Proposed Settlement Filed in Cape Hatteras National Seashore ORV Case

Nesting birds on Cape Hatteras National Seashore will gain more protection from ORVs under a settlement filed in federal court.

Birds on Cape Hatteras National Seashore will get more protection from off-road vehicles under a proposed settlement filed in federal court. If Judge Terrence Boyle signs off on the 23-page document, seasonal restrictions will be implemented to see that ORVs don't trample bird habitat.

The settlement, in effect, does what the National Park Service hasn't done -- provide some guidelines for off-road driving along the seashore. Because the Park Service hadn't developed such guidelines, Defenders of Wildlife and the National Audubon Society sued the agency last fall. This settlement, if accepted, will resolve that lawsuit.

The consent decree would expire upon the adoption by the Park Service of a final ORV management plan and regulation, a process currently being undertaken by the Park Service and involving various stakeholders, including the conservation groups.

The conservation groups brought the lawsuit to protect bird and turtle nesting on Cape Hatteras. They claim that in recent years bird species have declined on the cape. For instance, only six pairs of piping plover were seen last year, down from 15 pairs in 1989. Additionally, there has been a 49 percent decline in American oystercatchers, and an 84 percent drop in the numbers of terns and black skimmers found on Cape Hatteras.

While the proposed settlement continues to allow ORVs on Cape Hatteras beaches, it would restrict them from certain areas during the breeding season. Additionally, it says the buffer zones around nesting areas can't shrink if erosion eats away at areas open to ORVs.

The settlement requires that the Park Service, by March 15 every year, delineate nesting areas on Bodie Island Spit, Cape Point, South Beach, Hatteras Spit, North Ocracoke and Ocracoke South Point. Additionally, the agency must create vehicle buffers of more than 1,000 yards for piping plover chicks. And the Park Service must send out staff every morning during the nesting season to search for plover chicks and redefine the buffer zones.

Comments

Respectfully, to suggest that "(t)he settlement, in effect, does what the National Park Service hasn't done -- provide some guidelines for off-road driving along the seashore" is to believe the distortion of the facts by the plaintiffs.

No guidelines? In August of this past year, over 60% of the beach was off limits to ORVs due to the combination of resource, seasonal and safety closures. To suggest that Cape Hatteras had no guidelines is an insult to Superintendent Mike Murray & his staff. The NPS, and especially under the leadership of Murray, have actively and in recent years aggressively managed Cape Hatteras to protect the birds and turtles while trying to allow, where possible, access to seashore for recreation by the publics. His open and transparent management style was embraced by most of the ORV groups and users.

While there were 15 nesting pairs in 1989, last year was the highest number of nests and chicks since 1999. And as has been the case for many years, weather events and predation not ORVs were the cause of the loss of eggs & chicks. Blocking access to ORV’s will do nothing to change this.

http://www.nps.gov/caha/naturescience/upload/CAHA%20Piping%20Plover%20Report%20(2007)-Pgs.%201-11.pdf

The terns and skimmers relocated to spoil islands in Hatteras and Ocracoke inlets where they reported had an excellent fledging season and somehow this counts against the Seashore numbers. .

No, the suit was filed because NPS failed to implement a permanent, approved plan years ago – simply a technicality. Despite a USF&W-approved interim plan put in place by Murray that seemed to appropriately balance protection and access, this was the loophole the plaintiffs needed. That and a willing Federal judge who seems bent on micromanaging a National Park.

Cape Hatteras National Seashore (CHNS) is a very different National Park. The problems are bigger and more complex than off-highway vehicle (OHV)/fishing organizations access and environmental organizations concerns with resource management, although that is currently taking the spotlight.

CHNS is managed as if it were two different types of Parks: correctly managing the historical parts and incorrectly managing the resource parts (Ocean Beach). The Ocean Beaches are managed by the NPS like a hybrid recreational area that is accessible only by vehicles. To me CHNS falls short of the type of management associated with other National Parks by many standards. The most dynamic and impressive natural areas of CHNS, like Bodie Island Spit and the “Point” at Cape Hatteras often become very crowded with hundreds of parked cars and vehicles navigating through a network of changing OHV trails.

In the past (before the park was established) the very remote beaches of Bodie Island (not really an island) Hatteras Island and Ocracoke were highways for these sparsely inhabited remote islands. There were no paved roads and no development of the private land adjacent to the ocean beaches in the Park. Recreational use of the ocean beach was minimal and a visitor rare, especially compared to today’s visitation. Local people seasonally commercially fished on the ocean beaches. In direct contrast ocean beaches today have experienced a dramatic increase in visitor use with private, fully developed ocean side village beaches adjacent to Park beaches.

Today’s OHV users advocate using antiquated management practices for the basis of which to manage vehicle use today. A very vocal group of visitors and retired locals that primarily engage in recreational fishing activities on the National Park beach using OHVS for access are outraged with any restrictions that impede their OHV use. Most of these visitors belong to local organizations that promote beach driving in CHNS. I think the majority of them genuinely see themselves as good stewards of the Seashore and can find nothing amiss with hundreds of vehicles in small areas of the National Park beach.

On my last visit I noticed vehicles with local club/organization affiliations that had decals on their vehicles that referred to Cape Hatteras National Seashore as Cape Hatteras National Seashore Recreational Area (CHNSRA). When asking them about the new name they assured me they were right because of a congressional oversight that did not correct the “recreational area” that was added to the CHNS name in the 50’s. A question to the superintendent office reveled that at that time adding “recreational area” was the only way to guarantee waterfowl hunting in the Park, a condition that the local inhabitants petitioned to have added to the Park’s enabling legislation. From those that I talked to it appeared the only reason that they were interested in the claim that CHNS is a “recreational area” is because they believe a recreational area puts recreational use even or of greater importance than resource protection and other park mandates. This is a policy I can’t find in any NPS management guidelines for any type of National Park.

The NPS is responsible for the current problems because they never implemented an OHV or ORV (Off Road Vehicles) management plan as was mandated by Nixon’s and Carter’s executive orders. Until recently the NPS has largely encouraged unmanaged and mostly unregulated OHV use on the Seashore beaches and allowed that activity to continue longer than was prudent or legal, long enough that special interests to the Park now view OHV use as a right rather than a yet to be sanctioned privilege.

Seashore managers (bending to pressure from conservation organizations to implement The Endangered Species Act) recently initiated temporary resource protection measures that restrict prime fishing areas to OHVS and pedestrians for part of the year. Other areas in the Park are temporarily closed to OHV use because the beach is deemed too narrow and steep to safely drive on. Even on open “safe” OHV ocean beaches, vehicles often get damaged or destroyed by inexperienced drivers. Currently there are no special permits or experienced needed and any licensed vehicle operator can attempt to drive on the Park beach.

Hatteras and Ocracoke Islands are a difficult place to run business. Catastrophic weather events and seasonal visitation make it a feast or famine situation. Most local businesses that I spoke with believe OHV users are responsible for the bulk of their commerce and are concerned that any restrictions on OHV use will have a devastating affect on their businesses. I find this view shortsighted but can sympathize with their trepidation. The only independent study done says about 10% of the Seashore’s visitors use OHVS. The county governments of Hyde and Dare County and local businesses see the National Park as something more than a National Park. Dare County has aligned themselves with local OHV organizations, intervening legally with them and donating county taxpayer funds to OHV organizations to help with their legal costs. Both groups often advocate that CHNS policy should be decided locally. In a recent federal court case involving a lawsuit between 3 environmental organizations and the NPS over a flawed resource protection plan a federal judge put it best when he chastised the intervening county lawyer over this very issue.

Judge Boyle to the Dare County lawyer:

“This is not the sovereign seashore of Dare County, It’s the National Seashore. It belongs to the United States. What interests do you have anymore than anyone else in it?”

OHV organization’s mantra of, “free and open access” is ambiguous to the uninformed but to them literally means driving their vehicles just about everywhere on federally owned National Park ocean beaches they decide they safely can. The organizations CHAC, NCBBA and OBPA are 100% pro OHV use in the Seashore. When they speak of access to the Seashore they mean vehicle access. If you support them or donate money to their organizations they will use it to promote OHV use on the National Seashore Beach. In addition they have paid Washington lawyers working to diminish resource protection measures in the Park.

A testament to OHV users organizational skill and power is the unbalanced one-sided comments their members have left on this site concerning CHNS.

A visitor could come to CHNS in middle of the winter and see wide open beaches with nothing more than wind swept OHV trails and an occasional vehicle or come in the summer or fall and experience a Seashore Beach transformed into a raucous tail gate party. Every year there are more visitors and vehicles extending the traditional tourist season.

I have lived on and off Outer Banks, renting and then buying a home and fortunately selling it a few years ago. When I visit the Park now I stay in the NPS’s Ocracoke campground, as it is the only place left in CHNS that looks and feels like a National Park and reminds me of the Outer Banks I grew up visiting.

If you have ideas about how CHNS should be managed phone, email or fax your congressman, senator and the regional and national NPS mangers.

I vacation with my family, my parents, my aunts and uncles and their families on Cape Hatteras every year. If the beaches were closed to vehicles, we would stop going. Plain and simple. That would mean no house rentals, no week of groceries, no souvenirs, no fishing charters, no eating out, and various other shopping...our families alone spend thousands of dollars and that is just in one week--one family. I can't imagine that we are alone. Restrictions on beach driving would kill Cape Hatteras. I would like the numbers on how many chicks have been run over by trucks in the last 15 years...because that is how long I have been driving out on that beach--and I have yet to see a chick, let alone run one over. Hurricane Isabel has done far more damage to the end of that island than any off-road vehicle...and how do you know that the birds aren't nesting somewhere else? If Cape Hatteras National Seashore is a park--and by definition belongs to the people--that means all the people, not just the tree-I mean Bird huggers. I have no problem with the roping off of nesting sights, but this is getting ridiculous. We come from NY, VA and PA for one week of beach relaxation a year...don't make us seek it elsewhere.


I would call myself a bird watcher or at least a friend to birds.

I have been a friend to birds since I was a kid. I keep a Petersons guide and binoculars in my sunroom and have copies of Audubon guides too. I keep a lifetime spotting record in my Petersons guide. I somtimes travel to and when younger and still able, hike into places just to spot the birds there. I have been thrilled to see pileatedted woodpeckers again in parts of Pennsylvania's forests where they had not been spotted in a long while. And I, though they are fairly common had not seen a rose breastrd grosbeak till a couple of years ago and was all excited to spot sevreal at one time. And I hope that it is true that the ivory billed woodpecker is not yet truly extinct!
I even still have and reference "Wild Birds of Pennsylvania" that I got as a boy scout 40 years ago.
We spend considerable money feeding and providing houses and nesting boxes for birds around our property.

Point is, I like birds more that the average guy.

That said, I must share my opinion that the Friends and Audubon Society are creating a disaster with their push to close outer banks beaches to both pedestrian and ORV traffic.
The impact is already impacting the economy of the banks. But the judge having legislated from the bench has impacted people a thousand miles away. This is a larger issue than you realize and the anger it has created, continues to grow even as far away as Pittsburgh, PA and west where many people visit the banks several times a years every year.

A lot of progress has been made toward habitat restoration and species protection in recent years. You need to win the hearts and minds of the people to be successful at this over the long term.

But to ruin the business and economy of an entire region. to effectively close access to a public recreation resource as important as the Carolina beaches and disrupt the lives and vacations of many, in the name of protection for a couple of species which are not actually endangered just threatened, have viable populations elsewhere, and for which the OBX is at best a marginal habitat, will in the end be counter productive.

Especially with all the half truths being passed on to the public via the media.

According to the mass media, we would not encounter any significant beach closures whatsoever. When in reality we found the existing closures though in themselves are small, cut off access to the majority of the public land, even to those who just want to walk out there to see the birds and the ocean. In reality, access is cut off in particular to the most important parts of the beach for those folks who visit there. Most of the "open" public land is not accessible in any manner unless you can walk miles in soft sand.

You are losing the balance between the needs of people and the needs of wildlife here.
And you are losing the support of those with a somewhat less extreme environmental view, who make up the vast majority of Americans.

I would call myself a bird watcher, but I like many also enjoy the beaches and I like to fish from time to time, and walk on wild beaches where birds outnumber people. The consent decree that the Audubon Society helped to foster cuts me off from that.
You want to call the Cape Hatteras National Seashore Recreation Area a national Park. In your minds a Park is a human exclusion area. Like humans are not part of nature too? To me "park" describes a place for the use of humans. Have you ever even been to the OBX? 75% of taxapyers will never see these wild beaches unless they can drive out on them. There are few places to park and miles of soft sand that is very difficult to walk on. Why will the average guy care about he fate of birds and turtles that they can never get out there to see? Only a very small percentage of Americans are backpackers and back country hikers. Very ew are willing or able to treck the miles across the sand to access what remains open but in reality is cut off. Make no mistake. It is pure BS to say that there are only a few miles of closures. The reality is that as a result of what is closed most of the shore that matters to humans is now cut off for vehicles, pedestrians or any other human use.

After 30 years of visiting the OBX we are cancelling our vacation there this year. For me at least the local economy on the banks will lose the $2000 to $7000 we spend there each year (Depending on whether we camp or rent a house) We usually visit from Pittsburgh at least two weeks a year.
I can not access the very things that attract me to this area, more importantly, I fear that there could be confrontations there this summer making me nervous to be there. I hope not. But peoples' jobs and livings and a way of life are at stake. An unstable situation at best and add the crush of angry vacationers who arrive to find that they can not access the public lands, it will be volatile to say the least.

I believe that in then end, this will all create a terrible backlash, this could be the one that leads to more reversals in environmental policy. A shame because I believe with all my heart that no matter what, the Piping Plover will not be able to maintain any viable populations on the OBX. It is a marginal habitat for this a bird with adequate populations in other areas.
That and we have now created an entire class of folks who actively wish that these birds would just go away, some of whom sadly may attempt to actively assist in that effort. Not just apathy for wildlife but antagonism, great!

As an aside, reagarding the balance of the needs of people and the needs of wildlife, a friend, a retired law enforcement officer and avid outdoorsman, asks where is it that we draw the line environmentaly?

If a cure for cancer for all time were to be found, but required the harvesting and possible extinction of a species, say the Piping Plover, would we allow this for the sake of humanity? I do not know the answer, do you?

As a lifelong North Carolina resident who has lived from the mountains, to the bustling modern Triad and Triangle regions and now to the Outer Banks ... I would like to point out that North Carolina has 427,823 acres in national wildlife refuges. And this does not count the Great Dismal Swamp refuge which is in NC and VA. Of those 427,823 acres, 95% are in northeastern North Carolina, the home of the Cape Hatteras National Seashore. In fact, Pea Island National Wildlife Refuge is located within the boundaries of Cape Hatteras National Seashore and occupies 5,834 acres (land), 25,700 acres (Proclamation Boundary Waters). It covers 13 lateral miles of the barrier island from shore to sound.

Northeastern North Carolina is one of the poorest sections of the state, with little industry or service businesses other than tourism. Visitors come here primarily for the great outdoors. This section of North Carolina is committed to resource and wildlife conservation and already gives more than its fair share. Cape Hatteras National Seashore is not the only nesting area available to threatened species.

Unlike many other national parks, Cape Hatteras had established communities within the boundaries before the National Seashore was ever established in 1953. In the original language “said area shall be, and is, established, dedicated, and set apart as a national seashore recreational area for the benefit and enjoyment of the people and shall be known as the Cape Hatteras National Seashore Recreational Area”.

In addition, this area is prone to natural disasters and near constant shaping and reshaping by the environment. Currently a wildfire caused by lightning is raging in the Pocosin Lakes National Wildlife Refuge which occupies 12,000 acres in Hyde, Tyrell and Washington counties (adjacent to the Outer Banks). 10,000 acres have already burned and smoke is drifting over the Outer Banks as we speak. Given current weather conditions, experts say the peat fire will burn for days if not weeks. What wildlife has perished due to natural disaster in this wildlife refuge and how will it affect wildlife in Pea Island and on Cape Hatteras National Seashore?

In September 2003, Hurricane Isabel slammed northeastern North Carolina and particularly the Outer Banks. The force was so great that it carved a new inlet in the seashore, severing the road and stranding southern seashore residents for more than two months. The communities on the Outer Banks were devastated. How did this affect the wildlife of the area?

It has been argued that we must do everything to preserve and encourage endangered or threatened species, in this case the piping plover which has a habitat range from the Gulf Coast to the Great Lakes and Canada. We cannot harness wildfires and hurricanes. We cannot stop foxes and seagulls from plucking tasty eggs from the beach … although the Park Service has certainly tried. The following “predators” were removed from the seashore last year: red fox (18), gray fox (6), raccoon (135), opposum (85), feral cat (57), nutria (77), muskrat (1), otter (2), mink (1). No count for seagulls.

The consent decree protects a few species (which it may be argued are not even in danger) while restricting the rights of another species … humans. The Park Service was succeeding in managing these habitats while also meeting the needs of its visitors before the lawsuit. Now the management of this issue has been removed from their hands and without public input by one activist judge.

Apparently I and the millions of visitors to national parks each year are not a stakeholder and have no voice, nor do we in fact any longer have real access to Cape Hatteras National Seashore Recreation Area. That right is only provided to birds, now protected by daily changing buffer zones ranging as long as 11 football fields. As humans and taxpayers, we only have the right to foot the legal bills for the plaintif non-profit special interest groups and the Park Service as the defendant.

Please contact your local Congressional delegation and urge them in the strongest possible terms to co-sponsor and support Bills H.R 6233 and S. 3113

Dole, Burr and Jones Introduce Legislation to
Allow Off-road Vehicle use on Cape Hatteras National Seashore
June 11, 2008

Washington, D.C. – U.S. Sens. Elizabeth Dole and Richard Burr and U.S. Rep. Walter Jones today introduced legislation in the Senate (Bill S. 3113) and House of Representatives (H.R. 6233) that would reinstate the Interim Management Strategy governing off-road vehicle use on Cape Hatteras National Seashore (CHNS). The reinstatement of the original Interim Management Strategy, issued by the National Park Service (NPS) on June 13, 2007, would set aside current mandates and requirements which were put in place in the wake of a consent decree filed in the U.S. District Court for the Eastern District of North Carolina, that prevent off-road vehicle and citizen access to a significant portion of this National Seashore.

“I share the concerns of many North Carolinians about the negative ramifications that severely restricting off-road vehicle use at CHNS will have on the local community and economy,” said Dole. “Beach users and members of the local community deserve to have their voices heard to ensure the development of a long-term plan that protects the natural habitat of the Seashore while maintaining its economic and recreational benefits.”

“As Ranking Member on the National Parks Subcommittee, I always try to make sure that North Carolinians have access to our state’s scenic treasures,” said Burr. “It is unfortunate that people are prevented from accessing Cape Hatteras at times because of the new restrictions. I am certain we can come to a compromise that allows people to have access while at the same time addressing any potential environmental concerns.”

“The consent decree has once again shown that managing the Seashore through the courts – without public input – is always a bad idea,” said Jones. “This bill would restore reasonable public access and would bring the public back into the process on a level playing field by reinstituting the Interim Management Strategy until the Negotiated Rulemaking Committee can produce a final rule.”

If enacted, the National Park Service’s Interim Management Strategy will go into effect immediately and end upon the National Park Service establishing a long-term off-road vehicle management plan for the use of CHNS by the public.

Background

In 1972, President Richard Nixon issued an Executive Order that required all federal parks, refuges and public lands that allow off-road vehicles access to develop and implement a detailed management plan to regulate and assess environmental impacts. CHNS never developed a management plan, and as a result, Cape Hatteras has been out of compliance for over three decades.

In December 2005, the NPS developed a three-phase plan to begin the negotiation process and create regulations that would allow CHNS to meet compliance standards; however, on July 17, 2007 an injunction was filed by the Defenders of Wildlife and the National Audubon Society to prevent off-road vehicle use until a management plan is established and approved. A settlement negotiation process ensued, and on April 30, 2008, a federal judge approved a consent decree, proposed by the plaintiffs and agreed to by the parties involved in the case – the National Park Service, the U.S. Department of the Interior, the Superintendent of Cape Hatteras National Seashore and the U.S. Fish and Wildlife Service. The settlement, which went into effect on May 1, 2008, requires that all seashore ramps be closed to ORVs from 10 p.m. until 6 a.m. through November 15, 2008, that buffers for nests and chicks are clearly defined and in some cases more restrictive, and that deliberate violations of the buffers will result in an expanded restricted area.

[Ed. Using "CHNS" as an unofficial indicator for Cape Hatteras National Seashore is probably not going to confuse the average citizen, but you should be aware that the Park Service code for the park is actually CAHA.]

ksw4obx

I have an entirely different view of the situation. I own a cottage on the ocean side in Frisco. This area is adjacent to CHNS. I visited that area long before I purchased the cottage in the late 1990’s.

In CHNS people access the beach from many different points of the 68 miles of beach. Some ways of accessing the Seashore besides driving an ORV include; walking down my street (Robin Lane) or any of the other streets from the 6 villages and walking over the boardwalk ramp that crosses the dune to get to the Seashore. It is private property but people have accessed CHNS beach using Robin Lane for years with little problems. You can park on the side of Highway 12 in many places and legally walk over the dunes in the Seashore. The sand paths that people make through the dunes have not been a problem with erosion as one good storm can and has a much greater impact than the footpaths. The dune system is unnatural anyway and was created by the CCC’s in the 1930’s. In addition there are parking lots on the west side of the NPS ORV ramps and you can park there and access the beach by foot. However I don’t suggest you use these ORV beaches because the beach is an unsightly mess of ruts and ORV tracks, a pain to walk on and there is no designated pedestrian trail on those beaches unless you walk in the dunes. It is not the experience one expects to find in a National Park and it is not inviting to pedestrians. There are plenty of nice parking spaces in Buxton at the old lighthouse site, hopefully the Pro ORV lobbies won’t succeed in opening the 1-mile of beach there to ORV access as they have been advocating for. There are 2 parking areas between Frisco and Hatteras villages off of Highway 12 for pedestrians to park and access the beach. The beach there is so narrow that you can hear every passing car from route 12 and the high tide line is 100 feet from the road in places but at least there are no vehicles!

There are only a few places in CHNS where it is difficult to get to by foot: north side of Oregon Inlet, Cape Point, North Hatteras Inlet and South Point on Ocracoke Island. But by national NPS standards none of these would be considered a difficult or strenuous hike.

The problem is the amount of recreational gear some visitors feel they are entitled to bring to the beach. Just because Cape Hatteras National Seashore was one time called Cape Hatteras National Seashore and Recreation Area (no one but ORVers refers to it as that nowadays) it is not a mandate to bring all the recreational items you can legally use to the beach in an ORV so you can camp out there for the day.

Google earth has a pretty good view of the Outer Banks and CHNS. Take a look just how easy it is to access this park without an ORV. There is way too much of this Park dedicated to ORV access.