Waiting on the judge
Friday 17 August 2012 at 4:17 pm.It shouldn’t be too long before we know whether U.S. District Court Judge Emmet Sullivan of the District of Columbia will preside over the Cape Hatteras Preservation Association’s lawsuit to overturn the National Park Service off-road vehicle plan and final rule at Cape Hatteras National Seashore.
The alternative is that he will transfer the case to the Eastern District of North Carolina and to U.S. District Court Judge Terrence Boyle.
Sullivan said he was considering that option during a July 26 status conference with the parties to the lawsuit. He suggested he would transfer the case “sua sponte” – of his own accord, without a request from any of the parties.
CHAPA has filed an objection to Sullivan’s inclination to transfer the case, and this week the federal defendants and defendant-intervenors responded to that objection.
Now it’s up to Sullivan.
If he does transfer the case, it will probably be sooner rather than later since the next filings are due in early September.
CHAPA filed a 17-page objection that made some good points.
CHAPA’s objection notes that Sullivan suggested that issues of “judicial economy” may warrant the transfer. He expressed his concern that retaining the case would result in two federal judges expending their resources to resolve the same controversy.
However, CHAPA notes in its objection that “the controversy is not the same” and the case that Boyle presided over was very different from the CHAPA complaint.
The CHAPA brief says that the DOW case focused on vacating the interim plan and the Park Service’s failure to prepare an ORV management plan and special regulation.
“NPS has now done what the DOW case sought,” CHAPA says. “Under the terms of the Consent Decree, the claims of the plaintiffs in that case were dismissed with prejudice based on the commitments and representations in the Consent Decree. The Consent Decree (as NPS acknowledged in its Feb. 9, 2012 Notice in that case) should be deemed to have automatically expired effective Feb. 15, 2012, and CHAPA or anyone else dissatisfied with the Final Rule and ORV Management Plan should have been free to challenge those actions in a separate action, i.e., a new case.”
CHAPA really wants to see this case tried in D.C. – or maybe just any venue that isn’t Boyle’s court.
The federal defendants filed a scant three-page response that said they neither proposed not objected to a transfer.
I found one of the most interesting points in that brief was the statement that the 2007 case filed by the environmental groups and settled by a 2008 consent decree “remains unanticipatedly pending.”
Love that choice of words – unanticipatedly. In fact, I’m not sure it is a word.
The consent decree was to expire when the ORV rule and special regulation became final, which happened Feb. 15.
However, Boyle refuses to let go of the case. He’s had two status hearing since February and has scheduled another for December.
“At this juncture, it is unclear whether that case will remain pending, or for how long or what purposes, and whether such continuation would be proper,” the defendants state. “Nevertheless, given the possibility that case will remain pending, a risk arises of inconsistent judgments in the event this case is not transferred.”
Apparently even the lawyers for the federal government are perplexed that Boyle refuses to give up.
As expected, the response filed by the environmental groups as defendant-intevenors in the case praised Judge Boyle’s familiarity with the facts and law of the case and his “unique” familiarity with the seashore’s geography, history, and landscape.
Like that choice of words also – Boyle’s “unique” understanding of and familiarity with the seashore. It certainly is just that – unique.
The fact is that in all of his status hearings over four years, Boyle has proven that he just doesn’t get the issue of public access to seashore beaches.
He has seemed much less concerned with the success of various nesting birds and turtles than with issues of public safety – which has not really been an issue at all in the access debate.
At one hearing, he noted that the night driving prohibition has contributed to the public’s safety at the seashore. With only one or two exceptions that I can think of over the past few decades – and at least one of them involved alcohol -- public safety on the beach at night has not been an issue. Folks are not being mowed down after dark by drivers of ORVs.
The prohibition is supposed to increase the nesting success of sea turtles, but Boyle has seldom if ever commented on that.
In his last status conference in July, the judge again dwelled on the public safety issues, noting that there were fewer break-ins and fewer incidents involving vehicles and alcohol. The latter could be true, but the comment about break-ins is just off the wall.
What have break-ins got to do with the ORV plan? The answer is “nothing.”
Boyle then suggested there could be more beach drivers than in pre-permit days because if folks buy a permit they are going to drive on the beach.
And people who pay for that privilege, he went on, will have more interest in protecting the resources than those who used to drive on the beach for free. They’re likely to keep themselves and others in line with the rules.
Having to pay to drive on the beach may be keeping down the number of weekend party types, but there is absolutely no reason to think that people who pay to drive have more interest in protecting resources.
I could go on here, but I hope you get the point – which is that the good judge just doesn’t get it.
He doesn’t grasp that the issue here is shutting down the public’s traditional access to their national seashore and closing down large areas of the seashore to protect nesting birds and turtles with huge buffers that have no basis in science.
He doesn’t seem at all bothered that he and Derb Carter of the Southern Environmental Law Center – not the National Park Service – are managing our beaches.
However, the fact of the matter is that Judge Sullivan is going to do what he wants to do in this case, and Judge Boyle may be worrying about break-ins and pedestrians being mowed down on the beach for years to come.
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41 comments
There was no one on the beach this spring for days on end after the permit requirement. It was great, could run 50mph and have fun jumping camel humps and running through varying terrain. Looking forward to the winter. Summer is the time to get away from the Island.
Russell - 17-08-’12 19:36
We should protest and demand Boyle have a public meeting with the people to hear their side, since his decision affects the people. Derb Carter should be kicked out of the state. He does not represent the people, only their special interest(money from Audubon).
AnonVisitor - 18-08-’12 06:51
I hope Sullivan does not move the case. Then when chapa loses they will have someone else to blame. Sort of like them complaining about the interim plan until the FEIS was put into place and now they love the interim plan and want it back
Anon - 18-08-’12 07:28
Boyle’s comment about more driving with the permit than before is a clear indicator he has no clue. All you have to do is look at any parking area between Salvo and Avon where there is access to see , including soundside highway shoulder.
Additionally you see folks with a permit ferrying folks out to the beach from sand capable vehicles without permits, that are left behind.
And a new one I’ve recently observed is permitless vehicles going out to the beach or sound near an access, dropping off people and gear, then returning the vehicle to parking area or highway shoulder. Seems the word is out on you get one warning so this tactic reduces exposure, prolonging the time to warning.
Salvo Jimmy - 18-08-’12 08:12
No doubt the judge has never been to the OBX. He is blind and one-sided. Money hungry Derb is his only friend….
james - 18-08-’12 09:54
You people creep me out.
If we expect others to rely on our fairness and justice we must show that we rely on their fairness and justice
Anon - 18-08-’12 17:15
Anon,sorry you’re “creeped out” but,as usual,you make no sense at all.
Hawk Hawkins - 19-08-’12 08:34
You know what ‘‘creeps me out?’‘ A 1000 meter buffer in every direction for a non-endangered piping plover on the southern most area of its’ breeding range that shuts off miles of access as the Park hires more and more rangers to drive around in the enclosures in new trucks. So there Anon! Also, when do you think your fair judge might open ramp 45 so people camping in the campground could actually get to their new ‘‘walking beach’‘? I bet a real private investigator would have a field day with this guy.
Jimmy S. - 19-08-’12 10:02
Anon,
I agree, it’s creepy. Too bad it’s not a 10-15 year felony for accusing federal judges and federal employees of corruption and crimes without one iota of evidence.
Jimmy S,
So since Lookout is even farther south of Hatteras and has about 40 pair of plover, how many more pair should Hatteras have? The enabling legislation mandates the resource be protected for future generations. It says nothing about it having to be endangered prior to protecting it.
Cro
Crotalus - 19-08-’12 14:39
The evidence is on record, crotalus. Additional evidence are the judge’s actions, comments, musings and conflicts of interest. Let’s bring the judge to trial.
Steve - 19-08-’12 15:14
Steve,
A ruling you don’t like isn’t evidence of corruption or crimes. Grow up.
HH,
Bolster my case? I wasn’t attempting to do any such thing. You guys have always been your own worst enemies in that regard. All I need to do is point it out.
“Grow up” could mean infantile I guess, or prepubescent, or adolescent, or immature…. you get my drift.
I was just having a little fun on a slow Sunday. How about you?
Crotalus - 19-08-’12 17:29
No,I’m at my toil mechanically breathing for my patients…not so slow at all.Yes,I get your drift,as usual,and we have met the enemy,and it is NOT us.
Hawk Hawkins - 19-08-’12 17:58
Sure it is. You should start with a refresher; the story about the Golden Goose would suffice.
Crotalus - 19-08-’12 18:38
The bottom line is that Judge Boyle has already expressed his opinions on the matter and they are against CHAPA, open beaches or repealing the new Acess Plan. As a result, I dont see how he could possibly give a fair hearing to CHAPA if the case is transferred to him, no matter what the evidence might show. The result is a foregone conclusion. That’s not justice or fairness.
Tom - 20-08-’12 09:13
Attacking one another does nothing..child like..and a bunch of bullies..it mine its mine…what we need is a new look from a Judge with out personal interests..and both sides need to work on a agreement..open beaches where no nesting is taking place..smaller closings, instead of permanent closings, making both side happy, life is to short to keep this bitterness on both sides,,unless its just about money..then it will never end..everyone is just butting heads sound like the Senate, nothing is getting done..everyone has there own thinking and no one will give on either side..The people deciding need to come here, and talk, and look at whats going on. and not leave the table like they did before and take it outside our area..STOP THE PERSONAL ATTACKS…
pat avon - 20-08-’12 09:31
If we could get Doug, I mean Crot, to become a little more open mined, maybe he could help bring everyone together.
Jimmy S. - 20-08-’12 09:42
Don’t hold your breath looking for the new judge to hear your case. Judge’s do not like to overturn another judge’s opinions.
What needs to be done is get your story out to the public and just not to the people of the OBX. There are probably people in NC that doesn’t know whata your up against. If I didn’t vacation in Buxton I would have no idea you are having problems. Keep up the good work Island Free Press. See ya in Sep.
i just wish that someone somewhere would make there mind up.. i enjoy the beaches and i will continue to do just that. i agree that some people,,, judges,, ,need to spend some time out there.. but the truth of the matter is judges,,, probably have there own beaches somewhere or another… hatteras is just another law topic in their oppinion.. so dont get hot and bothered if someone doesnt do something,, not to mention that is exactly what has happened over the last few years,, nothing!!!!!!!!!!!
tim minetree - 21-08-’12 01:38
i am a member of the obpa, ncbba, cape hatteras anglers, and so on,, dont get me wrong . i know these clubs are trying and my countless dollars have gone to try and fight but.. come on .. something has to give,,
tim minetree - 21-08-’12 01:40
Judge Boyle’s record is bad. His reversal rate is twice as high as any other federal judge. He shows little expertise or understanding of the issues at CHNSRA.
Since when does DUI’s and speeding tickets have anything to do with extreme bird closures, wrongly implemented pedestrian only beaches, or night time closures???
Why hasn’t plover fledged rate improved with all these new restrictions, removal of predators, and favorable weather?
anonVisitor - 21-08-’12 12:35
going to go back to Judge Boyle, he will rule against it. Done deal. Quit beating a dead horse and start work on removing the gaudy signs that detract from the natural beauty of the wildlife area.
Oh, and don’t hold your breath on any new ramps or a new bridge, not gonna happen
anon - 21-08-’12 15:54
Anon you are something else..I guess you will not be using a new bridge..you can walk..right or maybe walk on water, I hate that I responded to you at all..be on your way …Please..
pat avon - 21-08-’12 16:40
How can some people be so vile against honest hard working people trying to make a living on the island they love and respect? There I bit Anon make ur move
Mike - 21-08-’12 18:46
Anon must be speaking of all the gaudy signage the park service and DOT put up all over the island.
........ - 21-08-’12 23:14
anon,
Get used to the double standard on this board.
For open orv access, against the environmentalists and the NPS = kudos
Anothing else = personal attacks
Anonalso - 23-08-’12 17:38
So anon, you concede that the NPS are liars and hurting the island economy by saying no new ramps or bridges. I hope your wrong and we turn this thing around. 
Where is the new superintendent and does Judge Boyle or the environmental jerks have any say in the hiring???
My,my,you “anons” are certainly a sensitive bunch.You come to this blog and post your “opinion” and someone disagrees and you feel “personally attacked”.The answer to that is to stay on Audubon’s site and hug the trees where you feel safe.Surely that is a warm,fuzzy comfort zone for you.If Irene would allow it-and she won’t-I would gladly show you what a “personal attack” is.As much as an “anonymous” entity can be “personally attacked” at any rate.
Hawk Hawkins - 25-08-’12 09:49
Mr Hawkins,
I doubt that is your real name and I doubt you live on our island. I am sure you think your comments are clever; however I find them crass and crude. If you concerned yourself more with the issues than personal comments about others your thoughts may have more meaning.
Lucille - 25-08-’12 15:53
Lucille,I assure you,I am not anonymous.I have been a constant visitor to “your” island since I was a child,over fifty years ago.I am currently working with a local realtor to buy a residence there.I hope you don’t mind too much.Once again,it’s hard to be “personal” with “anonymous” entities.
Hawk Hawkins - 25-08-’12 16:36
Well Hawk, guess things cannot be as bad here as you always portray if you are looking for a “residence”.
anon hi - 25-08-’12 17:12
Well,anon hi,It’s not what it used to be but I still certainly consider it to be the best place on earth with the best people.A good place to live and a good place to die.If the ship is sinking,I’ll go down with it!
Hawk Hawkins - 25-08-’12 18:45
Mr Hawkins,
If you are refering to the island as a sinking ship you may want to consider living elsewhere. We are a close community who deal with whatever comes our way.
Not much is what it used to be and some of the things that used to be on our island were not that pleasant.
Your fixation with people who want to list their opinions as anononymous is a poor excuse for bad manners.
Lucille - 26-08-’12 15:39
Dear Ms.Lucille,please forgive my analogy.Actually,the island is sinking.You would probably be surprised at how close five generations of my family are to your close community.I have no fixation on the unfairness of snotty comments from un-named sources and I do not hide my comments behind same.You do not seem to be able to discern a sincere compliment when one is tendered and for that I am deeply sorry.
Hawk Hawkins - 26-08-’12 18:32
haveing been born here ive seen the birth of evil, the national park service.and yes those that have retired from this ocult.there are many who live here that supports the nps, im not one of them, some are teachers and others work in our stores,there goal is to live here and not want anyone else.
raymond austin - 27-08-’12 15:46
This may sound silly,but has Judge Boyle ever vacationed the OBX? I would think if he spent just one week,enjoying the beaches,and yes,visiting with the local businesses to fully grasp what these people are experiencing in lost revenue,he may have a change of mind. Any Realty co.willing to extend A VACATION INVITE?
Richard Biedenbach - 17-08-’12 17:08