Peace Bridge Chronicles #57
Border Law
by Bruce Jackson
Some background
It was supposed to be simple, like most other major public works construction projects around here: a small group of people meeting in private decided what they wanted to do, how they wanted to do it, who would profit from it, then the construction would go ahead and then everybody would move on to something else; somewhere along the line the public would be informed about what was being done to them, to their environment, to their community.
In this particular case, it was the Buffalo and Fort Erie Public Bridge Authority deciding long before going public with their plans that they would put up a steel bridge alongside the current 75-year-old bridge, using pretty much the same technology and adopting pretty much the same design as the older bridge. They held some sham design hearings, then announced the conclusion they'd reached long before.
Buffalo architect Clint Brown and businessman Jack Cullen said with all the money this was going to cost, the PBA should take a deep breath and rethink the whole thing: this might be an opportunity to build something really beautiful. UB architecture dean Bruno Freschi, working with San Francisco bridge designer T.Y. Lin, came up with the sort of thing Brown and Cullen had been talking about: a design for a beautiful, soaring, cable-stayed, single-pylon bridge made of concrete, using the most modern materials and technologies.
The PBA said, Too late, you should have made your suggestions earlier. People said, How could we, when you’d made up your mind about what you were going to do before the first public meeting was held, and when you dismiss out of hand every suggestion not your own? The PBA said, Too late, too bad.
But something happened this time that was different from the other times the rich and powerful guys had their way with the city. A huge groundswell of opposition developed, and it didn't go away.
The New Millennium Group took on the bridge as a major public interest project. The Buffalo News ran editorials saying that a signature bridge would be a better idea than what the PBA had in mind, but the PBA had the responsibility for all this so the New Millennium Group and all the other people asking for something better should just let this one go. Artvoice, a weekly newspaper, took exactly the opposite position: it published dozens of articles by a half-dozen authors challenging the PBA on aesthetic, economic, political, environmental and other grounds. Every time the Buffalo News editorial page said "roll over," Artvoice said, "stand up." Every time the Buffalo Niagara Partnership (the former Chamber of Commerce) urged immediate construction of the anachronistic steel bridge, the New Millennium Group's Bridge Action Committee urged people to look at the implications of hundreds of thousands more diesel trucks with their engines idling in a residential neighborhood, the foolishness of duplicating an ugly and anachronistic design, and the need for public participation. Andrew Rudnick, the Partnership's CEO, kept saying that citizens should stop interfering in things that were none of their business; Jeff Belt, spokesman for the New Millennium Group kept saying that if citizens didn't interfere the businessmen would romp over them one more time.
The Margaret L. Wendt Foundation, the Community Foundation, the City and the County, contributed money to set up the Public Consensus Review Panel. The PCRP hired consultants and had hearings about all the things the PBA was trying to avoid. The PBA refused to have anything to do with the PCRP until it seemed a legal judgment was going to go against it, at which point it seemed to join but in fact worked very hard to make a mess of the PCRP's work.
The PBA came up with a scam to make the legal part easier than it otherwise would be: they said that the bridge construction work and the consequent work on the US plaza and connecting roads were two separate projects. They got a finding of "no significant impact" from the US Coast Guard, which, they said, meant they did not
have to do an environmental impact study [EIS] before starting construction on the bridge. That meant they did not have to talk or listen to any citizen concerns. They did not have to respond to anybody. They would, they said, do an EIS when they got to the plaza and roads. That, opponents pointed out, locked everything down: once a bridge was up there would be no choice about the plaza and roads.
The City of Buffalo refused to give the PBA the easements it needed to begin construction. The City and the Episcopal Church Home both sued the PBA, saying that the bridge and plaza projects were not two separate activities, they were one big project and they should therefore be subject to New York environmental law. The PBA, in turn, sued the City for the easements. Judge Eugene Fahey threw out the PBA's suit and agreed totally with the City and Episcopal Church Home. He said the segmentation was a fiction, that the PBA had to obey New York environmental law, which meant they had to do an environmental impact study. Which meant the people had to be heard.
At first, the PBA board resolved to fight Judge Fahey's decision. Before and after his decision came down they spent a huge amount of money on a newspaper, radio and television disinformation campaign (similar to what Kaleida Health did before it came to the current cease-fire with the Children's Hospital physicians).They hired a new batch of lawyers from New York City, who told them they didn't stand a chance of getting it thrown out. PBA chairman Victor Martucci, who had been a fervent advocate of the steel twin span, convinced the rest of the board that there was no point continuing the fight, that the only rational course was to stop warring with the community and to do the EIS.
Vincent “Jake” Lamb, who had been a vice president of Parsons design, the PBA’s principal consultant, was put in charge of the environmental impact study, which formally began its work on 1 January 2001. Things changed immediately. Instead of keeping everything secret from the public, the public was invited to take part in committees, panels and hearings. Lamb set up consultant groups with so many respectable and respected participants no one has suspected them of being bought off or fixed. I don't know anyone who has ever caught Lamb lying or distorting or misleading. Even some of the PBA’s fiercest opponents trust Jake Lamb. I trust Jake Lamb.
What's going on now
The consultant panels are meeting. Air quality, noise levels, and bird migration patterns are being studied and monitored. Traffic modeling is ready to make what-if analyses on some of the 50 bridge alternatives that have been suggested thus far. Things are moving more or less on schedule. Lamb's team came up with a draft scoping document – a statement of what the EIS is supposed to accomplish and what the alternatives might be. The City of Buffalo is scheduled to comment on that document on March 18 and Lamb's team promises a revised scoping document on March 28, followed by a Citizen's Advisory Council meeting on April 10 or 11, a public information meeting shortly after that, and then a meeting of the so-called "partnering group" – representatives of the PBA, the City of Buffalo and the Town of Fort Erie. Then they'll begin screening site proposals. Once they settle on one or more preferred sites, they'll start talking about actual design.
If all goes according to plan, Lamb expects to have his new bridge system in operation at least by the time the PBA had planned to have its system in operation, about eight years from now.Nothing of substance has happened yet: no design is on the table, no determination has been made where the new bridge will make land or what size it will be or what will happen to the old bridge.
Lamb says things like this: “I want to do this thoroughly, I want to do it the right way, I see the city as a partner, I’ve always seen the city as a partner, and if they’re not in it, it ain’t gonna work. Be patient. What’s important is the substance and the process is as well. So you’ve got to work through things. You can’t get emotional, upset about them.” No senior representative of the Buffalo and Fort Erie Public Bridge Authority would have thought, let alone said, anything like that two years ago.
The amazing part of all this is that in so short a time an organization that hardly anyone trusted or liked has become an organization that isn’t even on most people’s radar scope any more. Jake Lamb is in charge of the project and Paul Koessler is current chairman of the PBA board. We can sleep well tonight right? Well.... More on that later.
Reverse Processing
One of the ideas that surfaced several times during the Public Consensus Review Panel hearings was moving all the customs and immigration activities to the Canadian side. There's a lot more room for it over there, and clearing that business out of the plaza would permit restoration of the large segment of Front Park the Public Bridge Authority has incorporated over the years.
At the time – two years ago – people said it was too complex, it would take consent of two federal governments, and the unions and professional organizations of the American customs and immigration workers didn't want to work across the river. Moreover, the American agents might not be able to carry guns in Canada and they didn't want to work without their guns.
But complex things sometimes simplify over time, and what starts out in one place often winds up in another. Because of the terrorist acts of September 11, it's far easier to talk with Washington about border issues now. And the public interest that started by focusing on design of the bridge has now expanded to include, and perhaps be dominated by, desire to restore Front Park, establish access to that part of the waterfront, and develop a proper gateway to the country and the city.
Moving the customs and immigration operations to Canada, while still a complex matter, is far more a possibility than it used to be.
But there's a new impediment to it: the notion of "reverse processing" currently being lobbied for very strongly by the IBTOA, the International Bridge and Tunnel Operators Association. The idea is to have all Canadian immigration and customs operations on the American side of the river and all American immigration and customs operations on the Canadian side of the river. That way, vehicles can be checked before they go on the bridge and there are no backups on the bridge itself because once a vehicle passes through the inspection point, it's got open road across the river and into the other country.
That's all it does: reduce congestion on the bridge. Reverse processing doesn't speed anything up, it doesn't reduce congestion. It just moves where that congestion occurs from the bridge and bridge plaza to the QEW on the Canadian side and residential areas of Buffalo on this side. It uses at least as much, and perhaps more, land for the processing operation.
I've heard that it's a reaction to 9/11: the IBTOA says this will keep terrorists from blowing up bridges and tunnels in the eastern part of the Canadian-American border. If so, it's the kind of knee-jerk substitute for thinking that says we need two bridges at our location in case a terrorist or old-fashioned mad bomber blows one of them up. Like Osama bin Laden is going to hit the Fort Erie and Buffalo connection rather than the Golden Gate Bridge, the George Washington Bridge, the Lincoln Tunnel, Holland Tunnel, Queen's Midtown Tunnel, or the Verrazano Narrows Bridge. Or that he or whoever has his job at that hypothetical point in time would be smart enough to blow up one bridge but not smart enough to blow up its sister fifty feet away.
Reverse processing is one of those ideas that, like the steel twin span, seems so stupid and dysfunctional on its face that you think you must be missing something. Then you look at it and think about it and it turns out you're not: it is stupid and dysfunctional. Maybe, as with the steel twin span, somebody somewhere will make money or get job security out of this, but for most of us it's worse than what we've got now.
In the twenty years I did prison research, time and again I’d see interesting projects killed and horrible procedures initiated by prison administrators in the name of “security”. Security trumped everything: intelligence, experience, and common-sense. Raise the specter of security and all reasoned arguments are sidestepped on the spot. Almost always “security” was, so far as I could tell, a mask for laziness, incompetence, simple fear of anything new or different.
The IBTOA is lobbying for reverse processing to be the basic procedure everywhere. It might be a good idea in some locations. It might, Jake Lamb says, work perfectly well down on the Mexican border. But it's a bad idea here. Lamb says a more rational procedure would be for the whole thing to be flexible: find the method that fits the traffic and the place.
What's to be done? Lamb says if you think it's a lousy idea (it is) get on the phone and to write letters to your local, state and federal representatives (do it). He reminded the Common Council's Peace Bridge Task Force on March 14 that citizen involvement was a major reason he was standing there representing the Authority now.
Six Miles Up, Six Miles Down
He also told the Task Force that the Buffalo and Fort Erie Public Bridge Authority had what amounted to a franchise for bridge crossings on the Niagara River from where it begins at this end of Lake Erie up to the middle of Grand Island. This bit of information, buried deep in a 75-year-old piece of Canadian legislation, may dampen what ever dreams the Detroit International Bridge Company still has for setting up a money-making operation in Buffalo and Fort Erie.
DIBC is a private corporation owned by reclusive Grosse Point businessman and heavy-duty Republican party contributor Manuel Moroun. It operates the Ambassador Bridge between Detroit and Windsor, Ontario. DIBC has been making forays into this area at least since fall 1999 in the hopes of building and controlling a bridge that would replace the Peace Bridge entirely or in large part. They've made elaborate, albeit vague and airy, presentations to Buffalo citizens' groups and politicians. A year ago, they retained a local PR firm, set up a presentable Buffalo office, and hired Jim Kane (former Senator Pat Moynihan's main man in Buffalo) and Robert Knoer (a prominent Buffalo environmental attorney).
At first it seemed that they were planning on building their bridge next to the International Bridge – the railroad bridge that has its American-side landing not far from the foot of Amherst Street. They talked about how easy it would be to make connections on this side to I190 and, taking advantage of now-unused railbeds on the Canadian side, to the QEW. They had huge maps and elaborate PowerPoint programs showing all of this. The last time I saw Remo Mancini, their vice president handling the operation, he said the International Bridge site was just a for-instance, that they might put a bridge anywhere in the area, that this was all to be worked out.
They first came on the scene when the Buffalo and Fort Erie Public Bridge Authority was in their maximum stonewall mode, so several local politicians were nice to them even though there was little to suggest they were anything other than out-of-town businessmen smelling Buffalo and Fort Erie money. Senator Charles Schumer even emceed one of their presentations at the Adams Mark. I hadn't heard anything of them lately, so last week I asked Jim Kane if they were still in the game. He said they surely are.
For now, anyway. The Canadian legislation that may complicate, if not terminate, their involvement in this project goes back to this passage in the act of Parliament permitting the creation of the privately-funded Buffalo and Fort Erie Peace Bridge Company, the predecessor of the public benefit corporation called the Buffalo and Fort Erie Public Bridge Authority:
The italics are mine. Jake Lamb says the PBA's lawyers say that italicized section means the PBA has an unambiguous franchise: nobody can land a bridge on the Canadian side six miles north or south of the current bridge unless the cabinet of the Federal government of Canada decides to permit it, in which case the Buffalo and Fort Erie Public Bridge Authority would have to be fully compensated.The Company may construct, maintain and operate a bridge across the Niagara River for the passage of pedestrians, vehicles, carriages, electric cars or street cars and for any other like purpose, with all necessary approaches, from some point in Canada within the corporate limits of the village of Fort Erie at or near Walnut street in the said village to a point within the limits of the city of Buffalo, in the state of New York at or near Hampshire Street in said city, so as not to interfere with navigation, and may purchase, acquire and hold such real estates, including lands for sidings and other equipment required for the convenient working of traffic to, from and over the said bridge as the Company thinks necessary for any of the said purposes.... Provided, always, that no other bridge for a like purpose shall be constructed or located at any point nearer than six miles from the location of the bridge of the Company, except with the consent of the Company or of the Governor in Council.An Act to incorporate Buffalo and Fort Erie Public Bridge Company
13-14 George V. Chap. 74 ( Royal Assent June 13, 1923 ), Chapter 74, §7, ¶ 1)Why the franchise and why six miles? "Franchise protection for toll operators was common in Canadian and British law," Lamb said. "This protection in England was normally within one or two leagues of the bridge. We think this was the basis for Canadian Parliament choosing six miles, which is the modern equivalent of two leagues."
I assume that if Manuel Moroun and his staff intend to pursue their idea of setting up a private bridge operation here they've already got lawyers trying to figure out a way to crack the PBA's franchise. If they're not successful, the most they can hope for is to build a bridge halfway across the Niagara River, or out in Lake Erie, or the other side of the Grand Island bridge.
Eminent Domain
After all the hearings are done and all the consultant reports are submitted there will be a plan to expand capacity at the Peace Bridge. No one yet knows what that bridge will look like, where it will make land or what will happen to the current bridge. That means no one yet knows whether the current Public Bridge Authority footprint on the American side will stay exactly as it is, shrink (thereby permitting rehabilitation of Front Park), or move. If it moves, the PBA will have to acquire property.
Some speculators have bought property in the Peace Bridge plaza area, hoping that new construction will move their way and they'll make a good profit when the PBA has to buy them out. Some people who live there say they won't sell no matter what. They won't have any choice in the matter.
Privately owned real estate is nearly sacred in American law. Criminal lawyers base their work on the Fifth Amendment to the US Constitution, which entitles people to a grand jury, prohibits double jeopardy, says people can't forced to testify against themselves or be punished without due process. Commercial lawyers are more interested in the final 12 words of the Fifth Amendment: "nor shall private property be taken for public use, without just compensation."
Therein lies the rationale for the power of eminent domain, or condemnation. Private property can be taken for public use, and the state has to pay a fair price for any property so taken. So long as it pays just compensation, whatever that is, the government can take your house or factory or store when it wants to build a highway, railroad line, school, hospital, police station, or bridge plaza.If someone wants to buy your house and offers you less than you think it's worth, you can hold out a while longer. If you just don't want to sell at all because you like it here and you don't need or want the money, that's it. Everything stops right there with your decision. But if an agency with the power of condemnation makes an offer you don't like and you say "No," they just take it anyway, and they send you a check for whatever they think the place is worth. You can sue to stop them, but it's very rare that government agencies lose eminent domain lawsuits.
The question isn't whether property can be taken for Peace Bridge plaza and roadway connections – it can – but who will control that taking, who will have the power to condemn.
Lately, Jake Lamb has been having conversations about eminent domain and the Peace Bridge expansion project. It's not a hot burner issue now, he says, but at some point down the line, whatever plan is finally adapted may very well require the acquisition of property from people who don't want to sell, or who don't want to sell at a reasonable price ("My price is $25 million, not a penny less. I'm sentimentally attached to this four-room wood frame house."). Some agency will have to exercise eminent domain, otherwise the whole project could stall while complex legal proceedings work themselves out in court.
Lamb says neither he nor his employers are pushing to have the PBA given condemnation power, they just want clarification as to who will do it and how it will be done. Most people who listen to Lamb talk about it conclude that the PBA really wouldn't mind at all if it were given the power, that they would, in fact, very much like to have it because if they don't have it they'll have to get the City of Buffalo to do it for them, and they worry about their condemnation requests getting stalled in city hall bureaucracy or because of competing political interests. They think everything would be faster, cleaner, and neater if the PBA could just do it themselves.
“We are preparing some draft legislation," Lamb said. "The Port Authority of New York has it.”
He met with the Western New York delegation to talk about it. Their reaction seems positive, though guarded. (See Sam Hoyt's comments elsewhere in this issue of Buffalo Report). As soon as the subject of eminent domain went public a week or so ago, two of the PBA's former opponents, the New Millennium Group and the Episcopal Church Home – backed the idea. The reason, they said, was because Jake Lamb and PBA board chairman Paul Koessler inspired confidence and trust."While NMG does support exploring the option to grant the PBA the power of eminent domain for this project," wrote Bill Banas, chair of the NMG Peace Bridge Action Group, after reading an earlier version of this article,
Lamb says they wouldn't ask for open season condemnation rights. It would be just for this specific project. Hoyt and most people who have come out in support of the idea say the same thing: if the PBA gets eminent domain power, it must be drafted in a way that cuts it off immediately once the plaza and connecting roadways are completed.we do NOT do so based solely on blind trust in any group or individual. We're grateful for this new process and that the PBA's relationship with the community seems to have improved , but we haven't donned the rose-colored glasses just yet. In the interest of efficiency and practicality, we would support such an option only with the proper controls in place. I am interested in getting this project done – but I am even more interested in getting it done RIGHT. As always, I'm not willing to sacrifice everyting else on the altar of expediency. As I am not an expert in the legal nuances of eminent domain, I'm not exactly sure what form these controls might take – but it would be a knee-jerk reaction not to at least explore the option. If we can find a solution that buys us both expedience and integrity, I'd be stupid and hypocritical not to consider it.Some people continue to worry. "Even if it's limited to this project," one government attorney said, "you've established the precedent. Who to say they won't be back for more? It's the nose of the camel." I think he was referring to the Bedouin proverb: "Once the nose of the camel enters the tent can the rest of the camel be far behind?" Or maybe he was referring to the story that goes with the proverb: The camel sticks its nose in the tent because it's so cold outside, and then it sticks its shoulders in the tent, and then it is entirely in the tent, but the tent is small, so the Bedouin is pushed out onto the cold desert sand.
"I think eminent domain ought to remain with the city, where it is now," said former Erie County D.A. Edward Cosgrove. "It's checks and balances. That's one of the basic aspects of our system of government. Checks and balances." I said that the PBA thought it would be much slower and perhaps more complicated if these actions were routed through the city. "So what's wrong with that?" Cosgrove said.
The price of liberty
The Buffalo and Fort Erie Public Bridge Authority is composed of five Americans, three of whom serve ex officio and two of whom are appointed by the governor, and five Canadians, all of whom are appointed by the Canadian minister of transport. There have been times when some of the American representatives on the PBA seemed to be dancing to Canadian rather than American tunes. Even if we can trust Jake Lamb and Paul Koessler as much as everyone thinks, what happens when they're gone? What guarantee have we that the people running the PBA then will have Lamb's and Koessler's sense of ethics and public service rather than the patronizing and contemptuous attitudes that seemed to dominate Peace Bridge Plaza only two years ago? The Canadians are going along with the EIS – they have to – but no Canadian member of the PBA board and no Canadian politician has yet expressed anything but annoyance or contempt for the environmental, social and aesthetic concerns that have been so important on this side of the border.
"The worst thing that could be done in a case like this," Sarah Kolberg, a member of the New Millennium Peace Bridge Action Group and a New York State Assembly staffer wrote in a recent email,
When I read Sarah's comments I remembered something that happened in 1966 when I worked for the Cambridge, Massachusetts consulting firm Arthur D. Little on a narcotics policy study for LBJ's Commission on Law Enforcement and Administration of Justice. Senior officials at ADL made us take out of our report what we thought our most important recommendation: decriminalize, because law enforcement was doing more social and economic harm than the drugs were doing. The ADL vice president in charge said he would transmit the group's conclusions to the Treasury Department liaison guy directly, but if we had it in the report Treasury would get defensive and nothing would happen. (The Federal Bureau of Narcotics, then the primary Federal illegal drug law enforcement agency was located in Treasury because the legislation that made opiates controlled substances, the Harrison Narcotic Tax Act of 1914, was a tax law.) I don't know whether or not he did what he promised, but it didn't matter because very shortly thereafter the liaison guy quit Treasury to become general counsel for ComSat, the first commercial satellite operation, and even sooner after that he was killed in a small plane crash. All those recommendations, if he did know them, died with him.is to make a decision of this magnitude based on "people" not "systems." If we're going to grant the PBA eminent domain we should do it because of any potential number of reasons (ie; valid need, parity with other public authorities, etc), not because we trust Paul Koessler. Keep in mind that the Canadian half of the PBA has railroaded us for years, and continues to do so. What happens next year when it's their side that has the Chair? Either way, just because we trust Paul is not a good enough reason. Even if the next five chairs are people that we trust, what happens when there's one that we don't? We lose the rest of Front Park to make a parking lot for trucks?We have a chance to get a decent bridge here, and to get back a beautiful Olmsted park that we lost because of inattention and commodity. It's important to work with the process, to contribute to it and, most important of all, to pay attention to it. Now is no time to relax, no matter how quiet things seem. The forces of greed, idiocy, carelessness and bad taste haven't left town. They never leave town.
Some links related to this article:
The Peace Bridge expansion project website
The International Bridge and Tunnel Operators Association call for reverse processing
all the earlier articles in the Peace Bridge Chronicles
For more on eminent domain, visit the Eminent Domain Law site
Or see Dennis Bechara's article at Liberty Haven, "Eminent Domain and the Rule of Law"
go to Buffalo Report web site©2002 Buffalo Report, Inc.