U.S. District Court Judge Terrence Boyle has scheduled another status conference in the case of a lawsuit filed against the National Park Service by environmental groups in 2007 over the lack of an off-road vehicle plan at the Cape Hatteras National Seashore.
The status conference will be on Wednesday, July 31, at 11 a.m. in the federal courthouse in Elizabeth City. It is open to the public.
The lawsuit was settled with a consent decree in April of 2008 that dictated the park?s management of ORV access and resource management until the seashore had an ORV plan and final rule.
Officially, the case was closed on April 30, 2008, though Boyle has continued to have regular status conferences about the status of ORV planning and resources.
The consent decree was scheduled to end when the seashore implemented its ORV plan and final rule, which happened in February of 2012
So the case is closed and the consent decree ended more than a year ago, but Boyle has continued to have status conferences on the plan and the protection of birds and turtles at the seashore. He had a status conference earlier this year, and he had two last year.
Interestingly, Boyle is also presiding over a lawsuit filed last February by the Cape Hatteras Access Preservation Alliance to overturn the park?s final ORV plan. Defendants in that case include the Department of the Interior and the National Park Service. The same environmental groups that sued the Park Service in 2007 have been allowed as defendant-intervenors on the side of the federal government.
That suit was filed in federal court in Washington, D.C., but was sent back to the Eastern District of North Carolina and assigned to Boyle earlier this year.
That lawsuit charges that the Park Service did not follow the proper procedures in formulating the final rule and ORV plan. It does not directly challenge any part of the plan.
Although some attorneys find it strange that Boyle continues have conferences on the 2007 case, they all show up and dutifully report to the judge.
?I assume it?s an opportunity for Judge Boyle to continue hearing about wildlife populations in the park,? says Bobby Outten, attorney and manager for Dare County, which was a defendant-intervenor in the 2007 lawsuit and a party to the consent decree.
The status conferences usually are friendly chats between the judge and Derb Carter of the Southern Environmental Law Center about what a rousing success both the consent decree and ORV plan have been.
Boyle usually asks to hear from the seashore superintendent or his deputy, who have consistently made the point that the nesting successes of the past few years do not really mean anything until a pattern has been established and more data collected.
The attorney for the federal agencies usually makes a brief comment, and Boyle does not ask to hear from anyone else.
Carter usually entertains the judge with the terrific increase in nesting success under the consent decree and the ORV plan.
Thus it will be interesting to see what he ? or some other SELC lawyer ? has to say about this year?s nesting ? especially about the only two federally protected species, sea turtles and piping plovers.
Sea turtle nesting is down on the seashore. There were a total of 154 nests at this time last year. This year, there have been only 115.
Piping plover nesting is down, as is the number of fledged chicks.
Last year, there were a total of 22 piping plover nests on the seashore. This year, there have been only nine.
This time last year, eight chicks had fledged. To date this year, only three chicks have fledged.
The four chicks in the brood at Ramp 43 were still accounted for and should be ready to fledge. They are being carefully watched by Park Service biotechs, Randy Swilling, the seashore?s natural resources program manager said Wednesday.
?Also, we are not seeing much re-nesting activity,? he said in an e-mail, ?so hopefully we can get that area opened back up for ORVs and pedestrians in the very near future. We are definitely over the hump with the closures, and for the remainder of the year we can get some beach opened back up.?
The best possible outcome on piping plover nesting this year is seven fledged chicks, which would make it the lowest number in the past four years. In 2010, 15 chicks fledged. Ten fledged in 2011, and 11 in 2012.
In addition, Larry Hardham, president of the Cape Hatteras Anglers Club and a member of the failed negotiated rulemaking committee, shared some numbers he has worked up on fledge rates for piping plover chicks per nesting pair.
Hardham notes that the U.S. Fish and Wildlife Service goal in the recovery plan for the threatened piping plover is 1.5 chicks per nesting pair.
Cape Hatteras National Seashore has reached that goal only one time since 1992 ? two chicks per nesting pair in 2005 before there was either a consent decree or an ORV plan. The seashore came close in two other years before the consent decree ? in 1998 and 1999. And it came close in one year since the new buffers and regulations ? in 2010. (You can see the charts by clicking on the links at the end of this blog.)
?Their success here does not come close to reaching the recovery goal,? Hardham said.
The Park Service, he said, may be ?enticing them here for no good reason.?
?The good, productive birds may be more successful someplace else,? he added.
Both Cape Hatteras and Cape Lookout are at the southernmost edge of the piping plover nesting area. Most of the birds on the Atlantic Coast nest on northeastern beaches.
In any case, we are eager to hear how Derb Carter and his colleagues will spin this year of less than spectacular nesting.
Could it be that both shorebird and turtle nesting success on the seashore is cyclical and dependent on many more factors than ORVs on the beach, such as weather and predators.
We will have a report on the status conference on the IFP website
FOR MORE INFORMATION
Click here to see a chart comparing piping plover fledge rate at Cape Hatteras and Cape Lookout national seashore.
Click here to see a chart of fledge rates at Cape Hatteras and the rate as a percentage of the USFWS goal under the recovery plan for piping plovers.
Click here to see a graph of fledged piping plover chicks per nesting pair at Cape Hatteras and Cape Lookout.
Here are some links to articles about other status conferences in Judge Boyle?s courtroom:
