Beach Access Issues
August 4, 2008

Virginian-Pilot editorial slams legislation: 
What they said and what we say


Move ORV debate back to Hatteras

The Virginian-Pilot
© 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 wildlife.

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 ready yet.)

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.


It is true that the consent decree allows for modifications by the court at the request of the plaintiffs, the federal defendants, or the intervenor/defendants.

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 final action.

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 advocacy groups.
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 hatch window.

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 what happens.

Can’t hurt to ask.

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