Return the management of the seashore to the Park Service:
Dump the consent decree and pass the legislation
The pressing question now is who should be managing the Cape Hatteras National Seashore.
the answer to that question is quite simple. The National Park
Service should be managing the seashore’s resources and its
recreational access – by ORVs and folks on foot.
The problem is that right now the park is not managing the seashore.
officials are doing exactly as they were instructed to do under a
consent decree that was signed by a federal judge on April 30 and that
settled a lawsuit that was filed last fall by environmental advocacy
a result of the decree, the seashore is being managed by the Defenders
of Wildlife and the National Audubon Society, and by the Southern
Environmental Law Center, which represented the two groups in the legal
action and was instrumental in formulating the terms of the settlement.
let’s not forget the federal judge, Terrence W. Boyle, who signed
off on the decree, and to whose court the groups can return if they
don’t like the way the park is being managed.
decree spells out exactly what must be done to protect birds and
turtles, including specifying to the meter exactly how large
pre-nesting and nesting buffers should be and how much space the chicks
should have after they hatch and before they fledge.
is no discretion allowed. The Park Service is not allowed to use
its own judgment on nesting closures on a case by case basis.
This is not as it should be.
June 11, North Carolina U.S. Sens. Elizabeth Dole and Richard Burr and
U.S. Rep. Walter Jones introduced legislation into the Senate and the
House of Representatives that would set aside the consent decree and
require that the Park Service operate the seashore under its interim
plan until the long-term plan is negotiated by a committee of
county officials and groups that advocate free and open access to the
beach were ecstatic about the legislation. Defenders of Wildlife
and Aububon said legislation would strip “vital
protections” for wildlife on the beaches.
the two closest major newspapers, The News & Observer in Raleigh
and The Virginian-Pilot in Norfolk, published editorials that heavily
criticized the legislation.
The advocacy groups that were instrumental in getting this consent decree fall back on these talking points.
The National Park Service has been required to have a long-term
ORV plan since 1972. And it still does not have one.
In the opinions of the environmental groups, the interim
management plan, intended to manage resources and ORVs until there is a
long-term plan, does not do enough to protect wildlife.
The consent decree was signed by all parties to the lawsuit,
including the plaintiff environmental groups, the federal government,
and the defendant/intervenors – Dare and Hyde counties and The
Cape Hatteras Preservation Alliance, an umbrella organization that
includes groups that advocate for free and open access, including the
Outer Banks Preservation Alliance
So here are the facts:
is true that the Park Service has not had a long-term ORV rule that has
been published in the Federal Register and thus made
“official.” After a series of public meetings in the
late 1970s, seashore officials sent a proposed rule to the Park Service
in Washington, D.C., in 1978. No one today knows, or is willing
to say, what ever happened to that plan. However, it still exists
on paper (I have a copy.), and the park has been operating for almost
two decades under many of the regulations that were put forward then
– ORV trails, ramps, safety closures, closures for nesting
shorebirds and turtles, etc.
the Park Service is seriously pursuing a long-range plan right now
through a negotiated rulemaking committee of stakeholders who are
sitting around a table and trying to reach an agreement on the
long-range rules that all sides of the issue can live with.
negotiated rulemaking process is not a speedy one. Its members
are officially vetted and appointed by the Secretary of the Interior,
and it operates under federal rules for negotiation. It could take
until the end of 2010 for the committee to finish its work.
at this point, what exactly was the point in filing a lawsuit over the
interim plan when, under the leadership of seashore superintendent Mike
Murray, negotiated rulemaking is finally underway after five years or
more of just talking about it?
of Wildlife and Audubon said in their lawsuit and their request for an
injunction to shut down popular beaches year-round that the birds and
turtles here are in a crisis – that populations have plummeted
and the birds cannot wait three more years. The groups claim that
the number of colonial waterbirds nesting on the seashore has plummeted
84 percent in six years.
the SELC Web site, there is a chart that outlines these declines, but
has no documentation about where the information came from. One bird
listed is the black skimmer. According to the chart, there were
no black skimmers nesting on seashore beaches last summer.
However, it is well documented by North Carolina Wildlife Resources
Commission that one of the largest colonies of black skimmers in the
state exists on a dredge island, known as Cora June Island, just
offshore in the sound from the Hatteras Inlet Ferry Docks.
is also interesting to note that despite the large buffers required
under the consent decree, a pair of American oystercatchers has nested
and hatched two chicks just off Highway 12 near Hatteras village in the
Sandy Bay area. The consent decree does not require that highways be
closed for buffers for nesting birds. The birds sat quite happily on
the nest as cars and trucks streaked by at 55 miles per hour. As of
Monday, June 16, the chicks were still fine and foraging along the
addition, a North Carolina State University study on American
oystercatcher populations on the seashore has a chart that traces the
productivity of that bird from 1995 until 2007 for the seashore. In
1997, the chart notes that there were 22 breeding pairs and 8 fledged
chicks on Hatteras Island. In 2007, it says, there were 15
breeding pairs and 9 fledged chicks on the island. The most successful
year in the chart for fledged chicks was 2005 when there were 17
breeding pairs and 10 fledged chicks.
data suggests that the bird management policy of the Park Service on
Hatteras Island in recent years has been effective.
me add at this point that neither the black skimmer nor American
oystercatcher is an endangered or threatened species under the
Endangered Species Act. They are listed as “species of
special concern” by the state of North Carolina. The only
federally protected species on the seashore is the piping plover, which
is listed as threatened under the ESA.
of the argument boils down to the “science” of bird
populations. The environmental groups throw out many statistics
in their press releases but have been less than forthcoming in the
specifics of where this science came from. They have not provided
published studies or references.
a recent tour of some nesting areas on the seashore with
representatives of North Carolina Audubon, I was assured when I asked
questions about the examples listed above and other questions about how
buffers were determined, that they were based on the best science
available. Other than the NC State Study, which is problematic to
me, there were few if any specifics.
Defenders, and SELC have been invited several times to submit guest
columns to The Island Free Press. None of the groups has done so.
That’s why our guest columns have been dominated by a scientist,
Dr. Mike Berry, who has raised some troubling and provocative questions
about the science used by the environmental groups, especially the
absence of open public peer review and discussion of the science used
as the basis for the current closures.
the public had no opportunity for input into the consent decree.
Yes, they were represented by the federal government, county
government, and beach access groups, but you and I were not invited to
get involved or let any of these folks know how we felt about how the
lawsuit would be settled. Negotiations for the consent decree were
behind closed doors.
the other hand, the National Park Service’s Interim Protected
Species Management Strategy and Environmental Assessment was several
years in the making and the public had an opportunity to comment in
public meetings several times along the way.
Park Service basically had been operating under the plan, which was
finally published in the Federal Register last summer. It is backed up
by science, the best professional opinion of park officials, and a
biological opinion by the U.S. Fish and Wildlife Service.
is no reason to think that the interim plan would not have protected
birds and turtles had the Park Service been allowed to continue with it.
Next up is the fact that all of the parties to the lawsuit and the request for the injunction signed the consent decree.
This is true.
was not the “judge’s” decree, as many refer to
it. The plaintiff advocacy groups, the federal government, and
the intervenors – Dare and Hyde counties and CHAPA did sign off
let it be noted here that the attorneys for the federal government,
admitting that the National Park Service was essentially breaking the
law by having no long-term rule, did not mount a defense that amounted
to anything to continue the interim plan for three more years. Their
short response to the environmental groups’ request for an
injunction was, in fact, rather pitiful.
intervenors tried to argue that the interim plan served the purpose
until negotiated rulemaking was completed with a much more detailed and
intelligent response from their attorneys, including Larry Libesman of
Holland and Knight in Washington, D.C., and attorneys from Hornthal,
Riley, Ellis, and Maland in Elizabeth City, N.C. But there never was a
hearing in Judge Terrence Boyle's courtroom on the merits of the
case. During the hearings in Boyle’s court on various
procedural issues and the final hearing on the consent decree, Boyle
made it clear that he was willing to grant the injunction to close
areas of the beach year-round.
intervenors felt they had no choice but to agree to what the
environmental groups demanded, and their attorneys advised that there
was little or no chance of winning on appeal.
they went along and signed off on the decree. Maybe they should
not have, but that is not really relevant at this point. They
went along and turned to Congress for help.
the intervenors, and probably the Justice Department lawyer who
defended the Park Service, had no idea that within days of April 30,
large beach closures would start, and they have continued day after day
and week after week until most year-round residents can no longer keep
track of what is open and what is closed and visitors are totally
clueless. Frankly, I don’t know how the Park Service keeps track
Simply put, it is a total mess.
what is wrong with going back to the well-studied and vetted interim
plan that the public had several opportunities to comment on and that
was signed off on by park management and other biologists?
And, so what if it takes an act of Congress to do that?
headline on an editorial in The Virginian-Pilot editorial on Monday,
June 16, was “ORV FIGHT IS NO PLACE FOR CONGRESS.”
So, the ORV fight is a good place for a federal judge and a courtroom? This is better?
The Virginian-Pilot editorial board does not think the management of
the park should be left to Congress, why in the world would it think
that it should be left to a judge and special interest groups?
is true that the editorial writers, lacking the information they should
have had, assumed that the management of the park was already in the
good hands of “National Park Service scientists, islanders, and
the news for those writers is that the National Park Service scientists
had a hand in designing the interim plan and the islanders had the
consent decree shoved down their throats. That leaves the
conservationists as the only happy parties in this.
editorial writer calls the interim plan “the weaker plan”
without citing one specific reason – other than information that
was taken directly from an SELC press release.
The most offensive sentence in the Pilot editorial was:
restrictions are undoubtedly an inconvenience for people accustomed to
driving on the beach nearly anywhere they pleased.”
this writer ever been to Hatteras or Ocracoke? Probably
not. Because if that person had been, he or she would have known
that seashore residents and visitors have not driven on the beach
“nearly anywhere they pleased” for decades. Summer
beach closures for nesting birds and turtles have been in place for
years and have grown steadily larger in the last five years. And
locals and visitors accept those restrictions – though with some
five-paragraph editorial in The News & Observer is less offensive
only because it has no facts in it and is rather pitiful as a tool to
convince people that the environmental groups are right in this fight.
writer states the interim plan is unlikely to “nurture healthy
colonies of plovers and other imperiled birds” that
“don’t stand a chance against the hundreds of vehicles that
flocked to the shore under that plan.”
I wonder if the N&O editorial writer can name two specific differences between the interim plan and the consent decree.
that writer managed to get into his short editorial the gratuitous and
totally unnecessary shot that “Fishermen vote, shorebirds
fishermen aren’t the only folks who are unhappy about the recent,
unprecedented closures. So are surfers, windsurfers,
kiteboarders, walkers, shell and beach glass hunters, and the many
families who gathered at Bodie Island Spit, Cape Point and South Beach,
Hatteras Inlet, or the South Point on Ocracoke for an afternoon of
fishing, cooking out and picnicking, reading, shelling, and letting the
kids play in the tidal pools.
of these writers have bothered to mention the economic devastation that
much of what they defend will bring to this island. Nor have they even
given a passing reference to the traditional, historical, and cultural
uses of the beach on these islands.
don’t have bars and community centers in the sense that folks do
in the city. We have the beach. It’s our
“community” center, the place where islanders meet on
weekends or evenings to fish and share news and cook out with
friends. It’s the place that visitors love to return to and
share time with other visitors whom they’ve met and bonded with
over the years of coming here.
finally, in making the case to revert to the interim plan, I
haven’t even mentioned the fact that the three environmental
groups that filed the lawsuit and asked for the injunction and shoved
the consent decree down everyone’s throat have a seat at the
table for negotiated rulemaking. They have had little or nothing
to say in these meetings. And why should they? They have
already gotten most everything they’d like to have, so why
negotiate? And that is a real threat to the entire process.
same groups like to remind us folks down here on the islands that they
cut us some slack. They knew which way the judge was leaning and
that they could have had it all – everything they asked for. And
that is true. But, they say, they don’t want to eliminate ORVs,
just protect more birds. They want to get along with us folks.
of us now hope that Congress shoves legislation down their throats and
returns the management of the seashore to the people who should be in
charge – the officials and scientists of the National Park
the very competent leadership of Superintendent Mike Murray, I am sure
the Park Service can get us all – islanders and visitors and
birds and turtles – through the final three years of ORV
rulemaking and on to sane management of beach access.
A POSTSCRIPT FOR ISLANDERS AND ISLAND LOVERS: A PLEA FOR CIVILITY
stop putting up “wanted” and “reward” posters
at island businesses that feature photos and information about those
who are the other side of the issue and posting maps to their homes.
They have their right to free speech and to participate in the process
in whatever way they feel they must.
Let’s get rid of all the nasty and threatening messages on Internet boards.
stop making statements about how they’re all “just a bunch
of lawyers who are in it for the money.”
I do not believe this is true.
don’t agree with the way the environmental groups and some others
have pursued their agenda, but I do not believe any of them are evil
people or in it for the money. I do believe that they are doing what
they think is right.
person from these groups I know best is Jason Rylander, attorney for
Defenders of Wildlife. He is a really sharp lawyer, who left
private law practice to go with Defenders – with a cut in salary,
he once told me. He’s married, the father of two
young children, and a trained opera singer in his spare time.
I’ve interviewed him off and on for the past few years, and a
find him a worthy adversary whose questions and comments help sharpen
my own thoughts and views of this situation.
met Chris Canfield, executive director of Audubon North Carolina,
earlier this month when I went to tour some bird nesting areas with him
and other members of that group.
too, is an interesting man, who noted that he never intended to be an
“ornithologist.” His undergraduate major in college was
math and he pursued English literature in graduate school. He was
in the Air Force and spent time as an officer at the Pentagon.
said on our tour that he regretted the conflict and acrimony of the
current beach access situation and seemed sincerely interested in
trying to improve Audubon’s communications with islanders.
folks who live on the island and have been the targets of these posters
are also people I have known for some years. You might disagree
with them, but they don’t deserve to be treated with disrespect.
finally, we come to Derb Carter of the Southern Environmental Law
Center. I’m sorry I can’t share much with you about
him because he does not return my e-mails or phone calls. I have
heard he thinks my newspaper, The Island Free Press, is too much an
advocate for pro-access groups and doesn’t give both sides of the
You have to admit that it’s hard to give both sides if the other side won’t talk to you.
point here is that personalizing this issue and having such negative
and nasty things to say about folks who are also exercising their
rights, does none of us any good.
it just helps to perpetuate the stereotype that we are all a bunch of
rednecks who want to drive anywhere on the beach we like.
For more information
Bird population chart from Southern Environmental Law Center:
Editorial from The News & Observer of Raleigh from Sunday, June 15:
Editorial from The Virginian-Pilot from Monday, June 16:
The consent decree signed by Judge Boyle:
Click Here To Read The Consent Decree
National Park Service Interim Protected Species Management
Strategy/Environmental Assessment – Finding of No Significant
Click here to Read the Interim Plan
To read the report on research on American oystercatchers by NC State University, go to:
addition, transcripts from hearings in Judge Terrence Boyle’s
courtroom can be read on this site under Beach Access Issues –
both current and archived articles.