WASHINGTON - A Richmond circuit court judge for the second time dismissed a lawsuit challenging Virginia's planned transfer of the Dulles Toll Road from the state's Department of Transportation to the Metropolitan Washington Airports Authority. The MWAA is slated to oversee the $5.2 billion Metrorail extension to Dulles International Airport that will be partly financed by $2 billion of tax-exempt bonds.

But Patrick McSweeney, a lawyer with McSweeney, Crump, Childress & Gould in Richmond, who is representing Patrick R. Gray and James W. Nagle, who filed the suit against VDOT and the MWAA, said his clients may appeal the decision by Judge Margaret P. Spencer. He said they will likely make a decision by the end of the week.

"They're upset about the ruling, obviously," McSweeney said.

Virginia Secretary of Transportation Pierce Homer said the project will move forward regardless of whether Spencer's decision is appealed, adding, "You simply can't wait for lawsuits ... you move ahead."

"[The decision is] another extremely important step in the process of building this rail project and we fully expect to have this project under construction early next year," he said.

In her decision, which was issued Friday, Spencer said the argument that the state does not have the authority to transfer control of the Dulles Toll Road to the MWAA without approval of the General Assembly is "without merit" and that tolls are "neither taxes nor revenue" of the state.

Gray and Nagle sued Virginia and the MWAA in January 2007, claiming that the state has no authority to transfer control of the road, and that the toll on the road - a 14-mile, eight-lane road connecting the airport in the west to Interstate 495 and Interstate 66 in the east - is actually a tax since it is going to be primarily used to finance the subway expansion. They argued that Virginia has no authority to transfer taxing power to another entity not named in the state constitution. The state, however, maintained that it and the authority were entitled to sovereign immunity, which bars suits against the commonwealth and its agencies and boards.

Spencer first dismissed the lawsuit in March 2007, agreeing that the state and the authority are entitled to sovereign immunity. Gray and Nagle asked the Virginia Supreme Court to review that ruling in a petition they filed in June of that year. The high court agreed with the men that the state was not entitled to sovereign immunity and sent the case back to the circuit court for further proceedings.

State transportation officials lauded Spencer's dismissal of the suit Friday.

"The commonwealth is pleased with the ruling of the court," Gov. Timothy Kaine said in a statement. "This will allow the transfer of the Dulles Toll Road to the Metropolitan Washington Airports Authority in return for which the authority will construct a rail link to Dulles Airport and beyond."

The project has faced many challenges since it was announced in 2006. It is relying on nearly $1 billion from the Federal Transit Administration, which has been critical of the project.

FTA officials in late-January told Kaine that the project did not meet federal funding cost-benefit requirements and said they could not provide the funds without drastic changes in the management of the project. Since then, project officials have worked with the FTA to meet its requirements, and the FTA has granted the authority funding for site preparation.

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