Portions of a story that appeared in the Outer Banks Voice were used in this story.
NAGS HEAD — For Outer Banks residents who pay attention to complicated legal decisions that affect their daily lives, the recent U.S. Court of Appeals ruling on a lawsuit over the Bonner Bridge replacement project was yet another frustrating turn that had both sides claiming victory but will surely mean more delays in building a new bridge.
The three-judge panel handed down a split decision that upheld the lower court’s ruling that highway planners had complied with federal law when reviewing the possible environmental consequences of the new bridge.
The appeal court, though, also ordered the lower court to take a closer look at her ruling that the state Department of Transportation and the Federal Highway Administration were exempt from certain regulations that would apply to construction in the Pea Island National Wildlife Refuge.
Judge James Wynn
The appeals panel said it was not convinced that plans for a public road — N.C. 12 — and the establishment of the refuge in 1938 were “concurrent,” which was the basis of the exemption.
“The part that they affirmed is excellent,” said Bobby Outten, the Dare County manager who is also a lawyer. “That’s a big chunk of what (the case) is”
But Outten said it was disappointing that resolution of the lawsuit will take yet more time, especially in light of the poor condition of the bridge over Oregon Inlet and the 25 years of twists and turns in the replacement project.
“We’ve come not to expect anything with regards to the Bonner Bridge,” he said. “And, being a lawyer, I’ve learned that you can’t read into the questions of the justices.”
Like Outten, though, the law center found much to be pleased about in the appeals court ruling.
“Today’s court decision affirms that NCDOT must protect national treasures like Pea Island National Wildlife Refuge while it addresses the unreliability of this stretch of N.C. 12,” Julie Youngman, the group’s senior attorney who argued the case in Richmond, said in an Aug. 6 press release. “After decades of NCDOT’s single-minded determination to keep throwing taxpayer money into the sea . . . the court’s ruling gives NCDOT an opportunity to . . . provide a safe, reliable route that will serve the state for the next 50 years.”
The Herbert C. Bonner Bridge and N.C. 12 are the only routes to communities south of Oregon Inlet. The road, however, frequently washes out and has been shut down after storms in recent years, most notably hurricanes Sandy and Irene.
Environmental groups argue that a 17-mile bridge over the Pamlico Sound bypassing the refuge is the best alternative.
In the Fourth Circuit ruling on Aug. 6, written by Judge James A. Wynn from Robersonville, the judges affirmed that planning for the Bonner project had met the National Environmental Policy Act, or NEPA, requirements, but reversed U.S. District Court Judge Louise Flanagan’s opinion on an environmental requirement known as “Section 4(f)” and remanded it back to her court.
In September 2013, Flanagan had issued a 42-page ruling that rejected all claims made by the law center in a 2011 lawsuit challenging construction of the bridge. The law center contended that the state had violated NEPA and other environmental rules by analyzing the project in segments and by choosing to build an alternative that was not the least harmful to Pea Island refuge.
The law center filed an appeal in October against the N.C. Department of Transportation and the Federal Highway Administration, and the oral arguments were heard in May at the Fourth Circuit Court of Appeals in Richmond.
The Cape Hatteras Electric Cooperative was allowed to intervene on behalf of the defendants because costs of running its transmission lines would be far more expensive under the environmental groups’ preferred alternative.
Joined in the opinion by Judge Allyson K. Duncan from Durham and U.S. District Judge Michelle Childs, a designee from South Carolina, Wynn said that the court was deciding whether the defendants had complied with the law, not whether the panel agreed with their policies or preferences.
N.C. 12 runs north from Rodanthe through the Pea Island National Wildlife Refuge. Photo: U.S. Fish and Wildlife Service
“This has been no easy task, given the tortured decision-making history of this project,” Wynn wrote, “the difficulty of determining exactly what defendants intend to construct, and the extensive administrative record underlying the district court’s decision.”
Currently, DOT is planning to build a short bridge parallel to the existing one, and address places along N.C. 12 threatened by erosion as needed. Already, a permanent bridge over an inlet formed by Hurricane Irene is being built and another is planned near Rodanthe on Hatteras Island. The environmental groups had argued that the two components could not be separated.
Work on the bridge project ceased last year when the groups challenged the state’s permit for the bridge. That matter will be heard by an administrative law judge in the fall.
In upholding Flanagan’s opinion that NEPA was not violated in DOT’s planning, the panel cited case law that permitted a tiered or multi-phased approach with large or complex projects. The transportation agencies made no attempt to circumvent the law, Wynn wrote, and in fact “conducted a full, site-specific analysis.”
But the court’s opinion on the exemption was more complicated. The federal Department of Transportation Act of 1966 includes a special provision — Section 4(f) – that requires DOT to prove it had chosen the most “prudent and feasible alternative” in order to use refuge land.
The state had claimed an exemption to the provision because it said that the original road project was a product of joint planning when the refuge was established. The lower court accepted that argument.
The appeals court, however, took issue with application of the exception, saying that the evidence “was wholly insufficient” to affirm the lower court’s view. The exception can only be applied, the panel said, if it is determined that N.C. 12, the road running through the refuge, was both formally reserved around the time the refuge was established, and was jointly planned with the refuge.
Based on that reasoning, the court vacated Flanagan’s analysis of the 4(f), and instructed her to review the evidence and determine that the defendants’ complied with the requirements of the law.
Kitty Hawk attorney Norm Shearin, who represents the electric co-op, did not see the court telling Flanagan that she was wrong. “I think the highway folks can claim victory,” he said. “At least it’s historically consistent. There’s been nothing clear about this project.”
What Wynn wanted, Shearin said, is for Flanagan, not his court, to plow through the record to find more information about the 4(f).
“His concern, it was about the procedure employed,” Shearin said. “I think anybody who’s been close to this knows that the highway has always been a joint planning effort between DOT and Interior.”
Although finding further documentation from the 1930s, ‘40s and ‘50s could be a challenge, Shearin said, “I don’t think it’s a mountain that can’t be climbed.”
Common sense, he said, would conclude that a road would not be built through a wildlife refuge without the permission and cooperation of the refuge. And when you come down to practicalities, he added, it is difficult to see an alternative to the road.
Shearin, a partner with Vandeventer Black, said that over his 40-year career, he has witnessed the slow crawl of projects in public lands.
As counsel for the electric cooperative, he acquired the easements needed for transmission lines through the refuge and Cape Hatteras National Seashore.
“When I started, Jimmy Carter was president,” Shearin said. “When we finally obtained those easements, Bill Clinton was president.
“It’s just really difficult to build facilities through the park.”