December 28, 2012

D.C. judge sends CHAPA lawsuit
to stop ORV plan to Boyle


U.S. 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.

Sullivan 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.

CHAPA objected to the transfer.  The federal government parties – NPS and Department of the Interior – said they didn’t care.

However, 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.

Those groups, 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 2008.

The consent decree dictated extremely large and restrictive buffers and closures for birds and turtles, especially piping plovers.

Many, 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 in Raleigh.

In 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.”

“The decision on whether the case should be transferred, therefore, turns upon a balancing of the public and private interest factors involved,” Sullivan wrote.

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 Carolina.”

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 Carolina.

Finally, Sullivan said:

“Moreover, 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 inconsistent judgments.

“Finally, 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.’”

“That 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.”

In its lawsuit, CHAPA takes issue with just about every step in the process of ORV rulemaking, which, it says, began in earnest in 2005.

“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.

“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 desired result.”

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 Boyle.

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