of the more down and dirty battles on the Outer Banks moved into the
refined wood-paneled courtroom of a federal appeals court in Richmond,
Va., today when attorneys representing both sides of the Bonner Bridge
replacement issue argued before a three-judge panel on the merits of
other yawn-inducing court hearings, this was akin to a free-wheeling
sparring match between attorneys and the higher court judges, who
continually interrupted the lawyers with pointed, persistent
oral arguments at the U.S. Court of Appeals for the Fourth Circuit --
with each side given a mere 20 minutes to defend its position -- were
the last step in the process of an appeal filed last October by the
Southern Environmental Law Center against the North Carolina Department
of Transportation and the Federal Highways Administration.
Cape Hatteras Electric Cooperative was allowed to join as a
defendant-intervenor because the environmental groups’ preferred
alternative – a 17.5 bridge that bypasses Pea Island – would require
prohibitively expensive transmission lines under the
Typically, the appellate court issue rulings in about 60 days.
so, the exhaustive 25 years of studying, planning, filing and
responding to lawsuits that has transpired during the effort to replace
the 51-year-old Herbert C. Bonner Bridge over Oregon Inlet will
hearing on a separate legal action by SELC against the state Coastal
Resources Commission has been scheduled for November. Construction on
the bridge will be frozen at least until that matter is resolved.
the Defenders of Wildlife and the National Wildlife Refuge Association,
SELC attorney Julie Youngman argued on Tuesday that the state violated
environmental laws by analyzing the Bonner project in segments and by
selecting an alternative that was not the least harmful to Pea Island
National Wildlife Refuge.
Sept. 16, U.S. District Court Judge Louise Flanagan issued a 42-page
ruling that rejected every claim made by the law center in a 2011
lawsuit challenging construction of the replacement project. The
plaintiffs filed an appeal on Oct. 1.
DOT attorney, John Maddrey, and the Highways Administration attorney,
Robert Lundman argued that the National Environmental Policy Act did
not forbid projects to be done in phases and that the chosen bridge
alternative minimized harm to the refuge. They also said it was the
most prudent, affordable option for replacing the critically aged
appellate panel -- Judge James A. Wynn Jr. from Robersonville,
N.C; Judge Allyson K. Duncan from Durham; and U.S. District
Judge Michelle Childs, a designee from South Carolina -- asked
questions at will and frequently followed up after expressing confusion
or a lack of understanding of the attorneys’ arguments.
sitting on the four rows of benches in the small courtroom, parsing
every utterance from the judges, included numerous Dare County
residents and public officials.
Unfortunately for the court-watchers, the line of questioning produced no clear insight into where the judges' sympathies lie.
questioning Youngman, Wynn wondered that even if the short bridge
alternative was selected with one of the studied Highway 12 maintenance
alternatives, wouldn’t that satisfy one environmental rule, but not the
other? What about if we say okay, build the bridge, he continued, but
make the second part of the project subject to an Environmental
“Are you asking to start over?” Duncan interjected.
Youngman said that the defendants “need not hide the ball” and should
provide the details of the entire project, not just the bridge
several back-and-forth exchanges, Duncan repeatedly tried to determine
if the plaintiffs were asking that the project be remanded –sent back –
for more suitable conditions.
“They can be directed to consider a short bridge alternative, but they need to consider it in full,” Youngman replied.
referring to Flanagan’s statement that the $1 billion upfront payment
for the long bridge the SELC favors was cost prohibitive, Duncan asked
Youngman if that was “clearly erroneous.”
believe it is,” Youngman replied, pointing to the funds available for
the planned bridges in Pea Island and Rodanthe.
his argument, Lundman said that the final environmental statements
included a transportation management plan that detailed all the
different alternatives that the agency considered, as well as how the
project would be done in phases as needed. What it did not do, he said,
is say exactly what would be done when on the later phases of the
project, which includes Highway 12 south of the bridge to Rodanthe.
hard to make those choices because of the dynamic nature of these
islands,” he told the judges. “It doesn’t make sense to spend $300
million where there may not be a breach.”
Wynn asked again if it would be possible to build the bridge and choose an alternative that has been studied for a later phase.
“I’m just trying to figure out why this all fell apart,” he said. “I’m not following what’s going on.”
chimed in, elaborating on Wynn’s questioning about the feasibility of
doing the project while staying within the bounds of the existing
“If you deviated from that, then a statement gets done,” she said. “It’s not a reversal, it’s an affirming.”
“I’m all for an affirming,” Lundman said, inspiring the only laughter of the hearing.
then explained to the panel that the transportation plan describes what
will happen after Phase I, that is, construction of the new bridge. The
selected alternative, he said, provides the flexibility to respond to
the current conditions.
But Wynn questioned how the road would survive the coastal conditions.
“You know Highway 12 in the next hurricane is gone,” he said.
Maddrey responded: “Those breaches that came after Irene validates the decision.”
the hearing, Derb Carter, director of SELC’s North Carolina office,
declined to say what his reaction was to the questioning, other than
note that the court was making inquiries of both sides.
“We think the court seemed to clearly understand the key issues of the case,” he said, “which is very encouraging.”
Warren Judge, chairman of the Dare County Board of Commissioners, didn’t hesitate to state his opinion.
glad we had the opportunity to be in court today,” he said. “It always
amazes me how the Defenders of Wildlife has no regard for the human
life that uses the bridge.
“I feel confident that NCDOT is in the right,” he continued. “I just believe that right will prevail.”
to what the panel will decide, it’s kind of like forecasting the
weather, said Norman Shearin, a Kitty Hawk attorney who is representing
the Cape Hatteras Electric Cooperative.
a partner with Vandeventer Black, said he has argued about 10 times in
front of the appellate court during the course of his 40-year career.
Since he willingly gave up his allotted time to the transportation
attorneys, he said this is the first time he got to be an observer in
the Court of Appeals.
was not discouraged by the arguments,” he said after the hearing. “They
were a very active and candid panel. So often, you don’t get insight
into what the judges are thinking.”
put, Shearin expects that the panel will affirm the lower court
decision and remand it. But that encompasses numerous possibilities.
They could require additional studies by the agencies. They could
accept Flanagan’s ruling outright. They could modify it and specify the
“But there really isn’t any way,” he said, “to predict with certainty what they’re going to do.”
FOR MORE INFORMATION
For more information on the U.S. Fourth Circuit Court of Appeals, go to http://www.ca4.uscourts.gov/oral-argument/oral-argument-calendar.
To listen to an audio of the hearing, which should be available in two days, go to http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-arguments.