It shouldn?t be too long before we know whether U.S. District Court Judge Emmet Sullivan of the District of Columbia will preside over the Cape Hatteras Preservation Association?s lawsuit to overturn the National Park Service off-road vehicle plan and final rule at Cape Hatteras National Seashore.
The alternative is that he will transfer the case to the Eastern District of North Carolina and to U.S. District Court Judge Terrence Boyle.
Sullivan said he was considering that option during a July 26 status conference with the parties to the lawsuit. He suggested he would transfer the case ?sua sponte? ? of his own accord, without a request from any of the parties.
CHAPA has filed an objection to Sullivan?s inclination to transfer the case, and this week the federal defendants and defendant-intervenors responded to that objection.
Now it?s up to Sullivan.
If he does transfer the case, it will probably be sooner rather than later since the next filings are due in early September.
CHAPA filed a 17-page objection that made some good points.
CHAPA?s objection notes that Sullivan suggested that issues of ?judicial economy? may warrant the transfer. He expressed his concern that retaining the case would result in two federal judges expending their resources to resolve the same controversy.
However, CHAPA notes in its objection that ?the controversy is not the same? and the case that Boyle presided over was very different from the CHAPA complaint.
The CHAPA brief says that the DOW case focused on vacating the interim plan and the Park Service?s failure to prepare an ORV management plan and special regulation.
?NPS has now done what the DOW case sought,? CHAPA says. ?Under the terms of the Consent Decree, the claims of the plaintiffs in that case were dismissed with prejudice based on the commitments and representations in the Consent Decree. The Consent Decree (as NPS acknowledged in its Feb. 9, 2012 Notice in that case) should be deemed to have automatically expired effective Feb. 15, 2012, and CHAPA or anyone else dissatisfied with the Final Rule and ORV Management Plan should have been free to challenge those actions in a separate action, i.e., a new case.?
CHAPA really wants to see this case tried in D.C. ? or maybe just any venue that isn?t Boyle?s court.
The federal defendants filed a scant three-page response that said they neither proposed not objected to a transfer.
I found one of the most interesting points in that brief was the statement that the 2007 case filed by the environmental groups and settled by a 2008 consent decree ?remains unanticipatedly pending.?
Love that choice of words ? unanticipatedly. In fact, I?m not sure it is a word.
The consent decree was to expire when the ORV rule and special regulation became final, which happened Feb. 15.
However, Boyle refuses to let go of the case. He?s had two status hearing since February and has scheduled another for December.
?At this juncture, it is unclear whether that case will remain pending, or for how long or what purposes, and whether such continuation would be proper,? the defendants state. ?Nevertheless, given the possibility that case will remain pending, a risk arises of inconsistent judgments in the event this case is not transferred.?
Apparently even the lawyers for the federal government are perplexed that Boyle refuses to give up.
As expected, the response filed by the environmental groups as defendant-intevenors in the case praised Judge Boyle?s familiarity with the facts and law of the case and his ?unique? familiarity with the seashore?s geography, history, and landscape.
Like that choice of words also ? Boyle?s ?unique? understanding of and familiarity with the seashore. It certainly is just that ? unique.
The fact is that in all of his status hearings over four years, Boyle has proven that he just doesn?t get the issue of public access to seashore beaches.
He has seemed much less concerned with the success of various nesting birds and turtles than with issues of public safety ? which has not really been an issue at all in the access debate.
At one hearing, he noted that the night driving prohibition has contributed to the public?s safety at the seashore. With only one or two exceptions that I can think of over the past few decades ? and at least one of them involved alcohol — public safety on the beach at night has not been an issue. Folks are not being mowed down after dark by drivers of ORVs.
The prohibition is supposed to increase the nesting success of sea turtles, but Boyle has seldom if ever commented on that.
In his last status conference in July, the judge again dwelled on the public safety issues, noting that there were fewer break-ins and fewer incidents involving vehicles and alcohol. The latter could be true, but the comment about break-ins is just off the wall.
What have break-ins got to do with the ORV plan? The answer is ?nothing.?
Boyle then suggested there could be more beach drivers than in pre-permit days because if folks buy a permit they are going to drive on the beach.
And people who pay for that privilege, he went on, will have more interest in protecting the resources than those who used to drive on the beach for free. They?re likely to keep themselves and others in line with the rules.
Having to pay to drive on the beach may be keeping down the number of weekend party types, but there is absolutely no reason to think that people who pay to drive have more interest in protecting resources.
I could go on here, but I hope you get the point ? which is that the good judge just doesn?t get it.
He doesn?t grasp that the issue here is shutting down the public?s traditional access to their national seashore and closing down large areas of the seashore to protect nesting birds and turtles with huge buffers that have no basis in science.
He doesn?t seem at all bothered that he and Derb Carter of the Southern Environmental Law Center ? not the National Park Service ? are managing our beaches.
However, the fact of the matter is that Judge Sullivan is going to do what he wants to do in this case, and Judge Boyle may be worrying about break-ins and pedestrians being mowed down on the beach for years to come.
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