Beach Access and Park Issues
March 20, 2010

Report on Judge Boyle’s status conference on the consent decree


Federal district court Judge Terrence Boyle convened a status conference on Friday, March 19, on the consent decree that settled a lawsuit against the National Park Service over its lack of an off-road vehicle management plan at the Cape Hatteras National Seashore.

The suit was filed in October, 2007, by the National Audubon Society and Defenders of Wildlife, which were represented by the Southern Environmental Law Center.  Later Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance were allowed by Boyle as defendant-intervenors in the case.

The lawsuit was settled by a consent decree, signed onto by all of the parties to the lawsuit, on April 30, 2008.

As part of the consent decree, the National Park Service must submit resource management annual reports to all parties and the court.  And Boyle has summoned the parties for a report each spring.

This year’s conference was at the Federal Court in Raleigh.

The first 15 minutes of the conference were devoted to an uninterrupted dialogue between Boyle and Derb Carter of SELC representing the plaintiffs.  They discussed the plaintiffs’ status report and notice of compliance to the consent decree.  

In it, SELC noted the hostile behavior of the intervenors in the suit.

Boyle’s opening question to Carter was, “If the intervenors are hostile, why retain them?”  

Boyle went on to observe that the SELC’s original complaint sought relief within the NPS, seeking nothing except the federal government’s compliance with federal law, specifically the National Environmental Policy Act.  

“I was concerned about their standing” from the outset, Boyle stated, going on to note that the intervenors voluntary agreed with the consent decree.  The judge asked, “Why do they need to be in the case?”

Carter didn’t answer directly but noted that SELC has found it difficult to deal with “the opposition.”   All parties recommended the consent decree, he said, which includes provisions for working out disagreements.  Carter then said that he believes the SELC has blocked the Congressional legislation meant to overturn the consent decree.  Carter told Boyle that the public comment period on the Draft Environmental Impact Statement on ORV regulations for the seashore is now open and that “we expect to have a plan by the end of the year.”

Boyle said the consent decree is “an equitable document” and that the intervenors are a party to the equity judgment but are “not doing equity.”  Carter said he couldn’t agree more.  SELC sees a quick conclusion to the ORV rulemaking.

Boyle then asked Carter if he was familiar with a change in the status of the loggerhead turtle.  Carter affirmed that a loggerhead population that nests on the seashore is being considered for listing as an endangered species.

Boyle said that if the loggerhead is given endangered status, that fact would overlay the government policy’s impact on them.  The government can’t have a policy that aggravates an environmental situation.  The [SELC] filing reports significant growth in nesting in the seashore, Boyle said.  How does turtle nesting in the regulated seashore compare with the nesting situation in the Currituck wildlife refuge, where beach traffic is unregulated?  

“You couldn’t have a better scientific model,” said Boyle, than a comparison of the complete degradation of Currituck with the controlled access in the seashore.

The judge then sternly reminded all participants that the hearing was about the consent decree, not beach driving.

Rudy Renfert, NPS counsel, rose to introduce Mike Murray’s full review of NPS’s 2009 annual report on protected species on the seashore. (Murray’s report did not address economic, cultural, or sociological impacts of the consent decree in 2009.

Boyle asked Murray if the 2009 improvement wasn’t  a good demonstration of the earlier degradation of habitat from beach driving.  Murray replied that in earlier years there had been a statewide decline in nesting shorebirds and waterbirds , that weather is always a factor, and that there is natural cycle in nesting behavior.  

Boyle stated that what changed between 1995 and 2009 was the increase in beach driving.

Boyle asked Murray to break down his closure numbers by site, since public utilization of the three areas of the seashore is different.  Boyle’s view is that Ocracoke closures have less public impact, Hatteras closures have moderate impact, and Bodie Island closures have the greatest impact.  Murray replied that the judge’s assessment was probably reasonable.  Boyle then stated that people on Hatteras were “complaining about something that’s not impacting on them.”

Murray: The Bodie Island Spit was closed a total of 136 days in 2009.

Boyle: The Memorial Day weekend no doubt had the greatest number of NPS law enforcement citations for violations of all kinds.  Have those numbers changed?  It would be informative to see what’s happened regarding law enforcement under the consent decree.

I don’t have that information with me.  (Paused and looked at Boyle.)  Cape Point was closed 101 days in 2009.

Boyle: Run the numbers in your computer.  How many violators were North Carolinians and how many were from out-of-state, especially on Bodie Island, from Ramp 4 to Oregon Inlet?

I’ll have to get that information for you. The Hatteras Island Spit was closed 125 days and south Ocracoke was closed 80 days.  7456 night driving permits were issued in printed and online form.  There were 27 night driving violations.  Three permits were issued to commercial fisherman for exceptions to the 6 a.m. beach opening time.  Park visitation in 2009 was 2.4 million, compared with 2.25 million in 2008.

Murray said that the draft ORV management plan and the DEIS are now available and public comment is open and public meetings will be scheduled beginning in late April.  After public comment closes, comments will be analyzed in the spring and summer and a final EIS will be issued in the fall.  The Final Rule will be issued in the winter of 2010.

Boyle noted that the accumulation of all NPS data will be most useful for implementing the management plan.

The NPS counsel and the Dare County representatives had no questions for Murray.

Boyle asked if the NPS could give him feedback on conditions in the Currituck and Pea Island refuges compared with Cape Hatteras.  NPS counsel Renfert answered that Currituck and Pea Island are different from one another and from Cape Hatteras National Seashore and that he wasn’t sure that their data were relevant.  Boyle said he thought that use factors would show a difference. Renfert said that the status of wildlife is completely different.

Judge Boyle then asked a series of questions about the shoreline distances of the Currituck refuge versus the distances of the three areas of the seashore.  He stated that the NPS was willing to compare the three seashore areas and he couldn’t see why they wouldn’t add the beach area from Nags Head to Currituck to the mix for comparison.  In his view, Currituck looks very much like north Bodie Island.

Boyle then called from the spectators Dennis Stewart, U.S. Fish and Wildlife Service wildlife biologist for Pea Island and Currituck refuges.  He asked Stewart to comment on the similarities of Currituck and the seashore.  Stewart replied that the Currituck refuge of 4,000 acres is laid out like a checkerboard, not a large single unit like the seashore and Pea Island.  The eastern boundary of the refuge stops at the mean high tide line, and that leaves a corridor for beach driving.  Technically, there is no driving on the beach behind the refuge boundary signs.

Boyle told Stewart he was trying to get him to recognize the similarities among Currituck, Pea Island, and Cape Hatteras.  Stewart insisted that there are confounding factors in trying to make comparisons.  For example, he said, Pea Island records 13 sea turtle nests, but as one goes north, the number of nests drops off.  Currituck has no more than one or two nests.

Boyle observed that there is no reliable sample, no way of knowing if intense beach driving in Currituck has had a wildlife impact.  He asked Stewart about what happens in Currituck when the ocean comes up above the mean high tide line. Are people permitted to drive on the property of the refuge?  Stuart replied that when the ocean is that high, people stay off the beach.

Following Stewart’s testimony, Boyle asked if any of the participants had anything to add.  

None of the NPS or Dare County representatives had anything to add.  Derb Carter rose to say that Mike Murray’s use area charts show an island, Green Island, in Oregon Inlet.  He wanted to clarify that SELC had not counted bird activity on Green Island because they didn’t consider it part of the seashore.

I want to note that despite the judge’s increasing heavy-handedness, neither Mike Murray nor Dennis Stewart allowed himself to be buffaloed into agreeing with the judge’s interpretations and pronouncements.

(Jim Lea lives in Chapel Hill and also owns a home in Buxton. He is a professor of family medicine at the University of North Carolina at Chapel Hill.)

Click here to read the Plaintiffs’ Status Report and Response to Notice of Compliance

Click here to read Defendant and Defendant-Intervenors Notice of Compliance

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