February 24, 2008

We will wait until April to find out if popular beaches will be closed year-round


Off-road vehicle use on the Cape Hatteras National Seashore is again threatened by the latest salvo in a round of attacks by environmental groups on the tradition of beach driving.

It will be at least April before residents, visitors, and business owners find out if a federal judge will agree with environmental groups and shut down the most popular recreational areas of the Cape Hatteras National Seashore to off-road vehicles year-round.

U.S. District Judge Terrence Boyle set Friday,  April 4,  at 2 p.m. for a hearing in a request by The Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center (SELC), for a preliminary injunction to stop driving on parts of the seashore beaches until after a trial in a lawsuit the groups filed on Oct. 18. 

That lawsuit challenges the National Park Service’s interim plan to protect threatened and vulnerable species of shorebirds that nest on the seashore.  The groups contend that the plan does not go far enough to protect the birds, which include the threatened piping plovers, as well as black skimmers, American oystercatchers, and gull-billed and common terns.

The request for the preliminary injunction, filed Feb. 20, asks that Boyle replace the interim plan with more restrictive measures until after the lawsuit is settled.  Specifically, the plaintiffs are asking Boyle to stop ORV use year-round at the most environmentally sensitive areas of the seashore – Bodie Island spit, Cape Point and part of the South Beach, Hatteras Inlet, and the north and south points of Ocracoke.  These are also the areas that are most popular for recreation, especially fishing.

Boyle met with attorneys for both sides in his Raleigh courtroom on Friday, Feb. 22, for a scheduling conference on the October lawsuit that had been set before the request for the preliminary injunction.

Three groups of lawyers were present.  The plaintiffs were represented by attorneys for the environmental organizations and SELC.  The defendants, the National Park Service and the U.S. Fish and Wildlife Service, were represented by attorneys for the U.S. Department of Justice.  In addition, attorneys from Washington, D.C., and Elizabeth City represented the intervenors in the lawsuit – Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance (CHAPA).  Boyle had granted their request to intervene on behalf of the people of Dare and Hyde counties and other beach users in mid-December.
The day before the Feb. 22 scheduling conference, Lawrence Liebesman, who represents Dare and Hyde counties and CHAPA, asked the court to dismiss the claims that environmental groups are making in their October lawsuit against the interim plan.

“This motion to shut down access to a large portion of the Cape Hatteras National Seashore to the recreational fishermen is unfounded,” said Liebesman, a Washington, D.C., environmental attorney. 

The motion is dismiss is based on grounds that the courts lacks jurisdiction to intervene in the National Park Service’s management of the seashore beaches.

Most observers expect a fairly speedy ruling by Boyle after the April 3 hearing since a major reason that the environmental groups asked for the preliminary injunction is that nesting season for shorebirds will begin in late March.

“At this point, every breeding season is critically important to the shorebirds that nest on Hatteras,” SELC attorney Derb Carter said in a press release. “Fortunately, by limiting driving on even this small area would help protect them during this season, giving the Park Service time to develop and implement a reasonable long-term plan to manage driving on the beach.Each year we see fewer and fewer of these species on Hatteras. Waiting any longer for the Park Service to properly manage beach driving could very well mean we have nothing left to protect.”

The environmental groups claim that the areas they seek to close have already been identified by scientists for NPS and USFWS as the most critical for nesting shorebirds.

They also claim that the areas represent only 12 percent of the available shoreline in the seashore, and they note that the areas would still be open to pedestrians.

Furthermore, in the lawsuit and the request for the preliminary injunction, the plantiffs refer to a study of the economic impacts of designating critical habitat for piping plovers on the seashore that was done by Industrial Economics, Inc. The 2007 report concludes that closing of additional critical bird nesting areas to ORVs would result in a loss of only 5 to 8 percent of the dollars generated by visitation to the seashore.   
Islanders, regular visitors, and business owners reacted immediately to the request for the temporary injunction with a mixture of outrage, disappointment, amazement, and fear about what a closure of the most popular areas of the beach might do to the economy of Hatteras and Ocracoke islands.

Few business people on the island have any confidence in the Industrial Economics report.  Even the casual observer should be skeptical, given the popularity of the areas to be closed to fishermen and other beachgoers.

Also, opponents of additional restrictions on ORV use on the beach note that the claim that only 12 percent of the shoreline would be closed with the new restrictions is misleading.

This from a posting by Jim and Ginny Luizer of Frisco on several Internet bulletin boards:

“The map for the year-round closures does not specify the actual miles included in the requested year round closures.  That said, the map is comparable to the critical habitat designation.  Using the data from the critical habitat designation and a thorough review of 2007 beach access reports, I determined that the requested year round closures total approximately 12.9 miles.  As for the  miles of shoreline actually available to ORVs, the total is 41 miles (57 minus 16 miles of beach closed for more than a decade).  Bottom line the requested year round closures actually account for 31% (12.9/41) of the shoreline available to ORVs during the winter and 37% (12.9/34.8) of the shoreline available during the summer when seasonal closures are in effect.  This is a far cry from the 12% figure provided by SELC.”

The interim plan that is under fire from the environmental groups was put in place by the Park Service to manage protected shorebirds and turtles and ORV use on the beach until a long-range plan is developed.

The Park Service hopes that the final plan will be developed by a negotiated rulemaking process with an associated Environmental Impact Statement. However, this process is expected to take about three years.

After several years of planning, negotiated rulemaking finally got underway with the first official meeting of the 30 committee members and their alternates on Jan. 3 and 4 in Avon.

The committee had already worked through some tense exchanges at a preliminary workshop in October, just days after the environmental groups, which have pledged to negotiate in good faith, filed the lawsuit against the interim plan.

Attorneys for the groups defend their action in filing suit by noting that the legal action concerns the interim plan, while the negotiating committee is working on a long-range plan. They offer no apologies for the legal action, noting that if the Park Service had addressed the need for ORV regulation when it should have, the action would not be necessary.

That defense just doesn’t hold water with many of the other committee members.

However, it seemed in January that the committee had worked through some differences and was ready to move ahead with the work of rulemaking by consensus.

What will happen now is anyone’s guess.

The next meeting of the committee is Tuesday and Wednesday, Feb. 26 and 27, at the Ramada Center in Kill Devil Hills.

That one should be interesting and the first item on the agenda will probably be whether the negotiated rulemaking process can survive this latest court action by the environmental groups.
“It’s interesting that groups committed to negotiated rulemaking have filed a suit to circumvent that process,” says Dare County attorney Bobby Outten. “How are they going to be motivated to accept anything less than they have asked for (in the request for a preliminary injunction)?  They will be in the driver’s seat if this (the injunction) happens.”

What will happen in Judge Boyle’s courtroom sometime in March is anyone’s guess right now.  However, Boyle is the judge who issued a ruling in a case involving a violation on the beach last summer that ORV use on seashore beaches is illegal, since the Park Service has no plan in place to regulate beach driving.

It’s interesting to note that if the hearing is on March 18, it will be the same day as the first day of the March negotiated rulemaking committee meeting.  Two of the lawyers involved in the request for the injunction – Derb Carter of SELC and Jason Rylander of Defenders of Wildlife – are members of the committee.

Closing the most popular areas of the beach next month is not a good solution.

The remaining beach would be under incredible pressure to accommodate ORVs, especially in the summer months. Even though some folks might not come if the areas are closed, those who do come will be squeezed into a much smaller area.

The environmental groups have said that pedestrians will be allowed in the restricted areas, but where will they park to get there?  The seashore does not have enough beach access parking areas to accommodate the summer crowds. And how long will environmental groups tolerate pedestrians in the areas that the shorebirds are nesting?

National Park Service budgets have failed to keep pace with increasing numbers of visitors at this and other parks.  There’s not enough money for infrastructure, so it’s unlikely any more beach accesses will be built any time in the near future.  And budget constraints have also put pressure on the park’s law enforcement personnel.  There aren’t enough of them to patrol the beaches, and more will be needed if larger areas are restricted.

Fewer miles of shoreline open to ORVs will have an impact on the islands’ economy. Some business owners think it will be catastrophic. The USFWS report says not. However, it seems clear to most of us that closing down the most popular recreation and fishing areas of the beach will be a significant blow to the economy of Hatteras and Ocracoke.  

Driving on the beach is part of the allure of Hatteras and Ocracoke for visitors. It allows access that would not be possible without ORVs for fishermen and their gear and others, including handicapped folks, who want to enjoy the beach.

Furthermore, beach driving is a tradition on the island, dating back to the days before there was a paved road and the beach was the only route to travel to ferries off the island and to other villages.

Islanders and regular visitors understand that there is increasing pressure on the seashore beaches as visitation grows and as more visitors come here in ORVs.  There will have to be some more restrictions on beach access, perhaps even a permit system for driving on the beach.

However, not being able to drive to Cape Point or South Point on Ocracoke at any time to fish, watch the clashing waves on the shoals, or look for birds or shells is unimaginable for any of us who live here or visit – and even unimaginable for island natives who have enjoyed beach access all of their lives.

Negotiated rulemaking needs to continue. 

The environmental groups draw a distinction between their opposition to the interim plan and their ability to negotiate in good faith for a long-term plan.

That view of the issue won’t work.  The environmentalists are already distrusted by other groups on the negotiating committee.  This request for an injunction will only add to that distrust.

U.S. Rep. Walter Jones, R-N.C., said it well in a press release last Friday, Feb. 22.
“I urge these groups to rethink their decision,” he said, “to withdraw their motion for a preliminary injunction, and to return to the negotiating table. Superintendent (Mike) Murray has laid out a process to resolve this issue. It will take time, and not everyone will be 100 percent happy with the result, but it’s far better than managing the Seashore through the judicial system.”


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