Negotiations Underway On Derry Rail Trail Tunnel

By Katharine Webster, InDepth NH

CONCORD, NH — The state Department of Transportation and advocates for routing the Derry Rail Trail through a tunnel under a new, six-lane road near Interstate 93 have begun settlement talks, both sides said after a status hearing Monday in U.S. District Court in Concord.

“We’re in the early stages of working on a negotiated resolution,” said Senior Assistant Attorney General Christina Wilson.

Derry resident Cathy McDonald, a Derry Rail Trail Association volunteer who attended the brief court hearing, expressed both optimism and caution.

“I’m not popping the cork on a bottle of champagne until the deal is signed,” she said.

The status conference came three weeks after U.S. District Judge Paul Barbadoro enjoined the state Department of Transportation (DOT) from doing anything that would foreclose or hinder construction of a rail trail tunnel under Folsom Road, which will serve the new Exit 4A off I-93 in Derry.

Barbadoro found that the state DOT failed to conduct a required analysis concerning which of three possible rail trail routes would cause the least harm to the Manchester & Lawrence Railroad Historic District.

The state plan, approved by the federal government, originally called for a tunnel under the new road that would keep the rail trail within the historic railroad right-of-way. But several years ago, the state floated the idea of rerouting the bicycle and pedestrian path to save money, and it finalized that plan in August 2024.

One of the state’s proposed routes would take walkers and cyclists up a steep grade to a crosswalk and stoplight on the six-lane road; the other would send cyclists and walkers in a “spaghetti loop” outside the historic district to pass under an existing bridge.

The Committee to Save the Derry Rail Trail Tunnel and the Rails to Trails Conservancy, a national nonprofit, sued to block the changes, arguing that either alternative route would significantly alter the historic rail corridor, which was carved through granite by Irish laborers using hand tools and blasting powder. The two groups are represented pro bono by Charles Kelsh, Cynthia Vreeland and Kaylee Ding of the Boston law firm WilmerHale.

Barbadoro’s injunction did not say that the underpass was the best of the three alternatives, but it did say that the state never analyzed the impact of the alternative routes, which is required by law for any project using federal highway funds.

The U.S. secretary of transportation – also sued by the tunnel advocates under the names of the administrators who approved the state’s changes – “may select ‘only the alternative that causes the least overall harm in light of the statute’s preservation purpose,’” Barbadoro wrote.

On Monday, Barbadoro urged the two sides to settle, and he offered the services of the court’s magistrate judges, if needed. He noted that the deadline for filing motions (such as asking that his injunction be modified or stayed pending an appeal) had expired, but he asked if either side had any concerns with the terms of the injunction.

When the lawyers said no, Barbadoro said he would defer final judgment in the case for 60 days while the two sides negotiate.

“I favor settlement if it can be reached,” he said. “I don’t want to delay the project. … I know that construction delays can be hugely expensive.”

Wilson assured him that the 60-day window for negotiations would not delay construction.
After the hearing, she said in a statement that both sides had agreed to request the 60-day
stay, and that “the state is hopeful that an agreement can be reached within this timeframe.”

Dave Topham, president of the New Hampshire Rail Trails Coalition and a member of the Committee to Save the Derry Rail Trail Tunnel, said any construction delays would be the result of the state’s decision to eliminate the planned tunnel without considering the concerns of rail trail users or going through the mandatory historical and environmental review process.

“Nobody wants to see delays,” Topham said. “Had this whole thing been openly discussed three years ago, we wouldn’t be here today.”

Completion of the tunnel or an alternative will allow Derry and Londonderry to join their rail trails, resulting in a bicycle and pedestrian trail that would stretch from Salem to Manchester and connect with other rail trails that cross the state.

This article first appeared on InDepthNH.org and is republished here under a Creative Commons license.