August 14, 2012
UPDATE: Defendants and intervenors respond
to CHAPA’s objection to Boyle transfer
By IRENE NOLAN
federal defendants and the defendant-intervenors have responded to the
Cape Hatteras Access Preservation Alliance’s objection to transferring
its lawsuit over the National Park Service’s final off-road vehicle
plan and special regulation.
On July 26, U.S. District Court Judge Emmet Sullivan of the District of
Columbia said he was inclined to transfer the case from his Washington,
D.C., court to federal Judge Terrence Boyle in the Eastern District of
He proposed transferring the case “sua sponte,” or on his own without a
request from any of the parties, to Boyle, the controversial judge who
oversaw a 2007 lawsuit against the Park Service by environmental groups
and a 2008 consent decree that settled that case.
CHAPA 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.
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.
In an Aug. 6 brief, attorneys for CHAPA objected to the transfer.
In an Aug. 10 court filing, the federal attorney for the defendants said they “neither propose nor oppose transfer.”
On Monday, Aug. 13, the defendant-intervenors filed a 14-page response
that strongly urges Sullivan to transfer the case to Boyle.
The defendants’ barely three-page brief does note the somewhat strange
status of the 2007 lawsuit and consent decree in Boyle’s court, which
was scheduled to expire when the ORV plan and regulation were final.
That happened on Feb. 15, but Boyle has had two status hearings on the
consent decree since then and has scheduled another for December.
He doesn’t seem to be in any hurry to relinquish his hold on the case.
The defendants note that the case in North Carolina “remains unanticipatedly pending.”
“At this juncture, it is unclear whether that case will remain pending,
or for how long or what purposes, and whether such continuation would
be proper,” the defendants state. “Nevertheless, given the possibility
that case will remain pending, a risk arises of inconsistent judgments
in the event this case is not transferred.”
On the other hand, the environmental groups argue that the cases are
related and arise out of the same facts and law and should be in
Boyle’s court and they seem to argue that their 2007 complaint is still
“Because of the pendency of the related earlier-filed North Carolina
Case,” their filing says, “transfer of this case to the EDNC, while not
required, is warranted in order to conserve judicial resources, avoid
subjecting the parties to inconsistent judgments, and thereby promote
It goes on to say that while both courts are capable of interpreting
and applying the law, it would be “wasteful” for two courts to be
“burdened with resolving the present controversy between the parties,
when the EDNC has already been doing so for nearly five years.”
Boyle’s court, they argue, is “extremely familiar with the facts and laws that give rise to both that case and the present one.”
Boyle, they note, is often assigned other cases involving ORV use at
the seashore and “is uniquely familiar with its history, geography, and
“Thus, the proposed transfer to a court already familiar with the
factual and legal predicate to this case would promote judicial
The defendant-intervenors further argue that while the claims in the
two cases are “not exactly identical,” they both arise out of the
defendants’ management of ORV driving at the seashore and allege claims
under the Administrative Procedure Act, National Environmental Policy
Act, the seashore’s enabling legislation, and the NPS organic act.
The environmental groups go on to make an argument that the court has a
stated interest in seeing local controversies settled at home.
And they claim this is a local controversy.
“Like the North Carolina Case, the outcome of this litigation could
affect the nature and amount of different kinds of tourism, land use,
and wildlife in coastal North Carolina, as well as the local economy in
and around Cape Hatteras, either adversely as CHAPA
predicts in its Complaint or beneficially as early economic indicators
such as park visitation and hotel/rental occupancy rates are showing.”
To strengthen the case that this is a local controversy, the
defendant-intervenors note that local government officials weighed in
on the draft plan. They go on to note that CHAPA exists in North
Carolina, four of five public meetings on the draft environmental impact
statement happened in this state, and that the rulemaking “generally”
took place here.
FOR MORE INFORMATION
To read the federal defendants’ response, click here.
To read the defendant-intervenors response, click here.