Beach Access Issues
June 2, 2009

Judge agrees to minor modifications of consent decree


In a hearing today in U.S. District Court in Raleigh, federal Judge Terrence W. Boyle signed off on three modifications to a consent decree, which has dictated beach access and resource protection on the Cape Hatteras National Seashore since April of last year.

The consent decree settled a lawsuit against the National Park Service by Defenders of Wildlife and the National Audubon Society, which were represented by the Southern Environmental Law Center.  Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance were allowed by Boyle to join the action as defendant intervenors.

All of the parties agreed to settle the lawsuit under the terms of the consent decree until the National Park Service has a long-range off-road vehicle plan, which must be in place by 2011.

Today, the parties – plaintiffs, defendants, and defendant intervenors – appeared in Boyle’s court to tell him that they had agreed to three modifications in the decree.

The modifications, which are relatively minor, include:

•    One additional hour of beach access for commercial fishermen.  Under the consent decree, night driving on the beach is prohibited from 10 p.m. until 6 a.m.  Commercial fishermen sought to have that changed so that they can enter the beach at 5 a.m. They can now do that with certain restrictions, such as staying out of closed resource areas.

•    After Sept. 15, all unhatched turtle nests will be required to have full beach closures only from sunset until 6 a.m. instead of around the clock. (Night driving is allowed after Sept. 15 with a permit.)

•    The portion of the consent decree that deals with penalties for violations of pre-nesting closure or nesting buffer will be changed.  The National Park Service will not be required to expand a buffer for vandalism if the violator is apprehended, either by the work by the Park Service law enforcement staff or through information from the public.  If the buffer has been expanded and then the violator is caught, the Park Service can retract the expansion.

Last year, there were about a half dozen intentional violations of resource closures, but no perpetrator was arrested in any of the cases.  There have been several violations already this year.  Again, no arrests have been made.

Bobby Outten, assistant Dare County manager and county attorney, said that the thought behind the change in the penalties for violations of buffer expansions is intended to “give the public an incentive to turn in the people responsible.”

Outten said the hearing lasted about 30 minutes and was “uneventful.” It was attended, he said, mostly by attorneys for the parties.  The judge, he said, did not ask for any testimony.

At least one member of the public attended and posted this summary on the Red Drum Tackle Forum:

This last part is painful to report: The judge also noted that "the public is being tremendously served because of the closures." He said that the same staffing level of rangers now have "less acreage. . .smaller. . .more concentrated areas" of public access so they're better able to enforce drunk driving, speeding, littering, camping, etc. laws which makes for "a safer and more wholesome" environment in the park. (He pulled this out of a cloud presumably. There was no testimony by NPS to this effect, nor did he reference any reports or study.)

(For more information on the consent decree and the beach access issue, check out the Beach Access and Park Issues Page and the Archives.)

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