THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, March 21, 1995 TAG: 9503210318
SECTION: LOCAL PAGE: B1 EDITION: NORTH CAROLINA
SOURCE: BY KAREN WEINTRAUB, STAFF WRITER
LENGTH: Long : 105 lines
For well over a decade, there have been only two possible ends to Virginia Beach's battle with North Carolina for Lake Gaston water: victory or defeat.
But there may be a chance now to meet halfway.
North Carolina and Virginia Beach officials have been negotiating since December, under the guidance of two court-appointed mediators, to put an end to their legal squabbles.
No one involved in the process will speak openly about it, for fear of jeopardizing the talks. But one of the mediators, John Bickerman, said last week that both sides have ``negotiated in good faith, and it's my hope that their efforts will be fruitful.''
With a crucial federal decision expected this summer, North Carolina has an incentive to compromise while the future is still uncertain; while Virginia Beach, with several favorable decisions under its belt, has an incentive to settle.
No one in North Carolina or Virginia familiar with the negotiations was willing to talk about what North Carolina might want out of a mediated settlement.
Bickerman, a full-time mediator, got involved in the dispute after North Carolina challenged a Gaston decision made by the U.S. secretary of commerce. Both sides joined the mediation voluntarily, but they will be legally bound by any agreement they reach, Bickerman said.
``Generally, parties come to mediation because they believe that a negotiated agreement is superior to one that a court will impose upon them, because they believe they have more to gain by a negotiated agreement,'' he said. ``I believe that to be the case in this instance as well.''
The Beach's side is looking good right now. The Federal Energy Regulatory Commission, the last federal agency that must approve the pipeline, seems poised to give its OK.
But North Carolina is not out of legal remedies yet.
``The appellate process is endless,'' said Andrew S. Fine, a Virginia Beach developer and business leader.
``Its only limitation is the creativity of lawyers who are on the payroll who have nothing else to do but worry about this issue.''
North Carolina officials have indicated they would try to get a court order blocking construction of the 76-mile pipeline if the federal commission allows work to proceed.
And even if the Beach manages to build the pipeline, North Carolina officials believe they have a good chance at preventing Virginia from getting any water from the lake, which sits mostly on the Carolina side of the border.
``There are a number of options available over the coming years,'' said Alan S. Hirsch, North Carolina special deputy assistant general. ``The bottom line is that no one should expect that a major public water resource dispute like this can be solved over the objection of a sovereign state.''
Fine, who described himself as an interested citizen who ``likes to stir pots,'' said it doesn't make sense for the city to build the pipeline with that legal specter hanging over it.
``Unless we're willing to take a $170 million gamble that we'll prevail in all of the court proceedings, the consequences of such a tactic would be very risky,'' he said.
Fine, who has not participated in the mediation, said that's why it is so important: It could actually bring the fighting to an end, and give the Beach the assurances it needs to invest in the pipeline.
``I think there's a deal to be made,'' Fine said. ``I don't know what it is, (but) I hope we can come to it, promptly, expeditiously and with finality.''
The timing may also be right for a deal.
``I would hope enough years have gone by that people would really want to solve it,'' said City Council member John A. Baum. ``Right now, I don't know whether (mediation) will succeed or not, but it's certainly worth trying and pursuing.''
Baum would not say any more about the mediation, and other council members and representatives from North Carolina also declined to talk.
Bickerman said such silence is essential to the mediation process. The dispute has lingered for so long because so much of the argument has been political, with the states taking verbal swipes at one another in the media.
But most of the news leaks have stopped since the mediation began. Lawyers participating in the negotiations could be disbarred if they talk about the case.
``One of the cardinal rules of mediation is confidentiality, so that the parties are able to explore alternatives without anyone taking advantage of them for the brainstorming that goes on,'' he said. ``I'm grateful to see that the parties are respecting the confidentiality of the negotiations.''
Bickerman, who works for the New York law firm of Kaye, Scholer, Fierman, Hays and Handler, and fellow mediator John Payton, of the Washington firm of Wilmer, Cutler and Pickering, are not paid for their efforts. Their firms donate their time, as part of their pro bono efforts.
Mediation has been successful before in complicated, cross-jurisdictional disputes.
In the Florida Everglades, an acrimonious multiyear battle over water pollution caused by sugar growers was resolved last year with the help of a mediator.
The agreement ended 30 state and federal lawsuits.
Glenn Sigurdson, a professional mediator with the CSE Group of Vancouver, Canada, which mediated that dispute, said he thinks any case - even the Lake Gaston dispute - can be settled.
``A lot of these kind of water and land disputes - they just have their own energy, and lawsuits never solve anything,'' he said.
``At a certain time people say there is no other way, we're just going to have to work together, and (they) do,'' Sigurdson continued. ``I believe any case is settleable. I'd be surprised if this one can't be settled.'' by CNB