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ORV Group Loses Latest Challenge To Cape Hatteras National Seashore's Management Plan

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A federal judge has refused to toss out the National Park Service's off-road management plan at Cape Hatteras National Seashore/Kurt Repanshek

In a conclusion that has been reached in many other court cases across the country, a federal court, ruling on a case involving Cape Hatteras National Seashore in North Carolina, has found that resource protection trumps recreational interests. U.S. District Judge Terrence Boyle also found that the National Park Service did not rely on shoddy science when it developed an off-road management plan.

The lawsuit was brought by the Cape Hatteras Access Preservation Alliance, which long has argued that the ORV management plan is too restrictive, a detriment to the local economy on the Outer Banks of North Carolina, and, quite frankly, that the Park Service acted arbitrarily and capraciously. Too, the group charged, the plan runs counter to the national seashore's enabling legislation.

In tackling that last argument first, U.S. District Judge Terrence W. Boyle, ruling last Thursday, wrote that, "While the Seashore's Enabling Act does specifically mention recreational activities, Congress' intent as to the priority of natural resource protection over recreational use on the Seashore is quite plain: no plan for the convenience of visitors should be implemented if it is incompatible with the preservation of the flora and fauna of the Seashore. As CHAPA concedes, the Seashore's Enabling Act and the Organic Act are not in conflict on this issue, and indeed 'over twenty years of federal court decisions confirm that conservation is the predominant facet of the Organic Act.'"

More so, the judge pointed out that, "While CHAPA contends that NPS should have further considered ORV management in areas deemed to be especially adaptable for recreational use, CHAPA has not pointed to nor can the Court identify any basis for such claim. ORV use is not a recreational activity explicitly mentioned in the Seashore's Enabling Act, and the final rule exhibits that the NPS did extensively consider ORV use on the Seashore, as it designates more than twenty-eight miles to year-round ORV driving routes as well as forty-one miles to partial-year ORV use."

Throughout his 23-page ruling Judge Boyle again and again turned back the group's charges, finding that the Park Service did not act capriciously or arbitrarily, did use best available science, and did consider the economic consequences of the various alternatives considered in coming up with the ORV plan.

A holistic analysis of the process reveals that NPS engaged in a careful and detailed study of the Seashore, its wildlife and vegetation, and the visitors and residents who utilize the beaches to arrive at a plan which is based on the factors that Congress intended be considered and was not preordained or afait accompli. CHAPA itself was a party to the consent decree, which was a step toward compliance with Executive Order 11644 and 36 C.F.R. § 4.10 requiring that all ORV use on the Seashore be pursuant to a final rule or special regulation. CHAPA and its members participated fully in the rulemaking process, as is evidenced by the number of comments submitted to and considered by NPS in its formulation of an FEIS and final rule. It is clear from the record in this matter that NPS sufficiently considered all viewpoints when determining how to regulate ORV use on the Seashore, bearing in mind that NEPA evinces a "national policy ... to promote efforts which will prevent or eliminate damage to the environment."

Under the seashore's ORV management plan, areas along the 70-odd miles of beach are either closed, seasonally open, or open year-round to ORV use; the Park Service has been working on developing new parking areas and beach access points along Highway 12, and; a new trail is to be built to allow pedestrians to walk down through the dunes to the beach.

The plan also provides for a "seasonal night-driving restriction ... established from 9 p.m. to 7 a.m. during turtle nesting season, although areas with no turtle nests could open to night driving from September 16 through November 15." Additionally, it calls for an "alternative transportation study and would encourage the establishment of a beach shuttle or water taxi."

Overall, the approved plan allows for 27.9 miles of year-round designated ORV routes on the seashore, 12.7 miles of seasonal routes, and 26.4 miles of vehicle-free miles. The rules also outline vehicle requirements, permit requirements, nightly ORV restrictions, speed limits and more.

Outside of court, an effort has been under way in the Senate to order the National Park Service to reconsider the ORV plan. The measure, S. 486, was sponsored in 2013 by U.S. Sens. Kay Hagan, a Democrat, and Richard Burr, a Republican, both of North Carolina. As initially introduced, the bill would have eliminated the Park Service safeguards for beach-nesting wildlife and pedestrian beachgoers to favor instead trucks on park beaches, according to the National Parks Conservation Association. In committee action, though, Sen. Ron Wyden, D-Oregon, tweaked the measure to require the Park Service to study how wildlife protection measures might be modified to provide more vehicle access while still protecting wildlife and pedestrians. It has not been considered by the full Senate.

Similar legislation (H.R. 2954), though, has passed the House of Representatives.


Thanks Kurt for your analysis. Judge Boyle is familiar with the long term history of CAHA and has finally put the EL into is proper legal perspective with respect to NPS resources and ORV access. The ruling does not address  "recreational conflicts" associated with ORV access and how ORV use impairs some users "primitive wilderness” for this park.


CHNS enabling legislation


"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."


The new ORV rule reflects the public comments received from the ORV/fishing community and their organizations as standard protocol by NEPA guidelines. In the public comments concerning the ORV rule ORV users put priority on those places where the fishing was historically best (inlets, capes and spits) with full knowledge that these places were also the prime nesting, resting and foraging areas for "unique" avian resources. They then calculated what areas of the park were so eroded that vehicle safety regulations had kept ORV use out of those areas and reluctantly agreed during the failed regneg meeting to make those areas potential VFAs. Their criteria for choosing those places were areas that were of marginal ORV potential.


I am not trying to be patronizing but I honestly sympathize with ORV users where the new ORV regulations deviate from their recent history of finding places in the Seashore to park their vehicles and recreate.  It was obvious back in the early 70's that historical use of CAHA was changing and that the "primitive wilderness" was being compromised. The increase use of ORVs expanded into areas of the beach that had not had seen that type of sustained use before. I was on the beaches surfing and fishing with my friends in the late 60's and with my parents before that. Unless we were near Cape Point we didn't see vehicles on the beach and the majority of visitors accessed the ocean beach without a vehicle. Before the ORV rule there were no capacity regulations for how many vehicles could be in a section of beach. Unless you saw these beaches in early 2000's it is hard to imagine how many vehicles were crammed into Bodie Island Spit and Cape Point in the summer and the insane tailgating that went on. Those places looked like something out of a MTV video. In hindsight it was obvious that ORV management should have been done long before.  This gradual fundamental shift of use went unaddressed by the NPS for reasons I don't know. Even under the current ORV rules it would be difficult to guarantee any area in the Park would stay remote by anyone standards because the new ORV regulations allow one vehicle per 20 feet of beach (more in the Cape Point area), another reason why the VFAs are so important to those of us that value remote places and the past historical conditions of the Park.


The problem is there isn’t enough of the pie to go around anymore to give a handful of visitors the privilege to drive to remote sections of Park beach. The ORV rule is an incredible fair compromise for ORV use.

Wow, the there is so much untruthful spin by both Kurt and Buxton I'll have to fully respond after the Dramamine kicks in.

Boyle is biased and know one expected him to rule against what he delusionally thinks is his plan. I've been in his court room several times on this subject, so I know what I'm talking about. I don't see where the ruling says the science is shoddy or not, instead he just points out there is too much to review.

Buxton, what about the 16 miles "primitive wilderness" VFA called PINWR? Conviently ignoring that along with ignoring birds on dredge and spoil islands. 

The USFWS's FOSNI is why the NPS didn't change anything. It was only after the bullying by the Audubon and DoW that started this mess.

Buxton, is right that on some holiday weekends is was crowded, especially at Bodie Island spit but permits would have curtailed that. 


The National Park Service discovered a least tern nest on Sunday that has closed the ocean beach in front of nine houses on Pamlico Court on the very north end of Avon.

The Park Service established  a colonial waterbird pre-nesting area north of Avon in the spring, but this pair of birds nested just south of the pre-nesting area.  

The buffer distance for a least tern nest is 100 meters, which is about 328 feet or a little longer than a football field. Therefore, the resource closure extends in front of about nine oceanfront houses on Pamlico Court in northern Avon.

This is the first time that anyone involved in the beach access issue can remember that a resource closure for nesting birds has closed the beach in front of houses in a village.

Outer Banks Group Superintendent Barclay Trimble said yesterday that he had already fielded phone calls from Warren Judge, chairman of the Dare County Board of Commissioners, and at least one rental manager.

He said the Park Service has closed the ocean beach just up to the toe of the dune, so that the occupants of the cut-off houses can cross over the dune and then head south along a narrow path between the dune and the closure to gain access to the open beach just south of Pamlico Court.

"It's not an easy walk," said Beth Midgett, rental manager for Midgett Realty, who visited the area yesterday. The company handles two houses affected by the closure.  Both are occupied this week.

One, she said, is on the southern end of the closure and is not as much of a problem as the other one, which is the very first house in northern Avon.  That house, she said, is occupied by a family with a grandmother who has mobility issues and cannot manage the walk in the deep sand behind the dune to the ocean beach that is open.

"They are not at all happy," Midgett said, noting that they had been planning all  year for this vacation and chose the oceanfront house for the easy access.

According to park biologist Eric Frey, the average incubation time for a nest is 21 days and chicks usually fledge in 19 to 20 days.  

The closure for unfledged chicks is 200 meters, which could mean more oceanfront closures in a few weeks for northern Avon.

Even if the nest is not successful, the closure will remain in place for two more weeks to see if the pair of bird will try again with another one.

If the nests hatches, Trimble said, "We'll just have to see where the chicks go after that."

At any rate, the oceanfront closures won't end anytime soon and could extend into August.

The least tern is not a federally protected species under the Endangered Species Act.  It is listed by the state of North Carolina as a "species of special concern." 

The state said when the Park Service was formulating its new off-road vehicle plan that it did not intend that the protections for these birds be as extensive as was being proposed. The Park Service said it had an obligation to protect the species of special concern.

Jan Harvard and her husband own a home on Pamlico Court and split their time between Rocky Mount and Avon.

"It bothers me that they (the Park Service) just go on and on with these closures," she said yesterday. "It seems like they're trying to ruin the economy of Hatteras Island.

Certainly, Beth Midgett noted, this oceanfront closure will have economic consequences for the owners of the houses that are rentals and for the companies that handle them.

This morning, Midgett Realty was calling the folks who have the houses rented in the coming weeks to inform them of the situation.  And, at the height of the rental season, they're aren't many other rentals to which they could be moved.

"It was just a stunner for them," she said.

Midgett then made another point about the contentious issues that surround the park's ORV rule and final plan and the opposition to it by many who think there should be more reasonable access for all.

"This has never really been about beach driving," she said. "It's about access, and it's just out of balance."

A national park, and especially a National Seashore should have primitive wilderness, and the fact that this is one of the FEW places in the entire NP system that allows ORVs, makes this local culture that whines about this issue so much seem extremely pathetic.  They are the epitome of the lazy american. 

"OHH my god, they are making us's so unamerican." 

Given the complex issues (and emotions) involved in the debate over recreational use vs. wildlife protection at this park, it seems the best we could hope for is that various groups would  be willing to recognize (not agree with) the positions of other groups. 


From that perspective, the location of the one specific nest described above by Beachdumb is unfortunate, because it adds fuel to the argument that beach closures for the sake of nesting wildlife threaten not only ORV use, but also the larger local economic base for the Cape Hatteras  real estate market. I'm not familiar with the specific area involved, so I'll accept Beachdumb's description of that situation.


The ORV groups may have lost the latest court case, but a potentially more serious challenge to the park's efforts to manage ORVs is found in the political arena, as described above in this story. It would be ironic if this one nest Beachdumb mentions becomes a successful "poster child" for a political campaign to overturn the NPS management plan on the basis of the plan's "damage to the local economy."


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Beachbumb what about the 56 miles of Cape Lookout National Seashore, next barrier island in line south of CAHA that pretty much allows ORV driving everywhere? What about the entire beach in Corolla north of where the paved road stops that you can drive on?  Why don't you vacation at those places where beach driving is allowed? Why do you think they don't allow driving on the Wildlife Refugee (PINWR)?  And in case you haven't noticed there are plenty of people accessing the Refuge’s beaches by walking. And like the NPS the National Wildlife Refuge restricts visitors from entering colonial bird nesting areas. It is standard procedure, except in you and your buddies’ narrow frame of reference.


What is your point about the NPS beach in Avon being closed, do you think it should be managed differently than the rest of Park just because there are weekly house rentals adjacent to that beach? How does that relate to the intent of the EL. Did you cut and paste the entire article from the biased very pro ORV local online newspaper called the Island Free Press?  Be honest and admit you are delighted the tern nested where it did.


Instead of ad hominem attacks on Judge Boyle why don't you explain how the EL doesn't mean what a federal judge believes it to mean.  I don't believe just because you set in the courtroom it gives you special insight into Judge Boyle's mind or is evidence of collusion with environmentalists.  I believe you like many of the ORV aficionados have an incomplete history of Cape Hatteras and conveniently ignore pertinent legislation that doesn't fit your personal agenda. Your lame excuses about bad judges are because you can't get your way.


Cape Point got just as crazy as Bodie Island, the hook in the south beach was wall to wall parked ORVs causing traffic jams at the Frisco Campground ORV ramp and the south end of the Pole Road to Hatteras Inlet would back up like a freeway ramp. Many many times I have been fishing at Cape Point and could smell transmission and clutches burning up and radiator steam from overheated cars. For you to deign this either means you were not there or you’re conveniently forgetting it. I witnessed all this first hand, it was a zoo. And that is just the issue with traffic all those people have to be policed by the NPS, they are partying, illegally camping on the beach setting bon fires in the middle of the ORV route, with that many people that were allowed to freely come and go by vehicle n the Park anytime of the day or night there were serious law enforcement concerns to consider. It was no way to run a National Park. Thank God there are a handful of miles now under the new ORV rule (the one you want to throw under the bus) where this nonsense can't go on anymore, unless you all get your way. Because this isn’t just about resource issues restricting access with you all, you want most of the VFAs as well.



Who is spinning now?

Beachdumb, I've quoted below what the judge wrote about the science. Call it what you want, but it speaks for itself.

The record reveals that NPS relied on scientific data to support its findings regarding the protection and preservation of wildlife, as well as its own data regarding visitor demands on the Seashore.  CHAPA has identified no study or data which would invalidate or call seriously into question NPS 's conclusions, and thus the Court will not look behind the agency here, in particular in regard to areas within NPS's own expertise.

Court will not look behind the agency here

Yes, speaks for itself, judge did not look. So how he can determine it was shoddy or not? But your article spins this differently, doesn't it? 

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