November 1, 2011

Bonner Bridge lawsuit will not be decided anytime soon


The lawsuit over construction of the Bonner Bridge replacement will not be decided in federal court anytime soon.

A recent filing in U.S. District Court for the Eastern District of North Carolina details a proposed schedule, which all parties agreed to, that stretches into late summer 2012.

Defenders of Wildlife and the National Wildlife Refuge Association, represented by the Southern Environmental Law Center, sued the North Carolina Department of Transportation and the Federal Highway Administration in July to stop construction of the planned 2.7-mile, “short” bridge project for a replacement parallel to the current span.

The environmental groups contend that a previously-proposed 17.5-mile bridge that bypasses Pea Island National Wildlife Refuge was not properly studied as a feasible alternative.

On Monday, Cape Hatteras Electric Membership Corporation filed a motion to intervene in the action, joined with defendants.

In the motion, the electric cooperative said it currently plans to spend about $9.3 million to run transmission lines across the new bridge, with $465,250 in annual maintenance costs. But if the long bridge that plaintiffs favor became the preferred alternative, the document said, costs would jump to about $39 million and $2 million, respectively.

“Further, should a high-speed ferry be used instead of a bridge,” the motion said, “it is unclear how CHEMC would be able to deliver power to Hatteras Island and Ocracoke Island absent enormous expense.”

Failure of the aged bridge would likely cause power outages that could last 30 to 60 days, according to the motion.  In addition, the cooperative has an interest in fulfilling the terms of its utility contract with NCDOT and keeping electric lines serviced for the islands.

“As such, maintaining access to and over N.C. Highway 12 is of vital importance to CHEMC,” the motion said.  “Indeed, CHEMC delivers power to the refuge itself.”

Jason Rylander, attorney for Defenders of Wildlife, said that its recent filing was a routine scheduling of deadlines to provide documents and responses to the federal court.

The case has been assigned to U.S. District Chief Judge Louise Wood Flanigan in New Bern.

Rylander said that the schedule the attorneys agreed on would be completed before construction of the planned bridge would be expected to begin. As proposed, the first of numerous deadlines is Jan. 31, and the last is Aug. 6.

Currently, construction of the bridge is expected to begin by late 2012, with the targeted opening date in early 2015.

According to the joint report filed on Oct. 19, the case is expected to be resolved on the basis of review of the administrative record, which is the collection of documents that were used by defendants in deciding to issue the project permit.

That means there will not be a trial. The judge will make a summary judgment. The parties also agreed that Alternate Dispute Resolution, a mediation process, would not be fruitful, and did not consent to assignment of the case to a magistrate judge.

The plaintiffs are seeking “declaratory and injunctive relief,” in its action, Rylander said, not an immediate preliminary injunction that could stop the project in its tracks.

If the court rules in their favor, he said, it would be expected that the matter would be sent back to the agency for further consideration.
The judge could also issue an injunction to stop the project until certain demands are met, schedule a hearing, or dismiss the complaint.


To keep the public updated on the project, the department has posted the legal documents on the Bonner Bridge webpage,

For previous Island Free Press articles on the lawsuit, go to:




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