NPS pushes back its timeline for final rule at Boyle’s status conference
By JAMES LEA
who expected U.S. District Court Judge Terrence Boyle’s consent decree
to be replaced by a new National Park Service off-road vehicle
management plan sometime soon was disappointed but probably not
surprised by the status conference on Thursday, Dec. 2, at the Federal
Building in Raleigh.
The consent decree was signed off on by Boyle on April 30,
It settled a lawsuit against the National Park Service over its lack of
an off-road vehicle management plan at the Cape Hatteras National Park
The suit was filed in October, 2007, by the National Audubon Society
and Defenders of Wildlife, which were represented by attorneys for the
Southern Environmental Law Center. Later Dare and Hyde
and the Cape Hatteras Access Preservation Alliance were allowed by
Boyle as defendant-intervenors in the case. All parties
At the status conference, an hour of friendly conversation between
Judge Boyle and the attorneys for the Southern Environmental Law Center
and the Park Service produced an understanding that the final
management rules won’t be publicly available until next April or May
and that implementation of the rules won’t begin until sometime after
That means that the consent decree will remain in force, with
modifications to accommodate the timeline slippage, throughout much of
the 2011 breeding season and possibly beyond.
Judge Boyle’s call for the status conference seemed to surprise all of
the principals, including the approved interveners from Dare and Hyde
counties and the access advocacy organizations.
When the session opened, those in the courtroom included Boyle; Derb
Carter and Julie Youngman of the Southern Environmental Law Center;
Seashore Superintendent Mike Murray and chief law enforcement ranger
Paul Stevens of the Park Service; Rudy Renfert, U.S. Department of
Justice counsel to the Park Service, and attorneys Bobby Outen and Tony
Hornthal representing Dare County. There were only four
spectators in the courtroom, including Walker Golder of the North
Carolina Audubon Society and Dr. Mike Berry, retired EPA scientist and
strong advocate of seashore access.
Boyle announced that he had called the status conference to hear about
the species protection effects of this year’s beach closures and the
Park Service’s progress in developing what he called the off-road
He first called on the SELC’s Derb Carter to respond. Carter
stated that all species have benefited from this season’s beach
closures, with protective buffers placed around bird and turtle nesting
and feeding areas based on scientific data. Carter said it
have been easier just to close all the beaches but many felt that was
not desirable. Clearly prepared to speak specifically to the
judge’s questions, Carter said that 12 pairs of breeding piping plovers
had been recorded, the most since 1996, with 15 chicks fledged, the
most since 1992. Sea turtles have also benefited from night
driving restrictions, he said. The 153 nests recorded this
are the most on the Seashore since 1998.
Boyle intervened to explain to the courtroom the meaning of
crawls, a female turtle’s return to the sea without nesting because she
had been driven back by some kind of interference, and their value as a
measure of the consent decree’s effectiveness. Carter agreed,
adding that the goal is to record more nests than false crawls as an
indicator that the turtles find the beaches more suitable for nesting.
Carter acknowledged that multiple factors are involved in changes in
species nesting performance. However, he didn’t cite weather,
predation or other factors, stating only that the Park Service’s
protection measures have helped significantly.
Boyle observed that there has been a measurable improvement in species
protection in only three years and asked if that is a result of the
consent decree. Carter agreed that all trends are positive
that progress is being made toward the recovery goals for piping
plovers and sea turtles.
Noting that prior to the consent decree some beaches showed higher
vehicle impact than others, the judge asked if recovery results have
been uniform along all beaches Carter answered that
heavy use areas such as Cape Point and South Beach there have been
significant increases in species activity under the consent decree
Boyle and Carter then discussed beach dynamics on the seashore and
agreed that both animal species and humans have affinity for the
beaches. Boyle termed Cape Point the most environmentally
and valuable area on the East Coast.
“If everyone in America knew what Cape Point looks like,” he stated,
apparently without recognizing the irony, “they’d all want to go there.”
At that point, Boyle called on Rudy Renfert, the U.S. attorney
representing the Park Service, to report on the status of the beach
management plan and the processes for putting it into place.
noted that the timeline for enacting a final plan is important because
the next breeding season begins in April or May when the closures will
go back into effect.
Renfert answered that the Final Environmental Impact Statement will be
completed and the Record of Decision will be signed by the Dec. 31
deadline. However, he said the process will slow down at that
point and the Park Service will ask for the court’s approval to modify
Boyle jumped in to help sort out the administrative process and get the
It was finally agreed that the proposed ORV rule will be prepared
before or soon after Jan. 1. It will then be reviewed by the
Office of Management and Budget, which will take up to 60
Then the special regulation will be published in the Federal Register,
with another 60 days then allowed for public comment on the
rules. The comment period will probably close in April or
and the Park Service may take up to 90 days to digest the public
comments and incorporate them into the final rule.
So, said Judge Boyle, the final rules might be ready by Aug.
No, answered Renfert, the final rules will probably be published in the
Federal Register around Labor Day, with implementation to begin 30 days
The judge noted that the consent decree will likely remain in force for
the entire 2011 breeding season. It could remain in force
that if for any reason the Park Service’s final management plan proves
to be unenforceable.
After he and Rudy Renfert exchanged accounts of their respective knee
replacement surgeries, Boyle asked Derb Carter if the Park Service’s
new plan differs from the consent decree’s provisions. Carter
replied that the consent decree focuses on controlling beach access for
species protection. The Park Service plan adds features such
designated ORV routes and corridors, parking, and pedestrian
walk-overs. But, he stated, the core consent decree
will continue in the new plan – i.e., the Park Service won’t relax
In sum, the status conference was a relaxed and informal affair that
provided opportunities for everyone except the attorneys representing
Dare and Hyde counties and the Cape Hatteras Access Preservation
Alliance to be heard. Judge Boyle adjourned the session after
announcing that another status conference will be held after the Park
Service’s annual Seashore report is issued in January to look at the
report’s official species performance data before that the new final
management plan appears.
Lea lives in Chapel Hill and also owns a home in Buxton. He
professor of family medicine at the University of North Carolina at