Last week, a regular reader of The Island Free Press sent me an e-mail and asked if I could publish a timeline on the beach access issue. He said he thought that a summary of what led us to where we are today would be useful to him and to others who are new to the IFP and the islands.
I did write a summary of the issue, entitled ?The beach driving crisis and how we got here.? That article was published on the very first day that The Island Free Press was online, Sept. 5, 2007.
I went back to read it for the first time in more than four years. Just reading it again was interesting in light of all that has happened since then. I had almost forgotten what some long-ago superintendents had to say about how it happened that the seashore never had an ORV management plan for the 40 years that it has been required.
Today, I am going to publish that article again, in its entirety, and I have added a postscript, summing up major events since then.
This blog is a long one. I hope it is useful for those who are new to the islands and the ORV issue. And I think those who have followed the issue closely will find it interesting and maybe useful to review what has happened at the seashore since the 1970s.
The beach driving crisis and how we got here
(Republished from Sept. 5, 2011 Island Free Press)
The polarizing, and sometimes contentious, debate on the future of driving on the beaches of the Cape Hatteras National Seashore escalated considerably in the summer of 2007 when a federal judge weighed in on the use of off-road vehicles.
In an order issued on July 17, 2007, U.S. District Court Judge Terrence Boyle said that Cape Hatteras National Seashore ?does not have regulations in place to govern ORV traffic.?
?Consequently,? he said, ?it is also a violation to operate a motor vehicle on Cape Hatteras National Seashore without prior authority and is punishable by up to $5,000, six months in prison, or both.?
In other words, the judged ruled that all ORV use on the seashore is illegal because the park does not have, as required by law, an ORV management plan.
The judge?s order was a surprise to everyone ? the National Park Service, ORV advocacy groups, county officials, islanders, visitors, and even the conservation groups that had been unhappy about management of ORVs in the park.
Even more interesting is the fact that the order stemmed from a reckless driving on the beach case in the U.S. District Court in Elizabeth City, and not from one of the several environmental groups that have sued or threatened to sue the Park Service.
The violation occurred on May 27, Sunday of Memorial Day weekend. According to the order, the defendant, who is from Virginia, attempted to drive a large four-wheel-drive vehicle off the crowded beach at Oregon Inlet and ?drove at speeds dangerous for conditions, traveling in an erratic and serpentine manner through the ruts in the sand causing a danger to people on the beach.?
As word of the judge?s order began to spread on Tuesday, July 17, the rumors began to fly on Hatteras that the beaches would be closed on Wednesday at 6 a.m. and then that they would close on Monday at 9 a.m.
With the rumors, came nothing short of panic as folks began contemplating the dire consequences ? economic and other ? of barring ORVs from the seashore beaches at the height of the tourist season.
On Wednesday evening, Mike Murray, seashore superintendent, issued a statement that the beaches would remain open to ORVs for the immediate future while park officials conferred with Department of Interior attorneys to evaluate the judge?s ruling and decide how to respond. He said that seasonal, safety, and resource-protection closures would continue.
In an interview the next day, Murray said the park will continue to operate under the Interim Protected Species Management plan, which, ironically, after several years of formulation, consultation, and public hearings and comments, had just been approved the week before Judge Boyle?s ruling.
?The points of law are indisputable,? Murray said, ?but our lawyers do not consider it an injunction.?
He said that park officials were preparing a response in the form of an ?information letter? to describe the efforts that the seashore has made and is making to develop a long-term ORV management plan.
?We want to provide the judge with specific, detailed information,? Murray said. ?We want to describe to him what we?ve done, what we?re doing, what we?re going to do, and what measures we might take.?
The superintendent added, ?The best thing I can do now is to continue what we?re doing?to utilize management tools available while we develop a plan.?
Jason Rylander, an attorney for Defenders of Wildlife in Washington, D.C., doesn?t agree with Murray?s strategy. He says the superintendent must close the beaches to ORVs and that anyone going out on park beaches in an ORV is breaking the law.
?Judge Boyle?s ruling says what we have been saying for years, which is that unauthorized ORV use is illegal,? Rylander said after the ruling. ?All of it at Hatteras is unauthorized because there are no trails designated by regulation and no management plan in place.
?The National Park Service readily acknowledges it is violating the law and yet continues to drag its feet,? he added. ?Judge Boyle?s ruling makes clear that business as usual is illegal. For the Park Service to ignore the judge?s ruling and to support the status quo is astonishing and unacceptable. We expect our federal land managers to follow the law.?
By late July, it seemed likely that the beaches would remain open and that ORV drivers would not be ticketed ? at least until the Park Service could get further clarification and information about what Boyle intended his order to accomplish.
However, it was now possible that, at any time, a third party could go to Boyle and request that he issue an injunction to prohibit ORV use at Cape Hatteras.
That third party could be Defenders of Wildlife, which has twice filed notices of intent to sue the National Park Service over its failure to meet the legal requirements of protecting wildlife and managing ORVs. Or it could be another group or individual.
Rylander will not say whether or not his group is talking about seeking an injunction.
?It?s an obvious concern,? said Murray. And he added that if Boyle issues an injunction, the park would comply.
The threat of closing the beaches to ORVs distresses visitors, worries islanders, and terrifies business owners.
And it leaves many asking how the situation got to this point on Hatteras and Ocracoke where driving on the beaches was a way of life before a highway was built in the 1950s and still is today. Furthermore, in the view of many, beach driving is forever intertwined with the island economy.
THE PAST
The Cape Hatteras National Seashore has been required to have an ORV management plan to protect natural resources under executive orders issued in 1972 and 1977 and other federal regulations.
Today, 35 years later, the seashore still has no long-term plan. And no one seems to know exactly why.
Bill Harris was superintendent of the seashore from 1975-1981. He said a draft plan was developed before his arrival in 1975, and that many were not happy with it. Harris supervised a series of seven public meetings across the state and in Virginia to get public input into the plan. A finished plan was sent forward to Park Service headquarters in Washington in 1978. It was never published in the Federal Register, formalized, or adopted.
“I honestly cannot tell you why,” Harris, who now lives in Kitty Hawk, said in a 2005 interview.
However, he does note that the seashore began to operate by the plan, which called for establishing ramps for beach access and ORV corridors that provided “roads” that didn?t meander all around the dunes. He says graders were used to forge the ORV roads, one of which was the Pole Road to Hatteras Inlet, which is now partially closed.
Harris was followed as superintendent by Tom Hartman, who served for 13 years until his retirement in 1994. Hartman and his staff refined the 1978 plan.
“We worked it up and sent it up, and then nobody could find it,” Hartman, who now lives in Southern Shores, said in 2005. “Once it got to Washington, nothing ever came back.”
Patricia Hooks, former Southeast Regional Director of the National Park Service, also could not say exactly what happened to past efforts to formalize an ORV plan on the seashore.
“There is nothing that I can say that would make a delay from 1978 to 2005 justifiable,” she said, also in a 2005 interview. “I can apologize again and again and say it?s not a way to operate, not a way that the National Park Service should operate.”
Hooks added that she wished that the plan had been formalized, which “would have made for a better situation for all involved.”
Though the 1978 plan seems to have fallen into a bureaucratic black hole somewhere, park superintendents have more or less used it for the last several decades.
Since Hartman retired in 1994, the seashore has had a revolving door of superintendents. There were four superintendents and two acting superintendents in the 10 years before Mike Murray arrived in December of 2005.
During that time, Hooks thinks it is fair to say that park superintendents were focused not on beach-access and natural resource issues but on the controversial and much publicized move of the Cape Hatteras Lighthouse in 1999 and the centennial of the Wright Brothers first flight in 2003. She said she thinks saving the lighthouse from the encroaching ocean and directing energies to the centennial were the “right things to do,” but that they did distract park leaders from other issues. And she noted, so did Hurricane Isabel in 2003, just months before the centennial celebration.
However, while seashore leadership was focused on lighthouses and centennials, conservation groups were increasingly focused on the use of ORVs at Cape Hatteras and other national parks and on what they perceived as a failure to adequately protect natural resources.
In 1999, the Bluewater Network, a consortium of environmental groups, petitioned the National Park Service for rulemaking in all of its parks that allow ORVs. Since then, three more groups have asked for rulemaking. In May, 2005, the Defenders of Wildlife filed a notice of its intent to sue the seashore over its lack of a management plan, its failure to consult with the United States Fish and Wildlife Service about management of the piping plover and other protected shorebirds, and its failure to conduct an environmental review, as required by the National Environmental Policy Act (NEPA).
The lack of consultation with USFWS about management of the shorebirds, which is required by law, is an issue with environmental groups. And, again, in 2005, Hooks could not provide an explanation about why that had not happened. She said it came to her attention in 2004 that NPS did not have a “biological opinion” from USFWS, and that the situation was being remedied.
THE PRESENT
National Park Service officials are now serious about an ORV management plan.
Lawrence Belli, who was superintendent from 2001 until his abrupt dismissal in 2005, began the process of developing a long-term ORV management plan.
In 2004, he dusted off the long-forgotten 1978 ORV management plan and announced that it would guide park policy on beach driving until a longer range plan could be developed.
Belli also announced that the Park Service hoped to use negotiated rulemaking, a process that has been used in other parks, to develop that plan.
Negotiated rulemaking is a process by which park officials and a committee of people representing beach user groups and others that have a stake in the outcome sit down together and achieve a consensus on what the rules should be. It is based on the principle that agencies can make better rules by working with the people who are affected. The alternative is that the Park Service officials develop the plan internally and then submit it for public comment.
In early 2005, the park began working with the U.S. Institute for Environmental Conflict Resolution, which in turn hired two contractors, to conduct meetings to determine if negotiated rulemaking would work at the Cape Hatteras National Seashore.
The contractors interviewed stakeholders in the spring of 2005 to determine if negotiated rulemaking was a feasible approach. In December, 2006, they issued a report that the process could work at the seashore and proposed 25 committee members. They included representatives of the federal, state, and local governments, civic and homeowner associations, tourism officials, ORV access and recreational fishing groups, commercial fishermen, and environmental and conservation groups.
Meanwhile, Belli abruptly departed in early 2005. He was followed by two acting superintendents, who were preoccupied for most of their tenure with beach closures for the threatened piping plover and other protected shorebirds.
Finally, in December of 2005, the seashore got a new superintendent. Mike Murray came to Cape Hatteras from the Cape Cod National Seashore, where negotiated rulemaking had been successfully used to devise an ORV management plan.
With Murray?s arrival, planning for ORV management and resource protection moved into high gear.
In January, 2006, NPS issued an Interim Protected Species Management Plan that was to guide management of protected species for three years. That plan was approved on July 13, just days before Judge Boyle?s ruling.
In December, 2006, the Park Service published in the Federal Register its intent to develop a long-term management plan and environmental impact statement, which is required by the National Environmental Policy Act, and the initial public scoping for that plan has been completed.
The Park Service consulted with Fish and Wildlife and last year issued the required ?biological opinion? on management of natural resources in the park.
Finally, after many months of getting public comment on the makeup of the negotiated rulemaking committee and then tinkering with the membership, the Park Service published a notice of intent to proceed with the process and a final proposed list of committee members in the Federal Register in late June.
The public comment period on that final notice and committee members ended July 30, 2007. The proposed committee members have had two informational sessions this year, but the Secretary of Interior must appoint the committee before it can begin its work of developing a long-range ORV plan.
THE FUTURE
It seems likely that the fact that there has not been an ORV management plan at the seashore is a prime example of the federal bureaucracy at work.
Plans were developed and where they went no one knows. For decades, little or no attention was paid to the fact that there was no ORV plan.
For a long time, it probably didn?t seem that important. Seashore superintendents went about the business of balancing their sometimes conflicting missions of allowing recreational opportunities for seashore visitors and protecting the natural resources of the fragile barrier islands.
They were good stewards of the seashore, as stewardship was understood and expected in those days, some 30 years ago.
In August, 2007, just after Judge Boyle issued his order declaring beach driving illegal, Bill Harris talked about his years as superintendent here.
?The issues that face park superintendents today,? he said, ?are not all that different from when I was there.?
However, dealing with them is much more complicated.
Harris arrived at the Cape Hatteras National Seashore in 1975, when all 73 miles of park beaches were open to ORVs. Today, only about half of the seashore beaches are open to vehicles and some are closed seasonally.
He arrived just two years after the Endangered Species Act was passed by Congress.
?We didn?t have endangered species here,? Harris said. ?Or at least if we did, we didn?t know it.?
Beaches were roped off for nesting shorebirds, but no one was talking about piping plovers. The piping plover was not listed as a threatened species until 1986. The U.S. Fish and Wildlife Service issued its first recovery plan for the Atlantic Coast piping plover population in 1988 and revised it in 1996.
Harris said he was required to have a plan to protect the flora and fauna in the park, but, he added, there was no consulting with USFWS, nor were there lawsuits by conservation groups.
?Superintendents used to have a lot more discretion than they have today,? he said.
He remembers his efforts to finalize an ORV management plan as ?a miserable time.?
?I thought I had lost every friend that I had over this issue,? he says.
That part probably hasn?t changed.
But one thing is for sure. That is that superintendents have many more federal regulations with which to comply, have an ever increasing number of visitors who want access to the beaches ? with and without ORVs ? and have a growing number of environmental groups demanding that the Park Service comply with federal laws for protecting resources.
?This is a wake-up call for the National Park Service and for ORV advocates,? Harris says. ?It?s incumbent on both to find a solution.?
Jason Rylander of Defenders of Wildlife agrees.
?This is a wake up call that it (the ORV management plan) needs to move expeditiously,? he said.
?If they are serious about preserving beach driving,? he added, ?it is incumbent on the National Park Service to keep the process up and running. The pace has been much too slow.?
Rylander said that Murray needs to set a timeline for continuing with the process of rulemaking and make sure he and his bosses at the regional and national levels of the Park Service are able and willing to make sure the deadlines are met.
That may be one of the few things on which Rylander and John Couch, president of the Outer Banks Preservation Association, agree.
OBPA was formed in 1978 to oppose many of the beach-driving regulations in the plan that Bill Harris and his staff were overseeing. It was inactive for years and then re-activated in 1999 when the new efforts to formulate an ORV management plan began again. The group advocates free and open access to all park beaches.
?We have a promise from Mike Murray,? Couch said last month, ?that his superiors will speed this along.?
After all, Couch asked, ?Are you to penalize visitors and people who live and do business here for the shortcomings of our own bureaucracy??
OBPA want free and open ORV access to the beach for any number of reasons. There is, of course, the island tradition of beach driving. Then there is the fact that ORVs provide access to some of the best fishing spots on the East Coast. And, finally, there is the concern that closing the beach to vehicles would be catastrophic for the economy of the islands.
?I think there would be an immediate downward economic spiral that would happen as quickly as a tsunami hits,? he said.
?There?s no doubt in my mind,? said Allen Burrus, Hatteras Island?s representative on the Dare County Board of Commissioners and co-chairman of that body, ?that it would ruin the economy.?
Burrus says the county commission supports keeping beaches open to ORVs, is very concerned about Judge Boyle?s order, and is exploring steps, including legal action, to be taken if the beaches are closed to ORVs.
Murray, for his part, has reiterated his and his staff?s commitment to proceed with negotiated rulemaking and to complete the ORV management plan ? even as they try to deal with the judge?s order and any fallout that might happen.
Mike Murray has a good deal of support from a variety of groups on Hatteras and Ocracoke and among folks who haven?t always had warm relationships with his predecessors.
It does seem ironic that the superintendent who has done more in not quite two years to straighten out the Park Service?s previous legal oversights than his predecessors is the man who may have to oversee closing the seashore beaches to vehicles.
It?s a further irony that the events that could lead to a closure were set in motion not by a powerful and well-funded environmental organization, but by the actions of one irresponsible ORV driver.
He was fined $100, but the rest of us may pay more dearly if the beaches are closed to ORVs.
We should remember that the next time we are driving on the seashore?s beaches ? assuming, of course, that we have that opportunity.
POSTSCRIPT — 2012
Saying that a lot has happened since I wrote that article in September of 2007 is an understatement.
We now know that in October, 2007, Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center, filed a lawsuit against the National Park Service over its lack of an ORV management plan. The groups also claimed that the Interim Protected Species Management Plan did not go far enough to protect nesting turtles and birds.
Participants in negotiated rulemaking had to agree not to file a lawsuit during the process. Just a few days after the lawsuit was filed, proposed members of the RegNeg committee met to discuss whether or not they wanted to continue. They said they did and their reasons were discussed in an article published on the Island Free Press site in November, 2007.
In retrospect, some members of the committee regret that decision.
The first meeting of the RegNeg committee was in January, 2008. The committee disbanded in February, 2009, after a disastrous and contentious year of meetings. Its members did not reach a consensus. (Articles about the meetings can be found in The Island Free Press Archives for 2008 and 2009 under the Beach Access and Park Issues heading.)
In early 2008, the Cape Hatteras Access Preservation Alliance and Dare and Hyde counties were allowed by Judge Boyle to become defendant-intervenors in the lawsuit against the Park Service.
In February, even as the Reg Neg committee was still meeting, the environmental groups filed for a preliminary injunction to close the seashore beaches until seashore officials had an ORV plan in place.
Boyle scheduled a hearing on the request for April 4. Meanwhile, parties to the lawsuit began discussing a settlement.
The judge had made it clear that if the parties could not agree on a settlement that he was prepared to close the beaches to ORVs.
The plaintiffs, the defendants, and the defendant-intervenors did reach a settlement that Boyle blessed on April 30, 2008. The consent decree would now manage beach driving until there was a management plan and final rule.
The consent decree brought sweeping changes to the historic and traditional uses of the seashore beaches. There were larger-than-ever buffers for nesting birds and turtles that had the effect of closing popular areas, such as the points and spits, for the entire breeding season and a ban on driving on the beach at night ? among other things.
Again, in retrospect, many advocates for more reasonable beach access think that CHAPA and Dare and Hyde counties should not have signed the consent decree. However, at the time, beach access advocates and county officials thought the consent decree was better than total closure of the beaches to ORVs.
And, at that time, there was still hope that a better plan would be formulated through negotiated rulemaking.
The consent decree called for the seashore to finalize the ORV management plan and final regulation by April of 2011.
First, the park moved to finish the process of writing an Environmental Impact Statement, which is required for rulemaking under the National Environmental Policy Act.
Public scoping meetings on the EIS began in January, 2008, when the Park Service presented several alternatives for ORV management. At the time, park officials hoped that negotiated rulemaking would produce a preferred alternative.
Since it did not, the seashore developed its own preferred alternative, which officials said was based on ideas that were presented by both sides in negotiated rulemaking.
The Park Service?s preferred alternative, Alternative F, was even more unpopular with beach access advocates than the hated consent decree.
There were public meetings and public comment periods all along the way, though many access advocates ended up feeling that the Park Service did not listen to them.
A Draft Environmental Impact Statement was issued in March, 2010. A Final Environmental Impact Statement was issued in November, 2010. A Record of Decision on the final EIS was signed in December, 2010.
A proposed final ORV regulation was published in July, 2011. The final rule was published in January of this year and was effective on Feb. 15.
Meanwhile, on Feb. 9, CHAPA filed a lawsuit again the NPS and other federal defendants in federal court in Washington, D.C.
On Feb.28, U.S. Rep. Walter Jones, R-N.C., introduced a bill to overturn both the final ORV rule and the consent decree. It?s the third attempt to get a bill through Congress on beach access and seashore management. The first two were unsuccessful.
On Feb. 23, Defenders of Wildlife, the National Audubon Society, and the National Parks Conservation Association filed a petition to intervene in the CHAPA lawsuit.
And, finally, on Feb. 24, Judge Boyle issued an order keeping the consent decree in place for at least the next 120 days while the CHAPA lawsuit moves through the Washington, D.C., court.
Today, the seashore continues to be managed by the Park Service?s ORV plan and final rule until the legal and legislative issues are settled.
There are more articles about the last 4 ? years on the road to the final plan ? and links to documents ? than you probably have time to read in this lifetime in The Island Free Press Archives. They are arranged by year. Look under the Beach Access Issues category. Also there are many blogs on beach access that you can find by clicking on ?Shooting the Breeze? at the top of the Front Page and looking in those archives.
For more information
Mike Murray, superintendent of the Cape Hatteras National Seashore (CAHA), has posted two recent letters on the National Park Service (NPS) Planning, Environment and Public Comment system (PEPC) website. The first letter provides the NPS comments on the U.S. Fish & Wildlife proposal to designate critical habitat for wintering piping plover at the seashore. The second is a letter from Murray to George E. B. Holding, the United States Attorney for the Eastern District of North Carolina, regarding the current status of off-road vehicle management at the seashore. The letter to Holding is in response to the July 17 court order issued by U.S. District Court Judge Terrence W. Boyle. On Aug. 1, an assistant U.S. attorney presented the letter to Judge Boyle during a court session.
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?There has been considerable interest in our comments on proposed critical habitat and our response to the court order, so we are making these documents available to the public? Murray said.
The letters can be accessed online at: http://parkplanning.nps.gov
The letter to the U.S. Fish & Wildlife Service is located under the Interim Protected Species Management Strategy Document List. The letter to the U.S. Attorney is located under the Cape Hatteras National Seashore Off-Road Vehicle Negotiated Rulemaking and Management Plan/EIS Document List.
