He signed it
U.S. District Court Judge Terrence W. Boyle today signed a consent decree that will settle a lawsuit by environmental groups over off-road vehicle use on The Cape Hatteras National Seashore.
The seashore?s beaches will remain open to ORVs, though with more restrictions than islanders and visitors are used to.
And it won?t take long for beach drivers to notice the changes.
The settlement is effective tomorrow, May 1, and seashore superintendent Mike Murray says that Park Service personnel will be posting signs at all seashore ramps that the beaches are closed to ORVs from 10 p.m. until 6 a.m.
The night-driving closures are one of the differences between the interim plan that the Park Service had been operating under and the terms of the settlement.
Another difference that beach drivers ? and even pedestrians ? will notice is an increased buffer around piping plover nests once the chicks have hatched.
The settlement resolves all issues in the case that began last October when Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center, filed suit against the National Park Service over its Interim Protected Species Management Plan that is to regulate ORV use and species management until a long-term rule is developed through negotiated rulemaking and an Environmental Impact Statement.
The plaintiffs claim that ORV use on the seashore is illegal, since the Park Service does not have a special rule to regulate it, as has been required since 1972. Also, they claim that the interim plan does not go far enough to protect wildlife in the park, especially shorebirds and sea turtles. In addition, the plaintiffs asked Boyle in February for a temporary injunction to prohibit ORV use until the suit is settled on six popular areas of the seashore ? Bodie Island spit, Cape Point and parts of the South Beach, Hatteras Inlet, and the north and south points of Ocracoke.
The defendants are the National Park Service, the U.S. Fish and Wildlife Service, and others, including the director of the National Park Service and the superintendent of the Cape Hatteras National Seashore.
In December, Boyle allowed Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance to become defendant/intervenors in the lawsuit to represent the interests of the public.
In a filing with the court on the eve of today?s hearing, Murray noted that the consent decree will mean a ?significant reduction in ORV access during the peak summer season.?
Murray noted in his declaration to the court that in 2007, piping plovers nested at three locations ? Bodie Island spit, Cape Point, and the South Point of Ocracoke. If the threatened shorebirds nest in the same areas this summer, the three areas will be closed to ORVs for at least two weeks and perhaps longer. The length of closures will depend on where the birds nest and how the foraging birds and their chicks move along the beach.
``I am not happy with the outcome,? said Allen Burrus of Hatteras village, vice chairman of the Dare County Board of Commissioners. ?To further restrict access to some of the most enjoyable beach and fishing spots on the Cape Hatteras National Seashore is disappointing. Being happy that the consent decree only restricts access instead of banning it is like saying you?re glad you only have one headache ? not two.??
Boyle?s courtroom at the federal courthouse in Raleigh was filled with supporters of open beach access for today?s 2 p.m. hearing. And most of them would agree with Burrus ? that they don?t like the consent decree but can live with it and find it better than the alternative of shutting down popular areas of the beach ? or even shutting down the seashores beaches altogether.
In fact, when the hearing got underway with Murray answering questions and showing Boyle maps, some of the spectators thought from the judge?s questions to the superintendent that he was about to shut down the beaches.
?The judge did quiz Mike Murray for quite a while about his plan,? said Warren Judge, chairman of the Dare County Board of Commissioners. ?The overtone of his questions would lead you to believe that he might prefer to close down the beaches.?
?He gave every indication several times that he was going to close it down,? said Frank Folb of Avon, owner of Frank and Fran?s tackle shop and a member of the negotiated rulemaking committee that is working on a long-term plan for regulating ORV use on the seashore.
Rob Alderman, who owns the Hatteras Island Fishing Militia Web site and is active in access issues, said that Boyle seemed particularly bothered that the amount of beach being restricted to ORVs was reduced but that the number of ORVs on the beach was not being restricted ? resulting in the same number of vehicles on a smaller section of beach.
John Couch, president of the Outer Banks Preservation Association and an alternate on the negotiated rulemaking committee, said he thought Boyle ?reluctantly? signed the consent order after questioning Murray about carrying capacity of the beaches, permits, whether the ramps could just be chained off, how drivers would be educated and other issues.
?He asked a lot of questions about why the decree didn?t cover certain issues,? said Lawrence Liebesman of Holland and Knight in Washington, D.C., an attorney for the intervenors in the lawsuit.
Liebesman said Boyle seemed ?troubled? by the fact that many of his concerns were not covered by the decree, but the judge eventually said he wasn?t going to overrule the parties to the settlement.
Jason Rylander, attorney for Defenders of Wildlife, said that it was obvious that Boyle believes ORV use on the seashore is illegal and that the management is not adequate.
Liebesman said that Murray?s performance at the hearing answering numerous questions by Boyle was ?poised? and ?methodical.?
?It appears that he turned the judge around,? the intervenors? attorney said. ?It was a tremendous effort on the part of Mike Murray.?
Rylander agreed that Murray did a ?commendable job? and said that Boyle acknowledged Murray?s work as a public servant.
The ORV access advocates feel that they had no choice but to agree with a settlement that isn?t in their best interests. Rylander, on the other hand, said that he thinks the consent decree is a ?good outcome for everyone? and said that the fact all the parties could come together is a ?win-win situation.?
The resources are better protected, Rylander said, and there is still ?significant ORV access.?
?It?s the end of an inning, but the game isn?t over yet,? Murray said after his day in court, noting that he has his eye on the ?long-term? solution ? a special rule on ORV use on the seashore. Now he hopes he can spend more time on that long-term solution.
That, however, will be Mike Murray?s next challenge.
A negotiated rulemaking committee of 30 stakeholders and their alternatives just started officially meeting in January to formulate long-term ORV regulations.
And the lawsuit by the environmental groups, which have a seat at the negotiating table, has been the elephant in the room since the first day of meetings.
Today, Carla Boucher, an attorney and member of the committee representing United Four Wheel Drive Associations, asked Murray, as the designated federal official in charge, to remove the Audubon Society, Defenders of Wildlife, and the Southern Environmental Law Center from the committee.
Everyone on the committee has been hanging in there, but there are now indications that other committee members may join Boucher?s call for dismissal of the environmental groups that sued.
Boucher suggests other local, regional, and national groups to replace the three groups she wants removed from the committee. Other committee members say they favor dismissing the three members that sued and reducing the committee by three of the ORV access advocates. That would reduce the committee to 24 members, which some think would make it easy to reach consensus.
The request to Murray to dismiss the environmental groups, said Rylander, is an ?unnecessary and divisive delay tactic that will impede work of the committee.?
According to the consent decree, the National Park Service must finish work on the long-term plan by Dec. 31, 2010, and publish a final rule by April 1, 2011.
The negotiated rulemaking committee will meet again next week, on May 8 and 9, at the Comfort Inn Oceanfront South in Nags Head. The day-long meetings begin at 8:30 a.m. and are open to the public. There are usually public comment periods at noon.
Murray said today he isn?t sure yet how he will address Boucher?s request to boot the environmental groups. He had not even had time to read the request.
However, negotiated rulemaking is once again at a crossroads on the eve of the committee?s next meeting.