| April 22, 2008
A flurry of activity today in ORV lawsuit case in federal court
federal courthouse in Raleigh was busy today with numerous filings in
the continued legal wrangling over ORV use at the Cape Hatteras
The Federal Government filed the answers to seven questions that U.S.
District Judge Judge Terrence Boyle, who is hearing the case, ordered
last Friday to be submitted by this Friday, April 25..
Then, Judge Boyle issued an order asking the National Park Service to answer four more questions by April 28.
And, finally, the judge set a hearing in the case for 2 p.m. on Wednesday, April 30, at the federal Courthouse in Raleigh.
The lawsuit in this case was filed in October by Defenders of Wildlife
and the National Audubon Society, represented by the Southern
Environmental Law Center, against the National Park Service and other
federal defendants. Dare and Hyde counties and the Cape Hatteras
Access Preservation Alliance were allowed by Boyle to enter the legal
action as defendant/intervenors.
In February, the plaintiff environmental groups asked for an injunction
to close six popular sites on the seashore until the lawsuit is settled.
The parties to the lawsuit – plaintiffs, defendants, and
intervenors – after several weeks of intense negotiation, filed a
settlement, known as a consent decree, with the court on Wednesday,
April 16. The decree must be approved by Boyle.
Two days later, Boyle came back with seven questions for the National
Park Service to answer in writing about the consent decree.
These are the questions Boyle posed:
• Whether the consent decree established any
control over access to beach driving at existing seashore ramps.
• The description and location of the ramps from
Highway 12 to the beach as they now exist on the seashore.
• Whether there will be under the consent decree
a numerical count of the number of vehicles that enter or have access
to the beach.
• Restrictions or limitations on the type, size,
weight, and characteristics of vehicles that will have access to the
beach under the consent decree.
• Whether the consent decree requires separate
permitting and qualification of a driver and vehicle, including a
processing fee before either driver or vehicle are eligible for beach
• Whether the consent decree requires safety screening or qualification of beach drivers.
• Whether the consent decree takes into account the safety of bathers and pedestrians.
The Park Service’s 23-page response noted that, “The issues
identified by the court are important factors that will be considered
by NPS in crafting the final Special Regulation….which will
govern ORV use at the seashore for the long term. As the Court is
aware, the negotiated rulemaking process is underway, and under the
Consent Decree must be completed by April 11, 2011.”
The NPS response went on to note that the Consent Decree “is not
intended to be a substitute for special regulation, nor is it intended
to resolve all of the issues to be addressed during the rulemaking
process, such as those issues raised by the court.”
That having been said, the NPS went on to address the seven questions. Briefly, the responses were:
• All ORV access at the seashore is restricted
to established ramps. NPS will establish new regulatory signs at
each ORV access ramps to notify operators of applicable regulations.
• NPS plans to increase it level of law enforcement staffing during peak use periods.
• A description of 17 ramps on the seashore, 16
of which are open seasonally or year-round to ORV use. The ramps
were described with the note that they are sometimes closed for safety
reasons, to protect resources, or for seasonal reasons.
• NPS has installed traffic counters at all ORV
beach access ramps and tabulates the traffic count data on a monthly
basis. Special spot counts are done on land and from the air on
some holiday weekends. The proposed consent decree establishes no
limits on the number of ORVs.
• The proposed consent decree does not address
the specific issue of limitations on the type, size, weight, and
characteristics of vehicles that will have beach access. The
negotiated rulemaking committee has started discussion of some of these
• The proposed consent decree does not establish
a general permitting or qualification requirement for ORV use at the
seashore, no does it provide for the collection of a processing
free. The proposed consent decree does establish a permit for
night driving from Sept. 16-Nov. 15. Permits are also being
discussed as part of negotiated rulemaking.
• The proposed consent decree does not require
addition ORV operator or vehicle certification other than what is
currently required – a valid state vehicle driver’s license
and a “Street Legal” vehicle. Negotiated rulemaking will
consider such issues as operator education and additional equipment.
• Under the interim park strategy, park visitors
can visit ORV-free beaches, as well as beaches open to ORV use.
Exhibits with the answers to the questions by NPS included the charter
for the negotiated rulemaking committee and the NPS current ORV use
Judge Boyle then ordered the Park Service to answer four more questions:
• Has the Park Service projected its manpower
needs in order to implement the consent decree and are budget
authorizations in place to add personnel?
• Has the Park Service considered alternative
access other than off-road vehicles in order to give the public use of
the seashore, such as through the services of concession carriers and
• Does the Park Service anticipate that there
will be a period of public comment as part of the consideration of the
• Will the Park Service provide technical
witnesses, apart from counsel, to provide information on the maps.
The answers on these last four questions on due Monday, April 28, two days before the April 30 hearing.
Federal response to question Judge Boyle wanted answered by NPS
questions Judge Boyle wants answered by NPS by Monday, April 28
a hearing on Wednesday, April 30, in Raleigh