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Administrative – Pamlico Sound Bridge clears another hurdle

In upholding the granting of summary judgment to the North Carolina Department of Transportation and the Federal Highway Administration, the court rejected claims by Outer Banks residents that the agencies violated federal laws in approving the Pamlico Sound Bridge.

Background

 Save Our Sound OBX Inc. and its members, residents and vacationers from North Carolina’s Outer Banks challenge the decision of the North Carolina Department of Transportation, the Federal Highway Administration and their administrators to replace a segment of North Carolina Highway 12 with a bridge across the Pamlico Sound.

The district court granted the agencies’ motion for summary judgment, finding that they did not violate the National Environmental Policy Act or the Department of Transportation Act when they approved the bridge.

NEPA Analysis

SOS contends that the agencies’ environmental analyses violated NEPA because (1) the agencies failed to prepare a supplemental environmental impact statement with regards to the jug-handle bridge and beach nourishment alternatives before issuing the 2016 record of decision; (2) the agencies failed to adequately consider the impacts of construction, and (3) a settlement between the agencies and other environmental groups over another bridge impermissibly predetermined the agencies’ choice of the jug-handle bridge.

The court affirms the district court’s determination that no supplemental environmental impact statement was required. The purported new information was not sufficiently different from the circumstances initially evaluated in the environmental impact statement to merit a supplement environmental impact statement.

Next, the court finds the agencies adequately considered the effects of construction traffic as a result of the jug-handle bridge in the 2016 record of decision. Finally, after considering the agencies’ objective environmental analyses and the language of the settlement, the court concluded the agencies’ choice of the jug-handle bridge was not impermissibly predetermined.

Motion to amend

SOS contends that the district court erred when it denied SOS’s motion to amend its complaint to allege that the agencies violated the statute by approving a transportation project that threatens to harm the land of a site of historic significance because the jug-handle bridge will pass above the wreck—the site of a World War II vessel.

First, to the extent that SOS’s proposed amendments contend that the agencies failed to consider new information about the shipwreck, those amendments would be futile because they would raise a claim that is not yet ripe for review. The agencies have not yet made a final decision about the significance of new information revealing that the shipwreck was a World War II assault vessel. Therefore, any claim that the agencies did not properly account for this information would be unripe, and any amendment seeking to add such a claim would be futile.

Second, SOS contends on appeal that it is challenging the adequacy of the 2016 record of decision’s treatment of the Pappy’s Lane Wreck rather than the agencies’ failure to consider new information about the shipwreck’s significance. However, as the district court explained, SOS cannot contend that it was challenging the adequacy of the 2016 record of decision’s treatment of the shipwreck when its claims “rest upon recent discovery that the Pappy’s Lane Wreck contains a World War II vessel.”

Instead, the agencies satisfied regulatory requirements when, based on what they knew about the Pappy’s Lane Wreck, they ordered data recovery and decided that the shipwreck did not merit preservation in place. Arguments that the agencies should have gone further are grounded in new information and, therefore, not reviewable until the agencies issue a final decision, as discussed above. We therefore affirm the district court’s denial of SOS’s motion to amend its complaint.

Affirmed.

Save our Sound OBX Inc. v. North Carolina Department of Transportation (Lawyers Weekly No. 001-016-19, 26 pp.) (Allyson Duncan, J.) Case No. 18-1649. Jan. 23, 2019. From E.D.N.C. (Louise Flanagan, J.) David Ari Schnitzer for Appellants, Thekla Hansen-Young and Colin Justice for Appellees.


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