| April 25, 2008
National Park Service responds to judge’s second round of questions
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
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
(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
• 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 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
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
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
“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
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