Just when you think things could not get much stranger on the issue of who?s managing the Cape Hatteras National Seashore, U.S. District Court Judge Terrence Boyle has another status conference on the 2008 consent decree.
The consent decree was the resolution of a lawsuit filed in October, 2007 by the Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center, against the National Park Service for its lack of an off-road vehicle regulation on the Cape Hatteras National Seashore. The groups complained that there were not adequate protections in place for nesting birds and turtles on the seashore.
Boyle allowed the Cape Hatteras Preservation Alliance and Dare and Hyde counties to enter that lawsuit as defendant-intervenors on the side of the National Park Service.
All parties settled the case in April, 2008, with a consent decree that put in place much more restrictive regulations for access to the seashore beaches and much larger buffers for nesting birds and chicks that have closed down large areas of the seashore beach from spring into summer.
The consent decree was supposed to end when the Park Service had a final off-road vehicle plan and special regulation, which became effective on Feb. 15.
So some legal minds think there is no longer a consent decree.
But Boyle has shown no inclination to let go of his management of the seashore, and now a Washington, D.C., federal judge has said he is inclined to send a lawsuit filed by the Cape Hatteras Preservation Alliance to stop the final plan and rule back to Boyle?s courtroom.
Boyle?s status conferences are remarkable in several ways, not the least of which is how he defers to Derb Carter of the Southern Environmental Law Center and addresses most of his questions and comments to Carter.
He questions the Park Service and the assistant U.S. attorney as somewhat of an afterthought.
Carter and Boyle are strange bedfellows.
Environmental lawyers are known for their liberal bent. And Boyle, who is 66, is a Jesse Helms Republican.
He was a legislative aide to Helms, one of North Carolina?s most well known conservatives, and Helms was instrumental in getting Boyle nominated to the Fourth Circuit U.S. Court of Appeals in Richmond.
Boyle was first nominated under President George H.W. Bush in 1991 and again by President George W. Bush in 2001. His nomination was blocked by Democrats who think he has a lousy record on such issues as civil rights.
His nomination from 2001 until 2007 was the longest in history not acted upon by the U.S. Senate.
Some judges do grant interviews with the media occasionally, but apparently not Boyle. I?ve been told twice that he does not give interviews.
But I and many other sure would like to know what this judge is thinking about.
His lack of understanding of the access issue at the seashore becomes more apparent with each of his status conferences.
At today?s status conference his responses indicated that he didn?t know that there was an interim protected species management plan in place before the 2007 lawsuit was filed.
At each conference, he has been obsessed with public safety, which has never been an issue with ORVs on the seashore. It?s not like folks get run over by ORVs on the seashore on a regular basis. It rarely, if ever, has happened.
Today, he opined that there might be more people driving on the beach than ever because they are buying permits, and, hey, if you buy one, you are going to drive on the beach.
He then likened the repeal of the final ORV plan and rule to ?repealing the Declaration of Independence.?
He takes Carter?s word for the miraculous increase in nesting birds and turtles, and no one ever questions SELC?s opinion of the success of the consent decree.
Boyle is obviously eager to keep all of the litigation in his courtroom, and Derb Carter said SELC won?t oppose it. Why would they when they have the chummiest possible relationship with the judge?
Renfer, the federal attorney, seems all in favor.
CHAPA will object, but will it do any good?
Today Boyle complained that CHAPA was ?forum shopping? ? or choosing a court more favorable to its claims ? by filing in Washington.
And the environmental groups were not ?forum shopping? when just months after Boyle threw the book at a reckless driver on the seashore and declared ORV use illegal on the beaches, they rushed into his court to file a lawsuit?
The CHAPA complaint asks the court to determine that the Park Service acted improperly and to prevent NPS from implementing its final plan and rule, which became effective Feb. 15, and in violation of the National Environmental Policy Act in its rulemaking process.
Boyle apparently just doesn?t get it that there has been little or no transparency in this rulemaking process and has never asked any question about the process ? as far as I can tell from reports on his conferences.
He has never asked about the science behind the consent decree or the economic impacts.
The future of the NPS rulemaking is still playing out in Congress and in the courts and has a way to go. A different judge, such as Emmet Sullivan, looking at the issues would be a breath of fresh air.
But, at least for now, Boyle seems to think there is still a consent decree, that he can continue to have conferences, and that he is the savior of the Cape Hatteras National Seashore.
