UPDATE: CHAPA objects to transferring lawsuit to Boyle’s court
By IRENE NOLAN
Cape Hatteras Access Preservation Alliance on Monday filed a 17-page
brief objecting to a Washington, D.C., judge’s announcement that he is
inclined to transfer its lawsuit over the National Park Service
off-road vehicle plan and final rule to U.S. District Court Judge
Terrence Boyle in the Eastern District of North Carolina.
filed the lawsuit on Feb. 9 in the U.S. District Court in Washington,
D.C. In the action, CHAPA challenges both the final rule and plan and
alleges that in formulating the documents, the Department of the
Interior, the National Park Service, and the Cape Hatteras National
Seashore violated the National Environmental Policy Act, the
Administrative Procedures Act, the seashore’s enabling legislation, and
the NPS Organic Act.
The case was assigned to U.S. District Court Judge Emmet Sullivan.
allowed the Defenders of Wildlife, the National Audubon Society, and
the National Parks Conservation Association to join the action as
defendant-intervenors. Those groups are represented by the Southern
Environmental Law Center.
is being represented by attorneys Jonathan D. Simon and Asha
Venkataraman with the Washington, D.C., law firm of Van Ness Feldman.
status hearing on the compiling of the seashore’s administrative
history for the lawsuit, Sullivan said he was inclined to send the case
to Boyle’s court for a number of reasons. He proposed sending it
“sua sponte,” or on his own accord without a request by a party to
oversaw a lawsuit, which was filed in October, 2007, by Defenders of
Wildlife and the National Audubon Society against the National Park
Service for its lack of an ORV regulation that provided needed
protections for birds and sea turtles. The groups were represented by
Dare and Hyde counties and CHAPA were allowed as defendant-intervenors in that case.
lawsuit was settled by a 2008 consent decree that left the park Interim
Protected Species Management Plan in place but added more protections
for nesting birds and turtles, including large buffers for nesting
birds and chicks and a prohibition on night driving.
consent decree was set to automatically expire when the Park Service
had an ORV management plan and final rule in place. That happened
on Feb. 15, but Boyle has continued to be involved in the case and has
had two status conferences on the consent decree since Feb. 15.
objection notes that Sullivan suggested that issues of “judicial
economy” may warrant the transfer. He expressed his concern that
retaining the case would result in two federal judges expending their
resources to resolve the same controversy.
CHAPA notes in its objection that “the controversy is not the same” and
the case that Boyle presided over was very different from the CHAPA
CHAPA brief says that the DOW case focused on vacating the interim plan
and the Park Service’s failure to prepare an ORV management plan and
has now done what the DOW case sought,” CHAPA says. “Under the terms of
the Consent Decree, the claims of the plaintiffs in that case were
dismissed with prejudice based on the commitments and representations
in the Consent Decree. The Consent Decree (as NPS acknowledged in its
Feb. 9, 2012 Notice in that case) should be deemed to have
automatically expired effective Feb. 15, 2012, and CHAPA or anyone else
dissatisfied with the Final Rule and ORV Management Plan should have
been free to challenge those actions in a separate action, i.e., a new
CHAPA brief goes on to say that the complaint brought by CHAPA is
“outside the scope of the Eastern District of North Carolina’s and
Judge Boyle’s oversight.
is not at all clear what, if anything, remains pending in the North
Carolina court and, if something is deemed to remain pending, on what
basis,” CHAPA says. “In sum, CHAPA respectfully maintains that there
should be nothing left for Judge Boyle to adjudicate in the DOW case
such that this Court and his court would both be expending resources to
resolve the specific controversy brought before this Court or that
there should be any risk of inconsistent judgments”
brief concludes that the “Interests of judicial economy, therefore, do
not warrant transfer of this case to the North Carolina court, to Judge
Boyle or otherwise.”
CHAPA objection also argues that both private and public interest
factors that must we weighed by Judge Sullivan favor his retaining the
- The plaintiff’s choice of forum deserves deference
defendants’ choice of forum does not support transfer – that neither
the defendants or defendant-intervernors have asked for a transfer of
the claim arose is inconclusive. The FEIS was drafted in North
Carolina, signed off on by the NPS regional director in Atlantic, and
subject to policy review in Washington.
- The convenience of the parties supports litigation in the District of Columbia.
- The convenience of the witnesses does not favor transfer.
- The ease of access to sources of proof does not favor transfer.
degree to which the courts are familiar with the governing laws does
not favor transfer, since both courts are deemed to be familiar with
federal law and no state law is involved.
relative congestion of the courts does not favor transfer. In 2011, The
Eastern District of North Carolina had four judges and received 2,511
filings or 628 actions per judge. In the same year, the District
of Columbia had 15 judges and received 3,051 filings or only 203 per
local interest in deciding local controversies at home does not favor
transfer. The final rule and plan do not affect only local residents of
the Outer Banks but all over the country, as can be seen by public
comments on the draft environmental statement, public scoping meetings,
and visitation at the seashore. Further, the management of
national parks and federal lands and policies and statutes present
issues of national significance.
- The interests of judicial economy do not warrant transfer.
The federal defendants and defendant-intervenors have until next Monday, Aug. 13, to respond to the CHAPA objection.
FOR MORE INFORMATION
Click here to read The Plaintiff’s Objection to Sua Sponte Transfer.