Who would have thought that we would look forward to another summer under the consent decree?
When the consent decree was signed off on by all the parties to a lawsuit against the National Park Service, beach access advocates were not happy.
The National Audubon Society and Defenders of Wildlife, represented by the Southern Environmental Law Center, had sued the Park Service in October, 2007. The suit claimed that the park?s Interim Species Management Plan did not go far enough to protect nesting birds and turtles at the Cape Hatteras National Seashore.
Eventually Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance were allowed to join the lawsuit as defendant-intervenors on the side of the Park Service.
The groups reached an agreement in the spring of 2008 to manage the seashore until the Park Service had a final rule on off-road vehicle use, which it had been required to do since the 1970s but never finished.
U.S. District Court Judge Terrence Boyle signed off on the consent decree on April 30, 2008, and its much more restrictive beach closings began to be implemented over the next few days. During the past three summers, the increased protections for birds and turtles have caused more areas of the beach to be closed during the spring and summer nesting season ? including the most popular areas with locals and visitors, such as Cape Point.
According to the terms of the consent decree, the National Park Service was to have a final ORV regulation by April 1 of next year.
Boyle called the parties to the lawsuit to his courtroom last week for a status conference to update him on the progress of the nesting birds and turtles and the progress toward an ORV rule.
The biggest news to come out of that exercise is that the Park Service is finally saying in public that it will not finish a final rule by April 1.
Many folks have seen that coming for months ? or maybe even several years ? as the park has struggled first with a failed negotiated rulemaking effort and then creating massive documents on environmental impacts.
In Boyle?s courtroom last week, the U.S. attorney representing the Park Service, Rudy Renfert, said it could be Labor Day before there is finally a final rule.
Those who were in the courtroom reported that the U.S. attorney and Boyle agreed that the consent decree would be in effect until there is a final rule. No one, including the SELC attorneys, objected.
So unless one of the parties does, I guess we’ll see another summer under the consent decree.
And the possibility never looked as good as it does now that we have seen the Park Service?s preferred alternative in the Final Environmental Impact Statement.
There is no difference in the contentious buffers under the consent decree or Alternative F.
And another summer under the consent decree will put off other disappointments for access advocates.
Yes, there will be spring and summer closings for nesting birds. Yes, the most popular areas will be closed for much of May into August.
However, under the consent decree there are not generous stretches of beach closed year-round to ORVs as there are under Alternative F. They are closed seasonally only while the birds are nesting there.
Under the consent decree, night driving is permitted from 6 a.m. until 10 p.m. from May 1 through Nov. 15 ? but is allowed with a free permit from Sept. 16-Nov. 15.
Under Alternative F, night driving will be allowed only from 7 a.m. until 9 p.m. with a similar requirement for driving on the beach at night in the fall with a permit.
Under the current regulations, driving on village beaches is prohibited in Rodanthe, Waves, Salvo, and Avon from about May 15-Sept 15. It is closed year-round to ORVs in Frisco and Hatteras.
Under Alternative F, driving would be prohibited in front of all village beaches from April 1 through Oct. 31. That is an extra several months.
Under the consent decree, beach fires are allowed on the seashore, though ORVs must be off the beach by 10 p.m.
Under Alternative F, beach fires will be allowed only in front of the villages (and two day use areas) from May 1 through Nov. 15, and even in the winter would be allowed only until 10 p.m.
You can check out my last two blogs on beach fires. There may be more important issues at stake here, such as the 1,000-meter buffer for piping plover chicks. However, I must say that from comments made on those blogs and what people have said to me, this prohibition on beach fires on most of the seashore really tugs at the heartstrings of lots of folks ? locals and visitors. Their memories of their beach fires are among some of their most important.
Presumably, there will not be permits for driving or carry capacity on beaches until there is a final rule.
And there are many other examples of why we will be grateful for another summer under the decree. Feel free to add them to comments at the end of the blog.
And I have a few other observations on the status conference.
First, Derb Carter took the opportunity to impress on the judge on how successful nesting has become under the consent decree. He used the same usual biased and selective recitation of facts that he and his environmental friends have been using for the past three years.
They are facts, yes. But scientific proof that the consent decree is superior to some other management options? No way, at least not yet, which even the Park Service admits in the FEIS.
I won?t get back into this, since I?ve written numerous blogs about the environmental groups and their distortion of science and peer review.
Let me just say that it is true that turtles nested on the seashore in record number this summer. Carter says it is because of the consent decree. Yet, he has neglected to mention that turtle nesting was up all along the southeast coast ? in record numbers on some other coastal beaches.
And what have Carter and the judge got going on?
The Republican judge and the environmental activist would seem to have little in common, but in all three of his status conferences to date, Boyle has talked almost exclusively and directly to Carter. The pair seems to have a convivial little thing going on here with Boyle hanging on Carter?s every word and opinion, and Carter all too happy to take center stage.
Here is the way Jim Lea, who wrote about last week?s conference for The Island Free Press, described the courtroom in a later e-mail to me.
?Like Judge Boyle?s previous status conference in March, the atmosphere in this session was convivial rather than judicial. The judge and the attorneys for the plaintiffs (the SELC) and the defendants (the Park Service) seemed to share a ?we?re-all-on-the-same-side? camaraderie, helping one another through rhetorical mazes and exchanging personal anecdotes. Unlike the previous conference, however, there was no reference made to what the SELC?s Derb Carter had called ?the opposition,? the county governments and beach access advocacy organizations and the position which they represent.?
That observation was not included in his article. And in the interest of disclosure, Lea, who owns a house in Buxton, opposes much of what the environmental groups are trying to do on the seashore. However, he has been objective in his accounts of what happens in the courtroom ? just the facts.
And those facts are not lost on readers. Take a look at the new Letters to the Editor that were posted today.
At his first status conference, which I attended, and at his last two, which Lea reported on, Boyle has spoken almost exclusively to Carter.
Last week, he did ask the U.S. attorney some questions, after, Lea said, the two compared notes on their knee replacement surgeries.
Boyle never asked anything of Mike Murray, superintendent of the seashore, last week. He never even asked him for his opinion of Carter?s exaggerated claims of consent decree success. And the man is the seashore?s chief.
And, as in previous conferences, he did not ask the opinions of the attorneys for Dare and Hyde counties or the Cape Hatteras Access Preservation Alliance. These two men ? Tony Hornthal of Elizabeth City and Bobby Outten, Dare County?s attorney ? represent the people who will be most affected by the final rule. They represent the people who have and will continue to see their business suffer and whose historical and cultural use of the beach will change forever. They also represent the many visitors who oppose what the environmental advocates have started here with their lawsuit.
Boyle has made it clear in his comments during the court case and at the status conference that he subscribes, for whatever reasons, to the view that all ORV owners are a bunch of cowboys racing up and down the beaches ? especially at night when he apparently thinks they put people?s lives in danger.
He has at times displayed an appalling lack of knowledge of the geography of and the issues facing the seashore.
And he has done little or nothing to understand how the consent decree or Alterative F or whatever will change a way of life here.
However, he?s the judge. And it was not by just pure luck that the environmental groups got their lawsuit before him.
Whatever you want to say about the groups and their attorneys, you can?t say they?re not smart.
