February 26, 2013
Court approves scheduling on CHAPA
lawsuit to stop park’s ORV plan
By IRENE NOLAN
parties to a lawsuit filed a year ago by the Cape Hatteras Preservation
Alliance against the federal government to stop the seashore’s new
off-road vehicle management plan and final regulation have agreed to a
schedule for proceeding, which has been approved by the court.
The lawsuit was filed last February in the U.S. District Court for the District of Columbia in Washington, D.C.
was transferred late last year to the Eastern District of North
Carolina and assigned to federal District Court Judge Terrence Boyle,
who also presided over a lawsuit by environmental groups against the
Park Service, which resulted in the ORV plan.
That lawsuit was
filed in October of 2007 by Defenders of Wildlife and the National
Audubon Society, represented by the Southern Environmental Law Center
against the National Park Service.
Dare and Hyde counties were part of the action as defendant-intervenors.
was settled by a consent decree, approved by Boyle in 2008, which put
more restrictions on access to the beaches in the Cape Hatteras
Just before the seashore’s final ORV plan went into effect last February, CHAPA filed the lawsuit to stop it.
contends in the lawsuit that the final ORV rule, the Final
Environmental Impact Statement, and the Record of Decision violate the
National Environmental Policy Act, the National Park Service Organic
Act, the Administrative Procedure Act, and the Cape Hatteras National
Seashore Recreational Area Enabling Legislation.
defendants contend that the final regulation complied with all
applicable laws. The defendants include Ken Salazar, Interior
secretary, Jonathan Jarvis, Park Service director, and Mike Murray, who
was superintendent of the Cape Hatteras National Seashore.
in this case are Defenders of Wildlife, the National Audubon Society,
and the National Parks Conservation Association, represented by
Southern Environmental Law Center.
Attorneys for all of the
parties in the case conferred by phone on Feb. 6 and agreed to a
proposed schedule to the court for proceeding.
The joint report
of the parties’ planning meeting and proposed schedule notes that the
case is expected to be resolved on the basis of the Administrative
The massive Administrative Record in the years-long
attempt to establish an ORV management plan at the seashore was filed
on Sept. 6.
In the planning document the parties ask for an
order exempting the case from the requirement for mediation before a
ruling by the judge.
“The parties currently expect this case to
be litigated on its merits, but will continue to evaluate potential
opportunities for settlement as appropriate,” they said. “All parties
share the view that Alternate Dispute Resolution (ADR) would not be
fruitful at this time. This case involves a claim for declaratory and
injunctive relief that is expected to be reviewed on an extensive
Administrative Record pursuant to the APA. In light of this posture and
the technical complexity of the case, the parties agree that ADR is not
likely to deliver benefits to the parties sufficient to justify the
resources consumed by its use at this time.”
The court agreed to the exemption.
because of the fact that the parties expect the case to be resolved on
review of the Administrative Record, they did not ask for a pretrial
The schedule they proposed, accepted by the court, would result in all filings in the case to be completed by July 19.
Here are the details:
the parties cannot resolve issues related to the contents of the
Administrative Record, motions to complete or supplement it must be
filed by the plaintiff by March 6. Defendants may respond to the motion
by March 20. If a motion is made to amend the record, then the
parties agree to submit an amended schedule.
- CHAPA motion for summary judgment – a judgment issued summarily without a trial – is due by April 19.
- Defendants’ and defendant-intervenors’ cross motion for summary judgment is due by May 20.
- Plaintiffs' response to defendants’ cross motions due by June 19.
- Defendants’ and defendant-intervenors’ replies in support of their motion is due by July 19.
FOR MORE INFORMATION
Click here to read the joint report of the parties’ planning meeting and proposed schedule.
Click here to see the court’s scheduling order.
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