|April 30, 2008
Parties to ORV lawsuit agree on settlement;
details and maps are now public
District Court Judge Terrence W. Boyle today signed a consent decree
that will settle a lawsuit by environmental groups over off-road
vehicle use on the Cape Hatteras National Seashore.
The seashore’s beaches will remain open to ORVs, though with more restrictions than islanders and visitors are used to.
And it won’t take long for beach drivers to notice the changes.
The settlement is
effective tomorrow, May 1, and seashore superintendent Mike Murray says
that Park Service personnel will be posting signs at all seashore ramps
that the beaches are closed to ORVs from 10 p.m. until 6 a.m.
The night-driving closures are one of the differences between the
interim plan that the Park Service had been operating under and the
terms of the settlement.
Another difference that beach drivers – and even pedestrians
– will notice is an increased buffer around piping plover nests
once the chicks have hatched.
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 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, they claim 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
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.
In a filing with the court on the eve of today’s hearing, Murray
noted that the consent decree will mean a “significant reduction
in ORV access during the peak summer season.”
Murray noted in his declaration to the court that in 2007, piping
plovers nested at three locations – Bodie Island spit, Cape
Point, and the South Point of Ocracoke. If the threatened
shorebirds nest in the same areas this summer, the three areas will be
closed to ORVs for at least two weeks and perhaps longer. The
length of closures will depend on where the birds nest and how the
foraging birds and their chicks move along the beach.
"I am not happy with the outcome,” said Allen Burrus of Hatteras
village, vice chairman of the Dare County Board of Commissioners.
“To further restrict access to some of the most enjoyable beach
and fishing spots on the Cape Hatteras National Seashore is
disappointing. Being happy that the consent decree only restricts
access instead of banning it is like saying you’re glad you only
have one headache – not two.’’
Boyle’s courtroom at the federal courthouse in Raleigh was filled
with supporters of open beach access for today’s 2 p.m.
hearing. And most of them would agree with Burrus – that
they don’t like the consent decree but can live with it and find
it better than the alternative of shutting down popular areas of the
beach – or even shutting down the seashore's beaches altogether.
In fact, when the hearing got underway with Murray answering questions
and showing Boyle maps, some of the spectators thought from the
judge’s questions to the superintendent that he was about to shut
down the beaches.
“The judge did quiz Mike Murray for quite a while about his
plan,” said Warren Judge, chairman of the Dare County Board of
Commissioners. “The overtone of his questions would lead
you to believe that he might prefer to close down the beaches.”
“He gave every indication several times that he was going to
close it down,” said Frank Folb of Avon, owner of Frank and
Fran’s tackle shop and a member of the negotiated rulemaking
committee that is working on a long-term plan for regulating ORV use on
Rob Alderman, who owns the Hatteras Island Fishing Militia Web site and
is active in access issues, said that Boyle seemed particularly
bothered that the amount of beach being restricted to ORVs was reduced
but that the number of ORVs on the beach was not being restricted
– resulting in the same number of vehicles on a smaller section
John Couch, president of the Outer Banks Preservation Association and
an alternate on the negotiated rulemaking committee, said he thought
Boyle “reluctantly” signed the consent order after
questioning Murray about carrying capacity of the beaches, permits,
whether the ramps could just be chained off, how drivers would be
educated and other issues.
“He asked a lot of questions about why the decree didn’t
cover certain issues,” said Lawrence Liebesman of Holland and
Knight in Washington, D.C., an attorney for the intervenors in the
Liebesman said Boyle seemed “troubled” by the fact that
many of his concerns were not covered by the decree, but the judge
eventually said he wasn’t going to overrule the parties to the
Jason Rylander, attorney for Defenders of Wildlife, said that it was
obvious that Boyle believes ORV use on the seashore is illegal and that
the management is not adequate.
Liebesman said that Murray’s performance at the hearing answering
numerous questions by Boyle was “poised” and
“It appears that he turned the judge around,” the
intervenors’ attorney said. “It was a tremendous
effort on the part of Mike Murray.”
Rylander agreed that Murray did a “commendable job” and
said that Boyle acknowledged Murray’s work as a public servant.
The ORV access advocates feel that they had no choice but to agree with
a settlement that isn’t in their best interests. Rylander,
on the other hand, said that he thinks the consent decree is a
“good outcome for everyone” and said that the fact all the
parties could come together is a “win-win situation.”
The resources are better protected, Rylander said, and there is still “significant ORV access.”
“It’s the end of an inning, but the game isn’t over
yet,” Murray said after his day in court, noting that he has his
eye on the “long-term” solution – a special rule on
ORV use on the seashore. Now he hopes he can spend more time on
that long-term solution.
That, however, will be Mike Murray’s next challenge.
A negotiated rulemaking committee of 30 stakeholders and their
alternatives just started officially meeting in January to
formulate long-term ORV regulations.
And the lawsuit by the environmental groups, which have a seat at the
negotiating table, has been the elephant in the room since the first
day of meetings.
Today, Carla Boucher, an attorney and member of the committee
representing United Four Wheel Drive Associations, asked Murray, as the
designated federal official in charge, to remove the Audubon Society,
Defenders of Wildlife, and the Southern Environmental Law Center from
Everyone on the committee has been hanging in there, but there are now
indications that other committee members may join Boucher’s call
for dismissal of the environmental groups that sued.
Boucher suggests other local, regional, and national groups to replace
the three groups she wants removed from the committee. Other
committee members say they favor dismissing the three members that sued
and reducing the committee by three of the ORV access advocates.
That would reduce the committee to 24 members, which some think would
make it easy to reach consensus.
The request to Murray to dismiss the environmental groups, said
Rylander, is an “unnecessary and divisive delay tactic that will
impede work of the committee.”
According to the consent decree, the National Park Service must finish
work on the long-term plan by Dec. 31, 2010, and publish a final rule
by April 1, 2011.
The negotiated rulemaking committee will meet again next week, on May 8
and 9, at the Comfort Inn Oceanfront South in Nags Head. The
day-long meetings begin at 8:30 a.m. and are open to the public. There
are usually public comment periods at noon.
Murray said today he isn’t sure yet how he will address
Boucher’s request to boot the environmental groups. He had
not even had time to read the request.
However, negotiated rulemaking is once again at a crossroads on the eve of the committee’s next meeting.
Will the process be able to continue to survive the challenges?
Details of the Consent Decree
The consent decree signed today by U.S. District Court Judge Terrence
Boyle 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
• 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
• 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
• The environmental groups are entitled to
“reasonable attorneys’ fees and costs” to be paid by
the federal defendants.