No quick resolution of Bonner Bridge replacement lawsuit is likely
Friday 13 July 2012 at 2:10 pm.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.
23 comments
That schedule will only last until or if construction is begun. Unless Summary Judgement is granted first, the injunction the axis powers will file, and I dare say be granted, to stop construction will scramble this, or at least add another layer. And the beat goes on, the “no bridge to somewhere”.
Denny in Dayton - 14-07-’12 09:02
Agree bbc
The projected life of the bridge, opened in the mid 1960s, was 30 yrs, so replacement should have been done mid to late 1990s.
I don’t recall the projected cost of mid to late 1990s replacement but my guess is that NC/Fed have spent a good portion of that cost (our tax $s) over the last nearly 20 yrs just shoring up the bridge to keep it open, not to mention the tax $s spent on study after study and lawsuits.
Salvo Jimmy - 14-07-’12 09:05
This lawsuit is another example of what is wrong with our country. Laws passed to stop government from making decisions in a vacuum have been hijacked to allow extremists to sue when the decision of that process does not agree with their position.
The law suit should have been dismissed period and the groups fined a million a piece for wasting the Court’s time.
JIm - 14-07-’12 10:25
It is ok for CHAPA to file a lawsuit, but not environmental groups. What a bunch of crybabies.
Anon - 14-07-’12 11:09
I pray that no one dies from a structural failure of the bridge before 2015. With all that has been written about the degradation of the bridge perhaps a travelers blessing should be given at each end of the span before crossing…..
hatrasfevr - 14-07-’12 11:33
Anon: CHAPA was formed to defend against the environmental groups lawsuits and bullying. SELC loves that CHAPA was formed, it ensures continued litigation = money.
The environmental groups don’t care about the people or economy. Their meddling in the bridge project has and is endangering lives. Their proposal of a ferry only proves the point they are completely out of touch with how their actions are affecting the economy of HI.
anon - 14-07-’12 11:43
Dearest Anon,isn’t the CHAPA suit in response to the environmental group suit?
Hawk Hawkins - 14-07-’12 14:49
I think everyone is nuts.. This is the most studied bridge in America… maybe we should get the TV news involved..When are we going to have a safe bridge.. Maybe we need to take a law suit for stress and quality of live against the special envior(mental) groups..that are making our lives most difficult to live on Hatteras Island..and our pursuit of happiness..Is not that our right..Maybe not we do not have the MONEY…any good Lawyers out there wanting to take them on???
pat avon - 14-07-’12 18:16
as time goes on, all these ridiculous lawsuits and studies have done is add to the cost of replacing the bridge.
bbc - 15-07-’12 07:09
Which bridge are we talking about? The replacement for the Bonner, the new Pea Island inlet bridge, the new Rodanthe bridge, or the long bridge that could replace all three?
puzzled - 15-07-’12 08:24
The environmental groups just want the bridge to fall down and possibly kill a lot of people so hopefully there government friends will shut down all of hatteras island. They would rather kill a few people if it means saving a few birds. I think once this bridge gets built, these groups will move on because then there will be to many people telling them its a lost cause because there is a brand new bridge. they will come back 50 years from now when the bridge needs to be repaired or rebuilt.
carolinanic - 15-07-’12 11:21
Have you been noticing that the folks who side with the eco nazis hide under the anon handle?? Are they afriad of retaliation? Not much of a back bone. Hey if I believe in what I am fighting for I will stand up and take whatever comes my way. nuff said
Tony Hess - 15-07-’12 11:48
Derb lays in bed at night and dreams about different ways to come up with a new lawsuit. He needs to, ever see the house he lives in? Then again, America might have already bought it for him. The bridge suit was and is one of his best yet.
Jimmy S. - 15-07-’12 12:43
Not to change the subject.. But as of 7/11 only one active nest??? look at NPS info…why are the beaches still closed??? Have you seen the traffic on Pea island.. thats the new place to access the beach… Short Walk..very dangerous….Lets fix the bridge NOW..let the State RULE…not outsiders…
pat avon - 17-07-’12 17:41
While much of what I predicted about crowds on the beaches and lines at the ORV permit office have not happened, the parking on the side of the road is horrible. The new bridge, Mirlo Beach, kite point (not so much right now), and outiside of Buxton. Basically anywhere you can do a short walk over a single dune.
Anyone want to guess how long it takes for USFWS to crack down on the Pea Island parking?
Anyone want to guess how long before someone gets hit by a passing car.
But in the natioanal observer, Murray said there has not been places where visitors in search of wilderness experience (lack of ORVs) could go and they worked long and hard to provide such areas. Areas where you can kayak out and feel like you are on the end of the world.
What he didn’t say is that 3 of the 4 ramps between Avon and Salvo have been closed and that there is no parking elsewhere. Good job, wilderness access with no way to get there, let alone take a kayak out there.
Ginny - 17-07-’12 19:21
ginny…..i took two california friends out to cape point a few years ago. they still talk about it when i see them and they refer to it as being ‘at the end of the world’.
bbc - 17-07-’12 22:11
The new plan for people in the Park has already failed! The permit money rolls in and the only thing I see is more closed beaches and less parking. Next year the Park will be sued again and it will be ‘‘by the people’‘. Same goes for those who have stopped the bridge. See you in November…
Benny Wright - 18-07-’12 07:19
A big problem with the federal gov’t is poor communication between agencys. there is not one standard plover policy nationwide.
ZuniKev - 18-07-’12 20:47
Two of the main factors contributing to the demise of Hatteras Island was the Bonner Bridge and the dune ‘lines’. It has been downhill since then. The dune lines have proven themselves to causes erosion, over and over. Yet the state continues to construct in a solid line.
Steve - 25-07-’12 16:35
The state is only allowed to rebuild the dunes where it protects the road. No solid line.
This was one of the reasons for the Pea Island breach at the temp bridge. FWS would not allow the state to rebuild the dunes in that area because the road was not next to the old washed out dune line.
Salvo Jimmy - 30-07-’12 08:01
Since the plaintiff attorney’s can rake in the $$$$ as long as they drag out this suit it will continue until the court puts their foot down. That is unlikely to happen because the people who are extorting tax dollars are before one of their fellows/sorority sister/fraternity brother etc. Our system is very broken and the legislation that was passed many years ago to guarentee that tax dollars will fund both sides of every enviro suit brought against a government agency has created an entire industry of law firms that prosper from such suits and judges who enable it to go on.
Al Adam - 13-07-’12 15:16Perhaps we can start some change in November —- maybe it is too broken to fix —- like the bridge!!