February 22, 2008

The ORV lawsuit or Why Derb Carter will win - He is right

When I saw the reports that the Southern Environmental Law Center (SELC) had filed for an injunction to limit beach driving in the Cape Hatteras National Seashore (Virginian Pilot) (Island Free Press)I was non-plussed. I knew that the National Park Service (NPS) had started a cooperative process to develop rules for Off Road Vehicle (ORV) use in the park. The suit would make that process much more difficult, if not impossible. The suit seems to preempt the process and sends the signal that the environmental groups negotiating the new rules will go outside the system to get their way. Think about how you would feel if you entered a negotiation in good faith, as the ORV groups have done, then your rivals went to court to change the status quo, while still claiming they want to negotiate in good faith. It doesn't build trust. It will make the job much harder.
I noted that the suit cited Dare County, Hyde County and an ORV group as co-defendants. That made me curious so I decided to read the brief and see what was being requested. The SELC website has a lot of info of the issue, includeing their filing in Federal District Court.
Before I start let's get some things straight; I am not lawyer even though I may have played on TV (and on this blog). I do understand some fundamental truths.
  • Any governmental rule needs to promote a public policy and promote it in a considered fashion
  • The more your rule is tied to the public policy it is intended to promote the safer it is from challenge.
  • Promoting private (read economic) interests only works in the absence of an opposing adopted public policy.
  • Lawyers (good ones) don't make their opponents case for them.
Given those truths, the SELC brief makes a very compelling case for limiting beach driving in several sensitive sectors of the seashore. The suit doesn't ask for a final ruling, it asks for changes in the NPS regulations until a final resolution is found in the ORV issue., in legal terms a preliminary injunction. That changes the issues that need to be considered in a decision significantly and it changes them in favor of the environment.
A preliminary injunction is intended to freeze the playing field until a decision is made, to keep one party from committing further harm while the case is adjudicated. In this context the SELC maintains the existing ORV rules don't provide the federally mandated level of protection of endangered and protected species in the park. They assert that the court needs to act to provide better protection until the final rules are hammered out. The suit asserts that the current rules violate federal law, don't promote adopted federal policy and the only recourse to achieve the federally mandated goals is to stop beach driving in several sensitive sections of the seashore. Here is the kicker:The SELC makes an excellent case for an injunction. and I think they will get one.
They base much of their case on recommendations from scientists the NPS hired to recommend strategies to meet the federal guidelines for recreational use of National Parks. That report offered several levels of protection:
The USGS Management Protocols for each species or group of species includes three alternative protocols, providing respectively for a “Highest Degree of Protection,” “Moderate Protection,” and “Minimum Protection” from the adverse effects of ORV use in the Seashore, particularly during the critical breeding season.

The SELC claims the interim ORV policies adopted by the NPS don't even rise to the level of "Minimum Protection". The SELC injunction requests closures they suggest would meet the "Moderate Protection" standard. This would restrict beach driving around Oregon, Hatteras and Ocracoke Inlets and Cape Point. All popular areas for ORV use. The SELC bases their case on the NPS's own science and a lot of federal case law. The standards for injunction are pretty clear, if the current situation will lead to irreparable losses by the plaintiff they win, if the status quo is stable then an injunction is not needed. The SELC makes a strong case, using NPS data, that the current rules won't stop the damage to shore bird habitat.
The Endangered Species Act makes the SELC case even stronger. They maintain case law on environmental issues recognizes that environmental damage is hard to fix and should be mitigated if possible until final rule making is complete. These precedents argue for securing sensitive areas until a final plan is adopted to make sure that no more damage is done.
Perhaps the strongest case for an injunction revolves around the Endangered Species Act. The courts, including the Supreme Court have ruled that this federal policy overrules most any interest up to and until a final judicial or administrative decision. Here is the language in the brief:
The second preliminary injunction standard that is relevant here is the standard applied to claims brought under the Endangered Species Act. When a preliminary injunction is sought for violations of the Endangered Species Act, “the standard is different” be cause “the third and fourth prongs of the injunction analysis” – the analysis of the balance of harms and public interest – “have been foreclosed by Congress.” Fla. Key Deer v. Brown, 386 F. Supp. 2d 1281, 1284 (S.D. Fla. 2005). When considering a preliminary injunction for violations of the ESA, “(1) the Court does not have the ‘traditional equitable discretion’ to balance the parties’ interests, (2) any threatened harm is per se irreparable harm, and (3) the public interest always favors the imposition of an injunction under the Act.” Loggerhead Turtle v. Volusia County, 896 F. Supp. 1170, 1178 (M.D. Fla. 1995) (emphasis in original) (citing Tenn. Valley Auth. v. Hill, 437 U.S. 153, 174, 184 (1978)). According to the Supreme Court, “Congress has spoken in the plainest of words, making it abundantly clear that the balance has been struck in favor of affording endangered species the highest of priorities . . . .” Tenn. Valley Auth. 437 U.S. at 194. Consequently, the preliminary injunction standard for ESA claims has two parts. Parties “seeking a preliminary injunction under the Act must show: (1) that the wildlife at issue is protected under the Endangered Species Act, and (2) that there is a reasonable likelihood that defendant will commit future violations of the Endangered Species Act.” Loggerhead Turtle 896 F. Supp. at 1180.
The brief goes on to demonstrate that there are piping plovers (an endangered species) in the park and that the NPS has not adopted ORV rules that were mandated in 1972. That would seem to meet the tests described in the standard. In short expect the SELC to get their injunction.
I expect the SELC will win because the NPS has not done what it should have done over 30 years ago, aopted rules on beach driving. Nags Head adopted a permit system with limited access over 25 years ago, not because of environmental concerns but because cars on the beach just don't play well with a lot of other uses. Nags Head (and other towns) made decisions about how much impact from ORV's they would accept. They held hearings, did studies and then adopted rules. It was hard, beach driving remains an contentious issue in Nags Head but there are rules, rules that promote a variety of public policies in a rationally demonstrable fashion. If the NPS had anything reasonably approaching that standard this lawsuit would not prevail. Unless the NPS can prove that their existing rules, not the rules they may adopt, will enforce federal law they will lose. Frankly I don't see how they can make that claim.
As I noted earlier, lawyers don't make their opponents case. The SELC kids make a strong case and tried to close very loop hole. When I get to see the NPS brief I will judge how well they respond, but the argument that federally mandated environmental policy trumps local econcomic interests makes judicial sense to me.
I don't suggest that the impacts on the ORV community are not real and may seem harsh. I just bought an SUV. The photo at the top of this post is my vehicle on the beach in Ocracoke last summer. I have enjoyed sunset at Ocracoke Inlet many times. It is a special place at a special time. I understand that fishing at Cape Point is the piscatorial equivalent of climbing Everest. I know that many people who vacation on Hatteras Island want to drive on the beach. I know those things but I also know that our government has found that we need to protect species from extinction regardless of the impact on the affected communities. The SELC makes a compelling case that a limited closing will provide ample opportunity for access while providing a level of protection for wildlife that the NPS' own scientist say is necessary to meet federal environmental rules.
Those rules caused a great outcry when they stopped the use of DDT, we now have the brown pelican back as a result. Those rules cause a great outcry when the stopped all fishing for striped bass, Rock fish have now recovered and provide part of the impetus for beach driving. Strong action to protect threatened and endangered species has a history of success. Success that has enhanced the same economies that protested the rules to begin with. In short people can adapt more easily that animals can. Therefore we should. That is the thrust of the federal rules and that is why SELC stands an excellent chance of getting their injunction.
I have a bad habit of burying the lead, of taking the main point and hiding it amidst a lot of other stuff, and I guess I have done it again.
The really sad thing about this is that ORV use and shore bird habitat don't have to conflict. Cars can avoid habitats if they want to. But there is a small portion of the ORV user population that just doesn't get it, that has to drive where they they will have the worst impact. They are not a large part of the user group but their impact far outweighs their numbers. When Judge Boyle ruled ORV use illegal in the seashore he noted 47 violations of areas closed for bird nesting and 23 violations of turtle nesting areas in the summer of 2006. When ORV users willfully violate protected areas they make it difficult for anyone to defend them. Had the ORV community abided by the moderate (even modest) NPS rules, they would not be in danger of losing significant access now.
The combination of the willful disregard of federal mandates by the NPS and the limited rules by a few ORV users has created a situation that appears to guarantee judicial action to limit access to the beach. Meanwhile the lawsuit will make the rulemaking process much harder. No one likes to be sued or to see a rival gain an advantage outside the process when you felt your were negotiating in good faith.
I can only hope that the ORV groups and the local governments involved in both the suit and the negotiations will look beyond the injunction and try to find a solution that meets both the federally mandated protection of endangered species, protection that has a history of success, and allows as much access to recreational areas as possible. The best answer may be for for the user groups (or our local governments) to get invovled in the protection of the environmentally sensitive areas in return for access to economically important areas. If the NPS is limited by budget constraints and that is the controlling factor then lets find a way to get it done. That may not sit well with the environmental groups who may think they have the stronger hand but unless they want to fight a very long and very difficult battle they would be well advised to not overplay their advantage but to work hard to find a solution that the ORV groups can embrace. That is what has worked in the towns, the solution met the needs of the great majority of users, therefore it is supported and enforced by both sides. Both sides realizing that if they create a new controversy they might lose what they have now.
Ok, the lead is now at least six feet under. If you have read this far you are interested in the issue so go read the SELC brief. I expect you will find it enlightening. Judge for yourself the merits of the case then join me when we see what the courts decide.
Note: The SELC website has links to several editorials and columns about their suit. If you want sense of public opinion beyond the coast have a look.

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At 9:07 AM, Blogger Ococker said...

Perhaps the courts, in their wisdom, should return to square one and determine whether the original law in this instance is lawful.


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