Beach Access Issues
March 16, 2008


Attorneys for Dare, Hyde, and CHAPA weigh in on injunction request

By IRENE NOLAN




The attorneys for Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance (CHAPA) have filed an aggressive response 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.

The response concludes that the environmental groups have not met the tests for the “extraordinary remedy” of an injunction to close beaches.

The response was filed on Friday, March 14, in U.S. District Court for the Eastern District of North Carolina, the same day that federal attorneys filed their response for the National Park Service and other federal defendants.

However, the difference in the two responses is the difference between night and day.

The federal response totals nine pages, three of which are names and addresses of the attorneys involved. The federal attorneys agreed that ORV use on the seashore is unauthorized and that the plaintiffs would succeed on the merits of the case. 

 The response for the counties and CHAPA is 30 pages of arguments that the request for the preliminary injunction is based on at least three false premises – that the wildlife and natural resources at the Cape Hatteras National Seashore are in imminent peril, that the National Park Service was required to select one of the two most protective of options for interim management, and that the plaintiffs are entitled to a preliminary injunction.

The counties and CHAPA have been allowed to intervene in a lawsuit filed in October by environmental groups and a subsequent request for an injunction, filed last month, to close some areas year-round, including Bodie Island spit, Cape Point and portions of South Beach, Hatteras Inlet, and the north and south points of Ocracoke.

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 some of the most 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.

Hyde and Dare counties and the Cape Hatteras Access Preservation Alliance are defendant/intervenors in the case on behalf of residents and visitors to the seashore.

The counties and CHAPA are represented by the Washington, D.C., law firm of Holland and Knight and the Elizabeth City firm of Hornthal, Riley, Ellis & Maland.

In their brief opposing the temporary injunction, the intervenors’ attorneys argue that:

•    The interim process was the equivalent of the process for adopting long-range rulemaking on ORV use.

•    The environmental groups will not suffer irreparable harm if no injunction is granted.

•    The intervenors and defendants will suffer significant, immediate, and irreparable harm if an injunction is imposed.

•    The environmental groups cannot show a likelihood of success on the merits of the request for the injunction

•    The public interest favors leaving the interim plan in place until a longer term rule is devised by the negotiated rulemaking process.

“At issue in this motion,” the response notes, “are the Organic Act and enabling legislation.  Plaintiffs would have the Court believe that the sole objective of these two acts is to preserve and protect natural resources and wildlife.  Plaintiffs are mistaken.”

The response goes on to talk about the enabling legislation passed by Congress that created the national seashore “with an eye towards the recreational and commercial benefits historically enjoyed by residents to the Outer Banks.”

The brief notes that while the Park Service has admitted that it has not implemented a special ORV regulation at the seashore, as it has been required to do for almost 35 years, the interim rule, adopted last year, was formulated with “all of the procedural protections and opportunities” of a final rule and that all stakeholders, including environmental groups, had a opportunity for input into the interim plan.

Other parts of the response note that:

•    The assumption that ORV use is the primary threat to seashore wildlife is a position not supported by the facts.  Other factors affect the populations, including predation, climate, and other human activities, including pedestrians.

•    The interim plan will adequately protect seashore wildlife until a long-term management plan is in effect. And, therefore, the environmental groups cannot show irreparable harm based on shortcomings in the interim plan.

•    The intervenors would suffer “significant, immediate, and irreparable harm” from an injunction.  The brief and supporting documents address the economic impact of closing the most popular areas for fishing and recreation and claim it is “far worse than the Plaintiffs assert.”

•    Finally, the intervenors’ response addresses the public interest in leaving the interim plan in place until there is a final rule on ORV use.

“Finally,” the response states, “it is in the public interest for this Court to refrain from issuing an injunction.  First, the public has a strong, Congressionally recognized interest in open governmental processes and the ability to participate in decision-making that affects individuals’ daily lives….An injunction would trample this process.

“In contrast to the Interim Plan, which allowed voices from several perspectives to be heard, and result from a balance of competing, significant interests….Plaintiffs proposed injunction represents only one view and one set of interests.”

The proposed injunction, the brief sates, was formulated with no consideration for the economic impact on the islands or such things as access to the seashore by “mobility impaired” residents and visitors.

“There is also a strong public interest,” the brief states, “in encouraging and supporting the Negotiated Rulemaking process….Plaintiffs’ attempts to impose their will in this setting, notwithstanding the fact that they fully participated in the public process on the same footing with everyone else, will likely have a spill-over effect, making it harder for the parties to work together candidly and with the necessary degree of trust for an efficient negotiated rulemaking process.”

 
A hearing on the request for the injunction is scheduled for Friday, April 4, at 2 p.m. in U.S. District Court in Raleigh.



To read the complete response from the attorneys for the intervenors, click here:




   


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