U.S. District Court Judge Terrence Boyle is still with us, and we’ll find out later this month if he will continue to be with us going forward with litigation against the Park Service’s final ORV regulation.
Boyle has set another status conference on a 2008 consent decree that settled a lawsuit against the Park Service by environmental groups for Friday, July 27, at 11 a.m. in the federal courthouse in Raleigh.
However, the question remains in some legal minds whether or not there still is a consent decree.
Boyle’s last status conference was Feb. 24, at which time he decided to keep the consent decree in place and meet with the parties to the lawsuit again in 120 days.
The consent decree was the resolution of a lawsuit filed in October, 2007 by the Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center, against the National Park Service for its lack of an off-road vehicle regulation on the Cape Hatteras National Seashore. The groups complained that there were not adequate protections in place for nesting birds and turtles on the seashore.
Boyle allowed the Cape Hatteras Preservation Alliance and Dare and Hyde counties to enter that lawsuit as defendant-intervenors on the side of the National Park Service.
All parties settled the case in April, 2008, with a consent decree that put in place much more restrictive regulations for access to the seashore beaches and much larger buffers for nesting birds and chicks that have closed down large areas of the seashore beach from spring into summer.
Boyle had regular status conferences over four years to check on the progress of the consent decree and the Park Service’s ORV rulemaking.
The consent decree was to expire when the Park Service enacted a final off-road vehicle special regulation, which it did on Feb. 15.
However, on Feb. 9, CHAPA filed a lawsuit against the National Park Service and other defendants to overturn the rule. This time Defenders, Audubon, and the National Parks Conservation Association, again represented by SELC, were allowed as defendant-intervenors.
The CHAPA lawsuit was filed in U.S. District Court in the District of Columbia and assigned to Judge Emmet Sullivan.
At Boyle’s Feb. 24 conference, he decided to keep the consent decree in place while he and the parties monitored the progress of the CHAPA action to overturn the final rule.
Last month, Assistant U.S. Attorney Rudy Renfer filed a notice of status and suggestion to continue monitoring the CHAPA lawsuit in Boyle’s court.
Renfer notified Boyle of action in the CHAPA case. The parties in that case filed a meet and confer report on May 31. They agreed to file another status report on the progress of compiling the administrative record of the NPS rulemaking on July 9.
Sullivan scheduled a status conference in that case for Thursday, July 26, in Washington, D.C. – the day before Boyle scheduled his conference.
Interesting timing. Maybe Judge Boyle is waiting to see what Judge Sullivan is up to?
Renfer notes in his filing that the final regulations are in place on the seashore and have not been restrained or enjoined.
Then he suggests Boyle continue to monitor the D.C. litigation.
Renfer also notes that the interveners “do not agree” and that plaintiffs do not take a position on his suggestion.
Bobby Outten, Dare County manager and attorney, said earlier this week, “We didn’t agree. We’re not agreeing to anything because they (the environmental groups) keep throwing it back at us that we agreed to the consent decree.”
Outten also noted that the lawyers for CHAPA in its lawsuit strongly believe that the consent decree is gone because the final rules are in place.
Boyle doesn’t seem in any hurry to give up his judicial oversight of the seashore’s management, and, in fact, the environmental groups have suggested in their filings in the CHAPA lawsuit that the two actions should be combined in Boyle’s court.
And it’s no secret that advocates for more reasonable beach access wish Boyle would just go away and butt out of the current litigation.
But, until Boyle gives up on overseeing the consent decree, which may or may not still be in force, we will have two different courts and two judges involved in deciding the management of the seashore.