Washington State Department of Transportation;Paula Hammondin HER OFFICIAL CAPACITY AS

Washington State Department of Transportation;Paula HammondIN HER OFFICIAL CAPACITY AS SECRETARY OF THE WASHINGTON STATE DEPARTMENT OF TRANSPORTATION;

WASHINGTON STATE DEPARTMENT OF ECOLOGY; TED STURDEVANT IN HIS OFFICIAL CAPACITY AS DIRECTOR OF THE WASHINGTON STATE DEPARTMENT OF ECOLOGY; WASHINGTON STATE OFFICE OF THE TREASURER; JAMES MCINTYRE IN HIS OFFICIAL CAPACITY AS STATE TREASURER; THE CITY OF SEATTLE, A MUNICIPAL CORPORATION; RICHARD CONLIN IN HIS OFFICIAL CAPACITY AS CITY OF SEATTLE COUNCILMEMBER; TOM RASMUSSEN IN HIS OFFICIAL CAPACITY AS CITY OF SEATTLE COUNCILMEMBER; BRUCE HARRELL IN HIS OFFICIAL CAPACITY AS CITY OF SEATTLE COUNCILMEMBER; NICK LICATA, IN HIS OFFICIAL CAPACITY AS CITY OF SEATTLE COUNCILMEMBER; TIM BURGESS IN HIS OFFICIAL CAPACITY AS CITY OF SEATTLE COUNCILMEMBER; SALLY BAGSHAW IN HER OFFICIAL CAPACITY AS CITY OF SEATTLE COUNCILMEMBER; SALLY CLARK IN HER OFFICIAL CAPACITY AS CITY OF SEATTLE COUNCILMEMBER; JEAN GODDEN IN HER OFFICIAL CAPACITY AS CITY OF SEATTLE COUNCILMEMBER;PETER HAHN IN HIS OFFICIAL CAPACITY ASDIRECTOR OF THE SEATTLE DEPARTMENT OF TRANSPORTATION; CITY OF SEATTLE DEPARTMENT OF PLANNING AND DEVELOPMENT; DIANE SUGIMURA IN HER OFFICIAL CAPACITY AS DIRECTOR OF THE DEPARTMENT OF PLANNING AND DEVELOPMENT.

is the Secretary of the Washington State Department of Transportation and its Chief Executive Officer. She is appointed by the Governor and serves at the pleasure ofthe Governor.

Defendant/respondent Office of the State Treasurer is responsible for facilitating the origination and placement of bond issues which provide funding for the SR 99 Alaskan Way/Deep Bored Tunnel Project. Defendant/respondent James McIntyre is the State Treasurer and is an elected official.

Defendant/respondent Washington State Department of Ecology (“DOE”) is an agency of the State of Washington and one of the State agencies that in concert with WSDOT is facilitating the construction of the deep bored tunnel project through permitting procedures and schemes. Defendant/respondent Ted Sturdevant is the director of the DOE. He is appointed by the Governor and serves at the pleasure of the Governor.

10. Defendant/Respondent City of Seattle, a municipal corporation, one, sponsored and adopted the decision identified at Paragraph xx, and two, is one of the lead agencies for the development of a replacement for the SR99-Alaskan Way Viaduct through downtown Seattle. Defendant/respondent Richard Conlinis an elected City of Seattle Councilmember. Defendant/respondent Sally Bagshaw is an elected City of Seattle councilmember. Defendant/respondent Tom Rasmussen is an elected City of Seattle Councilmember. Defendant/respondent Sally Clark is an elected City of Seattle Councilmember. Defendant/respondent Bruce Harrell is an elected City of Seattle Councilmember. Defendant/respondent Jean Godden is an elected City of Seattle Councilmember. Defendant/respondent Nick Licata is an elected City of Seattle Councilmember. Defendant/respondent Tim Burgess is an elected City of Seattle Councilmember.

11. Defendant/respondent City of Seattle Department of Planning and Development (“DPD”) is a department of the COS. Defendant/respondent Diane Sugimura is the director of DPD. She is appointed by the Mayor of Seattle and serves at the pleasure of the Mayor.

Defendant/respondent Seattle Department of Transportation (“SDOT”) is a department of the COS. Defendant/respondent Peter Hahn is the director of SDOT. He is appointed by the Mayor of Seattle and serves at the pleasure of the Mayor.

The State Environmental Policy Act (SEPA) requires that an Environmental Impact Statement be completed before government decisions are made that commit the government to a particular course of action. When SEPA's requirements are observed, government decisions are made "by deliberation, not default."[i]
This action challenges violations of the State Environmental Policy Act (“SEPA”), RCW 43.21C et seq., and the implementing regulations, WAC 197-11 et seq. in connection with Defendants’ decisions to authorize, fund, seek permits for, issue contracts for, acquire right-of-way for, pass ordinances and otherwise engage in all manner of acts for the implementation of SR 99 Alaskan Way Viaduct Replacement Project – the Deep Bored Tunnel construction project.
This action also challenges the decision on February 7, 2011 by the City of Seattle City Council to pass Council Bill 117101, an as yet unnumbered ordinance,attached hereto as Exhibit A, which authorizes legallybinding contracts to be established between the State and the City: Memorandum of Agreement No. GCA 6486 SR 99 Alaskan Way Viaduct, Property, Environmental Remediation, Design Review, Permitting, and Construction Coordination Agreement for SR 99 Bored Tunnel Project; Memorandum of Agreement UT 01476 SR 99 Alaskan Way Viaduct Replacement Bored Tunnel Project SPU Facilities Work; and Memorandum of Agreement UT 01474 SR 99 Alaskan Way Viaduct Replacement Bored Tunnel Project SCL Facilities Work for the construction of the SR 99 Bored Tunnel Project.
The Washington State Department of Transportation and the City of Seattle, the co-lead agencies and co- proponents of the Alaskan Way Viaduct and Seawall Replacement Program (AWVSRProgram),which includes the SR 99 Bored Tunnel Project, have been and are making a mockery of theSEPA process required for the replacement of the State Route (SR) 99-Alaskan Way Viaduct. The Final Environmental Impact Statement for the project has not been completed and, according to WSDOT and the COS, it will not be completed until approximately June, 2011. Until the Final EIS is completed, WSDOT and the COS (and the respective departments within both) are precluded from making decisions which pre-judge the choice among alternatives being analyzed in detail in the Final EIS.
Since January, 2009 to even date WSDOT, the State Treasurer, the State Department of Ecology, and the COS are also devoting millions of dollars worth of personneland financial resources to implement the SR 99 bored tunnel alternative. The State Treasurer for example has initiated and sold bond issues for over $1.9 Billion on the basis that the proceeds will be used to construct the bored tunnel in the city of Seattle.
WSDOT recently initiated and completed a procurement process to select a Design-Builder to design and build the tunnel. The process has resulted in the selection of a Design-Build contractor before the Final EIS is completed. The City of Seattle ratified that selection on February 7, 2011 through Council Bill 117101.
The selection of a Design-Build contractor for the tunnel and the devotion of other substantial resources to develop the tunnel, at a time when similar resources and decisions are not being committed to the other non-tunnel options, means that at the end of the environmental review process just a few months away the tunnel project will in operation have been “chosen”.

Essentially, the tunnel project willhave been underway for a two and half years time when WSDOT and the COS formally makes its “decision”.Given WSDOT and the COS's haste to proceed with a replacement for the viaduct with the tunnel, their actions have effectively preemptedany opportunity to have a legitimate and balanced decision-making process after theenvironmental analysis process is completed. WSDOT and the COS's actions effectively preclude WSDOT and the COSfrom using the results of its environmental review in its decision-making process as required bySEPA.

Because WSDOT and the COS are legally precluded from taking steps now that so significantly tilt theplaying field among the alternatives and put the tunnel in a substantially favored position,WSDOT and the COS's actions violate the requirements of SEPA and must be enjoined.

II. PARTIES

Plaintiff/Petitioner

Pursuant to RCW 36.70C.060 and common law rules, the plaintiff/petitioner has standing to bring this action as a person who has participated both orally and in writing before the defendants/respondents regarding the matters on which this complaint is based. Plaintiff/Respondent Elizabeth Campbell’s participation before both the State and the City of Seattle was reasonably related to the issues presented in this Complaint/Petition. Campbell also has standing under RCW 36.70A.280(2)(d) because she stands to be aggrieved or adversely affected by the City’s actions as defined by RCW 34.05.530; and for the following reasons:

Plaintiff/petitioner Elizabeth Campbell is a resident of Seattle and a frequent user of the Alaskan Way Viaduct; she is also interested in ensuring that a decision on a replacement forthe Alaskan Way Viaduct is made only after a full review of environmental, cost, and otherrelevant issues. Plaintiff Campbell will be adversely impacted by the construction and operation ofthe tunnel project. The tunnel will result in greatly reduced traffic mobility forplaintiff Campbell and other Seattle residents and businesses. Because of the project’s design there will be an increase in greenhouse gases and other air quality pollutants further harming the plaintiff. The project also will lead to the imposition of tolls, to an increase in property taxes, and a rise in electric utility rates, all of which will adversely affect Campbell.
The north portal of the tunnel is designed to eliminate the south bound access to the SR 99 Alaskan Way corridor now enjoyed by local residents living in Ballard, Magnolia, Queen and adjacent areas - causing delay and congestion in that high-traffic corridor. The south portal will cause increased traffic congestionand hazards to businesses, bicyclists, and pedestrians in Pioneer Square and in the stadiums’ area, theformer a fragile and significant historic neighborhood and the latter, an intense pedestrian zone.

The tunnel is designed to accommodate only two lanes of traffic each way with inadequate shouldersand safety clearances; and it does not comply with requirements for handicapped access/egress for people with disabilities. The design will create safety hazards for plaintiff Campbell and Seattle-area drivers. The design will lead to further traffic congestion when accidents andbreak downs clog the tunnel.

Plaintiff Campbell is also adversely affected because there has been no compliance with SEPA which requires that the State and the City of Seattle and other decision-makers consider the adverse environmental impacts from the tunnel project. If there was SEPA compliance plaintiff/respondentall of the alternatives in addition to the tunnel alternative would “be on the table”, would be equally being reviewed; and would have a high probability of being chosen over the tunnel alternative.

These multiple adverse impacts to Elizabeth Campbell provide her with a sufficient interest and standing to bring this action.

Defendants/Respondents

All of the below named defendants/respondents are required to comply with all of the requirements of the Growth Management Act Chapter 36.70A RCW (GMA) and the State Environmental Policy Act Chapter 43.21 RCW (SEPA).

Defendant/respondent Washington State Department of Transportation is anagency of the State of Washington and one of the lead agencies for the development of a replacement for the SR 99-Viaduct through downtown Seattle. Defendant/respondent PaulaHammond is the Secretary of the Washington State Department of Transportation and its Chief Executive Officer. She is appointed by the Governor and serves at the pleasure ofthe Governor.

Defendant/Respondent City of Seattle, a municipal corporation, one, sponsored and adopted the decision identified at Paragraph xx, and two, is one of the lead agencies for the development of a replacement for the SR99-Alaskan Way Viaduct through downtown Seattle. Defendant/respondent Richard Conlinis an elected City of Seattle Councilmember. Defendant/respondent Sally Bagshaw is an elected City of Seattle councilmember.Defendant/respondent Tom Rasmussen is an elected City of Seattle Councilmember. Defendant/respondent Sally Clark is an elected City of Seattle Councilmember. Defendant/respondent Bruce Harrell is an elected City of Seattle Councilmember. Defendant/respondent Jean Godden is an elected City of Seattle Councilmember. Defendant/respondent Nick Licata is an elected City of Seattle Councilmember. Defendant/respondent Tim Burgess is an elected City of Seattle Councilmember.
Defendant/respondent City of Seattle Department of Planning and Development (“DPD”) is a department of the COS. Defendant/respondent Diane Sugimura is the director of DPD. She is appointed by the Mayor of Seattle and serves at the pleasure of the Mayor.

III. FACTS

WSDOT is the owner of the Alaskan Way Viaduct. The City of Seattle owns the right-of-way that is under the Viaduct.
The Alaskan Way Viaduct section of SR 99 is a primary north-south route through the city of Seattle as well as providing intra-city access for the Ballard, Magnolia, Queen Anne, Interbay, Downtown, and West Seattle districts of Seattle. It is a highway of statewide significance, and it is an essential public facility.
The 2001 Nisqually earthquake slightly damaged the Viaduct. WSDOT temporarily shut the Viaduct down following the earthquake.Minor repairs were made and the viaduct was reopened with roadway restrictions for heavy trucks that remain in effect today. WSDOT performs twice yearly inspections of the Viaduct and has found minimal settling of the structure since the 2001 Nisqually earthquake.
In 2004, WSDOT and the COS issued a DraftEnvironmental Impact Statement. The Draft EIS (DEIS) included an evaluation of five alternatives: arebuilt viaduct, a new aerial structure, a single-level cut-and-cover tunnel, a bypass cut-and-cover tunnel, and a six-lane surface boulevard. WSDOT, the COS, and the Federal Highway Administration selected the cut-and-cover tunnel as thepreferred alternative.
In 2006, WSDOT and the COS released a Supplemental Draft EIS (SDEIS) that focused on two alternatives: a cut-and-cover tunnel and an elevated structure.
There was no analysis of a deep bore tunnel in the 2004 DEIS, i.e., the project that WSDOT and the COS now seeks to build,or inthe subsequent SDEIS issued in 2006. In fact, the 2006 SDEIS again focused on two alternatives: a cut-and-cover tunnel and an elevated structure.
In 2007, an advisory vote was held in Seattle, calling for an up or down vote on asurface-tunnel hybrid and an elevated structure. Nearly 70 percent of the electorate voted against the tunnel option.
In 2008, WSDOT and the COS, the City of Seattle, and King County worked to develop a solution for a central waterfront section of the Alaskan Way Viaduct. Their work was informed by input from a range of handpicked "stakeholders" (e.g., leaders of the downtown business community, labor, and environmental organizations).
The agencies and stakeholders developed eight scenarios. These scenarios covered a range of options, from a smaller road along the central waterfront and significant investments in transit and surface streets, to bypass roadways with fewer transit and surface street investments.
In December, 2008, the agencies and stakeholders narrowed down the acceptableoptions to two hybrid scenarios: an "Hybrid I-5/surface/transit" alternative and an "Hybrid SR 99 elevated bypass" alternative. According to WSDOT and the COS's website, these two hybrid options included the best elements from the previous eight scenarios, including improvements to 1-5, surface streets, and transit.

Each of thepreferred options was determined by WSDOT and the COS to be technically feasible and lower cost than thebored tunnel proposal.

On December 11, 2008, the three agencies, with the support of the broad stakeholder group, recommended these two options and forwarded them to the chief executive officers (the Governor, the County Executive, and the Mayor) for decision.
In January of 2009, Governor Christine Gregoire, King County Executive RonSims, and Seattle Mayor Greg Nickels rejected the year-long work of their staffs and the stakeholder group, and instead signed a joint letter endorsing a deep bore tunnel beneath downtown Seattle as their preferred option.

The letter was carefully crafted to acknowledge that no decision was being made – that was, ostensibly, only a recommendation. "We have decided jointly that a four-lane bored tunnel, together with improvements to city streets, the city waterfront, and transit, is the recommended alternative for replacing the existing viaduct, referred to as 'TheProject.'"(emphasis supplied).

The reference to the bored tunnel as a “recommended alternative” was appropriate in January 2009 because the EIS was not yet complete. Until the EIS is complete, neither WSDOT, the COS, nor any of the other state or local agencies may lawfully make a formal decision or take other steps that would prejudice or pre-judge the decision.
However, while the January 13, 2009 letter was carefully crafted to parrot the agencies' legal obligations, subsequent words and deeds have deviated from those legal requirements. For instance, despite that it will take more than a few months from now to complete the environmental review process, various State and COS officials have been proclaiming since mid-2009 that the decision to build the bored tunnel has been made and will not be revisited.
The elected State and City officials and executive heads of the above departments/agencies should know that decision-makers have to keep an open mind regarding all alternatives being considered in the EIS until that document is published and its analysis can be utilized in the process of making a final decision.
Currently the State of Washington’s agencies, WSDOT, the Department of Ecology, the Treasurer’s Office, and the City of Seattle’s Department of Planning and Development and Seattle Department of Transportation are all taking significant steps to advance the tunnel project. Those steps are at the expense of keeping an open mind regarding the full range of alternatives that are supposed to be analyzed in the Final EIS.
On September 15, 2009, WSD0T issued a Request for Qualifications (RFQ)The RFQ states that,"the issuance of the Final EIS is scheduled for January 2011,and the issuance of the ROD [Record of Decision], which completes the NEPA process, is scheduled for March 2011."
The RFQ/RFP procurement process resulted in a "short list" of four qualified companies to submitAlternate Technical Concepts to WSDOT; two of the four did just that. On December 23, 2010WSDOT selected the "best value proposal" submitted to it. On January 6, 2011 WSDOT entered into a design-build contract for the SR 99 Tunnel Project with the best value proposer, Seattle Tunnel Partners.
On February 7, 2011 the City of Seattle adopted Council Bill 117101 which establishes that “the AWVSR Program (Program) consists of a four-lane bored tunnel and improvements to City streets” (MOA No. GCA 6486 Page 2, Line 8).
From December, 2008 to even date, February 8, 2011, both the State of Washington and the City of Seattlehave undertaken a range of actions in order to implement their decision to proceed with the deep bored tunnel project. Those include but are not limited to selecting the tunnel contractor and now the ratification of that on February 7, 2011 by the City of Seattle through their adoption of Council Bill Number 117101;the deep bored tunnel is the de facto choice to replace the Alaskan Way Viaduct.
In June 2011, the Final EIS is scheduled to be published. After the Final

EIS is published, WSDOT, the COS, and other decision makers are supposed to undertake a good faithevaluation of the various alternatives and make a decision as to which alternative will be pursued. However, the two alternatives from the 2004/2006 environmental impact statements will not be competing on an even playing field as of that date. Onealternative, the deep bore tunnel, will be "ready to go."