February 12, 2015

Appeals Court grants request for mediation


The U.S. Court of Appeals for the Fourth Circuit today granted a request by all of the parties involved in the legal wrangling over replacing the Herbert C. Bonner Bridge for the assistance of a mediator in their effort to negotiate a settlement in the case.

A joint motion by the parties asking for referral to the Appeals Court's Mediation Program was filed on Monday, Feb. 9. 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 remaining issues.

The lawsuit was filed in federal court in 2011 by the Southern Environmental Law Center, on behalf of its clients, Defenders of Wildlife and the National Wildlife Refuge Association, against the North Carolina Department of Transportation  and the Federal Highway Association.

The lawsuit challenges NCDOT's 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.

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.

In 2013, U.S. District Court Judge Louise Flanagan ruled in favor of the state and federal defendants, and SELC appealed her decision to the Fourth Circuit. On Aug. 6, the Court of Appeals affirmed part of Flanagan's decision but denied another part and remanded the case back to the lower court.

In September, the parties announced that they were trying to negotiate a settlement.

The Fourth Circuit's order granting the motion for mediation also granted the parties' request that the time to ask for the Appeals Court for a rehearing of the case be extended until mediation has concluded.

The mediation is confidential and no details on the progress will be available to the public.  There is also no timetable for the mediation.

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