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

Filing 102

ORDER denying 101 Motion for Reconsideration. Signed by District Judge Louise Wood Flanagan on 1/16/2018. (Collins, S.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
NO. 2:17-CV-00004-FL

Motion DENIED. 
SAVE OUR SOUND OBX, INC., THOMAS
ASCHMONEIT, RICHARD AYELLA, DAVID
HADLEY, MARK HAINES, JER MEHTA, and
GLENN STEVENS,

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This the ____ day of ___________, 20___. 
January
18
/s/Louise W. Flanagan, U.S. District Judge 

Plaintiffs,
v.
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,

PLAINTIFFS’ MOTION FOR
RECONSIDERATION AND
INFORMATION REGARDING
FEDERAL DEFENDANTS AND
DEFENDANT-INTERVENORS’
JOINT MOTION FOR EXTENSION

Defendants,
and
DEFENDERS OF WILDLIFE and NATIONAL
WILDLIFE REFUGE ASSOCIATION,
Defendant-Intervenors.

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

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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 DefendantIntervenors to file their responses to Plaintiffs’ motion for summary judgment and their crossmotions 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).

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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

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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

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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 compromise that would
ensure that any extension to the briefing schedule did not prejudice Plaintiffs by reducing the
chances that this case is resolved prior to commencement of construction. 1
Relatedly, after Plaintiffs filed their motion for summary judgment, DefendantIntervenors informed the other parties that they would be seeking a one-week extension to file a
response and cross-motion for summary judgment. Federal Defendants subsequently stated that
they would seek a two-week extension, and State Defendants represented that they did not
oppose such a request. As they had represented before, Plaintiffs informed the other parties that
they were amenable to an extension in the briefing schedule if such an extension was coupled
with an equal extension of the date on which bridge construction is scheduled to commence.
Defendants rejected this offer, so Plaintiffs informed the parties that they would have to oppose
the Extension Motion. See Ex. B (Jan. 11, 2018 E-mail from Plaintiffs’ Counsel to Counsel for
Other Parties).

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During these discussions, Federal Defendants also proposed staying all briefing deadlines
indefinitely to allow Federal Defendants to lodge a supplement to the Administrative Record.
Once again, Defendants declined to extend the construction date during this period. Seeking
to expedite resolution of this matter and because Federal Defendants represented that the
supplement would contain only documents that were created after the challenged Record of
Decision was issued, Plaintiffs rejected this proposal and insisted that the current briefing
schedule be maintained. See Ex. A.

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The New Case Schedule Raises Questions of Fundamental Fairness.
Pursuant to the briefing schedule set forth in the Court’s January 12 order, Defendants
and Defendant-Intervenors have 28 days to respond to 48 pages of briefing and to file their
motions for summary judgment, which presumably they could have assembled before now. 2 Due
to the one-week reduction in Plaintiffs’ deadline to file a reply in support of their motion for
summary judgment and response to the various cross-motions for summary judgment, Plaintiffs
will now have only 14 days to respond to up to 150 pages of briefing from three different sets of
parties (Federal Defendants, State Defendants, and Defendant-Intervenors), not to mention
responding to the three separate statements of material facts that each party is required to file
pursuant to the Local Rules. See Local Civil Rule 56.1(a). Defendants and DefendantIntervenors will then have 14 days to file a reply on their summary judgment motions, if any, in
response to a maximum of only 50 pages filed by Plaintiffs.
Given that Defendants and Defendant-Intervenors are collectively allowed to file three
times the volume of briefs as Plaintiffs in the initial rounds of briefing, reducing Plaintiffs’
deadline in order to make room for an extension for Defendants/Defendant-Intervenors raises
questions of fundamental fairness. Again, Plaintiffs agree with the Court’s objective to maintain
the same end date for briefing. However, logic and justice dictate that any extension granted to
Defendants/Defendant-Intervenors be met with either a reduction in the reply deadline for
Defendants/Defendant-Intervenors or an extension of the construction date—not a reduction in
Plaintiffs’ deadline to respond to three separate cross-motions for summary judgment. And aside

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The Extension Motion inaccurately states that the memorandum in support of Plaintiffs’
motion for summary judgment is 55 pages long, which would be a violation of this Court’s
order that the brief be limited to 50 pages. See D.E. 84 ¶ 1(c)(ii). Pursuant to the Local
Rules regarding page counting, Plaintiffs’ memorandum is 48 pages long. See Local Civil
Rule 7.2(f)(3).
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from any comparisons of the relative burdens among the various parties, 14 days is an
inordinately short period of time to respond to 150 pages of briefing and untold pages of
statements of material facts. Even with a large legal team, this would be a daunting task. But
these demands are exacerbated here given that Plaintiffs’ substantive legal work is being
conducted by only two attorneys, both of whom have a range of other demands for their time.
Request for Relief
Plaintiffs respectfully request that the Court reconsider its order regarding the Extension
Motion. Specifically, Plaintiffs request that the Court modify the order by reducing the time for
Defendants and Defendant-Intervenors’ reply briefs, rather than reducing the time for Plaintiffs’
response and reply briefs. Alternatively, Defendants could stay the construction commencement
date by one week.
Additionally, Plaintiffs request that the Court order Defendants to provide more detailed
information regarding the specifics of planned construction in the weeks after March 23. As of
now, NCDOT has announced that construction is scheduled to commence on March 23 but has
not elaborated as to what activities will take place, where, and when. The Court would benefit
from this information, as it would allow the Court to weigh the potential harm incurred during
the pendency of a decision. It also would allow the Court to better determine the appropriate
speed for issuing a decision on the summary judgment motions. Similarly, the information
would permit Plaintiffs to evaluate the necessity of requesting a preliminary injunction or other
relief.

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Dated: January 16, 2018

Respectfully submitted,
/s/ Michael K. Murphy______________
Michael K. Murphy
D.C. Bar No. 468907
[e-mail]
Bryson C. Smith
D.C. Bar No. 1025120
[e-mail]
GIBSON, DUNN & CRUTCHER, LLP
1050 Connecticut Ave., N.W.
Washington, D.C. 20036
Tel: [phone]
Fax: [phone]
Counsel for Plaintiffs
/s/ Zia C. Oatley___________________
Zia C. Oatley
KEAN MILLER, LLP
909 Poydras Street
Suite 3600
New Orleans, LA 70112
Tel: [phone]
Fax: [phone]
[e-mail]
NC Bar No. 44664
Local Civil Rule 83.1 Counsel for Plaintiffs

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CERTIFICATE OF SERVICE
I hereby certify that on this 16th day of January, 2018, I electronically filed a copy of the
foregoing document with the Clerk of Court using the CM/ECF system, which will send
notification of such filing, and pursuant to Local Civil Rule 5.1(e), shall constitute service upon,
the following:
John G. Batherson
Colin Justice
North Carolina Department of Justice
1505 Mail Service Center
Raleigh, NC 27699
Counsel for Defendants North Carolina Department of
Transportation and James H. Trogdon, III,
in his official capacity as Secretary of NCDOT
Carter Fleeth Thurman
Neal Fowler
U.S. Department of Justice
601 D Street NW
Washington, D.C. 20001
Counsel for Defendants Federal Highway Administration and
John F. Sullivan, III, in his official capacity as Division Administrator
of FHWA
Derb S. Carter, Jr.
Kimberley Hunter
Nicholas S. Torrey
Southern Environmental Law Center
601 West Rosemary Street, Suite 220
Chapel Hill, NC 27516-2356
Counsel for Defendant-Intervenors Defenders of Wildlife and
National Wildlife Refuge Association
This the 16th day of January, 2018.
/s/ Bryson C. Smith
Bryson C. Smith

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