Beach Access Issues
April 25, 2008

National Park Service responds to judge’s second round of questions

The National Park Service today filed a response in U.S. District Court in Raleigh to the second round of questions that federal judge Terrence Boyle wants answered before he presides over a hearing on Wednesday, April 30, in the lawsuit over ORV use on Cape Hatteras National Seashore beaches.

In today’s response, the attorneys for the National Park Service said that additional resources to implement the consent order are “feasible,” that public access to parking is a more significant factor than alternative transportation to the beach, that there are no plans for a public comment period on the consent decree.

The response to the judge’s questions by federal attorneys will set the tenor for the hearing on Wednesday at 2 p.m.

The federal attorneys noted that the issue of approving the settlement, also known as the consent decree, does not revolve around “whether the court itself would have reached the particular settlement but rather….the proposed settlement is a reasonable compromise and otherwise in the public interest.”

The court, the response said, should be “guided by the general principle that settlements are encouraged.”

“The Court should approve a settlement if it is fair, adequate, reasonable and consistent with the applicable law.”

In addition, the federal attorneys noted, the court should not “blindly accept a consent decree,” but that it may not “rewrite” the settlement agreed upon by the parties.

“(The Court) may not delete, modify, or substitute certain provisions of the consent decree.  Of course, the (Court) may suggest modification, but ultimately, it must consider the proposal as a whole and as submitted.”

Though all parties to the lawsuit entered into a consent decree on April 16, Boyle has yet to approve the settlement.  He has twice asked the National Park Service to answer questions about the agreement in writing, and he scheduled and then cancelled an in camera, ex-parte meeting – in private and without counsel present -- with the Park Service to go over maps of areas that would be closed to ORVs under the decree and other questions.

The tension between ORV access advocates and environmental groups over beach driving on the seashore has been simmering for years.  However, it reached a climax last October when Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center, filed a lawsuit against the National Park Service and other federal defendants.

The lawsuit claims that the National Park Service has not developed a special regulation for ORV use that has been required since 1972 and that its Interim Protected Species Management Plan is not adequate to protect shorebirds and sea turtles until a negotiated rulemaking process is completed – probably in three years.

Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance were allowed by Boyle to enter the legal action as defendant/intervenors in December.

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 negotiations -- filed the April 16 settlement.  The settlement, or consent decree maintains ORV access to seashore beaches while providing more protection for shorebirds and sea turtles.

Two days later, Boyle came back with seven questions for the National Park Service to answer in writing about the consent decree.  The federal attorney answered the questions in a court filing on Tuesday, April 22.  That same day, Boyle asked for answers to four more questions.

(Information about the consent decree is available in the “Shooting the Breeze” column by the editor at the top of the front page of The Island Free Press.  Details about Judge Boyle’s first seven questions and the federal response are available on the Beach Access Issues Page under the headline, “A flurry of activity today in ORV lawsuit in federal court.”)

 Boyle’s additional questions to the National Park Service were:

•    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 public transportation?

•    Does the Park Service anticipate that there will be a period of public comment as part of the consideration of the decree?

•    Will the Park Service provide technical witnesses, apart from counsel, to provide information on the maps of proposed pre-nesting and closed areas?

Here are some of the details to the federal attorneys’ response to the questions.

On the issue of resources, the court filing noted the Park Service projected staffing and resources needed to implement the consent order and sees them as feasible for the fiscal year.  The response notes that there is some “uncertainty” about adequate resources in future years.

On the issue of alternative access, the response by the federal attorneys noted that concession carriers and public transportation that is used on the Cape Lookout National Seashore would not be feasible on Cape Hatteras in the short term, though they are factors that will be considered in the negotiated rulemaking process for long-term rulemaking.

The seashore currently has an estimated 1,040 beach access parking spaces from Bodie Island through Hatteras and on Ocracoke.

“Therefore,” the response says, “in NPS’s view, availability of adequate parking, as opposed to concession carriers and additional public transportation, is a more significant factor relating to public access to the seashore.”

The response went on to note that adequate parking is an issue in the long-term plan, the construction of parking areas requires “careful planning and environmental compliance” and is “beyond the scope of this lawsuit and the proposed Consent Decree.”

On the issue of public comment on the consent decree, the federal response noted that the Park Service values public involvement in decision making and that numerous public meetings were held during the development on the interim strategy and other long-term management decisions.

“The Court,” the response said, “has noted previously the importance that case matters, which would include the approval of the Consent Decree, be open, public, and transparent…..The proposed consent decree is a product of exhaustive negotiations on the part of all parties to reach a reasonable resolution of this lawsuit, consistent with the public interest.”

The federal attorneys said that the consent decree required the approval of Dare and Hyde county boards of commissioners and the Cape Hatteras Preservation Alliance, “which collectively represent the large majority of the public most acutely impacted.”

The two boards, they said, consulted with leading members of the business and user communities and “held a meeting and a vote before agreeing.” CHAPA, they said, held a meeting and voted to authorize their counsel to sign the proposed agreement.

“Therefore, the public interests most likely to be affected by the terms of the proposed Consent Decree already have been represented in the process and the proposed Consent Decree is a product of their input and agreement."

The Dare County Board of Commissioners met in a closed session to discuss attorney-clients matters.  The board later announced it would sign on to the consent decree.  The CHAPA meeting included board members only, which are mainly leaders of beach access groups such as the Outer Banks Preservation Association and the North Carolina Beach Buggy Association.

“Accordingly,” the response says, “although public participation will continue to be an integral part of the rulemaking process that is already underway, a public comment period or fairness hearing is not a prerequisite to approval and entry of the proposed Consent Decree.”

Lastly, the response noted that the Park Service will have representatives at the April 30 hearing to explain maps and closures.

In conclusion, the federal lawyers, said:

“The approval of the proposed Consent Decree and the resolution of this case will bring much needed finality to a situation that has aroused much public uncertainty and unrest.  Then, all parties will be able to focus their time and energy on expeditiously drafting a final Special Regulation…”

Federal response to additional questions from Judge Boyle

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