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Save Our Sound OBX, Inc. v. North Carolina Department of Transportation

United States District Court, E.D. North Carolina, Northern Division

January 16, 2018

NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, JAMES H. TROGDON, III, in his official capacity as Secretary of the North Carolina Department of Transportation, FEDERAL HIGHWAY ADMINISTRATION, and JOHN F. SULLIVAN, III, in his official capacity as Division Administrator for the Federal Highway Administration, Defendants, and DEFENDERS OF WILDLIFE and NATIONAL WILDLIFE REFUGE ASSOCIATION, Defendant-Intervenors.

          Michael K. Murphy, Bryson C. Smith, GIBSON, DUNN & CRUTCHER, LLP, GIBSON, DUNN & CRUTCHER, LLP

          Zia C. Oatley KEAN MILLER, LLP, Counsel for Plaintiffs



         On January 12, 2018, Federal Defendants and Defendant-Intervenors filed a joint motion (the “Extension Motion”) requesting a two-week extension of the deadline for Defendants and Defendant-Intervenors to file their responses to Plaintiffs' motion for summary judgment, which was filed on January 10, 2018. The Extension Motion attempted to place blame on Plaintiffs for schedule delays in order to justify the requested relief. A few hours after the Extension Motion was filed, D.E. 99, and before Plaintiffs were able to file an opposition to clarify their position and the background of the extension request, the Court issued an order partially granting the Extension Motion, D.E. 100.

         Specifically, the Court extended by one week the deadline for Defendants and Defendant-Intervenors to file their responses to Plaintiffs' motion for summary judgment and their cross-motions for summary judgment, while reducing by one week Plaintiffs' time to file a reply in support of their motion for summary judgment and response to the various cross-motions.

         Plaintiffs appreciate that the Court refused simply to extend the schedule by two weeks as requested by Federal Defendants and Defendant-Intervenors. As stated in the Extension Motion, NCDOT has announced that construction is projected to commence on March 23, 2018. Construction will cause irreparable harm to Plaintiffs and the environment through, for example, the destruction of habitat, the disturbance of the earth and Pamlico Sound due to the installation of pilings, and the disruption of Section 4(f) property due to the installation of haul roads. And as construction continues, the Jug-Handle Bridge alternative will gain even more momentum, thereby predetermining future NEPA decision-making even if Plaintiffs prevail here. As such, Plaintiffs' primary goal is to provide this Court with sufficient time to review the summary judgment briefing and issue a decision before construction begins.

         Currently, the summary judgment briefing will conclude on or before March 7, 2018, providing the Court with as few as 16 days to review the briefs, possibly hold a hearing, and issue its decision.

         Although Plaintiffs agree with not extending the finish line for the summary judgment briefing, Plaintiffs respectfully request that the Court alter the briefing schedule that it issued last Friday, January 15. D.E. 100. That schedule permits Federal Defendants, State Defendants, and Defendant-Intervenors 28 days to respond to 48 pages of briefing from one party (Plaintiffs).

         Thereafter, Plaintiffs are given only 14 days to respond to up to 150 pages of briefing from three separate parties. That brief will be an opposition to any motions for summary judgment filed by Defendants and Defendant-Intervenors (which may include standing, statute of limitations, or separate theories), as well as a reply in support of Plaintiffs' initial motion. Thereafter, Defendants and Defendant-Intervenors are provided with 14 days and 75 collective pages to reply to Plaintiffs' response to their separate motions for summary judgment, if any are filed.

         The current schedule will unfairly limit Plaintiffs' ability to present their claims. A mere 14 days for Plaintiffs to respond to 150 pages of briefs-plus an unknown number of pages contained in the three separate statements of material facts-poses an incredibly burdensome time constraint on Plaintiffs and threatens to limit the effectiveness with which Plaintiffs are able to convey their legal arguments to this Court. Instead, Plaintiffs urge the Court to shorten Defendants and Defendant-Intervenors' period to reply from 14 to 7 days. That reply brief is more limited in scope because it excludes discussion of Plaintiffs' motion for summary judgment-which is the central issue in this matter.

         Regardless of the exactitude of when briefs are due, the current schedule provides the Court with only 16 days to resolve this case before construction commences. Plaintiffs hereby request that Defendants provide the parties and the Court with details regarding what construction activities will occur in the first several weeks of the project so they can analyze whether irreparable harm will occur and whether it will involve destruction of Section 4(f) property. That information is important for the Court to determine its own internal timeline for issuing a decision on summary judgment, or alternatively issuing an order staying construction pending its decision on summary judgment. Plaintiffs also need this information to determine whether a separate motion for preliminary injunction is necessary before the Court's decision or whether they should seek a stay after the decision pending appeal.

         Background on the Case Schedule and Schedule for Construction

         As a threshold matter, the Extension Motion shaded certain facts that serve to cast Plaintiffs in an unfair light. For one thing, the Extension Motion lists a series of events-i.e., Plaintiffs' motion to complete the Administrative Record and Plaintiffs' motion to amend their complaint-that have previously resulted in delays to the case schedule. Although these events did add time to the case schedule, all of the prior delays (both those resulting from Plaintiffs' actions and from the actions of other parties-such as the multiple motions to dismiss and Federal Defendants' extension of time to lodge the Administrative Record) had already occurred when the parties filed a joint motion for briefing schedule on October 30, 2017. D.E. 82. Thus, these delays were water under the bridge at the time that the Court entered the scheduling order on November 3, 2017, from which Federal Defendants and Defendant-Intervenors were seeking relief in the Extension Motion. D.E. 84. Pursuant to the November 3 order, Plaintiffs were to file their motion for summary judgment within 21 days of Defendants/Defendant-Intervenors filing their answers to Plaintiffs' Second Amended Complaint. Given that the answers were filed on December 20, 2017, the deadline for Plaintiffs' summary judgment motion was January 10, 2018. Although Plaintiffs made extensive efforts to review the 100, 000-plus page Administrative Record, draft their motion, and file it before January 10, such efforts proved insufficient. As a result, Plaintiffs filed their motion for summary judgment on January 10, within the Court-ordered deadline.

         A few days before Defendants and Defendant-Intervenors filed their answers to Plaintiffs' Second Amended Complaint, Federal Defendants informed Plaintiffs of scheduling conflicts and inquired about Plaintiffs' position regarding a potential extension in the briefing schedule to accommodate these conflicts. Plaintiffs' counsel stated that Plaintiffs would not oppose an extension to the briefing schedule-but only on the condition that any extension in the briefing schedule was coupled with a commitment to postpone the construction commencement date by an equal amount of time. See Ex. A (Dec. 21, 2017 E-Mail from Plaintiffs' Counsel to Counsel for Other Parties). Plaintiffs viewed this offer as a reasonable ...

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