April 16, 2008

Parties to ORV lawsuit agree on settlement;
details and maps are now public



By IRENE NOLAN




The parties to a lawsuit over ORV use on the Cape Hatteras National Seashore filed a settlement today in U.S. District Court in Raleigh.

The 23-page settlement was filed in the form of a consent decree that now goes before U.S. District Court Judge Terrence W. Boyle, who must approve the terms of the agreement.

The end result of the settlement is that management of seashore resources is now in the hands of Judge Boyle and the private, special-interest groups that negotiated the terms of the settlement without input from the public.  The role of the National Park Service will be to enforce the terms of the settlement until there is a long-term ORV regulation, perhaps in three years.

The settlement resolves all issues in the case that began last October when Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center, filed suit against the National Park Service over its Interim Protected Species Management Plan that is to regulate ORV use and species management until a long-term rule is developed through negotiated rulemaking and an Environmental Impact Statement.

The plaintiffs in this lawsuit are environmental groups, which claim that ORV use on the seashore is illegal, since the Park Service does not have a special rule to regulate it, as has been required since 1972.  Also, the lawsuit claims that the interim plan does not go far enough to protect wildlife in the park, especially shorebirds and sea turtles. In addition, the plaintiffs asked Boyle in February for a temporary injunction to prohibit ORV use until the suit is settled on six popular areas of the seashore – Bodie Island spit, Cape Point and parts of the South Beach, Hatteras Inlet, and the north and south points of Ocracoke.

The defendants are the National Park Service, the U.S. Fish and Wildlife Service, and others, including the director of the National Park Service and the superintendent of the Cape Hatteras National Seashore.

In December, Boyle allowed Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance to become defendant/intervenors in the lawsuit to represent the interests of the public.

The settlement filed today is a compromise among the parties that settles both the lawsuit and the request for an injunction and that the parties have been working on for at least several weeks.


The Interim Protected Species Management Plan will remain in effect at the seashore, though, in cases of conflict, the settlement will prevail.

The headlines in the settlement are that buffers for nests and unfledged chicks are more precisely spelled out and larger in the case of unfledged piping plovers and that there will be a prohibition on night driving from May 1 until Nov. 15.

Some of the details of the settlement include:

•    A deadline for a final ORV management plan and special rule.  NPS must complete the long-term plan by Dec. 31, 2010, and publish the final rule by April 1, 2011.

•    Buffers for breeding and nesting shorebirds and for unfledged chicks will be spelled out in more detail and, in the case of unfledged plover chicks, will be more restrictive.

•    In the case of piping plovers, a threatened species, buffers for pre-nesting and nesting will remain the same in the settlement as in the interim plan – 164 feet.  Once the chicks hatch, the buffer zone for ORVs will be 1,000 meters or 3,281 feet – about the length of 11 football fields – in each direction from the nest.  The pedestrian buffer zone will be 984 feet – or a little more than three football fields. When the 1,000 meter buffer zone is in effect, pedestrians will have limited access during daylight hours to a narrow strip above the mean high tide line for walking, swimming, and sunning.

•    After the nest hatches, the buffer will move with the chicks. Two weeks after the chicks hatch, the Park Service may modify the buffer and allow ORV access within the 3,281-foot buffer on each side of the nest if a 984-foot buffer is maintained between the chicks and ORVs. Whether the buffer can be modified to 984 feet will depend on the movement of the foraging adults and chicks from the nest. Access to areas, such as Cape Point, will depend on the movement of the chicks and the physical topography of the beach -- whether there will be room for an ORV corridor above the high-tide line and at least 984 feet from foraging chicks.

•    Unfledged piping plover chicks will be monitored from dawn until dusk, and any modification of the 3,281-foot buffer on each side of the chicks will not be open to ORVs until the location of the chicks is determined by a Park Service monitor each morning and an adequate buffer is assured.

•    The provision for modifying the buffer will be eliminated if any plover chick is killed or injured by an ORV within the 3,281-foot buffer.

•    ORV use at night will be prohibited from 10 p.m. until 6 a.m. from May 1 until Nov. 15 to increase turtle nesting success.  This closure is for potential turtle nesting habitat, and it is not clear if that includes all of the seashore.  There also is a provision for permits for night driving between Sept. 16 and Nov. 15. No details are available yet on permits. 


•    There will be penalties for violations of pre-nesting areas and buffers. If the Park Service can show that a deliberate act has harassed wildlife or caused damage to fencing or nests, the buffers will be expanded with each violation.

•    Various reports on nesting success will be provided by the Park Service to the courts, the plaintiffs, and the intervenors, who will allowed to comment each year on proposed pre-nesting areas.

•    The Park Service will provide education about protected species at access points and in the beach driving brochure and will provide a 24-hour phone line for citizens to report violations.

•    The court can modify the settlement for good cause shown by any party, and the court retains jurisdiction to settle disputes.

•    The settlement does not preclude any party from filing future legal action.

•    The settlement is not a precedent and should not be considered binding or establish any requirements that will influence the negotiated rulemaking process.  However, the terms of the agreement can be discussed by any party in the negotiation process.

•    The environmental groups are entitled to “reasonable attorneys’ fees and costs” to be paid by the federal defendants.


Representatives of the intervenors – Dare, Hyde, and CHAPA – have not pretended to be happy about the terms of the settlement.  However, all felt that they had no other option, given that the Park Service has clearly violated the law by not having a long-term rule on ORVs. 

The environmental groups say that ORV use is illegal without that long-term rule. And, in fact, Judge Boyle ruled that ORV use on the seashore was illegal last summer in the case of a visitor with a minor ORV infraction.

In addition, the federal government was clearly not enthusiastic about defending ORV use under the interim plan, and in its response to the injunction request, just agreed that ORVs were operating illegally on seashore beaches.

It’s clear that these parties would not have been in Judge Boyle’s courtroom under these circumstances, if the National Park Service had done what it was required to do 35 or so years ago.  In fairness, the environmental groups that sued have noted every chance they’ve had that they would not have gone to court if the federal government had done its job.

However, that said, it’s also true that a lot of time and federal money has been spent on developing the interim plan, and members of the public invested their time and effort to give their feedback during public comment periods.

The interim plan was a plan developed by a process, in the open, with public input.

The settlement agreed upon today was decided behind closed doors.

That’s not the way it should have been.

The National Park Service will have to enforce the terms of the settlement – no doubt at a great cost to taxpayers – but they will no longer be deciding policy in the next three or so years.

The beaches will be managed by Judge Terrence Boyle and the special interest groups that brought this legal action.

 The best hope for the future of beach access now is that negotiated rulemaking manages to survive this divisive lawsuit, and that a final plan on ORV use on the seashore is one that is devised with input from all the people – on and off the islands – who have stake in the future of the park.

 Comments are always welcomed!


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