February 26, 2013



Court approves scheduling on CHAPA
lawsuit to stop park’s ORV plan

By IRENE NOLAN



The 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. 

It 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.

It was settled by a consent decree, approved by Boyle in 2008, which put more restrictions on access to the beaches in the Cape Hatteras National Seashore.

Just before the seashore’s final ORV plan went into effect last February, CHAPA filed the lawsuit to stop it.

CHAPA 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.

The federal 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.

Defendant-intervenors 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 Record.

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.

Also, 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 conference.

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:

  • If 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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