Court of Appeals grants another 30-day
extension for rehearing of bridge lawsuit
By IRENE NOLAN
continue out of public view between the North Carolina Department of
Transportation and the Federal Highway Administration and the Southern
Environmental Law Center, on behalf of its clients, to settle a long
legal battle over the state agency's plan to replace the aging Bonner
Bridge over Oregon Inlet.
As promised, neither side in the
debate about replacing the bridge has commented on the confidential
maneuvering that's going on in Raleigh and Chapel Hill, nor has either
given any hint of how long it might take to either reach an agreement
or announce an impasse.
However, it's interesting to note that
the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., has
granted another 30-day extension of the time for parties in the lawsuit
to ask for a rehearing by the three-judge panel that issued an opinion
on Aug. 6 or by the entire Appeals Court.
Each party had 45 days
after the Aug. 6 ruling to ask for a rehearing, but instead they
announced on Sept. 15 that they were in "conversations" to find a
"Following a complex ruling issued by the U.S.
Fourth Circuit Court of Appeals on Aug. 6," DOT said in a news release
at that time, "both sides determined that it was best to move forward
with confidential discussions to resolve the bridge dispute."
the opinion, the Appeals Court panel disagreed with a large part of the
case that environmental groups made against the bridge replacement plan
-- that DOT did not follow the requirements of the National
Environmental Policy Act and that it illegally segmented the project.
The three judges upheld the decision of a lower court that DOT has
followed all necessary environmental laws.
However, the panel
did remand the part of the ruling that deals with building a road
through federal lands back to a lower court for another look.
confidential discussions that could end the case right there, DOT said,
include "replacing the aging Herbert C. Bonner Bridge with a new
parallel bridge while continuing to develop a long-term solution to the
transportation challenges along the stretch of N.C. 12 south of the
bridge to Rodanthe."
On the table for discussion is a 7-mile
span that would run out into the Pamlico Sound from just north of Pea
Island Inlet to northern Rodanthe and would eliminate the need for DOT
to bridge two hotspots where the ocean threatens Highway 12 on the
southern end of the refuge.
One of those hotspots is at Pea
Island Inlet, where a permanent bridge had been under construction
since February. DOT announced on Sept. 10 that it was suspending work
on that project. There has been no further comment on if or when the
project will continue.
Shortly after that announcement of the
negotiations, all of the parties -- including defendant-intervenor, The
Cape Hatteras Electric Cooperative -- petitioned the court to extend
the 45-day time period to petition for rehearing for another 30 days.
The reasons, they said, were two-fold.
the extension was necessary to "facilitate ongoing settlement
discussions" and, if successful, no party would have to ask for a
rehearing. An extension would "avoid entangling the court in rehearing
petitions that might prove unnecessary."
The second reason was
that the parties needed additional time to complete the process of
deciding whether to file any rehearing petitions.
That petition was granted, and the court extended the deadline from Sept. 22 to Oct. 22.
Last Friday, the court granted a second extension. This one moves the deadline from Oct. 22 to Nov. 21.
However, the second petition was filed by DOT and FHWA only. The agencies cited the same two reasons for the extension.
Then the petition notes that the agencies asked the plaintiffs -- SELC and clients -- for their position on the second request.
to the petition, SELC and clients stated that "Plaintiff-Appellants do
not join and take no position on this motion, and believe that the
ongoing settlement negotiations can continue to proceed without an
additional extension of the deadline."
In the petition for the
second extension, filed on Oct. 14, DOT says that, with just eight days
left, "it is not possible that the settlement negotiations will be
concluded with a signed settlement by the Oct. 22 rehearing deadline."
an extension, the agencies said they might be forced to petition for a
rehearing in the midst of negotiations that could eliminate the need
The court granted the petition without comment.