Judge Offers Strange Comments in Cape Hatteras Access Dispute
Residents, business owners, tourists, anglers and Off-Road-Vehicle users at Cape Hatteras National Seashore had little to be pleased after a July 27 status hearing in Raleigh, held by U.
S.
District Court Judge Terrence, to determine how well beach-access rules are working and legal challenges to his ruling.
Boyle, who presided during a 2008 consent decree's creation -- muffling legal strife between The Audubon Society, Defenders of Wildlife and Southern Law Environmental Center versus the National Park Service, Hatteras residents, ORV groups and local villages' governing bodies -- apparently, gave those who want fewer restrictions on beach access less-than-encouraging hope.
The history of the dispute is complicated.
Cape Hatteras National Seashore (CAHA), created in 1937 by federal edict, stretches from Oregon Inlet to the southern tip of Ocracoke Island, a distance of about 76 miles.
After CAHA's formation, anglers and the public enjoyed almost unfettered access, including beach driving.
Then local towns set up regulations banning beach access to motorized vehicles inside their jurisdictions during peak tourist months.
Later, following creation of the Environmental Protection Agency in the early 1970s, the National Park Service began seasonally to restrict beach driving at some sections to protect threatened and endangered shorebirds and nesting sea turtles.
The NPS, under orders to submit an ORV plan to Washington, D.
C.
, did so in the late 1970s, but the plan wasn't codified.
In the next 35-year interim, NPS managers used on-site discretion and observations to set ORV and pedestrian access rules, attempting to minimize conflicts between humans, birds and sea turtles.
However, The Audubon Society and Defenders of Wildlife began pushing for stricter federal rules, claiming shorebirds and turtles were being harassed by ORVs, tourists and their pets (as proof they cited little successful nesting and fledging of piping plovers and American oystercatchers chicks at CAHA, although no evidence exists ORVs and pedestrians are causes).
During the mid 2000s, the two groups upped the ante, demanding the Park Service put in a place a final, heavily-restrictive ORV/pedestrian access plan.
Until that time, NPS managed CAHA through an "interim protective species management" plan that provided reasonable ORV and pedestrian access while closing some sensitive areas.
To end continual sniping and the threat of lawsuits, NPS got the environmentalists and pro-access groups, plus community leaders and local representatives, to enter into a "negotiated rule-making" process, hoping for compromise.
But Audubon and DOW suddenly and without warning in 2007 filed a lawsuit, led by SELC, against NPS management of CAHA.
This legal action finally resulted in a consent decree formed in Boyle's courtroom in 2008.
NPS personnel that day roped-off large beach areas and drove stakes in the sand down to the waterline and posted signs to shut off many traditional beach-access areas.
Meanwhile, NPS was ordered to study birds, turtles and interactions with humans and set up a "final ORV plan," which went into effect February 15, 2012.
However, the Cape Hatteras Preservation Alliance immediately filed suit against the final ORV plan.
But it remains in place (including first-time $50 weekly and $120 yearly ORV beach-driving fees).
Boyle held his status conference meeting, as promised, July 27 in Raleigh.
But observers said almost all of his verbal exchanges were friendly information-gathering talks with SELC lawyer Derb Carter, who informed the judge of two Congressional bills, one already passed in the House and one awaiting vote in the Senate that would revert the NPS final rule to the old interim agreement (before any lawsuits were filed)..
Boyle, a Jesse Helms appointee, then made some strange comments.
He didn't seem aware that the NPS interim plan was put in place during 2007.
"What do you mean 'interim plan'?" he said to Carter.
"That was no plan at all.
" Boyle also asked Carter what experience he had with Congress vacating the National Environmental Policy Act.
He then compared the prospect of Congressional intervention in the CAHA beach access issue to "repealing the Declaration of Independence.
" Boyle also facetiously asked: "Why not just pave the beach and open it to all drivers all the time, like a big amusement park, no discrimination? Anyone who wanted to could walk to Cape Point.
" He also said NPS could "just create ramps in the Grand Canyon National Park so everyone could walk down to the river.
" CHAPA's lawsuit, filed in the District of Columbia, was assigned to Judge Emmet Sullivan.
However Sullivan has raised the possibility of transferring the case back to Boyle - more bad news for pro-access groups.
S.
District Court Judge Terrence, to determine how well beach-access rules are working and legal challenges to his ruling.
Boyle, who presided during a 2008 consent decree's creation -- muffling legal strife between The Audubon Society, Defenders of Wildlife and Southern Law Environmental Center versus the National Park Service, Hatteras residents, ORV groups and local villages' governing bodies -- apparently, gave those who want fewer restrictions on beach access less-than-encouraging hope.
The history of the dispute is complicated.
Cape Hatteras National Seashore (CAHA), created in 1937 by federal edict, stretches from Oregon Inlet to the southern tip of Ocracoke Island, a distance of about 76 miles.
After CAHA's formation, anglers and the public enjoyed almost unfettered access, including beach driving.
Then local towns set up regulations banning beach access to motorized vehicles inside their jurisdictions during peak tourist months.
Later, following creation of the Environmental Protection Agency in the early 1970s, the National Park Service began seasonally to restrict beach driving at some sections to protect threatened and endangered shorebirds and nesting sea turtles.
The NPS, under orders to submit an ORV plan to Washington, D.
C.
, did so in the late 1970s, but the plan wasn't codified.
In the next 35-year interim, NPS managers used on-site discretion and observations to set ORV and pedestrian access rules, attempting to minimize conflicts between humans, birds and sea turtles.
However, The Audubon Society and Defenders of Wildlife began pushing for stricter federal rules, claiming shorebirds and turtles were being harassed by ORVs, tourists and their pets (as proof they cited little successful nesting and fledging of piping plovers and American oystercatchers chicks at CAHA, although no evidence exists ORVs and pedestrians are causes).
During the mid 2000s, the two groups upped the ante, demanding the Park Service put in a place a final, heavily-restrictive ORV/pedestrian access plan.
Until that time, NPS managed CAHA through an "interim protective species management" plan that provided reasonable ORV and pedestrian access while closing some sensitive areas.
To end continual sniping and the threat of lawsuits, NPS got the environmentalists and pro-access groups, plus community leaders and local representatives, to enter into a "negotiated rule-making" process, hoping for compromise.
But Audubon and DOW suddenly and without warning in 2007 filed a lawsuit, led by SELC, against NPS management of CAHA.
This legal action finally resulted in a consent decree formed in Boyle's courtroom in 2008.
NPS personnel that day roped-off large beach areas and drove stakes in the sand down to the waterline and posted signs to shut off many traditional beach-access areas.
Meanwhile, NPS was ordered to study birds, turtles and interactions with humans and set up a "final ORV plan," which went into effect February 15, 2012.
However, the Cape Hatteras Preservation Alliance immediately filed suit against the final ORV plan.
But it remains in place (including first-time $50 weekly and $120 yearly ORV beach-driving fees).
Boyle held his status conference meeting, as promised, July 27 in Raleigh.
But observers said almost all of his verbal exchanges were friendly information-gathering talks with SELC lawyer Derb Carter, who informed the judge of two Congressional bills, one already passed in the House and one awaiting vote in the Senate that would revert the NPS final rule to the old interim agreement (before any lawsuits were filed)..
Boyle, a Jesse Helms appointee, then made some strange comments.
He didn't seem aware that the NPS interim plan was put in place during 2007.
"What do you mean 'interim plan'?" he said to Carter.
"That was no plan at all.
" Boyle also asked Carter what experience he had with Congress vacating the National Environmental Policy Act.
He then compared the prospect of Congressional intervention in the CAHA beach access issue to "repealing the Declaration of Independence.
" Boyle also facetiously asked: "Why not just pave the beach and open it to all drivers all the time, like a big amusement park, no discrimination? Anyone who wanted to could walk to Cape Point.
" He also said NPS could "just create ramps in the Grand Canyon National Park so everyone could walk down to the river.
" CHAPA's lawsuit, filed in the District of Columbia, was assigned to Judge Emmet Sullivan.
However Sullivan has raised the possibility of transferring the case back to Boyle - more bad news for pro-access groups.
Source...