It’s been more than a year since Defenders of Wildlife and the National Wildlife Refuge Association, represented by the Southern Environmental Law Center, filed a lawsuit to stop the Bonner Bridge replacement project.
The lawsuit, filed on July 1 of last year in the U.S. District Court for North Carolina’s Eastern District, charged that the North Carolina Department of Transportation and the Federal Highway Administration did not adequately assess or address the environmental consequences of building a 2.7 mile bridge parallel to the current one and postponing addressing the problems of erosion on Highway 12 through the Pea Island National Wildlife Refuge. The defendants, the lawsuit says, violated the National Environmental Policy Act (NEPA).
The plaintiffs favor a longer, 17-mile bridge into the Pamlico Sound from Bodie Island to Rodanthe. Or even better yet, they favor ferry access to Hatteras.
The case was assigned to Judge Louise Flanagan in New Bern, N.C., and it has plodded along through the court system for a year now as both sides have sparred on largely procedural issues.
And nothing much of importance is likely to be decided the rest of this year as attorneys for both sides and the Cape Hatteras Electric Membership Corporation, which is a defendant-intervenor, file various briefs with the court on a schedule set forth by Flanagan in a June 25 order.
Meanwhile, NCDOT has hired the contractors for building the parallel bridge and has said that construction will start after the first of the year.
Construction could be well underway before Flanagan makes any significant rulings in the case.
Most of the past year has been devoted to the defendants’ filing of the administrative record in the bridge replacement project and scheduling issues.
As you might imagine, the administrative record of the two-decade effort to replace the aging bridge is voluminous.
On Jan. 31, the defendants, DOT and FWHA, filed the administrative record on a portable hard drive. The plaintiffs objected and the judge ordered that the record be filed electronically, which it was.
After the administrative record was filed, on April 5, the environmental groups filed a motion to complete and supplement the record with three groups of documents that they believe belong in the record – internal DOT correspondence, various other internal documents, and documents that came after the record of decision on replacing the bridge.
The plaintiffs listed 75 more e-mails and other documents that they wanted admitted.
The court filings show that the plaintiffs already have all of the e-mails and records, many of them obtained through requests under the federal Freedom of Information Act.
However, what does and does not get admitted to the record is important to both sides.
That is because all sides will make motions and cross-motions for summary judgment – asking the court to rule in their favor based on the facts of the case without trial or further testimony.
So what ends up in the record – the facts upon which the judge will rule -- is an issue.
In an order issued on June 6, Flanagan granted a portion of what the environmental groups asked to include in the record and denied their request on other documents.
Flanagan denied the request to admit the internal e-mails and she denied the request to include other documents that included hand-written meeting notes, drafts, meeting minutes, talking points and more e-mails.
The judge allowed the plaintiffs’ request for another 25 or so documents that came after the record of decision on the bridge replacement was signed in December, 2010.
The parties to the case then conferred on an amended schedule for filing motions and cross motions for summary judgment.
In a June 25 order, Flanagan set out the schedule that runs almost until the end of the year.
That schedule is:
- Federal defendants – NCDOT and FHWA -- will file additional documents allowed in administrative record by July 13.
- Plaintiffs’ motion for summary judgment is due July 20 and is to be accompanied by a memorandum not to exceed 60 pages.
- Federal and state defendants – NCDOT and FWHA – shall file cross-motions for summary judgment and responses in opposition to plaintiffs’ motion for summary judgment by Aug. 31. Each is not to exceed 60 pages.
- The intervenor, CHEC, may file a single memorandum in response to plaintiffs’ and defendants’ motions by Sept. 11. This is not to exceed 30 pages.
- Plaintiffs’ reply memorandum in support of summary judgment motions and opposition to defendants’ motions are due by Oct. 5 and shall not exceed 40 pages.
- Plaintiffs’ reply memorandum in support of their motion and response to intervenor’s memorandum is due Oct. 12 and is not to exceed 10 pages.
- Defendants’ reply memoranda in support of their respective motions for summary judgment are due Nov. 2 and shall not exceed 20 pages.
- CHEC may file a single replay memorandum by Nov. 9 and it is not to exceed 10 pages.
- Plaintiff’s surreply (additional reply) is due Nov. 16 and shall not exceed 10 pages.
And by the time Judge Flanagan plows through all of those documents and rules on summary judgment, the construction of the bridge replacement will likely be underway.
In fact, the way this case is moving through the court, the bridge could be completed before the legal case ends!
The completion date is now expected to be in 2015, so it’s not that farfetched.