August 6, 2014
Appeals Court affirms in part and reverses
in part lower court ruling on Bonner Bridge
By IRENE NOLAN
U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., today
affirmed in part and reversed in part a lower court's decision on the
North Carolina Department of Transportation's plan to replace the aging
Herbert C. Bonner Bridge over Oregon Inlet.
A three-judge panel
of the Appeals Court upheld the decision by U.S. District Court Judge
Louise Flanagan that DOT and the Federal Highways Administration (FHWA)
had complied with the requirements of the National Environmental Policy
Act when they chose their preferred alternative.
alternative is the Parallel Bridge Corridor with an N.C. 12
Transportation Management Plan, which would use a phased approach to
address the hotspots on Highway 12 through Pea Island National Wildlife
The issue of whether the state and federal agencies
completed all the required steps in the environmental law and whether
the agencies illegally "segmented" the project by breaking the Highway
12 part into sections in the plan is at the heart of the legal dispute
about bridge replacement.
On that matter the Appeals Court
decision says in part, "They (DOT and FHWA) have neither attempted to
circumvent NEPA nor refused to study the overall impacts of the single
overall project. Rather, they have conducted a full,
site-specific analysis. Thus, their decision to implement the project
one phase at a time does not violate NEPA."
The Appeals Court agreed that the environmental studies and Record of Decision on the bridge replacement are complete and valid.
today's decision reversed a part of Flanagan's ruling that deals
with Section 4(f) of the Transportation Improvement Act of 1966.
4(f) requires that a transportation project that requires the use of
publicly owned land or a historic site can be permitted only if there
is no "prudent and feasible" alternative and the project is planned to
minimize potential harm to the wildlife.
The Section 4(f)
evaluation is not required, however, if a "joint planning exception"
applies -- that is the planning or development of the highway corridor
and of the refuge in 1938 were concurrent.
DOT claims that when
the land on Hatteras Island was given over to the federal government
for the refuge and the national seashore, it was with the understanding
that there would at some point be a transportation corridor on the
Environmental groups challenge that claim.
found in her examination of the case that the joint planning exception
did apply to the DOT and FHWA plan. However, the Appeals Court
found that "the evidence was wholly insufficient to support the
application of the joint planning exception." The court said that the
state agencies had failed to show that the refuge and corridor planning
The Appeals Court decision does not
specifically address the actual Section 4(f) evaluation and whether it
was sufficient or insufficient to meet the requirements of the law.
it remands the question of the joint planning exception back to the
U.S. District Court for further proceedings and analysis of whether the
exception applies in this case.
Should the lower court find that
the joint planning exception does not apply, it must determine whether
the agencies have complied with the substantive requirements of Section
4(f) and whether they conducted "all possible planning to minimize
Flanagan wrote in her decision that the agencies' Section 4 (f) evaluation was satisfactory and met the requirements of the law.
Appeals Court vacates Flanagan's previous analysis and instructs the
district court engage in the requisite "thorough, probing, indepth
review" to ensure that the determination of the agencies complies with
Section 4(f) requirements.
Today's decision is another chapter is the ongoing dispute between DOT and environmental groups over the bridge replacement.
Southern Environmental Law Center, on behalf of its clients, Defenders
of Wildlife and the National Wildlife Refuge Association, filed a
lawsuit in 2011 challenging the replacement decision.
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 bridge.
After Flanagan ruled in favor of the state and federal defendants, SELC appealed her decision.
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 -- heard oral
arguments on the appeal in mid-May. The Appeals Court decision was
written by Wynn and joined by Duncan and Childs.
the Court of Appeals Decision will mean for the time-frame for the
replacement of the bridge is not totally clear at this point.
we know is that the U.S. District Court for the Eastern District of
North Carolina will be taking another look at the 4(f) evaluation by
DOT and FHWA and looking at whether or not the joint planning exception
FOR MORE INFORMATION
Click here to read the U.S. Court of Appeals ruling.
Click here to read the ruling of U.S. District Court Judge Louise Flanagan.