PUBLISHED:September 13, 2010

Duke's Environmental Law & Policy Clinic: A busy docket

In recent months, students and faculty in the interdisciplinary Duke Environmental Law and Policy Clinic have helped clients gain new protections for endangered sea turtles in state waters through the settlement of a federal lawsuit, secure a court order suspending work on a cement plant pending a review of the environmental and public health impacts, and challenge the recertification of dam operations on the Yadkin River.

Clinic client settles federal suit favorably
Representing the Karen Beasley Sea Turtle Rescue and Rehabilitation Center in Topsail, N.C., the clinic reached a settlement with the North Carolina Marine Fisheries Commission (MFC) and the Division of Marine Fisheries (DMF) in a lawsuit concerning fishing practices that caused the deaths of federally protected sea turtles.

Filed in the U.S. District Court for the Eastern District of North Carolina in February, the lawsuit asked the court to prohibit North Carolina from authorizing the use of gill nets in violation of the Endangered Species Act (ESA). The settlement agreement provides for new rules governing gill net fishing practices, in order to minimize the incidental catch of sea turtles by gill nets used in in-shore waters.

All of the five sea turtle species found in North Carolina waters are designated as either threatened or endangered under the Endangered Species Act, according to the United States Fish and Wildlife Service. After hatching on the beach, sea turtles spend the rest of their lives in the water, traveling ocean currents and foraging for food. They face a variety of threats, from habitat damage caused by polluted runoff to direct injury and death from being hit by motorboats and ships. Gill nets constitute one of the biggest threats: Sea turtles caught in the nets are trapped underwater, and often drown or suffer severe lacerations while struggling to free themselves. As a consequence of these threats, only a small percentage of sea turtles reach reproductive age.

As part of the settlement, the state agreed to:
• implement new rules regarding the size and type of gill nets allowed, and the time frame in which they can be deployed;
•adopt an enhanced “observer” program, with more observers on the water and a new certification program for volunteer observer;
•expand the geographic scope of its regulatory program for gill net fishing; and
• adopt an “adaptive management” protocol based on observer data.

The settlement also provides for the formation of a committee to advise state authorities on issues surrounding sea turtle protection. The committee consists of commercial fishers and scientists, including Professor Andy Read with the Duke Marine Lab in Beaufort, N.C. The committee’s first meeting will be held in late September.

“This settlement is the result of the concentrated and cooperative efforts of all the parties involved,” said Jean Beasley, the executive director of the sea turtle center. “We are pleased to have reached agreement and look forward to continuing work with the state to protect sea turtles where they nest, breed, and forage.”

Michelle Nowlin ’92, supervising attorney for the clinic, said the settlement protects the interests of both commercial fishermen and endangered sea turtles and is already showing concrete results.

“We're getting weekly reports from the state's observer team indicating that bycatch of turtles is down compared to previous years, so the settlement is achieving its aim of reducing harm to sea turtles,” she said. “The state is enforcing the requirements well and recently closed down part of the coast to flounder fishing after we raised questions about the large number turtles that were ensnared in nets. We've also been working productively with the state to try out new fishing gear to further reduce sea turtle takes while allowing a productive fishery.”

The case required the application of law and policy as well as hard scientific data, a combination that is characteristic of much of the clinic’s work, Nowlin added.

“Serious scientific research was a very important component of the case, and we worked with experts to generate the evidence and understanding we needed to support our arguments,” said Courtney Shephard, a student at Duke’s Nicholas School of the Environment, who worked on the case along with fellow Nicholas student Jenna Wallis and 2010 Duke Law graduates Patrick Duggan and Lee Davis.

The settlement process was an education in itself, Duggan said.

"It is a fragile process, and each new piece of information, request, or meeting can potentially seal the deal or bring the whole thing crashing down," he said. "So it takes a good deal of strategic thinking. We spend three years learning about case law but many cases never make it that far, so having an active hand in working on a case that ends up out-of-court was invaluable to preparing me for the legal practice."

Davis said working on the sea turtle lawsuit and settlement gave him the kind of experience he wouldn’t find in a classroom.

“If you are interested in big civil litigation, not at the appellate-level but at trial level, the Environmental Law and Policy Clinic … is a really good option,” he said. “It’s very big cases, big discovery, and it feels like you’re in big civil litigation. It feels like firm practice.”

Court sides with clinic clients, requires review of cement plant
Acting on behalf of PenderWatch & Conservancy, the Environmental Law and Policy Clinic prevailed in securing a superior court order mandating the environmental review of a proposed cement plant on the Cape Fear River. In coordination with the Southern Environmental Law Center, the clinic appealed a declaratory ruling issued by the North Carolina Department of Administration (DOA) that allowed the proposed Titan America cement plant to proceed without environmental review. Nowlin argued the case in Wake County Superior Court in April, resulting in a May ruling in which the environmental groups prevailed on all counts.

“We argued that the economic-incentive grants the state and local governments offer to recruit private companies constitute ‘public monies’ under the state environmental policy act, and thus Titan was required to complete an environmental review before the state could issue any permits for its operation,” she said.

Titan has appealed the ruling to the North Carolina Court of Appeals and the clinic is preparing for a likely court appearance in the fall. The clinic also will work to evaluate the impact of the plant on the region's groundwater.

The clinic is also looking ahead to an eventual environmental review of the entire project, conducting research into groundwater impacts, water quality impacts from air emissions, and impacts to the ecosystem services provided by the area’s wetlands and floodplains. “If the company moves forward with its proposal, we want to make sure that the public understands the trade-offs being made. In short, we want to make sure the goals of the state and national environmental policy acts are honored,” Nowlin said.

Clinic students and faculty prepare for September hearing on Yadkin River dams
On behalf of Yadkin Riverkeeper, the Environmental Law and Policy Clinic has asked the North Carolina Department of Environment and Natural Resources (DENR) Division of Water Quality to deny a request from Alcoa Power Generating, Inc., to recertify their operation of dams on the Yadkin River.

Despite objections lodged by Yadkin Riverkeeper and others, the state granted a certification in May 2009 that allows Alcoa to advance one step closer to obtaining a 50-year license to continue operating dams on the river. In preparation for a hearing to decide whether the state was wrong to grant the certification, Clinic Director Ryke Longest and clinic students are preparing the legal and scientific arguments necessary to show that the state violated the Clean Water Act and the North Carolina Environmental Policy Act in granting the certificate.

“Under the Clean Water Act, the State of North Carolina has a responsibility to restore degraded waters, such as those found in the Yadkin River basin,” said Longest.

Administrative Law Judge Joe Webster heard arguments on Sept. 10 from all parties on each party's motion for summary judgment. Third-year students Adrian Broderick, Greg McDonough and Andrei Mamolea appeared on behalf of Yadkin Riverkeeper under Longest's supervision. They presented portions of the rebuttal on behalf of the Riverkeeper. On September 15, Judge Webster issued an order denying all party's motions for summary judgment. The matter is scheduled for hearing beginning on Sept. 27.

More media

Download a copy of the sea turtle settlement here.

Watch a video about the clinic’s work on the sea turtle settlement here.
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