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

Filing 43

ORDER granting 41 Joint MOTION for Briefing Schedule - After considering the Parties' Joint Motion for Briefing Schedule, the Court finds that the requested schedule is reasonable. The case shall be governed by the sch edule set forth in the attached order. Plaintiffs' Motion for Preliminary Injunction (ECF No. 29) shall be stayed indefinitely. Plaintiffs do not intend to request that the stay of their motion for a preliminary injunction be lifted or to file a motion for a temporary restraining order or modified motion for preliminary injunction, unless Plaintiffs become aware of imminent ground disturbing activities or otherwise determine that it is unlikely that a decision on the merits will be rendered prior to the commencement of ground disturbing activities. Signed by District Judge Louise Wood Flanagan on 3/23/2017. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
No. 2:17-cv-00004-FL
SAVE OUR SOUND OBX, INC.,
)
THOMAS ASCHMONEIT, RICHARD
)
AYELLA, DAVID HADLEY, MARK
)
HAINES, JER MEHTA, and GLENN
)
)
STEVENS,
)
)
Plaintiffs,
)
)
v.
)
)
NORTH CAROLINA DEPARTMENT OF
)
TRANSPORTATION; FEDERAL
HIGHWAY ADMINISTRATION; JOHN F. )
)
ORDER ON JOINT
SULLIVAN, III, DIVISION
)
MOTION FOR BRIEFING
ADMINISTRATOR, FEDERAL
)
SCHEDULE
HIGHWAY ADMINISTRATION; and
)
JAMES H. TROGDON, III, SECRETARY,
)
NORTH CAROLINA DEPARTMENT OF
)
TRANSPORTATION,
)
)
Defendants,
)
)
and
)
)
)
DEFENDERS OF WILDLIFE and
)
NATIONAL WILDLIFE REFUGE
)
ASSOCIATION,
)
)
Defendant-Intervenors.
)

On March 22, 2017, Plaintiffs Save Our Sound OBX, Inc., Thomas Aschmoneit, Richard
Ayella, David Hadley, Mark Haines, Jer Mehta, and Glenn Stevens, and Defendants, the North
Carolina Department of Transportation (“NCDOT”), James H. Trogdon, III, in his official
capacity as Secretary of NCDOT, the Federal Highway Administration (“FHWA”), and John F.
Sullivan, III, in his official capacity as Division Administrator for FHWA, and DefendantIntervenors Defenders of Wildlife and the National Wildlife Refuge Association, (collectively
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the “Parties”), submitted a Joint Motion for Briefing Schedule, requesting that the Court enter a
scheduling order. After considering the Parties’ Joint Motion for Briefing Schedule, the Court
finds that the requested schedule is reasonable, and therefore, IT IS HEREBY ORDERED that:
1.

The case shall be governed by the following schedule:
a.

On or before June 23, 2017, FHWA and Division Administrator Sullivan
(the “Federal Defendants”) shall lodge the Administrative Record, which
will include materials generated by and for NCDOT and Secretary
Trogdon (the “State Defendants”), and the certified index to the
Administrative Record. Federal Defendants will provide the record on
electronic media in lieu of a paper copy.

b.

The Parties will attempt in good faith to resolve any issues related to the
contents of the Administrative Record as follows: On or before July 14,
2017, Plaintiffs will notify Defendants of any issues regarding the
adequacy and completeness of the record. Defendants will respond to
such notification on or before July 28, 2017.

c.

If the Parties cannot resolve all issues related to the composition of the
Administrative Record, Plaintiffs may file a motion to complete or
supplement the Administrative Record on or before August 25, 2017. The
Federal Defendants and the State Defendants may each file a response to
any such motion on or before September 22, 2017.

d.

If no motion to complete or supplement the Administrative Record is
made, Plaintiffs’ Motion for Summary Judgment shall be due September
1, 2017, accompanied by a memorandum not to exceed 50 pages.

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e.

The Federal Defendants’ and the State Defendants’ Cross-Motions for
Summary Judgment and Responses in Opposition to Plaintiffs’ Motion for
Summary Judgment, and memoranda in support thereof, shall each be due
October 4, 2017, and each memorandum shall not exceed 50 pages.
Intervenor-Defendants Defenders of Wildlife and National Wildlife
Refuge Association may also jointly file a Motion for Summary Judgment
on October 4, 2017, and the accompanying brief shall not exceed 50
pages.

f.

Plaintiffs’ Reply Memorandum in support of its Motion for Summary
Judgment and Response in Opposition to Defendants’ and IntervenorDefendants’ Motions for Summary Judgment shall be due October 31,
2017, and shall not exceed 50 pages.

g.

The Federal Defendants’ and the State Defendants’ Reply Memoranda in
support of their respective Motions for Summary Judgment shall be due
November 21, 2017 and shall not exceed 25 pages. Intervenor-Defendants
Defenders of Wildlife and National Wildlife Refuge Association may also
jointly file a Reply Memorandum on November 21, 2017, and that brief
shall not exceed 25 pages.

h.

If Plaintiffs move to complete or supplement the Administrative Record,
the Parties will submit a revised proposed briefing schedule to the Court.

i.

With the exception of discrete geotechnical borings and a discrete and
temporary pile test program, State Defendants have advised Plaintiffs that
ground-disturbing activities are not likely to begin prior to March 2018.

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In light of this advisement, Defendants agree to provide notice to Plaintiffs
no less than 45 days before the commencement of any ground-disturbing
activities other than the discrete geotechnical borings or the discrete and
temporary pile test program.
2.

Plaintiffs’ Motion for Preliminary Injunction (ECF No. 29) shall be stayed

indefinitely. Plaintiffs do not intend to request that the stay of their motion for a preliminary
injunction be lifted or to file a motion for a temporary restraining order or modified motion for
preliminary injunction, unless Plaintiffs become aware of imminent ground-disturbing activities
or otherwise determine that it is unlikely that a decision on the merits will be rendered prior to
the commencement of ground-disturbing activities.

March
Ordered this 23rd day of _________, 2017.
___

___________________________
The Honorable Louise W. Flanagan
United States District Judge

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