

Facts, and non-Facts

Nearly a decade later, however, still no action has been taken. Subsequent safety inspections have revealed further structural damage to the bridge deck. Last November, continuing corrosion led MDOT to ban all vehicles weighing more than 10 tons from crossing the bridge, delaying response times for local emergency vehicles. MDOT announced that the bridge was classified as “fracture level critical” after an inspection last fall—a designation indicating that any structural failure could cause “partial or total collapse of the bridge deck.”

After holding a series of public meetings in 2016, MDOT released mockups last summer for a replacement bridge just upstream, which includes bike lanes and sidewalks with viewing areas over the Androscoggin River on both sides. However, MDOT has so far been unable to start accepting construction bids due to a slew of legal challenges from a small local organization called the Friends of the Frank J. Wood Bridge (the Friends), who argue that the state should rehabilitate the existing bridge rather than tear it down and replace it. The Friends contend that the bridge is federally protected under the 1966 Historical Preservation Act and that MDOT has not yet proven that replacement is the only feasible option—a legal requirement to destroy a protected site.

Courtesy of the MDOT

John Graham, president of the Friends, agrees that something needs to be done to the rapidly deteriorating bridge, and quickly, but disagrees that the vehicles driving on the bridge are in immediate danger.

“The bridge is not going to fall down by any means,” Graham said. “If that bridge was not safe, they would … close that bridge down. While MDOT has that bridge open, it is safe. What may happen is if an overloaded truck crosses that bridge, its tire could punch through the deck. That does not mean the whole bridge falls down, you just have a hole in your deck. If we were even close to the risk of total collapse, I trust that MDOT would close that bridge.”

MDOT spokesperson Paul Merrill confirmed that if the department determines the bridge to be unsafe, action will be taken. MDOT will post restricted weight limits on some bridges,”  Merrill wrote in an email to the Orient. “If engineers determine a bridge is unsafe, that bridge is closed.”

Further, Graham took issue with MDOT’s decision to announce that the bridge was “fracture level critical,” leading some local outlets to conclude that the inspection had found structural damage severe enough to warrant that designation. Truss bridges—bridges whose primary superstructure consists of a single piece of metal—like the Frank J. Wood Bridge are by definition fracture level critical because any damage to their superstructure would cause collapse. Damage to the bridge deck has no bearing on that classification.

“That bridge was built in 1932 as a fracture critical bridge. It was fracture critical the day that it opened,” Graham said. “[MDOT] has been using that term because it sounds scary, but it’s just the designation—it’s always been fracture critical … There are people that I sit down with and they understand. Then there are other people who won’t cross the bridge because they’re scared it’s going to fall down.”

The Case

Represented by prominent Washington, D.C.-based historic preservation attorney Andrea C. Ferster and supported by the National Trust for Historic Preservation, the Friends brought their arguments in favor of rehabilitating the existing bridge to the First Circuit Court of Appeals last September after appealing two previous decisions by lower regional courts.

In a unanimous decision, the circuit court rejected every one of the Friends’ arguments except one, a point that called on MDOT to recalculate the estimated costs of replacement and rehabilitation using a different type of data analysis. The release of this decision on January 4 led MDOT to publish a press release the next day claiming victory in the case.

“Yesterday’s ruling affirms that there is no merit to the factual arguments the plaintiffs have been making,” the press release reads. “The Court’s opinion makes clear what MaineDOT and the Federal Highway Administration (FHWA) already knew: the cost of rehabilitating the Frank J. Wood Bridge is much greater than the cost of replacing it … we expect to be able to advertise for construction bids for the new bridge this spring.”

Local news outlets, including the Bangor Daily News and Brunswick Times Record, released stories that credited MDOT with victory in the case and the Associated Press ran a national wire story with the headline “Court sides with Maine over replacement over aging bridge.”

However, later that day, the Friends released a statement of their own claiming that they, in fact, had won the case. The release, published on the Friends’ Facebook page, was titled, “Friends of the Frank J. Wood Bridge WIN court battle!”

“The United States Court of Appeals for the First Circuit in Boston issued a narrow ruling in favor of the Friends of the Frank J. Wood Bridge, the National Trust for Historic Preservation and the Historic Bridge Foundation, reprimanding the Federal Highway Administration for the made-up ‘service life costs’ MDOT used in attempting to justify their plan to demolish the Frank J. Wood Bridge,” the press release reads.

This, of course, begs the question: who actually won? The answer, as you might expect, isn’t so clear.

The Decision

The heart of the Friends’ case centers around Section 4(f) of the Historical Preservation Act of 1966. The section states that for a protected site such as the Frank J. Wood Bridge, every possible step to preserve the bridge must be taken, and replacing the bridge is only permitted if there is “no feasible or prudent alternative.” The law defines “not prudent” as, in the context of this case, “result[ing] in additional construction, community disruption or operational costs of extraordinary magnitude.”

MDOT submitted two competing sets of plans to the FHWA in 2016. One option called for rehabilitating the bridge and the other for replacing it. The agency calculated that rehabilitation would cost $35.2 million and replacement would cost just $17.3 million. Upon reviewing these numbers, the FHWA concluded that the cost differential of $17.9 million constituted a sum “of extraordinary magnitude,” justifying replacement under section 4(f).

The Friends took issue with MDOT’s cost estimates, filing a case in 2019 that reached its conclusion last week through the appeals process. The Friends targeted a number of line-item costs (such as charging just $1 million for a temporary work trestle in the plans for replacement and a higher per-foot steel cost estimate for the rehabilitation plan than the replacement) and claimed that MDOT acted “arbitrarily and capriciously.” Most importantly, though, the Friends argued that the overarching method by which MDOT came up with the cost estimates was incorrect.

MDOT calculated the cost of the two proposals with an unusual method called service life cost, which consists of adding the estimated total costs of construction to the estimated costs of upkeep over the bridge’s lifespan for both the replacement and rehabilitated structure in order to arrive at a final value. The Friends argued that this method of cost analysis unfairly inflated the relative cost of rehabilitation, since the rehabilitated bridge would have higher upkeep costs.

The group argued that MDOT should have used the industry standard method of calculating costs, a method called life cycle cost that discounts future upkeep costs into the present, which would have the effect of decreasing the price differential between replacement and rehabilitation. The court record shows that the decision to use service life costs was proposed by a “town official with no relevant expertise and was criticized by one of MDOT’s own experts.”

The court rejected every line-item challenge brought forth by the Friends, dismissing arguments that MDOT inaccurately recorded certain item costs. However, it did conclude that MDOT acted incorrectly in using service life analysis to compute the relative costs of the two proposals. The court instructed MDOT to recalculate the costs of both options using the conventional discounted life cycle cost analysis and then to resubmit those values to the FHWA for a new decision on whether that differential constitutes a sum “of extraordinary magnitude” under section 4(f).

“MDOT has cooked the books,” Graham said. “We did win a huge victory, which we were ecstatic about. What MDOT and the FHWA based the 4(f) [decision] on is the service life cost, which the court threw out … At that point, it’s pretty clear that it’ll be lopsided heavily in favor of rehabilitation.”

Merrill declined to respond to specific questions about the case, pointing instead to MDOT’s press release about the court decision.

Based on the court’s opinion, both sides have claimed victory. And for good reason—the meaning of the ruling remains unclear.

Going Forward

In the coming weeks and months, MDOT will go back to the drawing board and recalculate the life cycle costs of rehabilitation and replacement. Based on existing cost estimates, under life cycle cost analysis rehabilitation would cost $20.8 million and replacement would cost $13.7 million.

These values will be sent to the FHWA, who will then make the decision that close to a decade of work is riding on: does the price differential of $7.1 million constitute a sum of “extraordinary magnitude?”

“Unfortunately, there is no definition of ‘extraordinary magnitude,’” Graham said. “If there was one, this would be easy … it really is a question that’s not black-and-white.”

There is little legal precedent to base any decision on. The FHWA’s section 4(f) guide admits that “deciding what amount constitutes a reasonable public expenditure for avoiding the use of a Section 4(f) property may not be simple. Nevertheless, it is not appropriate to set a single dollar amount or even a percentage of total project cost as the threshold.” In making this decision, the FHWA will be left on its own.

“There is one published court opinion from a freeway project in Hawaii where the court concluded that a $40 million cost differential was not a cost of ‘extraordinary magnitude … that was a 10 percent differential,” wrote Betsy Merritt, a Deputy General Counsel for the National Trust for Historic Preservation who testified with the Friends of the Frank J. Wood bridge.

The differential between the two cost estimates for the Frank J. Wood Bridge that the FHWA will be considering is 41 percent.

The Never-End

Sometime in the coming months, thousands of hours of work, millions of dollars and years of debate will all collapse into one singularity: a room inside an unassuming office building in southeast Washington, D.C., where the FHWA will ponder the question: is $7.1 million a “cost of extraordinary magnitude?” MDOT is sure the answer will be “yes.” John Graham is just as certain the answer will be “no.”

Until then, all we can do is wait. Each day, rusted-through needle beams continue to corrode, invisibly, below the bridge deck. Each day, the danger of a catastrophic accident edges upwards. And each day, thousands of vehicles still cross the Frank J. Wood—all of them, like the very future of the truss bridge itself, hanging in the balance.