Judge says BikeLoud can append Bike Bill lawsuit and refile

Advocates with BikeLoud PDX and their lawyer, Scott Kocher (middle) just after filing the lawsuit back in November. (Photo: Taylor Griggs/BikePortland)

“This is a significant win.”

– BikeLoud PDX

A lawsuit that would force the City of Portland to build bikeways in accordance with the 1971 Oregon Bike Bill was heard in court today. And while the judge granted the City’s motion to dismiss, he also left the door wide open for advocates to refile the suit.

Circuit Court Judge Christopher Ramras heard arguments from lawyers on both sides of the case in a phone conference this morning. Lawyer Jim Coon with Portland-based firm Thomas, Coon, Newton & Frost* made the arguments for BikeLoud PDX, the nonprofit group that filed the suit back in November; and Deputy City Attorney Daniel Simon spoke for the City of Portland.

As we’ve reported, the suit alleges that the City of Portland has failed to meet obligations to build bikeways as outlined in ORS 366.154 (aka “the Bike Bill”). Their complaint has outlined 22 specific projects citywide (see below) where the Portland Bureau of Transportation has completed significant road projects but has not built bike infrastructure along with them.

The City of Portland filed a motion to dismiss the case on two main grounds: that BikeLoud doesn’t have legal standing to bring the lawsuit and that the statute itself is nonjusticiable, meaning that the court should not be put into the position of enforcing the law. The City argued that since the law pertains to the State Highway Bill, the Oregon Department of Transportation is the agency that should enforce it. The City also believes that the Bike Bill does not create a “private right of action” — a legal term that says private citizens can bring a claim to courts to protect their rights under the law.

At the outset of today’s hearing, Judge Ramras implied that he believes the Bike Bill does trigger a private right of action, but he questioned whether or not the plaintiffs (members of BikeLoud PDX) have the required legal standing to force the City’s hand.

Portland City Attorney Dan Simon was first to present his case. “Enforcement of the bill is statutorily given to the State Highway Fund and the plaintiff’s response doesn’t address that,” Simon contended. “It just says that, ‘Well, if ODOT didn’t do their job properly, that that doesn’t excuse the city.’ The problem with that argument is that what the plaintiffs are seeking in this case is essentially that the court become the arbiter of what the bike bill says and how the city implements it.” Simon wanted to make the point that the court should not tell the City of Portland what to do. He went on to explain that the Bike Bill has several exceptions where bikeways are not required to be built. “And so, BikeLoud’s claims are are essentially asking the court to substitute its own judgment for the city’s planners in that regard.”

Simon also argued that BikeLoud is too general of an interest to bring a lawsuit in the first place. Referencing BikeLoud’s own complaint filing, Simon said, “They claim generally that BikeLoud members are unable to safely and efficiently use numerous city streets because they are not complying with the Bike Bill. That is a pretty general and abstract [legal] interest.” Simon’s contention is that BikeLoud members are not distinct from other road users and therefore, “There’s no special injury [legal term for harm] affecting BikeLoud’s members differently than other citizens.”

On those grounds, Simon asked Judge Ramras to dismiss the case “with prejudice” which would mean that the plaintiff could not refile the same claim with the court.

Lawyer Jim Coon then spoke to rebut Simon’s argument.

“There’s no special injury [legal term for harm] affecting BikeLoud’s members differently than other citizens.”

– Daniel Simon, Deputy City Attorney

“We absolutely contest that,” Coon said, referencing Simon’s argument that ODOT has exclusive power to enforce the Bike Bill. “It says nothing about who enforces the bike bill in [ORS] 366,” Coon continued. “It certainly does not, as defendant claims in its brief, expressly grant to the state the power to enforce the bill.” Then Coon pointed out that ODOT themselves must follow the Bike Bill law. “So who enforces the statute against the department transportation?”

Coon also rejected Simon’s argument that the court is powerless to compel the City to act. “The court certainly has the power to say what the law is and then enforce it and tell the City what it needs to do… The idea that this court is going to be managing how the City complies with the Bike Bill has no support,” Coon said. He went on to explain that the City has long partnered with advocacy groups and other people and organizations in deciding how to design and build bike projects. “The court would not be sitting there saying, ‘Okay, we’re going to separate a bike lane here, do a bike box there… We wouldn’t ask the court to do that. The court doesn’t have expertise to do that… The City has the expertise. Our problem is they’ve done nothing at these 22 sites.”

“We certainly have standing to bring [the lawsuit]. If not us, who was going to do it?”

– Jim Coon, Thomas, Coon, Newton & Frost

As for why BikeLoud has a distinct interest as a plaintiff and is not the just a general road user, Coon said, “That’s just not true. We’re not just road users. We’re people on bicycles are out there mixing with traffic every day.” Coon pointed out that around 6% of Portlanders ride bikes on a regular basis as per the U.S. Census. “That is a legally recognized interest, and the Bike Bill says you’re supposed to do this stuff, and we’re saying they haven’t. That’s a question of fact.”

“We certainly have standing to bring [the lawsuit]. If not us, who was going to do it?” he said.

In the end, Judge Ramras granted the City’s motion to dismiss; but did so “without prejudice” which means BikeLoud and their lawyers can refile the same claim after making some changes. In explaining his rationale, Ramras said, “I don’t believe plaintiffs have standing to bring their action for injunctive relief.” The judge based his argument on Foote v. State of Oregon, a 2019 case where the Oregon Supreme Court ruled that the District Attorney and a group of crime victims who brought the suit did not have a “legally recognized” interest. “The law [they wanted to change] affected them no differently than it affected any other citizen,” Judge Ramras explained. “And I believe the same is true here. I think there are plenty of citizens who ride bikes who probably have an interest in having safe biking conditions, but do not belong to BikeLoud.”

Portland Lawyer Scott Kocher, who also represents BikeLoud PDX and is working with Coon on the case, said after today’s decision, “I don’t see this as a loss or a win, it’s really kind of punting the issue.” Kocher said all Ramras has done is to point out a “missing piece” to the case. That is, a plaintiff with a more concrete and particularized harm (legally-speaking). Furthermore, Kocher said he feels that Judge Ramras has jettisoned the City’s main argument that ODOT has exclusive authority to enforce the Bike Bill. “If the Judge agreed with that,” Kocher shared. “He would have dismissed the case with prejudice.” Kocher says they also learned today that the court disagrees with the other part of the City’s argument; that there is no “private right of action” under the Bike Bill.

In a statement released a few minutes ago, BikeLoud said: “Today the trial court directed BikeLoud to resubmit our Bike Bill lawsuit with additional details. We will be working with our attorney to meet the judge’s requirements. BikeLoud believes we will be able to make a compelling case that we have an interest in enforcing the bike bill, as the judge requires. We are pleased that the judge rejected the City’s argument that only ODOT has the ability to enforce the Bike Bill. This is a significant win. The City was hoping the judge would dismiss the lawsuit with prejudice which would not allow us to resubmit.”


(*Thomas, Coon, Newton & Frost is a BikePortland advertiser, but that relationship had no impact on this story.)

Jonathan Maus (Publisher/Editor)

Jonathan Maus (Publisher/Editor)

Founder of BikePortland (in 2005). Father of three. North Portlander. Basketball lover. Car owner and driver. If you have questions or feedback about this site or my work, feel free to contact me at @jonathan_maus on Twitter, via email at maus.jonathan@gmail.com, or phone/text at 503-706-8804. Also, if you read and appreciate this site, please become a supporter.

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Todd/Boulanger
1 year ago

‘I am not a lawyer nor do I play one on TV’…
…BUT would not the BTA v CoP case be the precedent here as to supporting BikeLoud’s legal standing and the requirement for city (and not just ODoT) to implement Bike Bill intent? (Did the honourable Judge Ramras miss these points or has a more recent legal case changed things?)

I find it interesting that this judge’s/ CoP’s opinion that BikeLoud has ‘no standing’ as the City has supported / invited BikeLoud’s technical input into some very major projects (Better Naito etc)…and in many ways more sophisticated that the BTA of old (the state of practice is just so much deeper now). Perhaps the lawyers for BikeLoud were too soft spoken about their role as technical change agent for the design concepts on Portland’s streets over the last ~6 years.

Plus BikeLoud’s [IRS registered] non-profit mission statement – as I read it – is to fulfill CoPs / PBoT bike mode split of 25% […at least that is what the City’s plans say though not sure if the leadership is still steering the ‘ship of state’ in that direction.]

Lisa Caballero (Assistant Editor)
Editor
Reply to  Todd/Boulanger

I’m not a lawyer either, but here goes …

“Standing” is a term of art, it is technical with specific meanings. It doesn’t mean “qualified.” For example, in an appeal you might not have standing unless you previously submitted testimony.

I think of this as a tango, and the judge didn’t end the dance, so it’s a win. The judge said, “lead me this way, support me through the dip, I need this …”

The lawyers are testing what the court needs to see for a successful challenge. Communication happened.

Todd/Boulanger
1 year ago

Lisa, thanks.

Atreus
Atreus
1 year ago
Reply to  Todd/Boulanger

My guess would be that the BTA had specific people identified who had a clear interest in riding bikes through the Rose Quarter (no other direct commute options) and that gave them standing. I think BikeLoud is making it hard for themselves by instead filing a general lawsuit with dozens of roads listed and asking for a generalized solution. It seems like it’s easier to win over a particular project than over a general practice, because it’s harder to show a specific harm to specific people.

Todd/Boulanger
1 year ago
Reply to  Atreus

Atreus, great point per “clear interest” vs “shotgun” of streets…

Surly Ogre
JoeBicycles
1 year ago

“In July 1993, the city of Portland broke ground for the arena now known as the Moda Center. Trail Blazers owner Paul Allen and then-mayor Vera Katz wielded backhoes to begin construction of the glitzy new arena. Most of the city was excited at creating a new home for Portland’s only major-league sports team—but bicycle advocates were chafed. Hard to imagine now, but the original plans for the area had no bike lanes. The green boxes that carry cyclists across the Broadway Bridge and up to the Vancouver-Williams corridor weren’t in the plans, and neither was the bikeway on the lower deck of the Steel Bridge.
Portland’s nascent Bicycle Transportation Alliance wanted to change that, and thought it had a trump card in the Oregon Bicycle Bill, a 1971 law that requires the inclusion of facilities for pedestrians and bicyclists wherever a road is built or rebuilt. The BTA asked city commissioners to update the plans, and were rebuffed. Commissioner Earl Blumenauer, now a bow-tied U.S. congressman who makes bikes part of his shtick, told the BTA the project was exempt from the Bicycle Bill. According to BTA co-founder Rex Burkholder, Blumenauer attempted to dissuade the BTA from pushing the issue further. Katz also opposed updating the plans to include the bikeway that now connects to the floating esplanade named for her. According to Burkholder, she said, “So, sue us.”
The BTA did just that, filing the landmark lawsuit Bicycle Transportation Alliance v. City of Portland. On March 8, 1995, the BTA won in the Oregon Court of Appeals, and the plans were redrawn.” https://www.wweek.com/portland/article-23430-march-8-1995-cyclists-sue-the-city-over-the-blazers-new-arena.html-2

From Rex Burkholder: “What the City was willing to do was to sign a side street as a “bicycle route,” leaving the main streets connecting with the bridges unchanged and still dangerous and intimidating for cycling. We said, you give us no choice but to go to court to resolve this problem. BTA vs City of Portland took two years and 10 volunteer lawyers to finally be resolved. We lost at district court, then we won at the Court of Appeals after BTA appealed. The Court of Appeals issued a ruling that clarified the meaning of the law consistent with the intent of the law’s author, former Republican state representative, Don Stathos, that state and local governments must provide bicycle and pedestrian facilities as part of all road projects. The City appealed to the Oregon Supreme Court which, agreeing with the ruling of the Court of Appeals, refused to hear the case. BTA won.” https://www.huffpost.com/entry/portlands-bicycle-revolut_b_3861490
https://www.huffpost.com/entry/portlands-bicycle-revolut_b_3861490

Watts
Watts
1 year ago
Reply to  JoeBicycles

From the days when the BTA (now The Street Trust) actually did more than cash government checks.

Jay Cee
Jay Cee
1 year ago
Reply to  JoeBicycles

I’ve always wondered why people that ride bikes in this town fall over themselves to show love for Vera Katz. Like isn’t she the one that had the police crack down on group rides? Seems like she didn’t like people on bikes much at all

dwk
dwk
1 year ago
Reply to  Jay Cee

She basically built the eastside bike path, the most significant piece of bike infrastructure in the city…..Made a serious proposal to bury I-5, but yeah she is overrated because she did something somewhere that no one actually remembers you didn’t like….

Watts
Watts
1 year ago
Reply to  dwk

She was imperfect; we should not memorialize her achievements.

Surly Ogre
JoeBicycles
1 year ago

I am hopeful for an eventual win. The BTA v. City of Portland lawsuit went all the way to the Oregon Court of Appeals. In 1995, the Court of Appeals clarified the meaning of the law consistent with the intent of the law’s author, former Republican state representative, Don Stathos, that state and local governments must provide bicycle and pedestrian facilities as part of all road projects. The City appealed to the Oregon Supreme Court which, agreeing with the ruling of the Court of Appeals, refused to hear the case. BTA won. BikeLoud will eventually win.

FDUP
FDUP
1 year ago
Reply to  JoeBicycles

Actually, it went all the way to the Oregon Supreme Court.

“The City appealed to the Oregon Supreme Court which, agreeing with the ruling of the Court of Appeals, refused to hear the case.”

John
John
1 year ago
Reply to  JoeBicycles

It is absolutely wild to me that the city had/has the gall to literally fight that and then appeal to the Oregon Supreme Court to try and not have to do what a law we passed literally says to do. It’s such bad faith it should have had everyone involved out of office. But then, who would make that happen I guess. They can just get away with it.

Like, in a different situation where instead of the city it’s a corporation just trying to fight for its profits or whatever, I still think that’s gross and immoral, but I get it, that’s what capitalism motivates a corporation to do. But our city government going as hard as they can to not have to do what the legislation clearly tells them to is just infuriating. It’s a sign to me of a pretty broken system, despite in that case it ending with the right outcome.

FDUP
FDUP
1 year ago
Reply to  John

This city (and state) always want to ask the voters a second time one way or the other – did you really mean that? It’s beyond ludicrous that the city spent the time and money to fight that.

The city’s lawyers also seem to continually want to dicker about what the actual definition of ‘rebuilding a road’ really is. FWIW back in the early 90s the City/County didn’t think that entirely redecking the Hawthorne Bridge counted as rebuilding the road, either. I don’t think there was ever a lawsuit; in that case, they just decided to do the ‘right thing’.

Fred
Fred
1 year ago

I (like other commenters) am not a lawyer, but I have to say it’s crazy that it takes so much back-and-forth to get the city to do what they are required to do. We see it all the time from city gov’t: “Yes, the law says x but we will do y.” It’s not right.

Surly Ogre
JoeBicycles
1 year ago
Reply to  Fred

I think/wish the city were required to pay damages, run all road projects through bikeloud with regards to how they meet the bike bill and write weekly reports as to progress on their projects/plans. 25% by 2030

pierre delecto
pierre delecto
1 year ago
Reply to  JoeBicycles

25% by 2030.

To reach 25% by 2030, mode share would have to increase ~900% in 6.66 years. I don’t understand why this slogan is attractive to so many bikeloudpdx-adjacent folk. Do you really think that interested but concerned people find this slogan to be attractive or inspirational?

Todd/Boulanger
1 year ago
Reply to  pierre delecto

It was inspirational back in 2010ish.

Watts
Watts
1 year ago
Reply to  Todd/Boulanger

I never thought so. It always struck me as outlandish and absurd, and whenever I heard someone mention it publicly, I was like all cringe. The goal was totally extra.

FDUP
FDUP
1 year ago
Reply to  Todd/Boulanger

It was a loosely tossed about impossibility that didn’t take long to turn into a failed bureaucratic advocacy slogan.

Serenity
Serenity
1 year ago

BikeLoud doesn’t have the required “legal standing?” What does that even mean? I have questions about this judge…
Glad to hear that we can re-file, though.