Beach Access Issues
January 28, 2009

Jones re-introduces bill to set aside consent decree on ORV access


U.S. Rep. Walter Jones, R-N.C., re-introduced legislation in the House of Representatives yesterday that would set aside a consent decree and reinstate the National Park Service’s interim strategy to govern ORV use on the Cape Hatteras National Seashore until there is a long-term rule.

The bill, H.R. 718, is a carbon copy of the legislation Jones introduced in the 110th Congress in June of last year.

The stated purpose of the very brief, two-page bill is “to reinstate the Interim Management Strategy governing off-road vehicle use on the Cape Hatteras National Seashore, pending the issuance of a final rule for off-road vehicle use by the National Park Service.” The bill has only two short sections – one to reinstate the interim strategy and one that says the consent decree would no long apply.

“This bill would restore reasonable public access and would bring the public back into the process on a level playing field by reinstituting the Interim Management Strategy until the Negotiated Rulemaking Committee can produce a final rule,” Jones said in a media release.

Last year, Jones’ bill was introduced on the same day that a companion bill was introduced in the Senate by North Carolina Sens. Richard Burr and Elizabeth Dole, both Republicans. Neither bill got out of committee.

Burr plans to re-introduce the bill in the Senate, his deputy press secretary, David Ward, said today.  

“We want to do it early in the 111th Congress,” Ward said, but there is no timetable yet.

Dole was defeated by Democrat Kay Hagan last November.

Hagan’s deputy press secretary, Sadie Weiner, did not comment today on whether or not Hagan might co-sponsor the legislation with Burr.  

However, Weiner did say that “In the past, Senator Hagan has been supportive of opening more of the beach to off-road vehicles.”

A Democratic co-sponsor will be important in this Congress and administration, controlled by Democrats.

The consent decree was signed on April 30 by U.S. District Court Judge Terrence Boyle.  It was the settlement of a lawsuit filed last fall by environmental groups, which charged that the park’s interim strategy did not go far enough to protect birds and turtles on the seashore. The groups also charged that because the Park Service did not have a long-term rule that ORV use on the seashore was illegal.

The effect of the consent decree last summer was that larger sections of the beach than ever before were closed to vehicles and pedestrians during the spring and summer pre-nesting and nesting seasons, especially at four popular recreational areas, Bodie Island spit, Cape and South Beach, Hatteras Inlet, and South Point on Ocracoke. Beach closures for nesting sea turtles continued into the fall.  There was complete ban on night driving from 10 p.m. until 6 a.m. until Sept. 16, when driving at night was allowed with a free permit from the Park Service.

The consent decree was agreed upon by all parties to the lawsuit.  They include Defenders of Wildlife and the National Audubon Society, represented by the Southern environmental Law Center, the National Park Service and other federal agencies, and by Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance (CHAPA), which were allowed to join the lawsuit as defendant intervenors.

Many of the intervenors have said since April that they feel they were forced into the consent decree, since they feared the even more stringent closures requested by the environmental groups.

The decree cannot be appealed, so ORV access groups and others began lobbying right after the consent decree was signed for legislation that will allow the park to continue to operate under its interim plan, which was officially adopted in 2007, though parts of it had already been implemented in 2006.

Many islanders and visitors have been unhappy with the new resource management by consent decree, which includes larger buffers for nesting birds and the ban on night driving.  Island business owners say the increased beach closures are hurting the island’s economy.  Tackle shops, campgrounds, hotels, and motels were especially hurt last summer, with some estimating losses at 25 to 30 percent. Islanders worry about the long-term economic damage of closing the areas, including Cape Point, the most famous fishing spot on the East Coast.

Many islanders and visitors were also unhappy with the Park Service’s interim plan, but feel it was fairer to all beach users.

If the bill is enacted, the National Park Service’s Interim Management Strategy will go into effect immediately and end when there is a long-term rule.

A committee of 29 stakeholders has been meeting since January to make recommendations on a long-term rule, but thus far there has been little or no consensus, especially on the thorny issue of access to the most popular areas – the points and spits.

The committee has three more days of meetings in February to finish its work.  The meetings are on Feb. 3 and Feb. 26-27 at the pavilion at the Wright Brothers National Memorial in Kill Devil Hills.  

The word about the re-introduction of the legislation was well received on the Outer Banks and spread quickly on Hatteras and Ocracoke by phone and e-mail.

“We’re very pleased, said Warren Judge, chairman of the Dare County Board of Commissioners and a member of the negotiating committee.  “We’re thankful to Congressman Jones for taking the lead on this issue for us in the House.”

“We are grateful to Congressman Jones,” said John Couch, president of the Outer Banks Preservation Alliance.  “We are pleased about the understanding that Congressman Jones has of the consent decree and of what it has done to the local economy.”

However, environmental groups had a different view.

“The proposed legislation appears to be the same bill supported by former Sen. Dole and defeated last year,” said Derb Carter, attorney for the Southern Environmental Law Center, who represents the National Audubon Society and Defenders of Wildlife.
“We are unsure whether Congressman Jones understands that Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance are also parties to the consent decree, since he fails to list them in his press release announcing introduction of the bill,” Carter added. “It is ironic that the bill would repeal a consent decree that allows managed ORV use on the seashore that is otherwise prohibited by federal law.
“We are hopeful,” he said, “that the negotiated rulemaking committee can come to a consensus recommendation that balances ORV use and resource protection in the month we have left.”  

“It's time to move beyond the failed policies of the past,” said Jason Rylander, attorney for Defenders of Wildlife. “Elimination of current protections -- which were agreed to in court by Dare and Hyde counties, the Cape Hatteras Access Preservation Alliance, as well as the National Park Service -- puts both species and recreation at risk. Under federal law, Cape Hatteras National Seashore must adopt a responsible ORV management plan that balances recreation with the long-term sustainability of wildlife and natural resources. I remain hopeful that the negotiated rulemaking committee can help achieve that goal.”

Late today, ORV access advocates were planning an all-out appeal to islanders and visitors who are unhappy with the consent decree to write their senators and congressmen.

A major campaign also followed last year’s failed attempt at passing legislation.

This year, islanders got an earlier start at a meeting on Jan. 22, led by brothers Ryan and Scott Dawson of Buxton, the grandsons of Carol Dillon, an outspoken critic of the National Park Service.

In an e-mail and a phone interview, Ryan Dawson said, “I don’t know that it’s fair to say Scott and I are spearheading this issue. Everyone on the island feels the same way. They just needed someone to give them some direction, organization, and motivation.  But it’s the people who are doing all the work.”

Ryan said he returned from three years of teaching in Japan to organize a “phone blitz” of members of Congress.  The 40 or so people who attended the meeting got phone numbers and talking points.  Since then, they have passed the information on by e-mail, phone, and word of mouth to family, friends, and neighbors.

Ryan isn’t sure how many phone calls have been made in the past week, but he thinks that it is “for sure in the hundreds.” He says that some folks have found it impossible to get through to some offices on the phone.  The information, he said, has been passed out at businesses and in churches.  

He urges islanders to keep on calling their representatives to seek support for the bill.

“And,” he added, "we need all the visitors who love to come here to contact their representatives.”


Click here to read HR 718, introduced by North Carolina Congressman Walter Jones

You can find your representatives on the Web sites of the U.S. Senate  and House of Representatives

You can e-mail Ryan Dawson at [email protected].

You can read last year’s “Shooting the Breeze” column by the Island Free Press Editor in the archives at:

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