Access and Park Issues
on Judge Boyle’s status conference on the consent decree
By JAMES LEA
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
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
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
he believes the SELC has blocked the Congressional legislation meant to
overturn the consent decree. Carter told Boyle that the
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
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
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
statewide decline in nesting shorebirds and waterbirds , that weather
is always a factor, and that there is natural cycle in nesting
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
Boyle: The Memorial Day weekend no doubt had the greatest number of NPS
law enforcement citations for violations of all kinds. Have
numbers changed? It would be informative to see what’s
happened regarding law enforcement under the consent decree.
Murray: I don’t
have that information with me. (Paused and looked at Boyle.)
was closed 101 days in 2009.
Boyle: Run the numbers in your computer. How many violators
North Carolinians and how many were from out-of-state, especially on
Bodie Island, from Ramp 4 to Oregon Inlet?
Murray: 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
exceptions to the 6 a.m. beach opening time. Park visitation
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
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
Boyle asked if the NPS could give him feedback on conditions in the
Currituck and Pea Island refuges compared with Cape Hatteras.
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
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
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.
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
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
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