Federal District Judge Terrence Boyle has scheduled a status conference on the consent decree that settled a lawsuit over off-road vehicle use at the Cape Hatteras National Seashore for Friday, Feb. 24, at 11 a.m. at the Federal Courthouse in Raleigh.
Boyle scheduled the conference on Jan. 27 ? before the Cape Hatteras Access Preservation Alliance (CHAPA) filed suit against the Department of Interior, the National Park Service, and the seashore to stop the final ORV management plan and special regulation.
The seashore issued its annual resource and law enforcement reports for 2011 at the end of January, and each year, Boyle, who has overseen the consent decree, has summoned the parties to his court to discuss the reports.
Past status conferences have been fairly brief, with seashore superintendent Mike Murray answering the judge?s questions about the report and the judge asking lawyers for the Southern Environmental Law Center if they were satisfied with the progress protecting nesting birds and turtles at the seashore.
SELC represented Defenders of Wildlife and the National Audubon Society in the 2007 lawsuit that challenged the Park Service?s protection of resources at the seashore and demanded that it have an ORV management plan, as required by law.
As a result of that legal action, the seashore prepared an ORV plan and special regulation, which went into effect Feb. 15.
On Feb. 9, the same day that CHAPA asked a federal court in Washington, D.C., to permanently enjoin the Park Service from implementing the plan, Assistant U.S. Attorney Rudy Renfer filed in the court case before Boyle a ?notice of compliance and notice of expiration of the consent decree.?
In his filing, Renfer noted that the Park Service had complied with the consent decree and completed its annual reports and that the special ORV regulation had been published and would be effective Feb. 15.
The consent decree expires ?automatically upon the effective date of the final Special Regulation.? The filing then notes that the consent decree would expire on Feb. 15.
However, will this be the end of Judge Boyle and the consent decree now that CHAPA has filed to stop the plan and special regulation?
That?s a good question.
Opinions from attorneys are all over the board about the possibilities of how the legal actions will proceed from this point. And armchair lawyers posting on this blog and other sites have proposed all kinds of scenarios.
Boyle has certainly let us know exactly what he thinks at every stage of the process of formulating the plan and rule, and we expect he will do the same next Friday.
We will have to wait until then to find out if the judge lets go of the case and the consent decree.
Island Free Press will post a story about the hearing next Friday in the late afternoon or early evening.
SOUNDSIDE ORV ACCESS
Some folks, especially windsurfers and kitesurfers, have been surprised to find out that the ORV management plan and rule require a permit for driving on the soundside of the islands within the park.
But they do.
Specifically, the preferred alternative, Alternative F in the Final Environmental Impact Statement, notes that all existing off-road soundside areas will be designated as ORV routes under the plan and final rule.
Therefore, you will need to buy a permit — $120 annually or $50 weekly ? to drive to the soundside areas on the seashore.
Kitesurfers and some windsurfers see this as being problematic and unfair at one of the most popular sites on the islands for both sports ? the soundside between Buxton and Avon.
More than 10 years ago, the kitesurfers and windsurfers informally agreed to segregate the two sports for safety reasons.
Windsurfers use the Canadian Hole, also known as the Haulover, where there is a parking lot right next to the water and showers and bathrooms.
Kitesurfers use an area slightly to the south of Canadian Hole, known as Kite Point. Although the area is just a short distance from the highway, most kitesurfers have driven on the sand and parked at Kite Point.
Now, some say, they will not buy permits to drive the short distance and will instead park on the highway, causing a traffic hazard.
Eventually, as part of the infrastructure improvements under the ORV plan, the Park Service will build a new parking lot at or near Kite Point. Park officials have not said when they think that will happen, but it?s not going to be this year.
Trip Forman, co-founder of REAL Watersports, who served on the negotiated rulemaking committee of stakeholders that failed to reach a compromise on the ORV plan, says it was clear from the beginning that permits would be required for soundside access.
He doesn?t see this as a problem for watersports on Hatteras.
Forman predicts we will see crowding on Highway 12 this spring as more cars park on the shoulder of the road to get to Kite Point. However, he notes, perhaps the traffic will motivate the Park Service to get the new parking lot completed earlier rather than later.
Forman also says that kiteboarders should park at the Canadian Hole and walk to Kite Point ? with their kites on their backs and their boards under their arms. It?s a short distance, he says, and it also gives the kiteboarders access to the showers and bathrooms.
Kiteboarders who try to launch at Canadian Hole pose safety issues. Kite launching can injure others, including families who congregate in the shallow soundside area.
Also, Forman notes that the Cape Hatteras Electric Cooperative?s power lines are closer to the sound at Canadian Hole ? about 60 feet as opposed to 660 feet at Kite Point. Power lines are a safety hazard for the kitesurfers, and in the past, kites tangled in the lines have managed to cut off power to southern Hatteras Island.
Forman said he doesn?t think the new rules that include the permit will have an effect on the kiteboarders who flock to Hatteras, especially in the spring and fall, for the wind conditions and the access.
The most popular kiteboarding areas, he said, do not require off-road driving, including the area between Buxton and Avon, the Sandy Bay area north of Hatteras village, and the Salvo Day Use area just south of the tri-villages.
?All of the popular places are still good to go,? Forman says.
AND OTHER QUESTIONS
Although Island Free Press and other media keep publishing information on the new ORV plan and regulation, some questions keep coming up.
- Permits are for the calendar year and expire on Dec. 31. This the way the Park Service apparently preferred to set it up, even though park officials acknowledge that those who buy the stickers this year won?t get 12 months worth out of them.
- There is a ?transition? period until March 15, which means you won?t get cited if you don?t have one between now and then. However, March 15 is not the last day to buy a permit. There is no limit on permits and visitors can buy them when they arrive on the island for vacation.
- There are three places in the seashore to buy the permit ? at Coquina Beach, the Cape Hatteras Lighthouse, and Ocracoke Visitor Center. Permits are sold every day but Christmas from 8 a.m. until 4:30 p.m. The permits will be sold later in the summer, but those hours haven?t been announced yet.
- Visitors coming to Hatteras or Ocracoke should consider stopping at Coquina Beach on Bodie Island on their way down to buy the permit. It may be less crowded there.
- There will not be Internet sales of the permits this year for sure, though there could be at some time in the future. You can plan on visiting one of the three sites to get your permit this year.
- The Cape Hatteras Access Preservation Alliance welcomes your donations and/or memberships to support its lawsuit to stop the Park Service?s ORV management plan and final rule. The easiest way to make a donation to OBPA to help with the lawsuit is to click on the OBPA ad at the top of the Beach Access or Shooting the Breeze page. Then click on membership/donations and make your donation through PayPal. You can also go directly to the website at www.obpa.org or straight to the donation page: http://obpa-nc.org/joomla/index.php?option=com_content&view=article&id=118&Itemid=61
If you prefer, you can send a check to OBPA, P.O. Box 1355, Buxton, NC 27920. Make the check out to OBPA.
- Finally, although access will be restricted for both vehicles and pedestrians during the bird and turtle nesting season, there will still be beaches open to drive on. You can expect popular areas, such as the points and spits, to be closed from spring through sometime in late summer.
