| August 4, 2008
Virginian-Pilot editorial slams legislation:
What they said and what we say
WHAT THEY SAID
Move ORV debate back to Hatteras
© August 4, 2008
The controversial consent decree about beach driving that's caused so
much turmoil on the Outer Banks includes a provision that allows the
parties to renegotiate the details. That's exactly what off-road
vehicle users, environmental groups and local officials should begin
doing as summer nears an end.
Last week, a U.S. Senate subcommittee heard testimony on a bill,
introduced by Sens. Elizabeth Dole and Richard Burr and Rep. Walter
Jones, that would scrap wildlife protections at Cape Hatteras National
Seashore, imposed by an April 30 federal court order. Under the bill,
those protections would be replaced with less restrictive guidelines
the National Park Service had been using.
Sen. Burr, a subcommittee member, said the change would let residents
and visitors return to a tradition of protecting wildlife while
enjoying the seashore "in a way that God meant it to be enjoyed."
But the bill's prospects dimmed when National Park Service Deputy
Director Daniel N. Wenk said his agency opposes the bill. He said the
consent decree is a more effective way of balancing wildlife protection
and recreational uses than the agency's previous strategy.
According to Wenk, the decree's restrictions on beach access for
off-road vehicles and pedestrians during nesting and breeding seasons
have increased populations of vulnerable bird species and sea turtles.
This year's figures for turtle nests are at a record high.
The Park Service's stance is remarkable, given the agency's years of
foot-dragging on developing a plan regulating ORV use - delays that
prompted environmental groups to file suit against the agency.
The consent decree, which ended that lawsuit, was the result of an
agreement signed by conservationists, park officials, a coalition of
ORV users and Dare County officials.
But business owners and ORV users are upset with how the new
restrictions have played out. Several prime fishing spots have been
closed in the past two months because birds were nesting nearby. The
restrictions are easing now as the breeding season ends. Last week, ORV
users regained partial access to Cape Point, a popular spot. (Nightly
closures, designed to protect nesting turtles, remain.) More reopenings
are expected soon.
Even with the closures, ORV users and pedestrians have had broad access
to the beach. On Thursday, Park Service figures showed 26.4 miles of
the park's roughly 67 miles were open to ORVs and 58.5 miles were open
to pedestrians. The majority of the prohibited area is due to normal
seasonal or safety closures. About eight miles were closed because of
It's too soon to gauge the economic impact of the closures, but the
effect doesn't appear to be as dramatic as feared. Retail sales tax
figures for May and June aren't yet available; bait and tackle shops
and other businesses are reporting a sharp drop in sales. Other
economic indicators are generally positive, however.
Carolyn McCormick, director of the Outer Banks Visitors Bureau, said in
an interview that "the closures did not help us in any way, shape or
form." But, she said, key tourism figures in Dare County were good in
spite of closures, gas prices, a weak economy and wildfire smoke.
Comparisons of 2007 and 2008 figures show occupancy taxes on hotels and
rental houses in Dare were up 6.3 percent in May and 2.85 percent in
June. Year-over-year, gross revenues from the meals tax were up 5.12
percent in May but down 1.09 percent in June. (Numbers for July aren't
Park Superintendent Mike Murray said it's too early to measure the
effect of the consent decree on attendance, but an increase in May and
decline in June generally fit trends reported by other parks.
In the meantime, passage of a federal bill overturning the decree looks
doubtful. It's unlikely the full House and Senate would take up the
measure before the year's end.
In any event, it's hard to envision Congress jumping into this
contentious situation and generating a useful response. The consent
decree left open the potential for tweaking the details. Islanders,
conservationists and park officials should begin that work for next
year rather than continue to spin their wheels in a time-consuming,
unproductive debate on Capitol Hill.
WHAT WE SAY
It is true that the consent decree allows for modifications by the
court at the request of the plaintiffs, the federal defendants, or the
The decree instructs that the parties must submit to dispute resolution before seeking modifications.
And there is little reason to believe that the environmental groups,
having gotten just about all of what they wanted, will give one inch on
the expanded bird buffers, night driving, or complete closures for
turtle nests after Sept. 15. (Before Sept. 15, the Park Service
can provide ORV trails behind nest closures when possible.)
Furthermore, the plaintiffs are now participating in a negotiated
rulemaking process, with other seashore stakeholders, to devise a
long-term ORV regulation. They claim to be participating in “good
faith,” but we and others question that assumption. Until there
was a consent decree, everything was on the table. Now, the
groups will be negotiating from a base of the terms of the consent
decree. We do not think the environmental groups will give an
inch from what they got under the decree.
Virginian-Pilot editorials continue to refer to the “less restrictive” interim plan.
And, by the way, we don’t like the inference in this and previous
editorials that it was the Wild West down here on the beach before the
consent decree. The locals and visitors have lived with closures for
wildlife protection for decades – closures that increased in size
and time span over the years.
Yes, the interim plan is less restrictive in some areas. The
major differences are the size of the buffers, night driving
restrictions, and the fact that the interim plan gave park management
some discretion to make decisions when the closure calls were close
ones. There is no discretion under the consent decree.
The Southern Environmental Law Center, and now the Park Service’s
deputy director Daniel Wenk, have proclaimed the consent decree a
success after just three months.
That anyone could declare a management policy a success in three months defies reason.
The Pilot editorial specifically refers to sea turtle nests at a
“record high.” The implication in the editorial and
in testimony at the Senate hearing by SELC attorney Derb Carter is that
this record high is a result of the consent decree.
The facts do not support that the consent decree has caused this turtle nesting boom.
Sea turtle nesting on the Pea Island National Wildlife Refuge on
northern Hatteras Island is also approaching a record high. As of Aug.
4, there were 23 sea turtle nests on Pea Island, compared with 14 last
year, which was considered to be a good year. And there has not
been any driving on the beaches there in decades. It is perfectly
possible to assume that it could be a record year for sea turtles on
the entire North Carolina coast – not just on the Cape Hatteras
National Seashore under the consent decree.
Yes, there were seven piping plovers fledged on the seashore this year
– and only four last year. But the percentage of fledged
birds per breeding pair is slightly down this year.
This year 11 pairs of piping plovers fledged seven chicks for a success
rate of .64 chicks per breeding pair. Last year the six pairs
fledged four chicks for a slightly higher nesting success of .67 chicks
per nesting pair. Furthermore, the four chicks fledged last summer
under the interim plan was a large increase from previous years.
From 1999 through 2006, there were either no chicks or only one or two
fledged per year. The average rate of fledged chicks per breeding pair
over the last 15 years on the seashore is .66.
One piping plover nest was lost in a storm this year. Another
nest and the rest of the chicks were lost to predation, as has been the
case in the past. There is no evidence the chicks were killed by
ORVs. Environmental groups will argue that the consent decree
with its increased buffers allowed more pairs to nest this year and
more chicks to fledge, but there is no reason to believe that nesting
and fledging would not have been up this year under the interim plan.
The interim management plan was devised by the National Park Service in
consultation with the U.S. Fish and Wildlife Service and with public
input. It went through a review process that resulted in a Finding of
No Significant Environmental Impact (FONSI) and final rule publication
in the Federal Register last July.
Now the leaders of both of these services in Washington, D.C., are
throwing their local management and staff under the bus by basically
saying that they didn’t get the job done with the interim plan
and the consent decree is better.
Well, where has the Washington leadership been these past few years while the interim plan was being formulated?
We can agree with the Pilot editorial that the Park Service’s
stance on the legislation is “remarkable,” given that
local park management sent several ORV plans forward to their bosses,
beginning in 1978 --only to have those bosses in Washington take no
And the 35-year or so delay in having an ORV regulation is what has
given the environmental groups the ammunition to get as far as they
have – that and a sympathetic federal judge who was known to have
a problem with ORVs on the seashore.
The economic figures that are being thrown out by both sides of the
beach access issue are totally meaningless at this point –
unless, of course, you are one of the tackle shops whose business is
down by 30 percent.
First, most visitors don’t even know about the beach access issue when they get here.
Next, occupancy figures will not show any fallout from beach access
until next year. Most of Dare County’s occupancy taxes come
from rental houses, and everyone who has rented a house knows that you
do not get out of your contract unless there is a hurricane on your
doorstep and maybe not even then. My brother-in-law died three days
before his scheduled vacation on Hatteras in June, 1998, and the rental
company made his widow, my sister, honor the contract. No
refund. So you think anyone would get a refund because a few
beaches are closed?
The point is that even the folks who knew the Point was closed couldn’t change their plans this year.
The question will be whether those people will come back again next
year. And no one can answer that now – not Derb Carter and
not The Virginian-Pilot editorial board and not the beach access
The question of how many miles of seashore beaches are open to ORVs
can’t be pinned down exactly. It’s a moving target that
changes every day as birds come and go and turtle nests reach their
In its editorial, the Pilot said 26.4 miles of seashore was open to
ORVs. Today, I figured about 17, including three miles of beach
south of Ramp 30 that was closed to ORVs over the weekend because of a
turtle nest. That three miles of the beach is open to
pedestrians, who can walk behind the nest.
Finally, we can agree with the Pilot editorial that there is little or
no chance that legislation to overturn the consent decree will pass
this year – or maybe any year.
There are only two more summers until there must be a final ORV regulation, so what’s the point?
The point is that the process that environmental advocacy groups have
pursued has ignored the work and input of the residents of and visitors
to Hatteras and Ocracoke and the hard work of the local park staff.
If the interim plan was good enough for the Department of Interior last
year when the final rule was published in the Federal Register, why is
it not good enough now?
We still say that the National Park Service should go back to the interim plan until negotiated rulemaking is concluded.
In the meantime, maybe the intervenors should ask the environmental
groups for some changes to the consent decree for next year and see
Can’t hurt to ask.