They came to speak at the meeting’s public comment period about the beach access issues on the Cape Hatteras National Seashore.
Twenty-five folks stepped up to the microphone to comment.
The comment period went on for more than an hour, and the commissioners listened to each speaker patiently and with respect.
It is terrific that all of these people are making such an effort to be informed and to speak out on the beach access issue -- and especially last year’s consent decree that settled a lawsuit by environmental groups about the lack of an off-road vehicle plan on the seashore. The consent decree has brought unprecedented closures of the park’s beaches to protect natural resources -- the nesting birds and turtles. And, unfortunately, most of the closures have been at the most popular recreational beaches – Bodie Island spit, Cape Point, South Beach in Frisco, Hatteras Inlet spit, and South Point on Ocracoke.
Some Hatteras Island businesses took a real beating last summer with the closures, and fear losses again this year.
And most islanders and visitors are very unhappy about the loss of the cultural and historical access to the beach.
In fact, many folks are angry about it. And many of them showed up at the commissioners’ meeting.
None of the speakers presented any information that is new to the beach access debate. Instead most drummed away on points that have been made over and over again, such as the promises made in 1952 by Conrad Wirth, then director of the National Park Service, that the islanders would always have access to the beach.
Some reiterated their view that the federal judge who signed the consent decree acted illegally – and even that he should be sued -- and that passing legislation in Congress is the answer to the severe restrictions of the consent decree.
Some speakers were critical of the efforts by Dare County in the beach access fight.
So it’s time for some fact checking.
First, beating up on the Dare County commissioners will not bring the changes folks want – the end of the consent decree.
Dare County’s government has worked diligently on the beach access issue. The commission spent $433,822 to intervene in the lawsuit by the environmental groups that eventually filed for an injunction to shut down the beaches.
Warren Judge, chairman of the commission, Allen Burrus, the vice chairman, and Bobby Outten, the county attorney made at least four trips to Washington, D.C., to talk to the state’s representatives about the issue.
Judge was a member of the committee that tried unsuccessfully to negotiate an ORV rule. The committee met for more than a year.
The commissioners have done all they can do.
They did sign on to the consent decree as interveners in the lawsuit, but they did this only because federal Judge Terrence W. Boyle had made it abundantly clear that he was willing to totally close the beach down, as the environmental groups had asked him to do.
You can click on the links at the end of this blog to read the transcripts of three hearings in Boyle’s court last spring. His leaning in favor of the legal points made by the plaintiffs, the environmental groups, is abundantly clear.
He says such things as “The plaintiffs have made a case for the urgency of action” to close the beach to ORVs, pending a long-term rule by the Park Service, and that the plaintiffs “have made a compelling case for preliminary injunctive relief” to close the beaches to ORVs.
Also, the consent decree is NOT the judge’s opinion. It is an agreement worked out by the plaintiffs, the defendants (National Park Service and other federal agencies), and the defendant interveners -- Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance.
This is NOT Judge Boyle’s decree. So don’t blame it entirely on him, although it is true that his view is what forced the defendants to sign the consent decree.
Here is what Boyle said at the end of a hearing on April 30 of last year when he was asked to sign off on the agreement by all the parties to end the suit:
“Thank you for your work, your patience and your forbearance in listening to me. It’s not my agreement. It’s your agreement. And I am not going to stand in the way of it. And I wish you the best with it.”
So, anyone who wants to be active and helpful in promoting the cause of access had best get off the case of Judge Boyle. He did nothing illegal. He is not going to be sued.
In fact, getting rid of the consent decree in any way is a waste of time.
This summer’s resource closings are well underway, and there is just about no chance that any Congressional action will happen ever – or certainly in time to help us before the beaches re-open in late summer when the nesting birds leave.
After this year, there is only one more year under the consent decree.
The Park Service is required under the decree to have an ORV rule by April of 2011.
Last year’s effort to pass legislation in Congress went nowhere. It was largely shot down by Daniel Wenk, then an assistant director in the National Park Service in Washington, D.C., who testified before Congressional committees that the NP no longer supported the Interim Protected Species Management Plan and thought the consent decree provided better protection for birds and turtles.
Right now, Wenk is acting director of the Park Service, and there is no reason to think he has changed his mind.
U.S. Rep. Walter B. Jones, Jr., R-N.C., did introduce a bill in January to nullify the consent decree and return the management of the seashore to the interim plan. Last time I looked he had one co-sponsor. North Carolina’s two senators, Republican Richard Burr and Democrat Kay Hagan, said in January they intended to introduce a similar bill in the Senate, but they never have.
We all need to forget not only about getting rid of the judge and the consent decree but also passing legislation in Congress.
The chances of legislation passing is, for all practical purposes, zero – though I would love to be proved wrong on this issue.
There is something constructive that all of us who are so disappointed and angry, and suffering financially, by the beach closures can do.
After the failure of the negotiated rulemaking process, the ORV rulemaking is in the hands of the National Park Service – seashore Superintendent Mike Murray, his staff, and his bosses in Washington.
A Park Service contractor is now doing an impact analysis, evaluating the five alternatives – alternatives A through E -- already proposed by the park and perhaps a sixth alternative F, which the negotiated rulemaking committee failed to reach agreement on. This analysis, he said, will be “the guts” of the Environmental Impact Statement that will guide the park in making the ORV rule.
It will address all issues from wildlife and resource protection to socio-economic impacts and recreation to costs.
Murray said the deadline for receiving the analysis is “fluid” but he hopes it will be finished this summer.
Next the Park Service will discuss the alternatives internally – at local, regional, and national levels – and choose its preferred alternative and the environmentally preferred alternative, which, Murray said, could be the same or different.
He said he is aiming for the release of a draft EIS in late fall. There will be a 60-day public comment period, including public meetings on the Outer Banks and in other cities, such as Raleigh, Richmond, and Washington, D.C.
The Park Service will also have to submit the preferred alternative to the U.S. Fish and Wildlife Service for a biological opinion.
Finally, there will be a record of decision issued, which Murray said would have a 30-day public comment period.
The consent decree requires that the ORV management plan be completed by Dec. 31, 2010 and promulgated by special regulation by April 1, 2011.
Anyone who wants to have a voice in the final rule needs to focus on the fall when the draft Environmental Impact Statement is issued. You will have a chance to attend meetings and to make public comments.
This stage is very important -- much more important than wasting time on suing a judge or passing legislation in Congress to negate the consent decree.
Bobby Outten, Dare County’s attorney who will become county manager on July 1, says he supports contacting your federal legislators now to let them know how you feel. That will be important down the road.
“There will not be a resolution of this legally,” Outten said. Many expect that whatever final rule the Park Service issues will result in legal action by groups on either side who are not happy with the outcome.
“If this comes out a way we do not like, the solution will be political,” he says.
Political, in this case, means that Congress will have to pass legislation reaffirming the recreational nature of the seashore and the balance that the Park Service is required to strike between its often conflicting goals or providing for people and for birds and turtles.
The other thing that advocates of accessible beaches can do is start raising money for whatever legal action is eventually needed. With the recession, it is clear that the county does not have money to go back to court.
Raising funds for the legal fight will be up to the people.
“I understand the anger,” commissioner Allen Burrus said after Monday night’s meeting.
“And,” he added, “we share a frustration that things won’t get done quickly.”
The commissioners were asked to pass a resolution, presented by people at Monday night’s meeting. It was basically a resolution passed by the state Republican Committee last weekend supporting open and accessible beaches.
Burrus indicated that the commission has no problem with passing a resolution, though it will wait until the state Democratic Committee passes its version before crafting what the commissioners hope will be a bipartisan resolution.
However, the county commissioners can pass resolutions forever, and it won’t do much to solve our beach access plight.
All of us who want to preserve our cultural and historical access to the beach need to be looking ahead to the final rulemaking by the Park Service and our opportunities to make comments. The environmental groups will make sure that their members flood the Park Service with comments. We need to do the same -- and the need to raise funds for a possible legal fight.
We cannot be looking back at the consent decree or how the federal government got the property for the seashore or what promises were made almost 60 years ago.
That is history.
Look to the future.
FOR MORE INFORMATION
Transcript of hearing before Judge Boyle in March, 2008, on injunction filed by plaintiffs to close beaches to ORVs until Park Service has a final rule:
Transcript of hearing by Judge Boyle on request by parties to the lawsuit to be granted more time to work on an agreement to end the action:
Transcript of hearing by Judge Boyle on the consent decree on April 30, 2008