Ballard Missing Link loses again, Appeals Court rules fully against city and Cascade

The Appeals Court conclusion. Read the full document (PDF).

Another half decade of Missing Link court battling may have been completely wasted after the Washington State Court of Appeals delivered a devastating blow to the city's 2021 attempt to bypass environmental review by building a skinnier trail to connect the Burke-Gilman Trail from 11th Ave NW to the Ballard Locks. The court smacked down arguments made on behalf of completing the reduced trail, affirming that it is not categorically exempt from state environmental review as the city claimed and that the group fighting the trail does have legal standing despite having no official structure, meeting minutes or funding disclosures. Cascade had put a lot of stock in the legal standing" argument as a way to finally bypass the legal challenges.

Cascade Bicycle Club is meeting with their legal team this week to evaluate their next steps, Executive Director Lee Lambert said. Cascade has long intervened to support to the city's court battle in favor of completing the Missing Link trail.

As we have reported previously, these legal battles have nothing to do with the actual details of the trail and its design. These decisions are not about trail safety or specifics of the design. It has been nearly a decade since safety and trail design has been the subject of this debate, and the city won those decisions in 2018 after years of environmental study and multiple rounds of public feedback. Since then, each legal battle has gotten more and more abstract, and the public has had to sit and watch the system's gears slowly grind on about issues that have seemingly nothing to do with whether a trail would work on Shilshole Ave. In 2021, trail opponents somehow landed a Hail Mary maneuver by successfully arguing that the Seattle Hearing Examiner violated the appearance of fairness doctrine" years earlier in 2018, setting the process back and essentially blowing the city's chances to build the planned trail during the timeline that it was funded by a previous transportation levy.

The city under Mayor Jenny Durkan decided in 2021 that rather than restart the environmental review process, they would scale back the trail design so that it would be small enough to be exempt from environmental review entirely. This plan would have built a less-desirable version of the trail, but it was hoped that it could be built quickly and more affordably. However, opponents were again able to trap the project in legal limbo, and this latest decision seems to have put the skinnier trail into a similar legal position as the original plan.

We affirm the [Shorelines Hearing Board] and [King County Superior Court]'s grants of summary judgment to the Coalition," wrote the Court of Appeals in its decision (PDF). The Missing Link is not categorically [State Environmental Protection Act]-exempt, and the City must meet SEPA requirements if it moves forward with the Missing Link. The Coalition had standing to make its challenges, and Cascade's jurisdictional challenge is now moot. Finally, the KCSC did not violate the separation of powers in its order requiring the City to comply with SEPA."

I am not a lawyer, and we will post an update when we hear back from Cascade about their planned next steps. But after reading the full 36-page decision, it seems that unless there is reason to believe another appeal to an even higher court is likely to prevail, the city may be no closer to finishing this section of trail than it was nearly a decade ago when it was completing the 895-page environmental megastudy. Again, that's 895 pages of environmental review for a biking and walking trail 1.4 miles long. If you printed ten copies on concrete slabs, you could pave the whole trail with it.

Several of the city and Cascade's arguments were denied in what seems to a lay reader to be rather brutal fashion. For example, the Appeals Court wrote, The City does not identify any facts that show that the Board failed to apply the standard of review correctly." In another section, the Court wrote, Cascade fails to cite authority for its proposition beyond citations to the separation of powers doctrine generally. This court will not consider claims insufficiently argued by the parties.' Elliott, 114 Wn.2d at 15." Ouch, that does not sound like a good review of the trail's legal counsel. I'm pretty sure that is judge speak for, Sir, this is Wendy's."

Meanwhile, the number of people biking in Seattle is going through a massive boom, and there are more people trying to find a safe way to bike through Ballard than ever before. There are no quality, all-ages options, and people keep getting injured or having scary near-misses. People deserve a safe way to bike to and through Ballard, and the status quo is untenable.

The state legislature nearly passed a bill earlier this year that would have exempted the Missing Link project from SEPA, with lawmakers like Rep. Joe Fitzgibbon arguing that this project had already been studied thoroughly enough and that further environmental review was only causing delay. The bill passed the House, but the Senate declined to take it up. Then it nearly passed again as a rider on the transportation funding bill, but that was also defeated. With the latest set of decisions and the prospect of rewinding this whole process back a decade, the case is stronger than ever for a state bill in 2027 to exempt the Missing Link project from SEPA so we can build it without further endangering the public and wasting time and taxpayer money redoing environmental review that was already completed.

The city and Cascade face some hard questions now. Should the city bite the bullet and restart the expensive and redundant environmental review process as the courts seem to keep ordering? Are there any other technicalities or shortcuts, and what are the risks of trying them and losing again? And have they hired the best team to successfully navigate the regulatory and court systems? Yes, this whole endless fiasco is an indictment of the state's broken environmental review process, but it's also reasonable to conclude that even within the broken system the city should have won by now. WSDOT could have built two freeways on Shilshole in the time it has taken the city to fail at building one short trail.

The decision is likely to put more attention on Councilmember Dan Strauss's Leary/Market trail, though that project also faces significant issues. Stay tuned for a story diving into that project's latest design.