Beach Access Issues
March 14, 2008

Park Service responds to request for injunction to close beaches


The National Park Service today responded in U.S. District Court for the Eastern District of North Carolina to a request by environmental groups to close popular areas of the seashore beaches to off-road vehicles while negotiating continues for a long-term plan to regulate ORV access.

“Federal Defendants do not dispute that....ORV use is unauthorized at the seashore in the absence of a special regulation designating ORV routes and areas,” according to the response filed by federal attorneys.

“Accordingly, Federal Defendants do not dispute that Plaintiffs have met their burden of showing a likelihood of success on the merits with respect to the alleged violation (of the law).”

The plaintiffs in this case are the Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center, which have asked U.S. District Court Judge Terrence Boyle for a temporary injunction to close Cape Point and other popular areas of the seashore to off-road-vehicles until the National Park Service addresses its lack of a plan for regulating ORVs on the beach.

The groups claim that the Park Service’s interim plan, designed to manage ORV use on the Cape Hatteras National Seashore beaches until a long-term plan is devised by a negotiated rulemaking process along with an environmental impact statement, does not go far enough to protect nesting shorebirds, including the threatened piping plovers and others, such as black skimmers, American oystercatchers, and least terns.

The defendants in the case include The National Park Service, The U.S. Fish and Wildlife Service, the U.S. Department of the Interior and others, including Cape Hatteras National Seashore Superintendent Mike Murray.

Also, Hyde and Dare counties and the Cape Hatteras Access Preservation Alliance have been allowed by Boyle to intervene in the case on behalf of residents and visitors to the seashore.
 A hearing on the motion for the temporary injunction is now scheduled for 2 p.m. on Friday, April 4, in the U.S. District Court in Raleigh.

The injunction asks that the judge declare portions of the beach – including the Bodie Island Spit, Cape Point and parts of the South Beach, Hatteras Inlet, and the north and south points of Ocracoke off-limits until at least the final rulemaking, which could take three years.

Although the response from the federal defendants grants that ORV use is currently unauthorized on the seashore because for more than 35 years the Park Service has not complied with federal regulations, the attorney also note that a judge is not “mechanically obligated to grant an injunction for every violation of the law.”

“The Court,” the response notes, “must look to traditional principles of equity to determine what form on injunctive relief, if any, is appropriate to remedy a (regulatory) violation.”

The response also notes that the federal defendants question whether the request for an injunction to close beaches is the appropriate relief, given the court’s duty “to pay particular regard for the public consequences of employing the extraordinary remedy of injunction.”

Closing the popular fishing and recreation areas to ORVs would not only alter the lifestyle on Hatteras and Ocracoke, where beach driving has been a tradition since the first vehicles arrived here.  But most islanders fear it would also have devastating economic consequences, since many visitors come to drive the beaches for recreation and fish at some of the most popular sites on the East Coast.

The environmental groups say the interim plan has not done enough to protect threatened and sensitive species of shorebirds and sea turtles.

“Waiting three more years for National Park Service to figure this out is simply not an option. We can’t risk repeating the unfortunate events of last year by losing even more of Cape Hatteras’ wildlife,” Defenders of Wildlife staff attorney Jason Rylander has said.

In today’s response to the request for the injunction, attorneys for the federal defendants noted that they “do not take a position as to the appropriate scope of any injunction.”

“Federal Defendants will make a good faith effort between the date of this filing and the date of the hearing to reach an agreement with the other parties as to the terms of an appropriate injunction which will attempt to equitably balance the potential harms to the environment, recreational users, and resident commercial fishermen at the seashore.”

Some islanders, beach users, and business people fear that the federal attorneys will not aggressively enough argue the harm that the injunction would cause to the lifestyle and economy.

Yesterday, Sen. Marc Basnight, who represents Dare and Hyde and is the state Senate’s President Pro Tempore, urged the federal government to strongly defend the lawsuit and the request for an injunction.

In a letter to seashore Superintendent Mike Murray, Basnight said:

“I hope the federal government will fight this lawsuit with every available resource.  I truly believe, as I know you do, that preserving access to the seashore is absolutely critical to protect our cultural heritage, our economy, and the public’s right of access to their seashore.
“With that in mind,” his letter continued, “I have asked the North Carolina Attorney General’s office to explore all possible avenues for the state to support the federal government in this lawsuit.”
In a press release today, Derb Carter, attorney for the Southern Environmental Law Center said, “We look forward to working with the Park Service on an injunction that is in line with the recommendations of Park Service scientists and that will allow for a successful breeding season for Hatteras shorebirds and sea turtles.”

For more information:
Click here for the complete text of the federal defendants response

For more information on the request for the preliminary injunction, read the Shooting the Breeze column by editor Irene Nolan, on the front page.  Or check the Local News or Archives pages for more stories about the ORV issue.  Also, the complete text of Sen. Marc Basnight’s letter is on the Commentary Page under Letters to the Editor.)


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