June 6, 2012
UPDATE: CHAPA lawsuit over final ORV rule moves along – slowly
By IRENE NOLAN
Lawyers for both sides in the Cape Hatteras Access Preservation lawsuit
to stop the final ORV regulation at the Cape Hatteras National Seashore
conferred by telephone last month on how to proceed with the case and
reported back to the federal court.
The complaint, filed Feb. 9 in U.S. District Court for the District of
Columbia, names as defendants Ken Salazar, Secretary of the Department
of the Interior, Jonathan Jarvis, director of the National Park
Service, and Mike Murray, superintendent of the Cape Hatteras National
The case was assigned to U.S. District Court Judge, Emmet G. Sullivan,
who later allowed three environmental groups to enter the case as
defendant-interveners. The groups are the Defenders of Wildlife,
National Audubon Society, and the National Parks Preservation Society.
They are represented by the Southern Environmental Law Center.
The complaint asks the court to determine that the Park Service acted
improperly and to prevent NPS from implementing its final plan and
rule, which became effective Feb. 15.
CHAPA is a project of the Outer Banks Preservation Association, a group
dedicated to preserving and protecting the historical use of the beach
on the Outer Banks and specifically the Cape Hatteras National Seashore.
In its complaint, CHAPA takes issue with just about every step in the process of ORV rulemaking.
“An ORV management plan and a final rule that imposes severe
restriction on ORV use at CHNSRA were foreordained from the time that
NPS began its planning process,” the complaint says.
Attorneys for the federal government responded with an affirmative
defense – that CHAPA failed to make claims upon which relief can be
“To the extent that a response is required, Federal Defendants deny
that Plaintiff is entitled to the relief requested or any relief
An affirmative defense is defined as “a defense in which the defendant
introduces evidence, which, if found to be credible, will negate
criminal or civil liability, even if it is proven that the defendant
committed the alleged acts.”
The next step, as ordered by Sullivan, was for the parties to “meet and confer,” which they did on May 23.
On May 31, they filed their report on the conference.
The lawyers agreed that the case is an “an action for review on the
administrative record,” which in this case is the Park Service’s
process of developing an Environmental Impact Statement, choosing an
alternative, and making a final rule.
The defendants said in the report that they expect the administrative
record will be “quite voluminous.” They have started the process but
said the best estimate is that it may take until Sept. 15 to have the
record ready for filing.
The parties could not agree on a proposed or stipulated date for filing
the administrative record and, therefore, they said could not agree on
dates for follow-up motions, such as cross motions for summary judgment.
Summary judgment is a court order ruling that no factual issues remain
to be tried and therefore a cause of action or all causes of action in
a complaint can be decided upon certain facts without trial. In this
case, lawyers on both sides will probably ask the judge for a summary
Also, after the administrative record is filed, there can be motions to
supplement it with information not included in the initial filing.
The parties decided that by July 9, the federal defendants will file a
status report on the administrative record, including a detailed
explanation of what is left to be done.
On Tuesday, June 5, Sullivan agreed to the recommendations of the
lawyers for the parties involved, ordering the status report no later
than July 9.
He also scheduled a status hearing in the case for Thursday, July 26, at 11:30 a.m.
FOR MORE INFORMATION
Click here to read the Meet and Confer Report of the parties in the lawsuit.