April 30, 2008

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


U.S. 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 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.

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 the seashore.

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 of beach.

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 lawsuit.

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 settlement.

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 “methodical.”

“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 the committee.

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 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.

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