D.C. judge sends CHAPA lawsuit
to stop ORV plan to Boyle
By IRENE NOLAN
District Court Judge Emmet Sullivan this week sent the Cape Hatteras
Access Preservation Alliance lawsuit over the National Park Service’s
final rule and off-road vehicle plan to Judge Terrence Boyle of the
federal court in the Eastern District of North Carolina.
had said at the end of July that he was inclined to send the lawsuit to
Boyle’s court – “sua sponte” or of his own accord.
He asked the other parties to the case to respond to his proposal.
objected to the transfer. The federal government parties –
and Department of the Interior – said they didn’t care.
Defenders of Wildlife and the National Audubon Society, intervenors in
the lawsuit who are represented by the Southern Environmental Law
Center, argued in favor of the transfer.
Although Defenders and Audubon are
now on the side of the Park Service, they are the groups that
originally forced the new ORV plan and final rule.
represented by SELC, filed suit against the Park Service in October of
2007 over its lack of an ORV plan and sufficient protections for
nesting birds and turtles in the Cape Hatteras National Seashore.
That case was assigned to Boyle and was decided by a consent decree in
consent decree dictated extremely large and restrictive buffers and
closures for birds and turtles, especially piping plovers.
if not all, of the restrictive aspects of the consent decree eventually
became part of the final rule, which was effective on Feb. 15.
Boyle has scheduled a status conference in the CHAPA lawsuit on Jan. 23
his order sending the case to Boyle, Sullivan said, “The court finds
that the balance of the factors weighs in favor of transferring this
case to the Eastern District of North Carolina.”
He notes that
the legal standard for transferring a case is for the convenience of
parties and witnesses and the interest of justice to “prevent the waste
of time, energy and money and to protect litigants, witnesses, and the
public against unnecessary inconvenience and expense.”
decision on whether the case should be transferred, therefore, turns
upon a balancing of the public and private interest factors involved,”
He ruled that the plaintiff’s claim that it
should have deference as to where to file was “diminished,” and that
there are “significant ties between this controversy and North
Sullivan also wrote that the convenience of the
parties and the witnesses were not necessarily pertinent since “the
court finds it is more likely that this case will be confined to review
of the administrative record…”
He furthermore said that the
“undisputed and concentrated interests of local individuals,
businesses, and other entities” favor keeping the case in North
Finally, Sullivan said:
while the parties dispute whether or not the consent decree in the
North Carolina decree should have expired upon the issuance of a Final
Rule and Management Plan, the fact remains that the North Carolina case
is still pending. This indicates that there is at least some risk of
as Intervenors note, the District Court for the Eastern District of
North Carolina has, over the past five years, ‘held numerous hearings
on the legal requirement for an ORV rule, the development of such a
rule, the specific provisions of the rule, the management of ORV
driving on the National Seashore while the rule was being developed,
recovery of protected species under the provisions implemented in the
Final Rule, and related issues.’”
the court there is extremely familiar with the facts and laws that give
rise to both cases indicates that the expenditure of additional time by
this Court would be a manifest waste of already scarce judicial
resources. This factor, therefore, weighs in favor of transfer.”
its lawsuit, CHAPA takes issue with just about every step in the
process of ORV rulemaking, which, it says, began in earnest in 2005.
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.
“All of the action
alternatives identified and considered by NPS provided for highly
restrictive buffers that would have effectively prohibited ORV use
throughout much of the Recreational Area,” the complaint
continues. “In the flawed NEPA and rulemaking process that
followed, NPS failed to give meaningful consideration to any views,
data, or information that might be inconsistent with the agency’s
The plaintiffs claim that the Draft
Environmental Impact Statement, the Final Environmental Impact
Statement, the Record of Decision, and the ORV management plan and
final rule are “arbitrary and capricious” and violate the National
Environmental Policy Act (NEPA), the Administrative Procedures Act
(APA), the CHNSRA enabling legislation, and the NPS Organic Act.
Click here to read Judge Emmet
Sullivan memorandum order sending the CHAPA lawsuit to Judge Terrence