a status conference today in Raleigh, U.S. District Court Judge
Terrence Boyle kept in place a consent decree that settled a lawsuit
against the National Park Service over its lack of an off-road vehicle
plan and its management of protected species.
The consent decree was set to expire on Feb. 15, the day that the Park
Service’s ORV plan and final rule for the Cape Hatteras National
Seashore became effective.
At the conference today, Boyle said he would keep the consent decree in
place for 120 days and meet again with the parties in June to assess
the status of a lawsuit by beach access groups to stop the ORV plan and
That lawsuit was filed earlier this month in U.S. District Court in the
District of Columbia by the Cape Hatteras Access Preservation Alliance.
Also today, Derb Carter, senior attorney for the Southern Environmental
Law Center, said during the status conference that the environmental
groups that sued the Park Service in 2007 and forced the consent
decree, filed a motion yesterday in the District Court in Washington to
intervene on behalf of the Park Service in the CHAPA lawsuit.
The groups are Defenders of Wildlife and the National Audubon Society,
and they are joined in the motion to intervene by the National Parks
What Boyle basically did today, said Bobby Outten, Dare County’s
manager and attorney who attended the hearing, is “maintain the status
The seashore is still operating under the Park Service’s ORV management
plan and final special regulation, though the consent decree is still
on the books because, Boyle said, his court has an interest in the
outcome of the CHAPA lawsuit.
“The court retained jurisdiction over the consent decree as required by
its terms,” according to Derb Carter, attorney for the Southern
Environmental Law Center, which represented the environmental groups in
their lawsuit against the NPS.
“The consent decree requires the adoption of a special regulation to
authorize driving on the beaches of Cape Hatteras National Seashore,
Carter said this afternoon in an e-mail. “One party to the consent
decree, CHAPA, has filed a lawsuit in the D.C. District Court, seeking
to overturn and enjoin the final plan and regulation authorizing ORV
use on the seashore, requirements of the consent decree.
all the parties to the consent decree agreed that the court retains
jurisdiction until all the requirements of the decree are met, the
court with jurisdiction over the consent decree will decide whether and
how those requirements have been met. Obviously, this will
implications on how, or whether, the CHAPA case will proceed in D.C.
Boyle began today’s status conference by asking Carter, attorney for
the Southern Environmental Law Center which represented the
environmental groups in their lawsuit against the NPS, to go over what
the lawsuit has accomplished to determine whether it’s over, whether
there has been compliance, and whether the consent decree should end
because the final plan has been implemented.
Carter gave some background, saying that the consent decree was called
for based on the request for an injunction when the NPS was in
violation of the requirement to have an ORV plan in place. All parties
to the lawsuit – the federal government, the environmental groups, and
CHAPA and Dare and Hyde County, which intervened on behalf of the NPS
-- agreed to keep the NPS Interim Plan as modified by the consent
decree in place until the final regulatory plan was published.
The consent decree, Carter said, has been very successful.
Boyle noted that the status conference was topical because a separate
lawsuit had been filed in District of Columbia federal court. The judge
explained that his court still has jurisdiction over the original claim
that was settled by the consent decree. He questioned to what extent
the new beach driving plan is final if another group sues and the plan
could be upset. Then, he said the original claim by the environmental
groups would be back at square one.
Carter explained that SELC filed a motion yesterday to intervene in the
D.C. lawsuit and noted the consent decree in that petition to inform
the D.C. court that there is a local case to look out for in those
Boyle asked how the case he has overseen can be finalized until the
lawsuit to overturn the final plan is decided. There has to be a final
plan, he said, to end this lawsuit before his court.
Carter noted the deadline set for the NPS implementation of the final
plan and said that unless there is a final plan, then driving on the
beach is prohibited. He said that the Interim Plan, modified by the
consent decree, was to give protections to wildlife based on scientific
evidence, and this was the backdrop to the process undertaken by the
NPS to designate ORV routes.
Boyle asked if Carter has anything to add and turned his attention to
Rudy Renfer, assistant U.S. attorney, who was representing the Park
Boyle said that if this consent decree case should come to finality,
implicit is that a plan is final and in place.
Renfer said that theoretically, the final regulations and
administrative proceedings hadn’t been sanctioned by the court and that
Boyle’s court retains jurisdiction
“Your client is in a catch 22 because two courts could order two
different things,” Boyle noted. “Collateral estoppel ensures that you
can’t have serial lawsuits over the validity of regulations. You can’t
have a line of people who come in for a turn with a regulation.”
“I agree,” Renfer said, “but that’s up to the court in D.C. to decide.”
Under the legal definition of collateral estoppel, according to
USLegal.com, “once a court has decided an issue of fact or law
necessary to its judgment, that decision may preclude relitigation of
the issue in a suit on a different cause of action involving a party to
the first case.”
In other words, Boyle considers that the two cases – the one in his
court and the one CHAPA filed in Washington – might be litigating the
Renfer then noted that CHAPA has not pushed for injunction relief,
which he said, “is very telling of their perspective on the strength of
Boyle then asked seashore superintendent Mike Murray to take the stand
to talk about the annual resource reports and his experience with the
Murray said that 2011 was a good year and, under some parameters, the
best year on record for nesting shorebirds and turtles.
He noted there were 15 nesting pairs of piping plovers and 10 fledged
chicks. There were 23 breeding pairs of American
and 1,289 colonial waterbird nests, which is the highest since 1997.
Under the consent decree, he said, there is a trend of improvement on
the status of these species.
Murray next described the permitting process, stating that people have
been “99.9%” cooperative, but a few people are not happy. The seashore
has issued between 300 and 400 permits so far.
Boyle asked if the number of permits is open-ended, if there is no cap
“There is no cap,” Murray said, “but a carrying capacity has been
determined and peak use will be limited if that capacity is reached. In
the past four years, this has only happened on about three occasions,
and now there will be a systematic approach for dealing with this
Boyle was very interested in how the new plan will actually look in
action, how the NPS will manage permitting and regulating vehicles. He
also asked questions about what is required of people applying for the
permits, ensured that they could have access to the permits the same
day they arrived at the beach, and that they are not required to have a
four-wheel drive vehicle to access the ORV routes.
Murray answered that, while a four-wheel drive is recommended,
it is not required for a permit.
After questions about how exactly permits will be monitored, Boyle
noted that the process will provide a “treasure” of data that is
currently only available anecdotally.
“You will be able to tell if local use is dominant or if transient use
is dominant, and you will get a profile of beach users, because now it
is all rumor and common folklore that it’s all people who are right
there who use the beach,” he said.
Finally, Boyle continued the hearing and rescheduled in 120 days to see
what happens with the ongoing consideration of the final plan by the
court in Washington, D.C.
McCoy, a graduate student at North Carolina State University, attended
today’s status conference, took notes, and contributed to this report.)