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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.

Comments

Gary, I won't supply you any more information. According to you everything I say is in accurate and is influenced by industrial tourism, tea party, Koch bothers, big oil and all the other liberal talking points. If your so smart, prove me wrong.


Gary - oil from overseas subsidized??  Thats laughable.  Could you please cite one example where oil was going to become unavailable to the US and we had to send our "big warships" to keep the oil flowing?  Of course not.  But it is a convenient part of your Tea Party rant.  I can't believe Kurt lets your foul-mouthed defamation stand. 

I will absolutely agree, however, about not subsidizing redevelopment.  Shut down federal flood insurance.  Wait, that's a Tea Party idea so now you will probably reverse your position. 


Actually the Park would not need near as much LE infrastructure if ORV use were not allowed. The ORV permit fees should pay for the extra expense they cause the Park.

 

The 07 plan was an interim plan that dealt only with ORVs and resources. Environmental groups quickly challenged the 07 plan as being inadequate. When they went to court the ORV and Dare county lawyers (who had intervened on the Park’s behest) immediately threw in the towel and helped form a different resource plan (consent decree) to which the government lawyers readily agreed. After the fact the ORV leaders involved came up with all kinds of excuses of why they agreed to the new plan. I think it says something when you have paid professional DC lawyers representing you and they recommend making a deal. Did they know something the rest of us didn’t? I believe it was way more complicated than a biased judge as they claim.

 

The final ORV plan considered other concerns not addressed in the 07 plan some of which were NP aesthetics, recreational conflicts, the NPS general management plan and primitive wilderness as discussed in the CAHA's EL. The Park considered many comments that were submitted for the final rule. Some of the comments were addressed directly and answered in public NPS documents that were available on line because I recognized direct quotes to comments that I wrote and were addressed, concerns that were not considered in the 2007 interim protected species management plan Beachdumb is referring to. The VFAs that Beachdumb complains so much about are a result of those comments and others. I am glad I live in a democracy where the rights of the minority are protected. In this case I think it was the rights of a silent majority that were protected.

 

I don't know if Beachdumb is aware of this process or if it is just simpler for him to complain about taxes, a bad judge and environmentalist with undo influence than to actually acknowledge the full story. The final ORV rule was quite different than Beachdumb and his ORV friends wanted because the NPS followed NEPA guidelines not because they didn't. 


 

Can you provide proof that the budgets have raised because of this simple act?

From the 2010 Green Book

"Funding is requested to support the implementation of a court orderd Consent Decree (CD) mandating the protection of wildlife species while providing for and manageing, recreational off-road vehicle (ORV) use n the park's beaches."


Beachdumb,

First, the FONSI addresses impacts the the species, not the local population. In other words, you could extripate the species from Hatteras and it probably wouldn't be over-all detrimental to the species (except for the loss of genetic diversity).

The nesting buffer for piping plover in the plan, is 75 meters, not 1000 meters. The 1000 meter buffer is for mobile chicks.


The nesting buffer for piping plover in the plan, is 75 meters, not 1000 meters. The 1000 meter buffer is for mobile chicks.

As far as I know they don't differentiate between a nest and mobile chicks. If there is a nest it gets a 1000 meter closure. Spring to summer is nesting season for plovers so the 1000 meter closure seems to be the most widely used.

I am not aware of there ever being a 75 meter plover closure ever established. Maybe for wintering plovers? Pre nesting closures as far as I can tell are far bigger than 75m? 


Buxton, I can tell you're composing your comments on Word or WordPerfect, thereby generating those formatting tables that head your posts.

Here's how to remedy that glitch: copy what you write in Word or WordPerfect and paste it into a bare-bones text processor like Notepad or Wordpad (you should have both of them if you have a Windows computer). Then copy that text and paste it in here. The header of formatting material should disappear in the process.

I hope that helps.


Gary,

Do you realize how little of our oil comes from Saudia Arabia and Iraq?  Do you realize oil is fungible?  From whom did we "protect" the Saudi penisula for the purpose of oil?

And big oil receives big tax breaks?  Hmm tell that to Exxon/Mobil.  Their effective income tax rate in 2014 was  48% vs the 35% statutory corporate rate. On top of that they paid an additional $66 billion in other taxes which was twice their net income.  Subsidized??  You need to stop drinking the kool aid.

http://www.sec.gov/Archives/edgar/data/34088/000003408814000012/xom10k20...    page 53

 


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