|April 11, 2008
Still watching and waiting:
Parties agree to settlement of beach-driving lawsuit;
Public may know details on Wednesday, April 16
three parties involved in the lawsuit to regulate beach driving along
Cape Hatteras National Seashore announced on Friday evening, April 11,
that they have agreed in principle to a settlement of the case.
Terms of the proposed consent decree cannot be discussed at this time, according to attorneys involved in the case.
The parties are filing a joint motion in U.S. District Court to
continue the case until Wednesday, April 16, to allow the
Defendant-Intervenors (Dare County Commissioners, Hyde County
Commissioners, and the board of the Cape Hatteras Access Preservation
Alliance) to vote on the proposed settlement.
Assuming that the settlement is approved by the intervenors, the public
will know the details of the agreement when the consent decree is filed
in the court on Wednesday, according to Jason Rylander, attorney for
the Defenders of Wildlife.
The following are statements from attorneys representing the
environmental interests in the case, as well as those representing Dare
County and recreational users of Cape Hatteras National Seashore, that
were released this evening.
Derb Carter, Southern Environmental Law Center: “We are pleased
to have all parties to the case at the negotiating table and in
agreement in principle. We will continue to work to ensure that the
natural resources and public enjoyment of Cape Hatteras National
Seashore move forward hand in hand and look forward to filing a
proposed consent decree next week.”
Jason Rylander, Defenders of Wildlife: “We’re pleased to
have come to an agreement in principle with all three parties to this
important issue. While we can not discuss the terms of the proposed
settlement, we remain committed to preserving the wildlife along the
Seashore while allowing for continued recreational access to this
unique natural area.”
Statement from Bobby Outten and Larry Libesman, attorneys for
Defendant-Intervenors: "Bobby Outten, Dare County Attorney, and Larry
Liebesman , Holland and Knight LLP , outside counsel for
Defendant-Intervenors, are very pleased that the parties have
reached agreement in principle and will recommend to intervenors
that the settlement be approved as soon as possible next week.
John Couch, president of the Outer Banks Preservation Association, has
indicated that he will recommend approval of the settlement to his
board as soon a possible."
Mike Murray, Superintendent, Cape Hatteras National Seashore:
“This is the best of all possible outcomes. I am very
pleased all parties have reached an agreement in principle.”
Attorneys for the environmental groups and the federal government had
announced on April 2 that they had reached an agreement to settle the
lawsuit and the request for a temporary injunction to halt ORV use on
popular areas of the seashore until the lawsuit is settled or until the
National Park Service has a long-term ORV rule. The attorneys
asked U.S. District Court Judge Terrence Boyle for a continuance of a
planned April 4 hearing on the injunction request until April 11 so
they could work out the details.
Attorneys for the intervenors opposed the continuance.
In his courtroom on April 4, Boyle granted the continuance and also
said that he preferred that the intervenors, representing the public,
be involved in a settlement, though he did not say what role they
All three parties – plaintiffs, defendants, and intervenors --
had been meeting this week in an attempt to reach a settlement. Earlier
today, Dare County had issued a press release that said they were
unable to reach an agreement and the talks were
Also, earlier today, Boyle issued an order in the case that granted the
intervenors’ motion of April 1 to file supplemental information
to oppose the request for an injunction, and he denied the motion of
the plaintiffs, the environmental groups, to strike, or not allow, the
information because it had not been filed in a timely manner.
(More details on the lawsuit and the request for an injunction are available in earlier columns, posted below.)
April 4, 2008
Watching and Waiting:
Settlement on ORV use on seashore beaches is in the works
parties in the legal wrangling over ORV use on the Cape Hatteras
National Seashore are apparently headed to a negotiated agreement to
settle both a lawsuit and a request for a temporary injunction to ban
beach driving at popular recreational areas in the park.
District Court Judge Terrence Boyle granted a continuance today to the
parties in a lawsuit over the future of beach driving on the seashore
to give them more time to reach a settlement.
had scheduled a hearing today in federal court in Raleigh on the
request by the environmental groups that have filed a lawsuit over ORV
use on the seashore and asked for a temporary injunction against beach
driving on some areas of the Cape Hatteras National Seashore.
However, on Wednesday, the plaintiffs and defendants asked for a 7-day
continuance to give them more time to finalize an agreement that, they
said, that would resolve “all of the issues for all species in
the case, not just the preliminary injunction, for presentation to the
judge in the form of a consent decree.”
plaintiffs in this case are the Defenders of Wildlife and the National
Audubon Society, represented by the Southern Environmental Law Center,
which have asked Boyle 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.
defendants 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.
They are represented by attorneys for the federal government.
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.
did not set another date for the parties to the lawsuit to appear in
court, but Jason Rylander, attorney for the Defenders of Wildlife, said
that both sides were on track to provide an agreement to the court in
the next week in the form of a consent decree that the judge would have
to sign off on.
agreement would include details on managing ORV use on the seashore
– beyond the interim plan – until a long-term rule is
adopted, which could take as long as three years.
motion for a continuance noted that the two sides “have an
agreement in principle as to the major points in contention and are
very close to reaching an agreement that would resolve the case.”
said the agreement would resolve not only the request for a temporary
injunction, but it would also settle a lawsuit that the environmental
groups filed last October, challenging the interim, or short-term, plan
to protect shorebirds and turtles.
view the results of today’s hearing as very positive,”
Rylander said, adding that the judge indicated that he was inclined to
grant the preliminary injunction before he gave the parties more time
to work on an agreement.
believe the settlement,” Rylander said, “will provide
protection for wildlife and provide for ORV access for much of the
Outten, Dare County attorney, said it is the assumption of the
intervenors that “we will be part of a settlement.”
Boyle, Outten said, indicated that he wants “transparency”
in the process and wants all groups with a stake in the outcome to be
part of a settlement.
said Boyle noted some “parameters” he wants to see covered
in a settlement. Among them, Outten said, were consideration for
the traditional, cultural, and historical uses of the beach, concern
about the volume of traffic the beaches can sustain, and the idea that
different areas of the beach may need different rules.
indicated that he realized the value of the Point,” Outten
said. “He seems to respect the concerns of the access and
recreational community and the legitimacy of user groups.”
think we are in a better position than we were yesterday,” said
John Couch, president of the Outer Banks Preservation Association, who
attended the Raleigh court session.
chips are on the table now,” he said. However, he added the
position of strength clearly lies with the plaintiffs, the
environmental groups. “They have the upper hand.”
have the upper hand because the National Park Service has been required
to have a plan to regulate ORVs on the beaches, since 1972.
Though there have been several attempts, there has been no formal rule
for beach driving at Cape Hatteras. That makes ORV use at the
seashore illegal, a fact that no party in the legal maneuvering is
had hoped that the long-range rulemaking would come through the
negotiated rulemaking process, which officially got underway this
year. In that process, 30 stakeholders on all sides of the issue
are sitting down together to come up with ORV regulations.
Negotiated rulemaking has continued, despite the lawsuit and request for an injunction.
the question seems to be: Will there be any need for negotiation
on a long-range ORV rule after the negotiating to settle the lawsuit?
Will there be anything left to negotiate?
We will be better able to answer these questions when we know the details of the settlement agreement in the lawsuit.
And it seems we will know the details in a week’s time.
sides on the beach access issue are urging supporters to e-mail members
of their congressional delegation and urge them to take action –
either to keep the beaches free and open or to protect the wildlife on
of free and open access have been e-mailing each other, urging that
they call, fax, or e-mail members of Congress. In addition, a new
Web site came online in mid-March that aims to disseminate information
about the issue and urges people to send a PleaCast to, among others,
elected officials. The site is http://www.savehatterasandocracoke.com
The Web address has been e-mailed all over the island and to off-island
supporters, and it is also featured on the marquees of several
of Wildlife has now sent out a Wildlife Alert to its members and
friends, urging that they e-mail their representatives in Congress and
urge them to take action to save “the unique flora and
fauna” on the Cape Hatteras National Seashore.
wildlife that makes Hatteras so special is in danger of disappearing
forever if immediate action isn’t taken,” Jason Rylander,
attorney for Defenders, wrote in the alert.
To read the Wildlife Alert Click Here:
SUPPORT FROM ELECTED OFFICIALS
At the urging of their constituents, some elected officials are supporting free and open access.
Sen. Marc Basnight, who represents Dare and Hyde counties in the North
Carolina General Assembly, has written several letters about the
issue. His latest was on March 26 to the state’s
the April 4 court date approaches,” Basnight wrote, “I
wanted to be sure you were aware of how critical it is to keep public
access to the Seashore and how important this resource has been to our
coastal culture and heritage, our local economy, and our sense of
community – and to ask for your assistance in protecting
write you today,” he continued, “to urge you to pass
legislation as soon as possible to clarify the Park Service’s
previously expressed intent to maintain public access, particularly
vehicle access, to the Seashore.”
also referred to the ongoing negotiated rulemaking process to develop a
long-term rule on driving on seashore beaches, noting that the people
of the Outer Banks, the beach users, and the National Park Service are
“sincere in their desire to develop a reasonable plan that
protects the Seashore while preserving reasonable public access to
he wrote, “the threat of this lawsuit hanging over their heads
would, I assume, make it very difficult to work in good faith with
those who have filed the lawsuit and who now have the ability to use
this litigation as an unfair ‘hammer’ in these
Click Here To Read the text of Marc Basnight’s letter:
Rep. Tim Spear has also contacted officials about the need to protect
beach access. He has written to Dirk Kempthorne, Secretary of the
Department of the Interior, to urge that negotiated rulemaking continue
in good faith and he has contacted North Carolina Attorney General to
ask him to look into the possibility of the state intervening in the
Click Here To Read Tim Spear’s letter to his constituents on beach access:
Rep. Walter Jones, R-N.C., issued a press release on Feb. 22, defending
access to seashore beaches. He addressed some of his remarks to the
environmental groups that filed the lawsuit and the request for an
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.”
Yesterday, U.S. Sen. Elizabeth Dole, R-N.C., weighed in on the issue.
Her office issued this statement:
“Sen. Dole believes that residents and visitors to the Cape
Hatteras National Seashore should be able to access beach areas with
off-road vehicles for fishing and other recreational activities.
However, she also believes there should be proper safeguards in place
for public safety and the protection of the beach environment.
“Last August, Sen. Dole, along with Sen. Burr and Rep. Jones,
wrote to the Director of the National Park Service expressing their
“Sen. Dole has heard from many constituents about this issue and
is concerned about the negative impact the current lawsuit would have
on the local community and economy. After April 4, we will have a
better understanding of the actions, if any, that need to be
Click Here To Read The letter that Dole and others wrote to the Director of the National Park Service:
A spokesman for U.S. Sen. Richard Burr, D-N.C., said that Burr has not
issued a release on the beach access issues and would not have any
comments until after the hearing on the request for an injunction.
PRE-NESTING AREAS ARE ALREADY CLOSED
While the legal battle continues over the future of ORV use on the
beaches, The National Park Service began establishing pre-nesting areas
for piping plovers. These are the closures spelled out in the
Interim Protected Species Management Strategy, which is the subject of
the lawsuit filed in October by environmental groups.
According to a Park Service press release, the areas to be closed are
based on breeding areas used in the past three years and a recent
habitat assessment conducted by the seashore natural resource staff to
adapt the closures to current beach conditions. These temporary
closures will be installed on sections of the Bodie Island Spit, Cape
Point, South Beach, Hatteras Spit, North Ocracoke and Ocracoke South
The areas are closed to vehicles and pedestrians. The Park Service says
that, to the extent possible at these sites, it will maintain an
off-road vehicle (ORV) corridor or alternate route to maintain access
to popular fishing and recreation areas. The pre-nesting areas
will be marked with “symbolic fencing” consisting of wooden
posts, bird usage signs, string and flagging tape.
Frank Folb, a member of the negotiated rulemaking committee and an
owner of Frank and Fran’s tackle shop in Avon, went over maps of
both pre-nesting closures and possible closures under an injunction at
a community meeting last week.
To see a video of his presentation, click on this link:
We will wait until April to find out if popular beaches will be closed year-round
February 24, 2008
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
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
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
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
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
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
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
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.”