The pressing question now is who should be managing the Cape Hatteras National Seashore.

And the answer to that question is quite simple.  The National Park Service should be managing the seashore’s resources and its recreational access – by ORVs and folks on foot.

The problem is that right now the park is not managing the seashore.  

Park officials are doing exactly as they were instructed to do under a consent decree that was signed by a federal judge on April 30 and that settled a lawsuit that was filed last fall by environmental advocacy groups.

As a result of the decree, the seashore is being managed by the Defenders of Wildlife and the National Audubon Society, and by the Southern Environmental Law Center, which represented the two groups in the legal action and was instrumental in formulating the terms of the settlement.  

And let’s not forget the federal judge, Terrence W. Boyle, who signed off on the decree, and to whose court the groups can return if they don’t like the way the park is being managed.

That decree spells out exactly what must be done to protect birds and turtles, including specifying to the meter exactly how large pre-nesting and nesting buffers should be and how much space the chicks should have after they hatch and before they fledge.

There is no discretion allowed.  The Park Service is not allowed to use its own judgment on nesting closures on a case by case basis.

This is not as it should be.

On June 11, North Carolina U.S. Sens. Elizabeth Dole and Richard Burr and U.S. Rep. Walter Jones introduced legislation into the Senate and the House of Representatives that would set aside the consent decree and require that the Park Service operate the seashore under its interim plan until the long-term plan is negotiated by a committee of stakeholders.

Dare county officials and groups that advocate free and open access to the beach were ecstatic about the legislation.  Defenders of Wildlife and Aububon said legislation would strip “vital protections” for wildlife on the beaches.

And the two closest major newspapers, The News & Observer in Raleigh and The Virginian-Pilot in Norfolk, published editorials that heavily criticized the legislation.

The advocacy groups that were instrumental in getting this consent decree fall back on these talking points.

•    The National Park Service has been required to have a long-term ORV plan since 1972. And it still does not have one.

•    In the opinions of the environmental groups, the interim management plan, intended to manage resources and ORVs until there is a long-term plan, does not do enough to protect wildlife.

•    The consent decree was signed by all parties to the lawsuit, including the plaintiff environmental groups, the federal government, and the defendant/intervenors – Dare and Hyde counties and The Cape Hatteras Preservation Alliance, an umbrella organization that includes groups that advocate for free and open access, including the Outer Banks Preservation Alliance


So here are the facts:

It is true that the Park Service has not had a long-term ORV rule that has been published in the Federal Register and thus made “official.”  After a series of public meetings in the late 1970s, seashore officials sent a proposed rule to the Park Service in Washington, D.C., in 1978.  No one today knows, or is willing to say, what ever happened to that plan.  However, it still exists on paper (I have a copy.), and the park has been operating for almost two decades under many of the regulations that were put forward then – ORV trails, ramps, safety closures, closures for nesting shorebirds and turtles, etc.

Furthermore, the Park Service is seriously pursuing a long-range plan right now through a negotiated rulemaking committee of stakeholders who are sitting around a table and trying to reach an agreement on the long-range rules that all sides of the issue can live with.

This negotiated rulemaking process is not a speedy one.  Its members are officially vetted and appointed by the Secretary of the Interior, and it operates under federal rules for negotiation. It could take until the end of 2010 for the committee to finish its work.

However, at this point, what exactly was the point in filing a lawsuit over the interim plan when, under the leadership of seashore superintendent Mike Murray, negotiated rulemaking is finally underway after five years or more of just talking about it?

Defenders of Wildlife and Audubon said in their lawsuit and their request for an injunction to shut down popular beaches year-round that the birds and turtles here are in a crisis – that populations have plummeted and the birds cannot wait three more years.  The groups claim that the number of colonial waterbirds nesting on the seashore has plummeted 84 percent in six years.

On the SELC Web site, there is a chart that outlines these declines, but has no documentation about where the information came from. One bird listed is the black skimmer.  According to the chart, there were no black skimmers nesting on seashore beaches last summer.  However, it is well documented by North Carolina Wildlife Resources Commission that one of the largest colonies of black skimmers in the state exists on a dredge island, known as Cora June Island, just offshore in the sound from the Hatteras Inlet Ferry Docks.

It is also interesting to note that despite the large buffers required under the consent decree, a pair of American oystercatchers has nested and hatched two chicks just off Highway 12 near Hatteras village in the Sandy Bay area. The consent decree does not require that highways be closed for buffers for nesting birds. The birds sat quite happily on the nest as cars and trucks streaked by at 55 miles per hour. As of Monday, June 16, the chicks were still fine and foraging along the sound.

In addition, a North Carolina State University study on American oystercatcher populations on the seashore has a chart that traces the productivity of that bird from 1995 until 2007 for the seashore. In 1997, the chart notes that there were 22 breeding pairs and 8 fledged chicks on Hatteras Island.  In 2007, it says, there were 15 breeding pairs and 9 fledged chicks on the island. The most successful year in the chart for fledged chicks was 2005 when there were 17 breeding pairs and 10 fledged chicks.

This data suggests that the bird management policy of the Park Service on Hatteras Island in recent years has been effective.  

Let me add at this point that neither the black skimmer nor American oystercatcher is an endangered or threatened species under the Endangered Species Act.  They are listed as “species of special concern” by the state of North Carolina. The only federally protected species on the seashore is the piping plover, which is listed as threatened under the ESA.

Much of the argument boils down to the “science” of bird populations.  The environmental groups throw out many statistics in their press releases but have been less than forthcoming in the specifics of where this science came from. They have not provided published studies or references.

In a recent tour of some nesting areas on the seashore with representatives of North Carolina Audubon, I was assured when I asked questions about the examples listed above and other questions about how buffers were determined, that they were based on the best science available.  Other than the NC State Study, which is problematic to me, there were few if any specifics.

Audubon, Defenders, and SELC have been invited several times to submit guest columns to The Island Free Press.  None of the groups has done so. That’s why our guest columns have been dominated by a scientist, Dr. Mike Berry, who has raised some troubling and provocative questions about the science used by the environmental groups, especially the absence of open public peer review and discussion of the science used as the basis for the current closures.

Also, the public had no opportunity for input into the consent decree.  Yes, they were represented by the federal government, county government, and beach access groups, but you and I were not invited to get involved or let any of these folks know how we felt about how the lawsuit would be settled. Negotiations for the consent decree were behind closed doors.

On the other hand, the National Park Service’s Interim Protected Species Management Strategy and Environmental Assessment was several years in the making and the public had an opportunity to comment in public meetings several times along the way.

The Park Service basically had been operating under the plan, which was finally published in the Federal Register last summer. It is backed up by science, the best professional opinion of park officials, and a biological opinion by the U.S. Fish and Wildlife Service.

There is no reason to think that the interim plan would not have protected birds and turtles had the Park Service been allowed to continue with it.

Next up is the fact that all of the parties to the lawsuit and the request for the injunction signed the consent decree.

This is true.

This was not the “judge’s” decree, as many refer to it.  The plaintiff advocacy groups, the federal government, and the intervenors – Dare and Hyde counties and CHAPA did sign off on it.

However, let it be noted here that the attorneys for the federal government, admitting that the National Park Service was essentially breaking the law by having no long-term rule, did not mount a defense that amounted to anything to continue the interim plan for three more years. Their short response to the environmental groups’ request for an injunction was, in fact, rather pitiful.

The intervenors tried to argue that the interim plan served the purpose until negotiated rulemaking was completed with a much more detailed and intelligent response from their attorneys, including Larry Libesman of Holland and Knight in Washington, D.C., and attorneys from Hornthal, Riley, Ellis, and Maland in Elizabeth City, N.C. But there never was a hearing in Judge Terrence Boyle's courtroom on the merits of the case.  During the hearings in Boyle’s court on various procedural issues and the final hearing on the consent decree, Boyle made it clear that he was willing to grant the injunction to close areas of the beach year-round.

The intervenors felt they had no choice but to agree to what the environmental groups demanded, and their attorneys advised that there was little or no chance of winning on appeal.

So they went along and signed off on the decree.  Maybe they should not have, but that is not really relevant at this point.  They went along and turned to Congress for help.

Certainly, the intervenors, and probably the Justice Department lawyer who defended the Park Service, had no idea that within days of April 30, large beach closures would start, and they have continued day after day and week after week until most year-round residents can no longer keep track of what is open and what is closed and visitors are totally clueless. Frankly, I don’t know how the Park Service keeps track of it.

Simply put, it is a total mess.

So what is wrong with going back to the well-studied and vetted interim plan that the public had several opportunities to comment on and that was signed off on by park management and other biologists?

And, so what if it takes an act of Congress to do that?

The headline on an editorial in The Virginian-Pilot editorial on Monday, June 16, was “ORV FIGHT IS NO PLACE FOR CONGRESS.”

So, the ORV fight is a good place for a federal judge and a courtroom? This is better?

If The Virginian-Pilot editorial board does not think the management of the park should be left to Congress, why in the world would it think that it should be left to a judge and special interest groups?

It is true that the editorial writers, lacking the information they should have had, assumed that the management of the park was already in the good hands of “National Park Service scientists, islanders, and conservationists.”

Well, the news for those writers is that the National Park Service scientists had a hand in designing the interim plan and the islanders had the consent decree shoved down their throats.  That leaves the conservationists as the only happy parties in this.

The editorial writer calls the interim plan “the weaker plan” without citing one specific reason – other than information that was taken directly from an SELC press release.

The most offensive sentence in the Pilot editorial was:

“The restrictions are undoubtedly an inconvenience for people accustomed to driving on the beach nearly anywhere they pleased.”

Has this writer ever been to Hatteras or Ocracoke?  Probably not.  Because if that person had been, he or she would have known that seashore residents and visitors have not driven on the beach “nearly anywhere they pleased” for decades.  Summer beach closures for nesting birds and turtles have been in place for years and have grown steadily larger in the last five years.  And locals and visitors accept those restrictions – though with some grumbling.

The five-paragraph editorial in The News & Observer is less offensive only because it has no facts in it and is rather pitiful as a tool to convince people that the environmental groups are right in this fight.

That writer states the interim plan is unlikely to “nurture healthy colonies of plovers and other imperiled birds” that “don’t stand a chance against the hundreds of vehicles that flocked to the shore under that plan.”

I wonder if the N&O editorial writer can name two specific differences between the interim plan and the consent decree.

Furthermore that writer managed to get into his short editorial the gratuitous and totally unnecessary shot that “Fishermen vote, shorebirds don’t.”

Well, fishermen aren’t the only folks who are unhappy about the recent, unprecedented closures.  So are surfers, windsurfers, kiteboarders, walkers, shell and beach glass hunters, and the many families who gathered at Bodie Island Spit, Cape Point and South Beach, Hatteras Inlet, or the South Point on Ocracoke for an afternoon of fishing, cooking out and picnicking, reading, shelling, and letting the kids play in the tidal pools.

None of these writers have bothered to mention the economic devastation that much of what they defend will bring to this island. Nor have they even given a passing reference to the traditional, historical, and cultural uses of the beach on these islands.

We don’t have bars and community centers in the sense that folks do in the city.  We have the beach.  It’s our “community” center, the place where islanders meet on weekends or evenings to fish and share news and cook out with friends.  It’s the place that visitors love to return to and share time with other visitors whom they’ve met and bonded with over the years of coming here.

And, finally, in making the case to revert to the interim plan, I haven’t even mentioned the fact that the three environmental groups that filed the lawsuit and asked for the injunction and shoved the consent decree down everyone’s throat have a seat at the table for negotiated rulemaking.  They have had little or nothing to say in these meetings.  And why should they?  They have already gotten most everything they’d like to have, so why negotiate?  And that is a real threat to the entire process.

These same groups like to remind us folks down here on the islands that they cut us some slack.  They knew which way the judge was leaning and that they could have had it all – everything they asked for. And that is true. But, they say, they don’t want to eliminate ORVs, just protect more birds.  They want to get along with us folks.

Many of us now hope that Congress shoves legislation down their throats and returns the management of the seashore to the people who should be in charge – the officials and scientists of the National Park Service.

Under the very competent leadership of Superintendent Mike Murray, I am sure the Park Service can get us all – islanders and visitors and birds and turtles – through the final three years of ORV rulemaking and on to sane management of beach access.


A POSTSCRIPT FOR ISLANDERS AND ISLAND LOVERS: A PLEA FOR CIVILITY

Let’s stop putting up “wanted” and “reward” posters at island businesses that feature photos and information about those who are the other side of the issue and posting maps to their homes. They have their right to free speech and to participate in the process in whatever way they feel they must.  

Let’s get rid of all the nasty and threatening messages on Internet boards.

Let’s stop making statements about how they’re all “just a bunch of lawyers who are in it for the money.”

I do not believe this is true.

The person from these groups I know best is Jason Rylander, attorney for Defenders of Wildlife.  He is a really sharp lawyer, who left private law practice to go with Defenders – with a cut in salary, he once told me.   He’s married, the father of two young children, and a trained opera singer in his spare time.  I’ve interviewed him off and on for the past few years, and a find him a worthy adversary whose questions and comments help sharpen my own thoughts and views of this situation.

I met Chris Canfield, executive director of Audubon North Carolina, earlier this month when I went to tour some bird nesting areas with him and other members of that group.
He, too, is an interesting man, who noted that he never intended to be an “ornithologist.” His undergraduate major in college was math and he pursued English literature in graduate school.  He was in the Air Force and spent time as an officer at the Pentagon.
He said on our tour that he regretted the conflict and acrimony of the current beach access situation and seemed sincerely interested in trying to improve Audubon’s communications with islanders.

Several folks who live on the island and have been the targets of these posters are also people I have known for some years.  You might disagree with them, but they don’t deserve to be treated with disrespect.

And, finally, we come to Derb Carter of the Southern Environmental Law Center.  I’m sorry I can’t share much with you about him because he does not return my e-mails or phone calls.  I have heard he thinks my newspaper, The Island Free Press, is too much an advocate for pro-access groups and doesn’t give both sides of the story.

You have to admit that it’s hard to give both sides if the other side won’t talk to you.

My point here is that personalizing this issue and having such negative and nasty things to say about folks who are also exercising their rights, does none of us any good.
Instead, it just helps to perpetuate the stereotype that we are all a bunch of rednecks who want to drive anywhere on the beach we like.


For more information

Bird  population chart from Southern Environmental Law Center:
(http://www.southernenvironment.org/cases/hatteras/bird_decline.htm)

Editorial from The News & Observer of Raleigh from Sunday, June 15:
http://www.newsobserver.com/opinion/editorials/story/1108607.html

Editorial from The Virginian-Pilot from Monday, June 16:
http://hamptonroads.com/2008/06/orv-fight-no-place-congress

The consent decree signed by Judge Boyle:
Click Here To Read The Consent Decree

The National Park Service Interim Protected Species Management Strategy/Environmental Assessment – Finding of No Significant Environmental Impact:
Click here to Read the Interim Plan

To read the report on research on American oystercatchers by NC State University, go to:

http://www.southernenvironment.org/cases/hatteras/AmOY_study.pdf


In addition, transcripts from hearings in Judge Terrence Boyle’s courtroom can be read on this site under Beach Access Issues – both current and archived articles.