THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, January 20, 1996 TAG: 9601200284
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY PAUL SOUTH, STAFF WRITER
DATELINE: MANTEO LENGTH: Medium: 61 lines
The controversial sandbags along a newly constructed stretch of North Carolina Route 12 on Hatteras Island will remain in place until at least Feb. 8.
On Friday, First Judicial District Superior Court Judge Jerry Tillett gave lawyers for Dare County, the North Carolina Department of Transportation, and the state Department of Environment, Health and Natural Resources about seven weeks to submit additional arguments concerning the barriers.
Dare County is seeking a preliminary injunction to keep the sandbags in place. The state, however, says that in order to comply with North Carolina and federal environmental laws, the sandbags must go.
Attorneys for the two state agencies offered a three-pronged argument against the sandbags.
Both state agencies say that in order to obtain construction permits for a new 3-mile stretch of Route 12, they had to comply with North Carolina Coastal Resources Commission and U.S. Department of Interior requirements mandating removal of the 4,000 sandbags.
The three-mile stretch of roadway, on federal land in the Pea Island Refuge, is part of the only link between Hatteras Island and the Dare County mainland.
North Carolina Assistant Attorney General Grayson Kelley argued that Superior Court was not the proper forum to challenge the legality of Coastal Resources Commission permits. Dare County, he said, had not exhausted all administrative remedies available to it.
He also argued that since the Department of Transportation is given authority under state law to maintain state thoroughfares, it should have the right to decide the best way to protect the road.
``I don't think Dare County is best equipped to determine who should protect the road. DOT is the entity given authority to do that, and has the expertise to protect the highway. There's no legal precedent under which Dare County could enjoin DOT from carrying out its statutory authority.''
``Everyone's goal is to protect N.C. 12,'' Kelley said.
``We just have differing ideas on how to do it.''
Kelley also said that if the court ruled in Dare County's favor, it would invite a possible federal lawsuit against NCDOT by the Department of the Interior.
Dare County Attorney H. Al Cole, however, countered that the state had put the county between a legal rock and a hard place.
``The state says that we have not exhausted our administrative remedies,'' Cole said. ``They say we haven't included a proper third party, which is a federal entity. As far as they are concerned, there's not a forum we can go to. But we believe if those sandbags keep that road open one day, one month, or one year, then it would have been worth it.''
Until the Feb. 8 hearing, attorneys for both sides will be able to submit additional written arguments.
The new stretch of Route 12, west of the old roadbed, was completed in December. Under the state and federal permits, the state was given 60 days from the date the new stretch opened to remove the barriers. by CNB