UPDATE: NCDOT asks for fifth time extension, no end in sight to negotiations

January 9, 2015 | Local News | By: Irene Nolan

If you thought perhaps the parties involved in negotiating a settlement to the long legal battle over replacing the aging Herbert C. Bonner Bridge over Oregon Inlet would finally reach an agreement after the holidays, you will probably be wrong.

The North Carolina Department of Transportation and the Federal Highway Administration today asked for the fifth extension of the time in which they can ask the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., for a rehearing of an August ruling in a case brought by the Southern Environmental Law Center, on behalf of its clients, to stop the planned bridge replacement.

The request for a 28-day extension was filed on Friday, Jan. 9, exactly one week before the fourth was set to run out. The new deadline that the defendants in the lawsuit asked for is Friday, Feb. 13.

The court has not granted the extension yet.

While there is nothing to stop the parties involved from announcing a settlement even though they have asked for another extension, it seems less likely that will happen.

Meanwhile, negotiations continue out of public view, and, as promised, neither side in the debate about replacing the bridge has commented on the confidential maneuvering that’s going on in Raleigh and Chapel Hill, nor has either given any hint of how long it might take to either reach an agreement or announce an impasse.

Each party had 45 days after the Aug. 6 ruling to ask for a rehearing, but instead they announced on Sept. 15 that they were in “conversations” to find a solution.

“Following a complex ruling issued by the U.S. Fourth Circuit Court of Appeals on Aug. 6,” DOT said in a news release at that time, “both sides determined that it was best to move forward with confidential discussions to resolve the bridge dispute.”

In the ruling, the Appeals Court panel disagreed with a large part of the case that environmental groups made against the bridge replacement plan — that DOT did not follow the requirements of the National Environmental Policy Act and that it illegally segmented the project. The three judges upheld the decision of a lower court that DOT has followed all necessary environmental laws.

However, the panel did remand the part of the ruling that deals with building a road through federal lands back to a lower court for another look.

Shortly after that announcement of negotiations, all of the parties — including defendant-intervenor, The Cape Hatteras Electric Cooperative — petitioned the court to extend the initial 45-day time period to ask for rehearing for another 28 days.

The reasons, they said, were two-fold.

First, the extension was necessary to “facilitate ongoing settlement discussions” and, if successful, no party would have to ask for a rehearing. An extension would “avoid entangling the court in rehearing petitions that might prove unnecessary.”

The second reason was that the parties needed additional time to complete the process of deciding whether to file any rehearing petitions in the Appeals Court’s “complex” decision.

That petition was granted, and the court extended the deadline from Sept. 22 to Oct. 22.

On Friday, Oct. 17, the court granted a second extension. This one moved the deadline from Oct. 22 to Nov. 21. However, the second petition was filed by DOT and FHWA only. The agencies cited the same two reasons for the extension.

Then the petition notes that the agencies asked the plaintiffs — SELC and clients — for their position on the second request.

According to the petition, SELC and clients stated that “Plaintiff-Appellants do not join and take no position on this motion, and believe that the ongoing settlement negotiations can continue to proceed without an additional extension of the deadline.”

The third and fourth petitions for an extension were also filed by only DOT and FHWA and moved the deadline to this Friday, Jan. 16.

The confidential discussions that could end the case, DOT said in September, include “replacing the aging Herbert C. Bonner Bridge with a new parallel bridge while continuing to develop a long-term solution to the transportation challenges along the stretch of N.C. 12 south of the bridge to Rodanthe.”

On the table for discussion is a 7-mile span that would run out into the Pamlico Sound from just north of Pea Island Inlet to northern Rodanthe and would eliminate the need for DOT to bridge two hotspots where the ocean threatens Highway 12 on the southern end of the refuge.

One of those hotspots is at Pea Island Inlet, where a permanent bridge had been under construction since February. DOT announced on Sept. 10 that it was suspending work on that project. There has been no further comment on if or when the project will continue.