January 24, 2013

Boyle’s status conference on new
off-road vehicle plan is uneventful


The status conferences called by U.S. District Court Judge Terrence Boyle to review the Park Service’s off-road vehicle management plan have long since seemed to morph from somber judicial proceedings into cordial gatherings of old friends. 

At the Jan. 23 conference at the federal courthouse in Elizabeth City, the bailiff called out “All rise” when Judge Boyle entered the courtroom as the court reporter clicked away on her shorthand machine.  At that point, the conference became a forum for all plaintiffs’ attorneys and the judge to be certain that the official court record documents show how right they’ve been all along.

Hatteras Island and several citizens’ organizations were well represented on the spectators’ benches.  Dare County Commission chairman Warren Judge and county manager Bobby Outten represented the intervenors in the lawsuit that led to the consent decree under which beach access was managed until the Park Service’s new ORV plan went into effect in February, 2012.  Also present were John Couch, Jim Keene, and David Scarborough of the Outer Banks Preservation Association and the Cape Hatteras Access Preservation Alliance.

Derb Carter and Julie Youngman led a contingent of plaintiffs’ attorneys from the Southern Environmental Law Center (SELC), which filed the lawsuit in 2007 for Defenders of Wildlife and the National Audubon Society.

Rudy Renfer of the Department of Justice spoke for the National Park Service.  Renfer shared the defendant’s table with the recently appointed Cape Hatteras National Seashore superintendent, Barkley Trimble, and the Seashore’s chief enforcement ranger, Paul Stevens.

Boyle opened the session by announcing that its purpose was to hear a report on the new ORV management plan.  Julie Youngman of the SELC rose to announce that she did not have a full report, but she offered the judge several charts that had been prepared from NPS data and the Dare County website. 

Boyle said he didn’t need to see the charts, that he would just listen.  He wanted the seashore superintendent to testify about beach driving numbers during the first year the NPS plan has been in effect, so Renfer directed Trimble to take the stand.  Judge Boyle waved aside the customary witness’s oath, saying to Trimble, “You’ll tell us the truth, won’t you?”

Trimble told the court that in 2012, more than 8,000 annual beach driving permits and some 23,770 weekly permits had been sold.  Sales revenues totaled $2,152,890, of which $964,440 came from annual permits and $1,188,450 from weekly permits.

The judge asked Trimble how many permit purchasers actually drive on the beach.  Trimble answered that vehicle counting devices have been installed on Ramp 4 on Bodie Island, Ramps 44 and 55 on Hatteras, and Ramp 72 on Ocracoke.  Data are collected daily from the four ramps.  If there’s ever any concern that the devices are counting vehicles leaving the beach as well as those entering the beach, the numbers can be corrected by dividing by two.

Are more people or fewer people using the beaches under the plan, Judge Boyle asked.  Trimble said the 2011 count was 240,394 vehicles entering the seashore beaches, and in 2012 the number was 285,000.  So, said the judge, there was an increase in utilization, right?  Trimble said he was unfamiliar with some of the data.

Renfer stepped in with data on violations of permits and other regulations.  Speeding citations, he said, declined from more than 200 in 2011 to 23 in 2012.  Almost negligible, said the judge.

The law of unintended consequences is in effect, Judge Boyle declared.  There is a higher intensity of beach driving, a better environmental posture, and users taking more pleasure in the beaches.  Derb Carter of the SELC agreed, rising to cite reapportionment of the beaches for use by pedestrians, drivers, and protected species. 

“Everyone’s interests are being served,” observed the judge. 

“It’s all positive from our perspective,” nodded Carter.

Renfer asked Trimble if it would be fair to say that 2012 had seen a drop from one-third to 50 percent -- maybe up to 75 percent -- in driving and closure trespass violations.  Without citing hard statistics, Trimble agreed that it would be fair. 

Then Renfer turned to Carter for an analysis of the plan’s wildlife impact.  Julie Youngman of the SELC spoke instead, citing numbers from various NPS reports.  She told the court that in 2011, the latest data available, piping plover nesting was the highest since 1992.  Eleven plover chicks fledged in 2012.  Sea turtle nest numbers in 2012 tripled the number in 2008 before the consent decree was instituted.

No explanations of those numbers were offered.  However, when Judge Boyle said that the improvement in turtle nesting was because the turtles are most susceptible to casualties from night beach driving, Youngman quickly concurred. “That was my conclusion, too.” 

She added that SELC is still waiting for the NPS annual reports on the status of wildlife, due on Jan. 31.

Those who have followed Judge Boyle’s status conferences for the past several years might recall that similar testimony by former seashore superintendent Mike Murray always included a caveat that such changes in wildlife numbers could not attributed to beach closures or any other single factor.

The judge turned back to Trimble, still on the witness stand. 

“Who designates the closures, their locations, duration?  Those things vary, right?” 

Trimble answered, “Those things come to my desk.” 

“Do you keep data on the receding and expanding of the closures’ size and their duration year to year?” Boyle asked. 

“The data are gathered,” Trimble answered, “but we have no conclusions.”

“We need a factual consideration of more or less driving, changes in the closures,” Boyle insisted. 

Then, following his propensity for irony that he himself seems not to recognize, Boyle went on. 

“There’s been too much speculation.  The speculation needs to be replaced by facts.  The data need to be published for the NPS, for local and federal governments, for the public.”

Turning back to permit sales, Boyle asked Trimble about uses made of the permit revenues.  Trimble replied that the revenues stay in the seashore and are used for personnel salaries, interpreters, biotechnicians who monitor the wildlife, and equipment that will used for eventual facilities improvements under the ORV management plan.  NPS does not intend to increase the permit fees.

Boyle then asked if there were additional questions or statements from any of the parties.  There were none.  Superintendent Trimble assured the judge that to his knowledge neither the Department of the Interior or the Park Service has any intention of make changes in the management plan.

Carter reminded the court that there has been no action on the bills introduced into the last Congress to rescind the current NPS management plan.  Boyle said that those bills were dead as of Jan. 3.  He and Carter agreed that no new legislation was in process.

Boyle concluded by thanking all status conference participants and assured everyone that his court will continue to monitor the situation and be available to meet the needs of all parties.  The court stood in recess after a session lasting fewer than 30 minutes.

There was no mention of the lawsuit filed last February by the Cape Hatteras Access Preservation Alliance against the Park Service to stop the ORV plan.  In that case, Defenders of Wildlife and Audubon Society are the intervenors.

The lawsuit was filed in federal court in Washington, D.C., but transferred to the Eastern District of North Carolina in late December.  It has been assigned to Boyle.

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