Parties in Bonner Bridge lawsuit ask
Appeals Court for mediation
By IRENE NOLAN
parties involved in the long legal battle over the North Carolina
Department of Transportation's plan to replace the Herbert C. Bonner
Bridge have asked the U.S. Court of Appeals for the Fourth Circuit for
the assistance of a mediator in their effort to negotiate a settlement
in the case.
In a joint motion filed on Monday, Feb. 9, at the
Appeals Court in Richmond, Va., the plaintiffs, defendants, and
defendant-intervenor said that the parties in the case have made
"substantial progress toward settlement" but feel that the assistance
of a mediator "will be helpful, perhaps essential" in resolving the
The parties in the legal wrangling have
been negotiating on their own since shortly after the Appeals Court
issued its opinion in the lawsuit on Aug. 6.
The lawsuit was
filed in the U.S. District Court for the Eastern District of North
Carolina in 2011, shortly after NCDOT announced its plan to replace the
Bonner Bridge over Oregon Inlet with a parallel span and to address the
issues of "hotspots" on Highway 12 through the Pea Island National
Wildlife Refuge with a phased approach.
Environmental Law Center, on behalf of its clients, Defenders of
Wildlife and the National Wildlife Refuge Association, challenged the
decision by NCDOT and the Federal Highway Association.
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.
2013, U.S. District Court Judge Flanagan ruled in favor of the state
and federal defendants, and SELC appealed her decision to the Fourth
The environmental advocacy groups appealed to the Fourth Circuit.
The Appeals Court's Aug. 6 decision affirmed in part, reversed in part, and remanded the case back to Flanagan.
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 reverse the part of the ruling that deals with building a road
through federal lands and remanded it back to the lower court for
In September, the parties involved announced that they were negotiating a settlement to the legal dispute.
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."
As promised, neither
side has made any public comment about the progress of the
negotiations, and discussions have taken place out of public view.
parties to the lawsuit had 45 days from the date of the August ruling
to ask the Appeals Court for a rehearing. In September, all
parties asked for an extension of that deadline, and DOT and Federal
Highway then requested and received four more time extensions -- a
total of five.
The most recent extension was until this Friday, February 13.
the environmental groups have also taken the bridge issue to state
courts by challenging the major CAMA permits that the North Carolina
Division of Coastal Management issued for the bridge replacement.
That challenge to the permit is pending in the North Carolina Office of Administrative Hearings.
the motion for referral to remediation filed yesterday, the parties
agreed that the two cases are, as a practical matter, "so entwined that
a negotiated resolution of both cases is far more likely to be achieved
than a resolution of either alone."
The parties asked that they
be assigned to Donna Hart, senior resident circuit mediator, since the
case was assigned to her shortly after the appeal was filed.
also asked for an extension of the time allowed to ask for a rehearing
until the mediator notifies the court that an agreement has been
reached or until 30 days after she declares an impasse.
According to the Fourth Circuit's website:
Fourth Circuit Mediation Program provides a mediation setting where
litigants and their attorneys can confidentially discuss their pending
case on appeal with a trained neutral Circuit Mediator. The Circuit
Mediator, usually by conference telephone call, discusses the case with
the parties' counsel, asks questions about their respective positions
and interests and explores the possibilities of settlement. The
mediation program is a service of the Fourth Circuit; therefore, there
is no charge. However, under Local Rule 33, participation is required
if the case is referred to the mediation program. Only cases in which
all parties are represented by attorneys are eligible."
to the case docket for the appeal, a mediation conference
was scheduled on Nov. 4, 2013 by telephone with mediator Hart, a
Durham, N.C., attorney. It is unclear from the docket if that mediation
happened or if it did, what the outcome was.
However, the court's
website also notes that "all statements, documents, and discussions in
such proceedings shall be kept confidential."
comments made during all mediation conferences, and papers or
electronic information generated during the process, are not included
in Court files except to the extent disclosed by orders entered under
this local rule," the website states.
As of Tuesday afternoon, the Appeals Court had not responded to the request for mediation.
FOR MORE INFORMATION
Click here to read the joint request for referral to the Fourth Circuit Mediation Program.
Click here to go to the Fourth Circuit's website on the mediation program with frequently asked questions.
UPDATE: NCDOT asks for fifth time extension,no end in sight to negotiations....Jan. 09, 2015
Appeals Court affirms in part and reverses in part lower court ruling on Bonner Bridge...Aug. 6, 2014
Don't believe everything you read..."Shooting the Breeze" blog from Aug. 8, 2014
DOT temporarily suspends work on new Pea Island bridge...Sept. 10, 2014
UPDATE: DOT and SELC in 'discussions' about Bonner Bridge replacement...Sept. 15, 2014
UPDATE: New concept includes 7-mile bridge into Pamlico Sound...Sept. 16, 2014
7-mile bridge could be costly to CHEC customers...Oct. 1, 2014
Court of Appeals grants another 30-day extension for rehearing of bridge lawsuit...Oct. 21, 2014
Rumors of Bonner Bridge closure shot down, as negotiations continue...Nov. 25, 2014
NCDOT gets fourth time extension, no end in sight to negotiations... Dec. 17, 2014