October 21, 2014

Court of Appeals grants another 30-day
extension for rehearing of bridge lawsuit


Negotiations 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 solution.

"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."

In 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.

The 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.

First, 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.

According 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."

Without an extension, the agencies said they might be forced to petition for a rehearing in the midst of negotiations that could eliminate the need for it.

The court granted the petition without comment.

comments powered by Disqus