On June 30, the Committee to Save the Derry Rail Trail Tunnel (the Committee) and Rails to Trails Conservancy (RTC) secured an important victory when a federal judge ruled in their favor in a lawsuit seeking to protect New Hampshire’s Manchester & Lawrence Railroad Historic District and the Derry Rail Trail from construction that raised both safety and historic preservation concerns.
The Committee and RTC, both WilmerHale clients, filed the complaint in August 2024, after the Federal Highway Administration (FHWA) approved a design change proposed by the New Hampshire Department of Transportation (NHDOT) removing a previously approved tunnel that would have protected the historic right-of-way from an I-93 exit road. The design change would result in steep approaches, an at-grade crosswalk across six lanes of traffic, and a circuitous route deviating from the historic Manchester & Lawrence Railroad corridor, which was carved through granite in 1849 by Irish laborers using hand tools and blasting powder.
United States District Judge Paul J. Barbadoro enjoined defendants NHDOT and FHWA from performing construction that would in any way hinder the completion of the original tunnel design. The judge held that the new design violated historic preservation protections provided by federal law, citing Section 4(f), which forbids using federal funds for transportation projects that will damage parks or historic sites unless there are no feasible alternatives and the project takes all reasonable measures to minimize harm to the site.
“This ruling affirms the very same point we have been making to NHDOT and FHWA since this matter began: The tunnel is required if the project is to comply with federal law,” said Counsel Chaz Kelsh, who led the WilmerHale team and argued the case before the judge.
Although the state proposed the design change to save money on the Exit 4A project, Barbadoro noted that the savings would only amount to 2.3 percent of the total cost of the one-mile segment of the project affecting the historic district—not the kind of “substantial” savings that could justify greater harm to a historic resource.
WilmerHale’s co-counsel Andrea Ferster, legal counsel to RTC, said that, based on the judge’s findings, the state faces an uphill battle if it persists in pursuing an alternative to the underpass.
“An underpass makes financial sense, it makes sense for the trail, and it makes sense for maintaining the continuity of this historical railroad corridor,” Ferster said.
She also noted that Barbadoro’s ruling marks the first court decision applying Section 4(f) to a rail trail. The potential to set that precedent was why national nonprofit RTC joined the lawsuit, she said.
“The court’s decision is an important victory for rail trails across the country, underscoring the importance of ensuring that transportation projects are designed in ways that minimize harm to historic places and trails,” said Ryan Chao, president of RTC.
Joining Kelsh on the WilmerHale team were Cynthia D. Vreeland, H. David Gold, John F. Saylor, Alex Daniel, Kaylee Y. Ding, and MacLean Kirk.