Beach Access Issues
March 5, 2009


Judge Boyle gets an update on seashore
management at low-key conference


By IRENE NOLAN


The parties to a consent decree that settled a lawsuit last year against the National Park Service over its management of resources on the Cape Hatteras National Seashore were summoned to a federal court in Elizabeth City on Thursday, March 5.

U.S. District Court Judge Terrence Boyle scheduled a status conference in the court case that resulted in a consent decree that is regulating off-road vehicle use and management of natural resources in the Cape Hatteras National Seashore until there is a long-term ORV rule.

All parties in the case said before the conference that they had not asked for the court appearance and that they didn’t know what Boyle wanted.

Well, it was as simple as Boyle wanted to know how the past summer had gone on the seashore – the nesting success of birds and turtles and the progress of negotiated rulemaking.

The conference, which lasted about a half hour, was low-key, without confrontation, and without any new developments in the contentious discussion about driving on seashore beaches.

“The purpose of this hearing,” Boyle said, "is to follow up with reports filed by the National Park Service ….on the experience of the past year.”

The summer of 2008 was the first one that the seashore operated under the terms of the consent decree that settled a lawsuit against the Park Service.

The consent decree resolved the issues in the case that began in October, 2007, 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 was to regulate ORV use and species management until a long-term rule is developed.

The plaintiffs claimed 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 claimed that the interim plan did not go far enough to protect wildlife in the park, especially shorebirds and sea turtles. In addition, the plaintiffs asked Boyle in February, 2008, for a temporary injunction to prohibit ORV use 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 – until the lawsuit was settled.

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, 2007, 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.

The parties to the lawsuit – environmental groups, the Park Service, and the intervenors -- reached an agreement to settle the issues last spring.  The consent decree was signed by Boyle on April 30 of last year.

One of the requirements of the decree was that the Park Service file reports on bird and turtle nesting success and on the progress of long-term ORV rulemaking to the court and to all the parties by Jan. 31 of each year that the decree is in force.

Apparently, all Boyle wanted was to hear about the reports, which he had received last month.

Seashore Superintendent Mike Murray was called to testify and answer the judge’s questions about the past nesting season

Murray reviewed the figures in the Park Service reports, which can be found at http://parkplanning.nps.gov/document.cfm?parkID=358&projectId=13331&documentID=25800

Basically, the figures show that piping plovers, a bird federally listed as threatened under the Endangered Species Act, did well on the seashore last summer with 11 breeding pairs, 13 nests, and seven fledged chicks, the best record since 1997.

He also talked about American oystercatchers that are not federally listed but are listed by the state of North Carolina as a species of special concern.  Murray said there were fewer oystercatcher nests this summer, but that more chicks were fledged.

“That’s because of less disturbance?” Boyle asked Murray.

“That could be a factor,” Murray said, while adding that other influences could also be at work.

The seashore also had a record 112 sea turtles nests this summer. The consent decree not only provided for buffers around turtle nests, but also banned driving at night on seashore beaches.  However, Murray and others have also noted that sea turtle nesting was up not only on the seashore but throughout the southeastern coastal states.

Murray went on to detail the park’s efforts to provide more law enforcement and public education and better signage on the beaches.

Boyle then noted that it was a “season of no fatalities” on the seashore beaches.

“That’s an achievement,” said the judge, “because night driving causes a significant number of fatalities.”

Murray didn’t directly answer the judge’s comments and went on to discuss pre-nesting closures for this summer.

After the hearing, Paul Stevens, acting chief enforcement ranger, said he had been at the seashore for 20 years and he could recall only three fatalities on the beach at night.  One incident was on Ocracoke in 2003 which killed a foreign exchange student and the other was at Coquina Beach in 2004 in which two young men died.  Both accidents involved rollovers of the vehicles.

Though Boyle again noted that the conference was not an adversarial proceeding, he invited attorneys for the plaintiffs in the lawsuit and the intervenors to question Murray.

Derb Carter of the Southern Environmental Law Center, the plaintiffs’ attorney, declined, as did Tony Hornthal, attorney for the intervenors.

“We are pleased with the progress being made,” Carter said. “We think the Park Service staff deserves a lot of credit.”

After the conference ended, Warren Judge, chairman of the Dare County Board of Commissioners, said, “The question we needed to ask that we couldn’t ask is how much of the increase (in nesting) is due to the consent decree and how much is due to the interim species plan?”

He noted that the interim plan was in place last year during the pre-nesting season and the beginning of the nesting season – until early May -- and could well have been the reason for nesting success.

Judge said that the county will pursue its efforts in Congress to have the consent decree thrown out and return seashore management to the Park Service’s interim plan.

Carter noted that the “corridors” around nesting areas were closed on May 3 after the consent decree was signed.  That, he said, is when the expanded buffers to protect the birds, took effect. And that is the change to which he attributes nesting success.

The consent decree will control Park Service management of seashore beaches again this summer and next summer. Under the terms of the consent decree, the Park Service is required to promulgate a long-term ORV rule by April 1, 2011.








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