Shooting The Breeze by Irene Nolan

Still watching and waiting:
Parties agree to settlement of beach-driving lawsuit;
Public may know details on Wednesday, April 16

By IRENE NOLAN

The 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 should play.

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 “terminated.”

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

By IRENE NOLAN

The 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.

U.S. 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.

Boyle 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.”

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 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.

The 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.

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.

Boyle 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.

The 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.

The 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.”

Rylander 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.

“We 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.

“We believe the settlement,” Rylander said, “will provide protection for wildlife and provide for ORV access for much of the year.”

Bobby Outten, Dare County attorney, said it is the assumption of the intervenors that “we will be part of a settlement.”

Judge 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.

Outten 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.

“He 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.”

“I 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.

“The 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.”

They 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 denying.

Many 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.

Now 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.

DUELING E-MAILS

Both 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 the seashore.

Supporters 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 businesses.

Defenders 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.

“The 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.

State 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 congressional delegation.

“As 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 it.”

“I 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.”

Basnight 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 it.”

“However,” 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 negotiations.”

Click Here To Read the text of Marc Basnight’s letter:

State 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 legal action.

Click Here To Read Tim Spear’s letter to his constituents on beach access:

U.S. 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 injunction:

“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.”

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 concern.

“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 pursued.”

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 Point.

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:

February 24, 2008

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

By IRENE NOLAN

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.”