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Cape Hatteras National Seashore Settlement Won't Ban ORV Use, But Will Restrict Travel


Birds and ORVs will coexist under a settlement reached over beach access at Cape Hatteras National Seashore.

A settlement over off-road vehicle travel at Cape Hatteras National Seashore will not ban ORV travel, but it will restrict it at times throughout the year, according to the National Park Service.

The settlement, which fends off a lawsuit filed by conservation groups concerned that ORVs were over-running bird and turtle habitat, was announced today by the Park Service. It provides guidelines to protect nesting areas for piping plovers and other species while also allowing recreational opportunities for park visitors.

Specifically, the settlement allows ORV beach access to remain open year-round and is not expected to affect the fall or winter fishing seasons.

At the same time, the consent decree that was filed with the court on April 16 will create buffers around portions of the spring and summer bird breeding and nesting areas, including the creation of a "1,000-meter vehicle perimeter and a 300-meter pedestrian perimeter around piping plover chicks until they have fledged," the Park Service said in a release.

Cape Hatteras Superintendent Mike Murray calls the settlement a “positive step to resolve the issues raised in the lawsuit and will allow us to focus our effort on development of the long–term ORV management plan and regulation."

The compromise is seen as preventing a year-round shutdown of ORV access to six popular fishing areas.

This issue has been one of the most contentious to come up on the Traveler in recent months. If you're a member of the seashore's ORV or conservation communities, tell us what you think of the settlement.


The above comments are absolutely spot on the truth. I am very concerned that our natural resources be protected, but what the Audubon Society has done through this law suit is a miscarriage of justice, and in reality serves no one, no even the precious wild life they seek to protect.

Thanks for reporting the facts. I fear the entire island of Hatteras will become off limits to people.

Frisco Fran - based on your observations, I nominate the ORV people for sainthood

The problem stems from mis-use of a great resource. I have been going to the CHNS since 1978 and have seen alot of changes. Many of those have been for the worse. Topping that list is the over crowding in many areas. This leads to abuse of the areas. Im all for restrictions in these areas durring the peak season months. I feel way too may people feel its their right and dont understand its a privladge. Respect the areas and these problamatic disruptions and wildlife damage would be much less of an issue. I have seen many stupid people doing stupid things and love to see rangers doing their job and throwing the book at these people. Please reguard this seashore as a gift and respect all people and wildlife in thses areas. Just use common sense and read the posted areas. Obay all laws and treat her with respect!!

Would like to clarify and add that the first paragraph above is my writing, the rest of the disertation of facts was that of another distinguished gentleman, I stongly agree and support his heart felt thoughts. Thank you for considering this post

Rangertoo, with all due respect, you are mis-informed. The Consent Decree and how it was obtained violates NEPA, Federal Admistative Proceedures Act, REG-NEG Policies, US Code 16 Chapter 1, Sect 429 Enabling Legislation, Article 4 Section 3 of the United States Constitution

When Congress established Cape Hatteras National Seashore Recreation Area in 1937 its intent was to permanently provide for all Americans a unique area for their enjoyment and use.
For years now, those of us who utilize this unique resource have been under assault by a variety of environmental special interest groups who would deny us access, but not themselves. They have tried compaction studies attempting to show that ORVs’ were damaging the beach. Only to find their data lost when it rained or a storm occurred. They have filed lawsuit after lawsuit in federal court claiming harm and inadequate protection for the birds and turtles that nest here. And in each case where evidence was heard from both sides in the court, they were sent packing. Quite simply, their claims were refuted by sound science and law. All of this, again, at the expense of the American taxpayer. What occurred April 30th, 2008, in Judge Terrence Boyle’s court changed everything.

It’s the Piping Plover that has become the “poster child” for these groups.
The plover is a relative newcomer to CHNSRA. Every bird study conducted between 1900 and 1959 show that it was not until 1960 that the first birds arrived in the Park. Plovers nest independently of one another and not in colonies. They neither feed nor care for their young from the moment they hatch. They nest in areas that are subject to frequent overwash and frequently loose nests as a result. This has already occurred at CHNSRA in the 2008 breeding season, and not just with plovers. Predation has also taken its toll this year.

The Piping Plovers that nest at CHNSRA are part of the Atlantic breeding population which is considered “threatened”, not endangered. It is very important to understand that CHNSRA is on the extreme Southern edge of the Plovers breeding range which accounts for the historically low numbers within the Park. Most Plovers nest well north of the Park, from Virginias’ Eastern Shore to Newfoundland, Canada; with the majority of nesting occurring mid-range.

I am an individual who has utilized this resource, this National Seashore Recreation Area, for almost three decades. And like many, am so familiar with this beach system that predicting structure changes, overwash, and the like comes as second nature. Collectively, we possess more first hand knowledge of the workings of the beaches and the wildlife at CHNSRA than any environmental group in existence. It is, therefore, no surprise that an Alberta, Canada Plover study contains the following statement: “human presence in an area can be a very effective form of predator deterrence.” (USFW 2000) Interesting as well is a statement by Tim Gallagher editor-in-chief of Living Bird magazine, published in the spring 2000 edition; “But the large number of people always present at beaches does have a remarkable taming effect on birds.” This reflects what we see daily as we visit our cherished beaches.

There are 21 documented ORV related plover deaths in the entire United States. Twenty of these were committed by federal vehicles. In the 47 years prior to the Consent Decree, not one single plover death can be attributed to an ORV user in this Park. One hundred percent of plover mortality at CHNSRA has been a result of either storms or predation. A far cry from the 24 Piping Plover nests the Army Corps of Engineers destroyed recently in the name of floating two barges of alfalfa pellets down a tributary of the Missouri River.

The Defenders of Wildlife, Audubon and the Southern Environmental Law Center would have one believe that none of which I write in these pages is true though it’s all in the public record.

The Consent Decree deals also with other birds such as Black Skimmers, Common Terns, Least Terns, Gull-billed Terns, Wilson’s Plover, and American Oystercatchers. None of whom are threatened or endangered. The Consent Decree treats them as though they are and at additional taxpayer expense. It also deals with the variety of sea turtles that occasionally nest on the Parks beaches though now requiring full beach closures, unlike the Interim Strategy.

Some “Inconvenient Truths” for DOW, Audubon and SELC include: Under the Interim Strategy (IMS) the 2007 nesting season was the most successful Plover breeding season in over 20 years. Currently, under the Consent Decree, a single Plover chick is given enough beach area to cover the decks of three U.S. Navy Super Carriers, the largest warships on earth. As such, in most American communities, a convicted child molester can live closer to a public school than a fisherman and his family can get to a plover.

On a positive note, The Atlantic Piping Plover population is fast approaching the 2000 nesting pair’s figure that makes them eligible for de-listing as threatened. The most recent counts show 1700 nesting pair. Just four years ago, the most accurate estimate was 1400 pair. This represents a rather dramatic increase in breeding pairs in a very short period. Unfortunately, at the cost of even more taxpayer dollars, de-listing the Atlantic Plover population is probably going to be challenged in court.

The environmental groups also claim a substantial drop in Black Skimmer and Gull-billed Tern numbers. What they don’t want you to know is that the bird count for the 2007 season shows a better than 20% increase in numbers. They know very well that the birds chose to nest on a newly recreated dredge spoil island within sight of the Park. A study that Walker Golder, attorney for Audubon, plaintiff, and member of Negotiated Rulemaking participated in. In reference to this habitat, named Cora June Island, N.C. Wildlife Resource Commission writes:

"An outstanding success story can be found on Cora June Island, located near Hatteras Inlet. This island disappeared during Hurricane Isabel in 2003 but was rebuilt in spring 2007 during a dredging project by the U.S. Army Corps of Engineers. Only months after rising from the sea, the island was home to one of the largest mixed tern/black skimmer colonies in the state with good numbers of nesting adults that successfully fledged hundreds of chicks.

The recent survey, which was conducted in spring 2007, is one of 10 complete coast-wide surveys conducted since the late 1970s to monitor population trends, distribution of colony sites and nesting habitat conditions. Data gleaned from the surveys help biologists make management and conservation decisions and prioritize research. The next water bird survey is scheduled for 2010. "

Never mind that these environmental groups have sued to stop the creation of additional spoil islands which would provide substantial new habitat for the very birds they profess the need and desire to protect.

They would prefer you to believe that night time driving on the Beaches at CHNSRA disorients sea turtles. Hence the ban imposed by the Consent Decree. But they would have you ignore Pea Island National Wildlife Refuge, the northern 22 miles of beach on Hatteras Island. At Pea Island NWR, there is no beach driving and less than a dozen lights visible from the sea. Very few pedestrians frequent these beaches due to the difficulty in accessing them. And yet Pea Island has no greater turtle nesting success than ORV accessible beaches but does have more false crawls, aborted nesting attempts, than the open beaches. They would also have you ignore the fact that Plovers don’t nest there in spite of the excellent conditions.

Under the Consent Decree, if a turtle nests within the relatively minute portion of beach that’s still accessible by ORV, the Park Service is required to establish virtually the same nest enclosure as established within the Interim Strategy. Beach users may drive by, park by and fish by this clearly marked 10’ by 10’ revetment cloth enclosure at will. Until, that is, September 15th. On that date, the Consent Decree imposes full beach closures in addition to the procedures outlined in the IMS, making those areas impassable by vehicle or pedestrian. This is absurd and arbitrary. The Consent Decree clearly states that if a nest is approaching its anticipated hatch date (pre September 15) NPS is to follow the same procedures outlined in the IMS, not including full beach closures. Which means that in spite of the additional “path” NPS constructs to funnel the hatchlings to the sea, the beach immediately outside this small closure is accessible to both pedestrian and ORV use. So why is September 15th , the “magic” day? Because this is an arbitrary date by which perhaps some of the bird closures will have been reduced and the Consent Decree finally allows for “permitted” night driving. This is a thinly veiled maneuver to continue to prevent ORV access to the beach. If it was ok for me to drive by or park and fish right next the closure on the 14th, it should be just fine on the 15th.

They don’t want you to know that at the best of times ORV users can only access less than 30% of the beaches at CHNSRA and that their “12% of the beaches affected” figure assumes 100% ORV access. This has not been true for many, many years. The truth is that well over 90% of the beach is currently closed either directly or by default. Areas bounded on both sides by closures are inaccessible even though they are technically open. They prefer to focus on ORV’s but the current closures prohibit pedestrian use as well. No entry means just that.

It is, I think, ironic that as I labor over this communication, The Defenders of Wildlife have just sent their members an e-mail dated June 15th, 2008 that describes success as a result of the Consent Decree. “Since some of the most sensitive areas were closed to vehicles, birds like the piping plover and the American oystercatcher have been bouncing back.”

Plover numbers are the same as they were last year under the IMS. I don’t know about the American Oystercatchers (AMOY) yet except for the nest on the Pamlico Sound side of HWY 12 between Frisco and Hatteras villages. There, less than 150’ from the 55 MPH traffic, in plain sight, an AMOY pair feeds their young and raises them to fledge quite happily.

They also write:
“The emergency plan was developed to be flexible, with temporary closures that can be lifted and reopened to vehicles once wildlife is no longer using certain areas. Already, some areas have been reopened this season.”

This ignores the rash of immediate closures that followed the April 30th signing of the Consent Decree. Because of the Consent Decree, anyone with a cell phone can call NPS, report bird activity and the Park Service is required to close the area for weeks at a time. All of the areas that have been reopened as of 6/26/08 were initially closed due to inaccurate and perhaps false observation.

They would rather you didn’t think of them as parties to the lawsuit that has prevented the replacement of the Bonner Bridge, Cape Hatteras’ lifeline and only over ground hurricane evacuation route; a bridge with a safety rating of 4 out of 100. The bridge in Minnesota that collapsed in 2007, killing many, was rated at 27. Since when do we so blatantly condone risking the loss of human life? The environmental groups have already announced that if the new bridge is attempted they will sue.

The Consent Decree is an obvious attempt at changing a National Seashore Recreation Area into a private wildlife refuge. Which has so far, been successful at the cost of untold taxpayer dollars. Remember that the plaintiffs are consistently reimbursed their legal fees and expenses by the already strapped Park Service and DOI. You must also consider the cost of constant monitoring, flying in and housing of un-needed special even teams, additional, extensive new signage, additional vehicles, law enforcement and infrastructure.

The impact of the Consent Decree on the economies of the villages bounded by the Park has been astounding. Thousands have already cancelled their reservations or vowed not to return. And yet both the environmental groups and United States Fish and Wildlife Service continue to utilize the arguably inept Voglesong study as the foundation of their economic and visitor usage statements in spite of a government funded peer review that deems the study essentially worthless. The esteemed panel also regarded the data and its collection methods so flawed that further review of that data would be a waste of time.

“Dr. Michael A. Berry served as any Army officer in Vietnam in the 1960s. After returning to civilian life, he earned a doctorate in public health and worked in the U.S. Environmental Protection Agency, where as a senior manager and scientist, he served as the deputy director of National Center for Environmental Assessment at Research Triangle Park in North Carolina. During his 28-year career with EPA, he had extensive interactions with environmental organizations, local governments, the federal courts, U.S. Congress, universities world-wide, and institutions, such as the National Academy of Sciences, the World Health Organization, and the North Atlantic Treaty Organization. For more than 20 years, Berry, who lives in Chapel Hill, taught public health, environmental science, and business and environment courses at the University of North Carolina. He is currently a writer and part-time consultant, specializing in the evaluation of environmental quality and human health effects, environmental management strategies, and policy”.

He writes:
”There has been no opportunity for public participation, comment, and input with regard to this new ORV regulation. For any environmental regulation issued by the federal government, citizens have the right of public review and comment as provided by the Federal Administrative Procedures Act. Under the Federal Advisory Committee Act, citizens also have a right to know about and attend federal government meetings, especially when those meeting involve special-interest organizations trying to influence the government. Under the Freedom of Information Act, citizens have a right to obtain all unclassified information, such as scientific information and correspondence with special-interest parties, that is held by the federal government”

The Consent Decree has changed the very nature of the Park. Though the environmental groups claim to want to preserve CHNSRA for future generations, I fail to see the value of a National Park that remains inaccessible during the spring, summer and fall, when the majority of Americans that visit the Park take their vacations at this time. And if USFWS gets their way by declaring CHNSRA critical wintering habitat for Great Lakes and Great Plains plover populations, though they openly admit they have no idea where the wintering birds originate, this will include the late fall and winter months as well.

Preservation has been, so far, successful without court intervention and a draconian Consent Decree. What choice did Dare and Hyde counties and the various beach access groups have other than to consent? It came down to either accepting an agreement that they had no voice in and hoping for the best or face certain closure and the enormous economic impact that it would spawn.

A Federal Judge is bound by law to render a fair decision based upon the merits of the evidence presented before the Court. But Judge Boyle declared his intention to provide the environmental groups exactly what they sought without hearing any evidence from either point of view and precluded the intervening parties, Dare, Hyde, OBPA, CHAPA and others from entering any evidence at all. This occurred within the first few minuets of the March 2008 hearing. During the second hearing, in spite of being charged by law to consider the economic impact of the proposed closures within the Consent Decree Judge Boyle repeatedly declared his lack of knowledge and understanding of CHNSRA, the villages contained therein, and signed the decree anyway. His obsession with closing Ramp 4 (Bodie Island Spit) as related in the transcripts of the April hearing is baffling. What the negotiations between the environmental groups and DOI promulgated can only honestly be referred to as a Decree of Forced Consent.

CHNSRA was established first and foremost as a National Seashore Recreational Area. This is blatantly obvious when one reads the enabling legislation formulating and forever establishing the Park.
Dated August 17, 1937 (50 Stat. 669), provides in part:
Sec. 4. Except for certain portions of the area, deemed to be especially adaptable for recreational uses, particularly swimming, boating, sailing, fishing, and other recreational activities of similar nature, which shall be developed for such uses as needed, the said area shall be permanently reserved as a primitive wilderness and no development of the project or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing in this area…

On June 11th, 2008, Senators Elizabeth Dole, Richard Burr and Representative Walter B. Jones introduced bills S3113 and HR6233. These bills, if enacted, would put aside the Consent Decree and return CHNSRA to policy and operation governed by the IMS. This would effectively take management decisions out of the hands of a few special interest groups and return it to the professional scientists and staff of NPS at the savings of millions of taxpayer dollars over the life of the Consent Decree.

Already these groups assail the media and their members with tales of doom were these bills signed into law. Some claim that Congress has no business even dealing with this matter. I beg to differ. Congress established this Park for the American People as a whole and provided us with a place we have fought hard to preserve as the unique and dynamic place that Hatteras is; or was. For years, most of us have lived by OBPA’s motto, “Preserve, Protect, Not Prohibit.” For example, to this day NPS does not employ “beach clean up crews”. We do this at our own time and expense. This hardly represents a user group with a penchant for environmental abuse.

Congress reserved the right to change the nature of an established National Park for itself. And so there is no question as to whether these bills should be co-sponsored and enacted.

16 U.S.C. Section 1a-1 states, "The authorization of activities shall be conducted in the light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress."

Surely this applies to forced closures as that constitutes an activity as well. Non government organizations have taken over scientific management of a National Park, an activity (Consent Decree) not sanctioned by Congress in spite of the obvious “derogation of the values and purposes for which these various areas have been established”.

I urge every member of the Senate and House of Representatives to co-sponsor and foster these bills into law. Sound science and the weight of law should never be substituted for supposition and misleading statements.

Please help return our National Seashore Recreation Area to the true stewards of this resource.

Please contact your local Congressional delegation and urge them in the strongest possible terms NOT to co-sponsor and support Bills H.R. 6233 and S. 3113. Park beaches are not for cars. Yeesh. Must every square inch of the earth be accessible to motor vehicles?

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

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 (Bill 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.


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

Kurt, Your article is very misleading in suggesting that the impact is minimal and ORV's will co-exist. You should write an article that captures the essence of why ORV access was originally granted and was maintained for several generations. For those that are not in tune with what has happened here, the perspective is one of the ORV's wanting to gain access as opposed to them rightfully maintaining it.

The judge here overstepped his bounds and that will eventually be proven. His ruling will eventually be overturned and we will get our access back.

You can also follow up with an article about how the foxes have eaten everything in site ever since the public was run out of the seashore that THEY own.

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