March 10, 2008

ORV Why Derb Carter will win Part 2

From the Island Free Press, a link to a transcript of the hearing to schedule oral arguments on the injunction sought by the Southern Environmental Law Center. You can get some background in Part 1. The hearing has a definite tone and it only reinforces my sense that the injunction will be granted. Here is a sample. This comes after the SELC has outlined their case and the NPS lawyer has said they are not asking for a dismissal. (the transcript is all caps)
THE COURT: YOU ARE ONLY IN THE CASE BY LEAVE OF THE COURT. YOU ARE IN IT NOW BUT THAT WAS DISCRETIONARY; YOU ARE AN INTERVENOR.
MR. LIEBESMAN: THAT'S CORRECT.
THE COURT: YOUR CLIENTS ARE THE COUNTIES. THEY DON'T HAVE ANYTHING TO DO WITH THE MANAGEMENT OF THE NATIONAL SEASHORE; IT'S FEDERAL SOVEREIGN PROPERTY. SO YOU'VE COME IN AND NOW YOU'RE COMPLAINING ABOUT THINGS THAT THE UNITED STATES ISN'T COMPLAINING ABOUT. I MEAN, HOW DO YOU GET -- WHERE'S YOUR STANDING TO DO THAT?
MR. LIEBESMAN: WELL, I THINK --
THE COURT: -- THIS IS NOT THE SOVEREIGN SEASHORE OF DARE COUNTY, IT'S THE NATIONAL SEASHORE. IT BELONGS TO THE UNITED STATES. WHAT INTEREST DO YOU HAVE ANY MORE THAN ANYONE ELSE IN IT?
MR. LIEBESMAN: WELL, I THINK, AND WE WILL CERTAINLY ARTICULATE THIS IN OUR RESPONSES ON THE PRELIMINARY INJUNCTION. WE REPRESENT THREE LOCAL GOVERNMENTS THAT HAVE A VITAL INTEREST IN THE ECONOMY OF THE OUTER BANKS' CONCERN TO ACCESS THE RECREATIONAL COMMUNITY. WE'RE IN THE CASE AS A PARTY AND I ALSO WANT TO ADD, IT'S MY UNDERSTANDING THE GOVERNMENT IS TAKING THE POSITION NOW THAT THEY ARE NOT MOVING TO DISMISS. I DON'T KNOW IF THAT'S A FINAL POSITION AS TO WHETHER THEY WOULD EVER JOIN IN OUR MOTION TO DISMISS OR REQUEST FOR DISMISSAL. I'M NOT SURE OF THE GOVERNMENT'S DECISION AT THIS POINT.
THE COURT: THEY'RE THE REAL PARTY IN INTEREST. THEY'RE THE ONE WHO HAS THE LEGAL RIGHT OR OBLIGATION TO DO THESE THINGS, NOT THE COUNTIES. IT JUST LOOKS A LITTLE DISTRACTIVE FOR YOU TO COME IN AND BE MAKING COMPLAINTS ABOUT SOMETHING THAT NO ONE IS TRYING TO DO TO YOU.
It strikes me that the NPS might like nothing better than to have the court impose strict limits on ORV use. It takes them off the hook for the rules and lets them say "Hey don't blame us, blame Judge Boyle". All they have to do to accomplish this is lose the preliminary injunction hearing. The NPS lawyer said all of about 10 words during the hearing and Judge Boyle's anger about the issue comes through loud and clear. Just glance at the transcript to see it.

BTW. The Island Free Press has provided great coverage of the issue. Good place to go for the latest info including this excellent piece on the recent negotiated rule making committee metings.

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1 Comments:

At 4:46 PM, Blogger Monticello said...

Glad it wasn't me in front of that court. Transcript read like WWE Friday Night Smackdown on the "CW" Network!

 

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