Gulf Shores beach bridge project can continue Alabama Supreme Court rules

The Alabama State Supreme Court ruled Friday that a lower court did not have the authority to halt the construction of a two-lane bridge in Gulf Shores, and reversed a preliminary injunction that halted the project’s construction in May.

The 31-page ruling said that the Alabama Department of Transportation and its Director John Cooper are protected by the “doctrine of State immunity” rooted in the 122-year-old Alabama State Constitution, which gives the states and its agencies “absolute immunity” from being sued.

An ALDOT spokesman said that construction on the Gulf Shores bridge could resume “in the coming weeks.”

“This is an important victory for Alabama’s coastal residents and millions of visitors to our state,” said ALDOT spokesman Tony Harris. “The need for a new, free bridge is obvious. Not a single justice on the Supreme Court voted to uphold the injunction. The Supreme Court’s decision means construction can restart and this project that will help relieve traffic congestion and provide an additional evacuation route.”

Neal Belitsky, president of Baldwin County Bridge Company -- the plaintiffs in the case who operate a toll bridge close to the ALDOT project site and who argued that Cooper acted in “bad faith” during negotiations with them -- said the company was disappointed with the overall ruling, but noted that the case was not over.

“Today’s decision sends an unfortunate message to businesses across this nation - come to Alabama on notice that anything an unelected government official chooses to do to you, he can do and you are powerless to stop him even if he is acting in bad faith,” he said.

Belitsky also called a concurrence statement from Alabama Chief Justice Tom Parker a “terrifying reality.” Parker quoted the Book of Deuteronomy -- the fifth book of the Old Testament in the Christian Bible -- by saying, “You shall not show partiality in judgment; you shall hear the small and the great alike.”

Said Belitsky, “you shall hear the small and the great a like unless the Alabama government is the defendant.”

But he said at least one part of the case is far from over.

Belitsky said he was pleased that ruling does not prevent BCBC from continuing to pursue an inverse condemnation claim against ALDOT. That claim, which could go before a Montgomery County court later this fall, could offer a financial remedy to BCBC for valuation damages to its toll bridge with the construction of the new Gulf Shores bridge.

“The court recognized that BCBC has a viable inverse condemnation claim for money damages for the effective taking of its property that can proceed in the trial court,” Belitsky said.

Decision Reversal

The decision on the preliminary injunction reverses a May ruling by Montgomery Circuit Judge Jimmie Pool, who ordered the bridge project halted following a seven-day bench trial that included 13 witnesses and over 200 exhibits.

“We have explained that (the Constitution of 1901) grant of immunity is a jurisdictional bar that strips courts of all power to adjudicate not only claims against the State and its agencies, but also claims against State officers, employees, and agents in their official capacities when a result favorable to the plaintiff would directly affect a contract or property right of the State,” the ruling says.

The Alabama Supreme Court said BCBC, which operates a toll bridge adjacent to The Wharf and a little more than a 1 mile east of the Gulf Shores bridge project, made a “bad-faith” claim against Cooper’s handling over past negotiations “in his official capacity.”

“There can be no dispute that a result favorable to BCBC would directly affect a contract right of the State,” the ruling reads.

The court also ruled that since Pool did not have jurisdiction based on State immunity, his previous order for Cooper to produce intraoffice communications between ALDOT and employees with Gov. Kay Ivey’s office was “moot.” Pool had requested the communication, but Cooper’s attorneys with Birmingham-based Balch & Bingham filed an emergency order from the State Supreme Court in January to temporarily withhold those records based on an argument that they were protected by “executive or deliberative process privilege.”

The court did reject Cooper’s argument that the trial court should be required to increase a preliminary injunction bond above $100,000. It also ruled against the bridge contractor -- Scott Bridge Company -- which had also wanted to recover damages on the preliminary injunction bond.

The Supreme Court’s decision occurs a year since BCBC and Cooper broke off negotiations over an alternative project to the state’s beaches. BCBC’s proposal included, among other things, additional lanes to the existing Foley Beach Express toll bridge and making additional roadway improvements.

Most bridge users are assessed a $2.75 one-way toll across the bridge. The alternative plan would have removed the toll fees for Baldwin County residents.

Cooper, during testimony before Pool, argued that BCBC’s proposal was as “useless as a screen door on a submarine,” and claimed that the company was not offering a so-called “free” alternative while subjecting the state to “long-term exclusivity that we do not build a competing bridge.”

Split cities

The dueling projects also split the cities of Gulf Shores and Orange Beach.

In Gulf Shores, cities officials backed the state’s bridge project, saying it would provide an additional emergency evacuation route and that it would not be at risk of barge collisions because none of the bridge pilings were expected to be in the Intercoastal Waterway. The bridge was also sought by Gulf Shores officials as a way to alleviate traffic on the nearby W.C. Holmes Bridge along Alabama State Route 59.

Gulf Shores Mayor Robert Craft called the decision “a great day for our residents and millions of visitors to Alabama’s Gulf Coast.”

“We have said all along that the Waterways Bridge will clearly serve the public’s interest and improve the safety and welfare of residents and visitors in our local communities,” Craft said. “Our support for this critical project never wavered and our resolve to fight to make it a reality never weakened. When constructed, the Waterways Bridge will immediately improve traffic conditions on State Highway 59, provide an additional evacuation route off the island, and create a foundation of new transportation infrastructure to help accommodate the continued growth and success of Alabama’s beaches and state-wide economy.”

Orange Beach officials have called the bridge project a “boondoggle,” arguing that it is only two lanes and does not take motorists directly to the beaches. The bridge stops at Canal Road, giving motorists the options to veer west toward Gulf Shores or east into Orange Beach.

Orange Beach Mayor Tony Kennon declined to comment Friday, and the City of Gulf Shores was expected to release a statement later in the day.

This story will be updated as additional information and reactions are available. It was last updated at 2:52 p.m. with a statement from Gulf Shores Mayor Robert Craft.