It’s been an interesting week since U.S. District Court Judge Terrence Boyle ruled that natural resources trump beach driving — and apparently recreation — here at the Cape Hatteras National Seashore.
The judge issued his order on June 20 in a lawsuit filed by the Cape Hatteras Access Preservation Alliance (CHAPA) against the Department of Interior and the National Park Service to overturn the park’s 2012 off-road vehicle plan and final rule for the seashore. Two environmental groups, represented by the Southern Environmental Law Center, were defendant-intervenors in the litigation.
Boyle ruled in favor of the federal defendants and the defendant-intervenors on every objection that CHAPA raised in the lawsuit about the plan — from whether it met the requirements of the seashore’s Enabling Legislation and the National Environmental Policy Act to the science upon which it is based to whether the economic impact studies were adequate.
It’s clear that the plan and final rule are here to stay — unless there is a successful appeal of Boyle’s ruling or Congress finally passes legislation to order the seashore to revisit parts of the plan.
CHAPA has not decided whether to appeal. And a bill to overturn the plan has stalled in Congress. It has passed in the House of Representatives — twice. But an amended version of the bill, favorably reported out of committee earlier this year, has never reached the Senate floor.
Many folks have thought all along — and maybe still think — that the lawsuits and the fight are about beach driving versus resource protection. Thus, they think, it matters only to those who want to drive vehicles on the beach.
However, access groups, such as the Outer Banks Preservation Association and the North Carolina Beach Buggy Association, have argued all along that this is about more than just ORVs and access for beach drivers.
It’s all about more reasonable public access at the seashore than the final plan and rule allow — for beach drivers and for pedestrians.
And that has been made clear by the week’s events.
The day after Boyle’s order was issued, a least tern established a nest on the village boundary in north Avon — choosing that site over a pre-nesting area just to the north of the nest.
The discovery of the nest put in motion a series of steps by the Park Service that has now resulted in the closure of more than 200 meters — longer than two football fields — of beach in front of houses on the north Avon oceanfront.
Folks who rented expensive oceanfront houses for their vacations for the easy beach access had a rude awakening last Sunday morning when the resource closure was set up.
It was reduced by half by Wednesday and then tripled today when the seashore’s biologists noted tern breeding activity — scrapes in the sand — on the Avon beach south of the nest closure. The new closures have reduced the easy access for many more residents and visitors going into this July 4 week.
“This has never really been about beach driving,” Beth Midgett, a rental manager for Midgett Realty, said this week. “It’s about access, and it’s just out of balance.”
One element of the plan that CHAPA objected to in the lawsuit was the extensive and over-reaching buffer distances for breeding birds, nests, and unfledged chicks, and especially for those birds not federally listed as endangered.
The least tern is not listed as endangered or threatened by the federal government. It is listed by the state as a “species of special concern” and the state has said it never intended that these birds be protected by such expansive buffers.
The bird is very adaptable and happy to nest in any number of locations, including the roof of the Outer Banks Mall in Nags Head.
However, protecting the terns on the Avon beach has reduced access for many folks who probably don’t even own ORVs.
“The resource closure in front of the north end of Avon village …is a perfect example of the extent the new rule affects the lives of residents and visitors at Cape Hatteras National Seashore Recreational Area,” said Outer Banks Preservation Association board member David Scarborough. “For the first time in memory, beaches were closed to pedestrians in front of houses.
He added, “The DOI, NPS and environmental groups led the public to believe that the purpose of the ORV rule was to bring CHSNRA into compliance with two executive orders from the 1970s. In fact, the purpose was to institute far-reaching restrictions on public access by using ORVs as the scapegoat.”
Scarborough also notes that, ironically, the two federally-listed species — sea turtles and piping plovers — are responsible for many fewer miles of beach closures than are such state species of special concern, such as the least tern.
Under the plan, the Park Service will revisit the final rule every five years — with public comment.
That first opportunity is fewer than three years away, and it would be really nice to think we could get relief from over-reaching buffers then.
JUDGE BOYLE’S OPINION
This week’s blog was going to be more about Judge Boyle’s opinion in the CHAPA lawsuit and the reaction to it until the events in north Avon intervened.
And, at the very least, I want to share with readers the reaction of some of the top players.
SELC and its clients, Defenders of Wildlife and the National Parks Conservation Association, were quick to issue a news release last Friday afternoon.
Of course, they are as pleased as can be.
?The Park Service?s plan is based on the best available science. Under it, Hatteras Island is enjoying record-setting tourism proceeds and wildlife breeding success,” said Julie Youngman, senior attorney at the Southern
Environmental Law Center. ?The plan has created a win-win situation for all Seashore visitors. We?re pleased the court ruled that the Park Service conducted a thorough review and complied with all applicable federal laws in adopting the plan.?
?It?s just common sense to balance beach driving and wildlife protection, and it?s working: sea turtle nest numbers have increased and tourism is thriving,? said Jason Rylander, senior attorney at Defenders of Wildlife. ?Because the court made the right decision today, people and wildlife alike will continue to benefit from the Park Service?s sensible management plan.?
?It is a great day for birds and sea turtles that depend on the beaches of Cape Hatteras National Seashore,? said Walker Golder of Audubon North Carolina. ?The recovery of sea turtles and birds has been well underway since the Park Service adopted a responsible management plan. Today?s decision will let the recovery
continue for the benefit of both wildlife and people.”
The decision also gave Rylander the chance to use one of his favorite phrases and repeat one of his favorite untruths.
“There used to be no permits. There was nothing, no regulation at all,” he told a Washington-based publication. “It was basically the Wild West.”
The environmentalists love that “Wild West” thing. And there was regulation before either the consent decree or final rule.
CHAPA responded this week.
CHAPA is disappointed in the June 20, 2014 ruling issued by the U.S. District Court in the CHAPA versus The Department of the Interior and the National Park Service complaint,” said OBPA board member David Scarborough. ” We believe our case was strong and was well presented. We are continuing to consult with our attorneys and have made no decisions on next steps from a legal standpoint.
“CHAPA will continue the efforts to restore public access to the beaches within the CHNSRA in a manner that achieves a proper balance between recreational access and resource protection,” he added. “Senate Bill 486 sponsored by Senator Burr, co-sponsored by Senator Hagan and unanimously passed by the Senate Energy and Natural Resources Committee remains the best solution to the access problem and CHAPA will continue to push for its passage in the current Congress.”
FOR MORE INFORMATION
Click here to read the entire news release from the environmental groups.
Click here to read the entire response from CHAPA.
