Judge Boyle schedules status conference on Dec. 2 in Raleigh

U.S. District Court Judge Terrence Boyle has scheduled a status conference on the consent decree that settled a lawsuit against the National Park Service over its lack of an off-road vehicle management plan at the Cape Hatteras National Seashore.

The conference will be on Thursday, Dec. 2, at 2 p.m. in Courtroom 2 on the seventh floor of the Terry Sanford Federal Building and Courthouse in Raleigh.

A notice of the status conference was sent to all of the parties to the lawsuit last Monday, Nov. 22.

Most of the parties to the lawsuit said last week that the Nov. 22 notice was the first that they had heard about the conference and that they did not know any specifics on why Boyle called it – including Jason Rylander, attorney for Defenders of Wildlife, Mike Murray, superintendent of the Cape Hatteras National Seashore, and Bobby Outten, Dare County manager and attorney, and John Couch of Outer Banks Preservation Association and the Cape Hatteras Access Preservation Alliance.

The lawsuit against the National Park Service was filed in October, 2007, by the National Audubon Society and Defenders of Wildlife, which were represented by the Southern Environmental Law Center.  Later Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance were allowed by Boyle as defendant-intervenors in the case.

The legal action was settled by a consent decree, signed onto by all of the parties to the lawsuit and agreed to by Boyle, on April 30, 2008.

As part of the consent decree, the National Park Service must submit resource management annual reports to all parties and the court.  The reports are usually issued in January.

In the two years since the consent decree, Boyle has summoned the parties to a status conference twice – on March 19, 2010, and March 5, 2009 – after the Park Service issued its annual report.

This time around, Boyle has not waited for the annual reports, so some of the parties to the consent decree are assuming that the judge wants to discuss the Final Environmental Impact Statement of Off-Road Vehicle Rulemaking on the seashore, which was issued on Nov. 15.

The National Park Service has not had a rule for ORV operation on the seashore, even though it was required to implement one by executive orders that date back to the 1970s.

According to the terms of the consent decree, the Park Service is required to complete an ORV management plan for the seashore by Dec. 31 of this year and complete and promulgate the final special regulation by April 1, 2011.

The Park Service issued a Draft Environmental Impact Statement in March of this year.  After 60 days of public comment, the park compiled and responded to the comments and issued a Final Environmental Impact Statement this month.

Seashore Superintendent Murray has said he expects a Record of Decision on the FEIS by the end of this year.

The FEIS is a stepping stone to a special regulation for ORVs, but the Park Service still has work to do to finish it by April 1.

Murray has said that the Park Service will issue a proposed ORV rule early in January.  That rule is scheduled to get 60 days of public comment before a final regulation is published and promulgated.

Murray has said that the Park Service intends to meet the April 1 deadline.

However, for anyone who does the math, it’s apparent that the federal government may not meet the deadlines that Judge Boyle signed off on when he signed the consent decree in 2008.

Privately, parties to the consent decree assume that the timing of this status conference – before the park’s annual report on protecting resources – means that the judge wants to talk to the parties about the FEIS, the timetable for ORV rulemaking, or other related issues.

Boyle has been outspoken in the past and in his two previous status conferences about the park’s non-compliance and his interest in seeing that ORV rules are made and enforced.

Federal court proceedings are open to the public.

FOR MORE INFORMATION

To read about U.S. District Court Judge Terrence Boyle’s status conference earlier this year – March 19, 2010 – go to http://islandfreepress.org/2010Archives/03.20.2010-ReportOnJudgeBoylesStatusConferenceOnTheConsentDecree.html

To read about the judge’s status conference on March 5, 2009, go to http://islandfreepress.org/2009Archives/03.05.2009-JudgeBoyleGetsAnUpdateOnSeashoreManagementAtLowkeyConference.html