Parties in Bonner Bridge lawsuit ask Appeals Court for mediation

February 10, 2015 | Local News | By: Irene Nolan

The parties involved in the long legal battle over the North Carolina Department of Transportation’s plan to replace the Herbert C. Bonner Bridge have asked the U.S. Court of Appeals for the Fourth Circuit for the assistance of a mediator in their effort to negotiate a settlement in the case.

In a joint motion filed on Monday, Feb. 9, at the Appeals Court in Richmond, Va., the plaintiffs, defendants, and defendant-intervenor said that the parties in the case have made “substantial progress toward settlement” but feel that the assistance of a mediator “will be helpful, perhaps essential” in resolving the remaining issues.

The parties in the legal wrangling have been negotiating on their own since shortly after the Appeals Court issued its opinion in the lawsuit on Aug. 6.

The lawsuit was filed in the U.S. District Court for the Eastern District of North Carolina in 2011, shortly after NCDOT announced its plan to replace the Bonner Bridge over Oregon Inlet with a parallel span and to address the issues of “hotspots” on Highway 12 through the Pea Island National Wildlife Refuge with a phased approach.

The Southern Environmental Law Center, on behalf of its clients, Defenders of Wildlife and the National Wildlife Refuge Association, challenged the decision by NCDOT and the Federal Highway Association.

The Cape Hatteras Electric Cooperative was allowed to join as a defendant-intervenor because the environmental groups’ preferred alternative – a 17.5 bridge that bypasses Pea Island – would require prohibitively expensive transmission lines under the bridge.

In 2013, U.S. District Court Judge Flanagan ruled in favor of the state and federal defendants, and SELC appealed her decision to the Fourth Circuit.

The environmental advocacy groups appealed to the Fourth Circuit.

The Appeals Court’s Aug. 6 decision affirmed in part, reversed in part, and remanded the case back to Flanagan.

In the opinion, 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 reverse the part of the ruling that deals with building a road through federal lands and remanded it back to the lower court for another look.

In September, the parties involved announced that they were negotiating a settlement to the legal dispute.

“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.”

As promised, neither side has made any public comment about the progress of the negotiations, and discussions have taken place out of public view.

The parties to the lawsuit had 45 days from the date of the August ruling to ask the Appeals Court for a rehearing. In September, all parties asked for an extension of that deadline, and DOT and Federal Highway then requested and received four more time extensions — a total of five.

The most recent extension was until this Friday, February 13.

Meanwhile, the environmental groups have also taken the bridge issue to state courts by challenging the major CAMA permits that the North Carolina Division of Coastal Management issued for the bridge replacement.

That challenge to the permit is pending in the North Carolina Office of Administrative Hearings.

In the motion for referral to remediation filed yesterday, the parties agreed that the two cases are, as a practical matter, “so entwined that a negotiated resolution of both cases is far more likely to be achieved than a resolution of either alone.”

The parties asked that they be assigned to Donna Hart, senior resident circuit mediator, since the case was assigned to her shortly after the appeal was filed.

They also asked for an extension of the time allowed to ask for a rehearing until the mediator notifies the court that an agreement has been reached or until 30 days after she declares an impasse.

According to the Fourth Circuit’s website:

“The Fourth Circuit Mediation Program provides a mediation setting where litigants and their attorneys can confidentially discuss their pending case on appeal with a trained neutral Circuit Mediator. The Circuit Mediator, usually by conference telephone call, discusses the case with the parties’ counsel, asks questions about their respective positions and interests and explores the possibilities of settlement. The mediation program is a service of the Fourth Circuit; therefore, there is no charge. However, under Local Rule 33, participation is required if the case is referred to the mediation program. Only cases in which all parties are represented by attorneys are eligible.”

According to the case docket for the appeal, a mediation conference was scheduled on Nov. 4, 2013 by telephone with mediator Hart, a Durham, N.C., attorney. It is unclear from the docket if that mediation happened or if it did, what the outcome was.

However, the court’s website also notes that “all statements, documents, and discussions in such proceedings shall be kept confidential.”

“Statements and comments made during all mediation conferences, and papers or electronic information generated during the process, are not included in Court files except to the extent disclosed by orders entered under this local rule,” the website states.

As of Tuesday afternoon, the Appeals Court had not responded to the request for mediation.

FOR MORE INFORMATION

Click here to read the joint request for referral to the Fourth Circuit Mediation Program.

Click here to go to the Fourth Circuit’s website on the mediation program with frequently asked questions.