August 6, 2014

Appeals Court affirms in part and reverses
in part lower court ruling on Bonner Bridge


The 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.

The chosen 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 Refuge.

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.

However, today's decision reversed  a part of Flanagan's ruling that deals with Section 4(f) of the Transportation Improvement Act of 1966.

Section 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 island.

Environmental groups challenge that claim.

Flanagan 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 were concurrent.

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.

However, 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 harm."

Flanagan wrote in her decision that the agencies' Section 4 (f) evaluation was satisfactory and met the requirements of the law.

The 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.

The 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.

The 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 bridge.

After Flanagan ruled in favor of the state and federal defendants, SELC appealed her decision. 

The 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.

Exactly what the Court of Appeals Decision will mean for the time-frame for the replacement of the bridge is not totally clear at this point.

All 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 applies.


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.

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