Did planning documents for a new Maryland bridge legally obligate the state to keep funding the old drawbridge next to it?

Plain-English summary

When the State built a new high-level bridge at Kent Narrows in Queen Anne's County, it decided to keep the old drawbridge in place for local traffic rather than tear it down, and said so in the environmental planning documents required for the project. Years later, facing a budget shortfall, the State told the county it could no longer justify paying roughly $75,000 a year to maintain and operate the old drawbridge and asked the county to pick up the cost or see the bridge closed to vehicles and pedestrians. A state delegate asked the Attorney General two things: did the planning documents create a binding legal obligation for the State to keep funding the drawbridge, and would cutting that funding violate federal law protecting bicycle and pedestrian access on highway projects?

The opinion answered no to both questions. On the contract question, it found that the environmental documents were, at most, statements of the State's intent to retain the drawbridge, not an offer supported by consideration from the county, so they never formed a binding contract under ordinary contract law. On the federal statute question, it found that the drawbridge corridor was never "an existing major route" for bicycle traffic in the first place, since bicycles were barred from the drawbridge and Route 50's travel lanes by state law, and that the federal provisions the delegate pointed to either didn't apply to this project or didn't restrict funding cuts made years after the project's federal approval for reasons unrelated to bicycle or pedestrian access.

Currency note

This opinion was issued in 1991 and interpreted 23 U.S.C. §§109 and 217, related federal regulations, and Maryland contract law as they then existed. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis, including possible changes to federal highway bicycle and pedestrian accommodation requirements. Treat this page as historical context, not current legal advice. Verify the current federal highway funding statutes and Maryland contract law before relying on any specific rule described here.

Common questions

Can planning documents for a state construction project create a binding promise to keep funding something forever?
According to this 1991 opinion, generally no, unless they satisfy ordinary contract requirements. The Attorney General concluded that statements in the drawbridge's environmental planning documents were mere expressions of the State's intent, not an offer, and were not supported by any consideration from the county, so no binding contract existed.

Does federal law protect a bicycle route on a highway project from later funding cuts?
According to the opinion, not in this case. It concluded that the drawbridge corridor did not qualify as "an existing major route" for bicycle traffic under 23 U.S.C. §109(n) in the first place, since bicycles were barred from the drawbridge and Route 50's travel lanes by state law, and that a later funding decision unrelated to the original federal approval could not retroactively violate that provision.

Did federal bicycle and pedestrian accommodation rules require Maryland to keep operating the drawbridge?
No, according to the opinion. It concluded that 23 U.S.C. §217(b)(2)'s bicycle accommodation requirement for bridge replacement or rehabilitation projects did not apply, since the new high-level bridge project did not replace or rehabilitate the drawbridge's own deck, and that §217's other provisions merely authorize, rather than require, states to build bicycle and pedestrian facilities.

Background and statutory framework

In January 1984 the Maryland Department of Transportation (MDOT) submitted an Environmental Assessment for the Kent Narrows project under the National Environmental Policy Act, and in 1987 State and federal agencies issued a Finding of No Significant Impact that approved converting Route 50/301 to limited access while allowing the drawbridge to remain for local traffic, expressly leaving the question of who would fund its maintenance "to be resolved during the later stages of the project." When the State later told Queen Anne's County it could not justify continued funding, the opinion analyzed whether the planning documents formed an enforceable contract, applying the general rule from 10 McQuillan Municipal Corporations that a contract requires offer, acceptance, mutuality, and consideration, and Maryland cases including Maryland Supreme Corp. v. Blake Co. (a mere expression of intent is not an offer) and Maryland Nat'l. Bank v. United Jewish Appeal Federation and People's Banking Co. v. Fidelity & Deposit Co. (consideration is required for a binding promise). Because the county gave nothing in exchange for the State's statements about the drawbridge, and the National Environmental Policy Act itself creates no private right to enforce statements made in environmental documents (citing Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Comm'n and Noe v. Metropolitan Atlanta Rapid Transit Auth.), the opinion found no binding contractual funding obligation.

On the federal statutory question, the opinion read 23 U.S.C. §109(n), which bars federal approval of a highway project that severs "an existing major route for non-motorized transportation traffic," using the plain-meaning approach endorsed in Burlington Northern R.R. Co. v. Oklahoma Tax Comm'n, Blum v. Stenson, and Ford Motor Credit Co. v. Cenance. It found the drawbridge corridor never qualified as such a route, since §21-1205.1(a)(1) of the Transportation Article barred bicycles from the drawbridge and Route 50's travel lanes, and the nearby Bay Bridge was also closed to bicycles, and that in any event the project as approved in 1987 retained rather than severed the drawbridge, so any later severance from a budget-driven closure years afterward could not be attributed to the original federal approval. The opinion also found 23 U.S.C. §217(b)(2)'s bicycle accommodation mandate for bridge deck replacement or rehabilitation projects inapplicable, since the new bridge project did not replace or rehabilitate the drawbridge's own deck, and read §217(a) and §217(b)(1) as merely authorizing, not requiring, states to build pedestrian walkways and bicycle paths with federal highway funds.

Citations and references

Statutes:

• 23 U.S.C. §4332, cited as the National Environmental Policy Act provision under which the project's environmental planning documents were prepared
• 23 C.F.R. §§771.119 through 771.121, the federal regulations governing the Finding of No Significant Impact process
• 23 U.S.C. §§109 and 217, the federal highway-aid provisions addressing pedestrian and bicycle traffic on federally funded projects
• 23 U.S.C. §109(n), barring federal approval of a project that severs or destroys an existing major non-motorized transportation route without a reasonable alternate route
• §21-1205.1(a)(1) of the Transportation Article, barring bicycle traffic on the drawbridge and Route 50's travel lanes
• 23 U.S.C. §217(b)(2), requiring bicycle accommodation on certain federally funded bridge deck replacement or rehabilitation projects
• 23 U.S.C. §217(b)(3), limiting §217's bicycle provisions to transportation, not recreational, purposes
• 23 U.S.C. §217(a), authorizing federal-aid funding of pedestrian walkways
• 23 U.S.C. §217(b)(1), authorizing federal-aid funding of bicycle lanes, paths, or shoulders

Cases:

• Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Comm'n, 449 F.2d 1109 (D.C. Cir. 1971), federal appellate decision on judicial review under the National Environmental Policy Act
• Noe v. Metropolitan Atlanta Rapid Transit Auth., 644 F.2d 434 (5th Cir. 1981), federal appellate decision holding NEPA creates no private cause of action for statements in environmental documents
• American Medicine Spirits Co. v. Baltimore, 165 Md. 128, 133, 166 A. 407 (1933), Maryland Court of Appeals decision on the general requirements for a binding contract
• Maryland Supreme Corp. v. Blake Co., 279 Md. 531, 539, 369 A.2d 1017 (1977), Maryland Court of Appeals decision holding a mere expression of intent is not a contractual offer
• Maryland Nat'l. Bank v. United Jewish Appeal Federation, 286 Md. 274, 288-89, 407 A.2d 1130 (1979), Maryland Court of Appeals decision requiring consideration for a binding contract
• People's Banking Co. v. Fidelity & Deposit Co., 165 Md. 657, 676, 170 A. 544, 171 A. 345 (1934), Maryland Court of Appeals decision defining consideration for a promise
• Burlington Northern R.R. Co. v. Oklahoma Tax Comm'n, 481 U.S. 454, 461 (1987), U.S. Supreme Court decision on beginning statutory interpretation with the statute's plain language
• Blum v. Stenson, 465 U.S. 886, 896 (1984), U.S. Supreme Court decision cited on plain-language statutory interpretation
• Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 158 n.3 (1981), U.S. Supreme Court decision cited on plain-language statutory interpretation

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1991/Volume76_1991.pdf (this opinion appears at printed pages 398-404 of the bound annual volume; Maryland's site does not publish a standalone PDF of this opinion)

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

TRANSPORTATION

Highways - State is Not Legally Required to Fund
Maintenance of Old Kent Narrows Drawbridge

June 12, 1991

The Honorable C. Ronald Franks, D.D.S.
Maryland House of Delegates

   You have requested our opinion concerning funding for the

maintenance and operation of the old Kent Narrows Drawbridge.
Specifically, you ask whether certain language in documents prepared
in connection with the construction of the new Kent Narrows High-level
Bridge obligates the State to continue funding the maintenance of the old
bridge. In addition, you ask whether the State's discontinuance of
funding would violate provisions of federal law dealing with bicycle and
pedestrian traffic.

   For the reasons stated below, we conclude that the language

contained in the planning and environmental documents prepared in
connection with construction of the new bridge does not obligate the
State to continue funding of the old bridge, nor does the State's cessation
of that funding violate federal law.

                               I

                        Background

   Your request concerns the funding for maintenance and operation

of the old Kent Narrows Drawbridge following construction of the new
Kent Narrows High-level Bridge in Queen Anne's County. During the
planning phase preceding construction of the new bridge, State
transportation officials considered various options for relieving traffic
congestion on the drawbridge. One option, which was not selected,
would have resulted in the demolition of the drawbridge and the
construction in its place of a new high-level bridge. The option
ultimately selected provided for the retention of the drawbridge and the
construction, in a different but nearby location, of the new high-level
bridge. The various options considered are described in detail in
planning documents prepared pursuant to the National Environmental
Policy Act, 23 U.S.C. §4332.

   In January 1984, the Maryland Department of Transportation

("MDOT") submitted an Environmental Assessment (the "Assessment")
to the United States Department of Transportation in accordance with
federal requirements. After consideration of the Assessment, and in
accordance with 23 C.F.R. §§771.119 through 771.121, both the State
and the federal agencies issued a Finding of No Significant Impact (the
"Finding") in 1987. Part III of the Finding approved a project that
would convert Route 50/301 to a limited access highway and "would
allow the existing drawbridge to remain in service for local traffic
circulation." Finding at III-1 and III-2. The Finding left open the
question of funding for maintenance and operation of the drawbridge,
stating that "[r]esponsibility for maintenance and operation of the
existing drawspan ... will be resolved during the later stages of the
project." Finding at III-41.

   In view of the present State fiscal crisis, the Maryland Secretary

of Transportation informed the Queen Anne's County Commissioners on
February 5, 1991 that the State could not justify State funding for the
maintenance and operation of the drawbridge. The Secretary requested
that the county reimburse the State for this local traffic service,
estimated to cost $75,000 per year. In the event that the county is
unable or unwilling to fund these costs, MDOT has announced further
that it will be forced to close the bridge to vehicular and pedestrian
traffic (that is, leave the draw span open for marine traffic).

                               II

                          Analysis

A. The Contractual Question

   Your first question turns on whether the statements contained in

the Assessment and the Finding concerning continued operation of the
drawbridge amount to an enforceable contractual obligation on the part
of the State to maintain the drawbridge. To the extent that the
Assessment and the Finding, as well as other pre-construction statements
made by MDOT, can be construed as affirmative statements that the
State would fund maintenance and operation of the drawbridge, these
statements fall short of a legally binding contractual commitment.

   At the outset, we note that the Assessment and the Finding are

prepared pursuant to the requirements of the National Environmental
Policy Act, which gives federal courts jurisdiction over actions asserting
that the procedural requirements of that act were not followed or that an
agency decision was arbitrary. See, e.g., Calvert Cliffs' Coordinating
Committee, Inc. v. Atomic Energy Comm'n, 449 F.2d 1109 (D.C. Cir.
1971). However, the federal act does not create a private cause of action
for failing to adhere to statements made in documents prepared during
that process. See, e.g., Noe v. Metropolitan Atlanta Rapid Transit Auth.,
644 F.2d 434 (5th Cir. 1981).

   An asserted contract between a State agency and a political

subdivision would not come into existence unless it satisfies "the rules
relating to contracts generally.... Thus, there must be an offer and
acceptance, mutuality, [consideration,] ... and in general a conformance
with all of the requirements of the law of contracts." 10 McQuillan
Municipal Corporations §29.02, at 245 (3d ed. 1990). See, e.g.,
American Medicine Spirits Co. v. Baltimore, 165 Md. 128, 133, 166 A.
407 (1933).

   Maryland law is clear that in order for any statement to serve as

the basis for a binding agreement, it must amount to an offer. Maryland
Supreme Corp. v. Blake Co., 279 Md. 531, 539, 369 A.2d 1017 (1977).
"[A] mere expression of intention to do an act is not an offer to do it
...." Id.

   Moreover, in order for a contract to be binding, it must be

supported by consideration. Maryland Nat'l. Bank v. United Jewish
Appeal Federation, 286 Md. 274, 288-89, 407 A.2d 1130 (1979).
"Consideration for a promise is (a) an act other than a promise, or (b)
a forbearance, or (c) the creation, modification or destruction of a legal
relation, or (d) a return promise, bargained for and given in exchange
for the promise." People's Banking Co. v. Fidelity & Deposit Co., 165
Md. 657, 676, 170 A. 544, 171 A. 345 (1934) (internal quote
omitted). We are aware of no evidence that the State received any
consideration from the county in exchange for the statements contained
in the environmental documents.

   In sum, the statements in the environmental documents and other

pre-construction correspondence are mere expressions by MDOT of its
desire to do a particular act.1 Indeed, these statements appear to reflect
nothing more than a desire to retain the drawbridge. Even if these
statements can be interpreted as specifically addressing the issue of State
funding for maintenance and operation of the drawbridge, the county did
not bargain for or grant the State anything in exchange for the State's
funding the maintenance and operation of the drawbridge. As a result,
we conclude that as a matter of law the State did not enter into a binding
contractual commitment to provide such funding.

B. The Federal Statutes

   The laws governing federal aid for highway construction contain

two sections, 23 U.S.C. §§109 and 217, that in turn set out certain
provisions relating to pedestrian and bicycle traffic on federally funded
projects. MDOT has divided the improvements to the Route 50/301
corridor into three separate construction projects. The two highway
projects, one east and one west of the new high-level bridge, are funded
with both State and federal dollars. The bridge project itself did not
receive any federal funds. However, since the environmental documents
treat the Route 50/301 corridor improvements as one project, we will
analyze the various federal statutory provisions as though federal funds
are involved on the entire project.

   1.   Bicycle traffic

   The first provision, 23 U.S.C. §109, restricts the federal

Secretary of Transportation's authority to expend federal funds for state
highway projects. One such restriction is that "[t]he Secretary shall not
approve any project under this title that will result in the severance or
destruction of an existing major route for non-motorized transportation
traffic and light motorcycles, unless such project provides a reasonably
alternate route or such a route exits." 23 U.S.C. §109(n).2

   In construing federal statutes, the first inquiry involves the

language of the statute itself. If the statutory language is unambiguous,
the inquiry ends. See, e.g., Burlington Northern R.R. Co. v. Oklahoma
Tax Comm'n, 481 U.S. 454, 461 (1987); Blum v. Stenson, 465 U.S.
886, 896 (1984); Ford Motor Credit Co. v. Cenance, 452 U.S. 155, 158
n.3 (1981).

   The intent of §109(n) is clear from its language; it would have

prohibited the federal Secretary of Transportation from approving any
federal funding for the construction of the new high-level Kent Narrows
Bridge if construction of that project contemplated the severance or
destruction of an existing major bicycle transportation route on the
drawbridge. By its terms, this prohibition on federal funding is
inapplicable here.

   First, the transportation corridor serviced by the old drawbridge

was not "an existing major route for non-motorized transportation
traffic." When the federal government approved federal funding of the
project, including the new Kent Narrows High-level Bridge, the Kent
Narrows Drawbridge connected adjoining parts of U.S. Route 50.
Riding bicycles on the travel lanes of Route 50 and on the drawbridge
was prohibited by statute. See §21-1205.1(a)(1) of the Transportation
Article. The William Preston Lane Jr. Memorial Bridge, crossing the
Chesapeake Bay approximately five miles west of the drawbridge, is
closed to bicycle traffic. Although bicycles were permitted on Maryland
Route 18, which was and still is joined at the drawbridge, and on the
eastbound shoulder of Route 50, the numerous restrictions to bike traffic
in this area do not permit the corridor to be labeled "an existing major
route for non-motorized transportation traffic."

   In addition, when the project was approved by the federal

government in 1987, cessation of the maintenance and operation of the
drawbridge was not contemplated. Indeed, as reflected in the
environmental documents, the decision made during the planning process
was to retain the drawbridge to serve local transportation needs. Thus,
even if the drawbridge was part of "an existing major [bicycle] route,"
the federal Secretary's approval was entirely in accord with §109(n).
The "project" to improve Route 50 did not "result in the severance or
destruction" of the bicycle route; if the route ultimately is severed at the
drawbridge, a fiscal crisis years after the federal approval will have had
that unfortunate result. The federal statute cannot reasonably be read to
immunize bicycle routes from later events having nothing to do with
federal funding of highway projects.

   The State has decided to address its current budgetary shortfall

by eliminating State funding for maintenance of the drawbridge. While
the policy choice implicit in that decision can be debated, that debate
does not convert federal approval of the high-level bridge project into an
unauthorized approval of a project intended to sever a bicycle route.
Had the new bridge been in place for a number of years prior to the
financial crisis that has resulted in the State's decision to cease
maintenance of the drawbridge, it is doubtful that any connection would
be attempted to be made between the State's decision and the federal
government's approval of the construction of the new bridge.

   The other provision, 23 U.S.C. §217(b)(2), relating to

accommodation of bicycles on bridge replacement and rehabilitation
projects, does not mandate State funding for maintenance of the
drawbridge. Section 217(b)(2) provides:

        In any case where a highway bridge deck being
   replaced or rehabilitated with Federal financial
   participation is located on a highway, other than
   a highway access to which is fully controlled, on
   which bicycles are permitted to operate at each
   end of such bridge, and the Secretary determines
   that the safe accommodation of bicycles can be
   provided at reasonable cost as part of such
   replacement or rehabilitation, then such bridge
   shall be so replaced or rehabilitated as to
   provide such safe accommodations.

Section 217(b)(2) is not applicable to the federal government's approval
of the project for the construction of the new high-level bridge, because
that project does not involve the replacement or rehabilitation of a
highway bridge deck.3

   2.   Pedestrian traffic

   Neither §109 nor §217 restricts federal funding on highway

projects as a result of the project's effect on pedestrian traffic. Section
217(a) permits federal funding of pedestrian walkways and provides, in
pertinent part: "To encourage energy conservation and the multiple use
of highway rights of way ... the states may, as Federal-aid highway
projects, construct pedestrian walkways ...." Section 217(b)(1) contains
a similar provision for bicycle paths: "To encourage energy
conservation, including the development, improvement, and use of
bicycle transportation, the States may, as Federal-aid highway projects,
construct new or improved lanes, paths, or shoulders ...."

   These provisions clearly were intended to authorize states, in

their discretion, to construct bicycle paths and pedestrian walkways on
federally funded highway projects. They simply cannot be read to
require any action by the State or the federal government and do not
affect the operation and maintenance of the Kent Narrows Drawbridge.

                               III

                          Conclusion

   In summary, it is our opinion that the documents prepared by

Maryland Department of Transportation in connection with the
construction of the new Kent Narrows High-level Bridge do not create
a binding contractual commitment for the State to fund maintenance and
operation of the old Kent Narrows Drawbridge. The documents
contemplate the continued operation of the drawbridge but leave
unanswered the issue of responsibility for funding maintenance and
operation. In addition, it is our opinion that the provisions of 23 U.S.C.
§§109 and 217, relating to bicycle and pedestrian traffic, do not prohibit
the State from ending its funding for maintenance and operation of the
drawbridge.

                                       J. Joseph Curran, Jr.
                                       Attorney General

                                       Edward S. Harris
                                       Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

1
In addition to the environmental documents, we have reviewed the
various other documents and correspondence provided by you and MDOT
concerning this matter. The issue of funding the maintenance and operation of
the drawbridge is not resolved or even directly addressed in these documents. In
fact, on August 31, 1989, MDOT wrote to the Queen Anne's County
Administrator to request that various portions of Maryland Route 18, including
those portions joined by the drawbridge, be transferred to the county. The
request was based on the local nature of the road in light of the ongoing
improvements on Route 50/301. While not directly related to maintenance of the
drawbridge, this correspondence supports the conclusion that maintenance
responsibility for the drawbridge was not resolved during planning stages of the
high-level bridge project.

2
The reference in §109(n) to "non-motorized transportation traffic" is
clearly directed to bicycle traffic:

   Along with the need for earmarking funds for bikeways, the
   committee recognizes the importance of not reducing access
   for bicycle traffic. Accordingly, section 109 of title 23,
   U.S.C. is amended to insure that routes heavily used by
   nonmotorized traffic and light motorcycles are not severed or
   destroyed by any project approved under title 23 unless such
   project provides a reasonably alternative route or such a route
   exists.

H.R. Rep. No. 1485, 95th Cong., 2d Sess., reprinted in 1978 U.S.
Code Cong. & Admin. News 6575, 6607. See also H.R. Conf. Rep. No. 1797,
95th Cong., 2d Sess., reprinted in 1978 U.S. Code Cong. & Admin. News 6693,
6714.

3
In addition, §217 only applies to bicycle projects designed for
transportation and not recreational purposes. 23 U.S.C. §217(b)(3). Given the
restriction on bicycles in this corridor, it would be difficult to characterize this
route as one designed for transportation purposes.