I was hoping this week to shed more light on the request that the parties to the ongoing legal battle over replacing the Bonner Bridge made to the U.S. Court of Appeals for the Fourth Circuit on Monday.
After five months of trying to negotiate a settlement that would end a lawsuit by environmental advocacy groups over the North Carolina Department of Transportation’s plan for a new bridge, the parties have now asked the Fourth Circuit to allow them to enter into the court’s mediation program.
However, here it is Friday, and I am still at a loss to find any way to shed any more light on the situation.
I have no idea what this means — other than those of us who live on Hatteras Island or own property here or love to visit here will go forward still not knowing when or if we will have a very badly needed new bridge or a reliable highway.
Here we are more than four years after DOT issued its record of decision on how to replace the bridge and we seem to be no closer to a new one.
It has been almost four years since Defenders of Wildlife and the National Wildlife Refuge Association, represented by the Southern Environmental Law Center, filed a law suit in federal court against DOT and the Federal Highway Administration.
It has been 16 months since U.S. District Court Judge Louise Flanagan ruled in favor of DOT and FHWA. And it has been 16 months since SELC, on behalf of its clients, appealed that decision to the Fourth Circuit.
It has been six months since the Appeals Court issued its decision, which affirmed part of the lower court’s decision and denied another part, sending that part back to Flanagan to reconsider.
And it’s been five months since DOT and SELC announced they were negotiating a settlement to the legal dispute.
Let’s also note that it’s also been five months since work stopped on a permanent bridge over the inlet cut through the refuge by Hurricane Irene in 2011. While the crews and equipment are idle, we continue to have to dodge ocean overwash at times to get to the temporary bridge at that site.
The parties have been pursuing a settlement on their own, and they have been true to their word that they would be making no public statements or comments until the negotiations end in a settlement or an impasse.
Seldom in the news business does a reporter or editor run across a story that is locked up this tightly. Usually, after five months, someone who knows something is, for whatever reason, leaking something to the media.
No leaks here.
The public does know for the first time from the court filing on Monday that the parties say they are making “substantial” progress — whatever that means.
We also know that they are negotiating an end to not only the legal case in the federal courts, but also to a challenge to the Major CAMA permit that was issued by the N.C. Division of Coastal Management and is now being held up by the same environmental groups in state court.
We could find out from the Appeals Court file on the case that it was sent to mediation right after it was filed — as are all civil cases in which all parties are represented by attorneys.
I e-mailed the senior resident circuit mediator Donna Hart, who was assigned the mediation at the beginning of the appeal and whom the parties have requested again.
“In October, 2013, this Court ordered mediation of case number 13-2215,” Hart responded by e-mail, “and assigned the task to me. No participant in that mediation effort is permitted to disclose any of the communications that took place during the ordered mediation, per Fourth Circuit Local Rule 33…”
Local Rule 33 requires confidentiality in mediation, so we don’t know what happened in that mediation conference. Obviously, though, there was no mediated settlement since an Appeals Court panel heard the case and issued an opinion.
I also e-mailed another resident mediator, Frank Laney, since his contact information was given on the court website for those who want more information on the mediation program.
He responded, commenting on how “extraordinary” this case is.
“The court does not generally grant mediation, as all civil cases where attorneys represent all parties are automatically sent to mediation, under Local Rule 33,” he said in an e-mail. “However, this is an odd case in that after oral argument and initial decision, the parties have asked to mediate.”
He continued with:
“A goal of mediation is to complete whatever settlement talks may occur before the briefing is complete. The policy of the court is that generally mediation will be completed before a case is set for oral argument and before it is submitted to the judges for a decision. So this is an extraordinary case (I’ve seen it one other time in 17 years) for mediation to continue after an opinion has been issued.”
There is no timetable on the mediation, which Laney said “can take days, weeks or months, depending upon the parties and the issues.”
So we are doomed to more days, weeks, or months of waiting — with no information.
Perhaps there are good reasons why these negotiations are confidential, but I am getting hard pressed to remember what they are.
We who will be most affected by whatever settlement is reached — or not — know nothing of what is on the table and have nothing to say about it.
SELC’s clients may be ready to give up their fight against the short bridge, but what is it they want in return?
We are being asked to trust that DOT has our best interests at heart as they proceed with mediation.
That’s difficult to do when we know that SELC and its clients do not have our best interests at heart.
They seem hell bent on “saving” a wildlife refuge from having a highway through it — when it has had a highway through it for more than 60 years. It’s still a lovely place, and the birds seem to like it just fine the way it is.
BUXTON BEACH RESTORATION UPDATE
In my blog on Friday, Jan. 30, I wrote that the timeline for Buxton beach nourishment is still an issue and was the focus of a public meeting on Jan. 28, which was hosted by the National Park Service and Dare County.
At the meeting and at the urging of those who attended, Bob Woodward, chairman of the county Board of Commissioners, promised to write a letter to Gov. Pat McCrory, requesting that he declare a “state of emergency” for Buxton to speed up the permitting process.
Woodard sent his letter to the Governor on Jan. 30. He said this week that he has had no response.
RADIO INTERVIEW ON GAS PRICES
In my Jan. 23 blog, I wrote about how some Dare County and Hatteras Island residents were fuming about gas prices that were higher than in other cities and towns in the region.
At their urging, the Dare County Board of Commissioners sent a letter to North Carolina Attorney General Roy Cooper, asking for an investigation. The county has been told that the office will investigate, looking for evidence of price gouging, collusion or antitrust violations.
There has been no more information released on the investigation.
However, Bryan Perry, owner of Frisco Shopping Center and Frisco Rod & Gun, will be discussing some of the gas pricing issues and how he determines what he charges at his pumps on this week’s edition of “To the Point,” a Radio Hatteras news interview show at 5 p.m. on Sunday, Feb. 15.
Radio Hatteras is now being streamed live so all of those who don’t live on Hatteras and who are interested can listen to the station. Go to www.radiohatteras.org.
Also, an audio of the interview be posted on The Island Free Press on Monday, Feb. 16.
