March 17, 2008

ORV Why Derb Carter may not win Part IV

Ok, maybe just maybe there is a ray of hope in the battle to forestall an injunction banning ORV traffic at several locations within the Cape Hatteras National Seashore. (see note below for background links). Attorneys representing Dare and Hyde counties and several ORV groups (the intervenors) have filed a response to the Southern Environmental Law Center's (SELC) motion for a preliminary injunction banning beach driving from many of the most popular fishing spots in the CHNS. To my eye it is everything the NPS response was not. The Island Free Press again has an excellent article explaining the brief.
In their brief opposing the temporary injunction, the intervenors’ attorneys argue that:

• The interim process was the equivalent of the process for adopting long-range rulemaking on ORV use.

• The environmental groups will not suffer irreparable harm if no injunction is granted.

• The intervenors and defendants will suffer significant, immediate, and irreparable harm if an injunction is imposed.

• The environmental groups cannot show a likelihood of success on the merits of the request for the injunction

• The public interest favors leaving the interim plan in place until a longer term rule is devised by the negotiated rulemaking process.
The brief goes on to cite extensive legislative history about the role of recreation and beach driving in the park. It argues strongly that the requested injunction would have severe economic consequences and attempts to refute the claims of the SELC related to the Endangered Species act both on legal and scientific grounds. From the IFP again:
• The assumption that ORV use is the primary threat to seashore wildlife is a position not supported by the facts. Other factors affect the populations, including predation, climate, and other human activities, including pedestrians.
• The interim plan will adequately protect seashore wildlife until a long-term management plan is in effect. And, therefore, the environmental groups cannot show irreparable harm based on shortcomings in the interim plan.
• The intervenors would suffer “significant, immediate, and irreparable harm” from an injunction. The brief and supporting documents address the economic impact of closing the most popular areas for fishing and recreation and claim it is “far worse than the Plaintiffs assert.”
• Finally, the intervenors’ response addresses the public interest in leaving the interim plan in place until there is a final rule on ORV use.
• “Finally,” the response states, “it is in the public interest for this Court to refrain from issuing an injunction. First, the public has a strong, Congressionally recognized interest in open governmental processes and the ability to participate in decision-making that affects individuals’ daily lives….An injunction would trample this process.

Contrast this with the NPS response which says there is no plan (basically an admission of guilt) and make no attempt to refute the SELC claims.
The question now is will the NPS and the Department of Justice pick up on the legal work done by the intervenors. If that happens there is a chance that the judge will rule in favor of the NPS. Certainly the intervenors' brief gives him a solid legal framework for such an action. What is not clear is what happens if the NPS and DOJ don't pick up on the intervenors' lead. The Judge gave little weight to arguments from the intervenors' attorney at an initial hearing. In fact he was quite dismissive, asking why should he accept arguments from the outside parties if NPS, the primary defendant, wasn't making the same arguments.
Still the case for maintaining the status quo got a big boost and that is a good thing. What is needed now is pressure on the NPS to mount a defense. The best way to apply that pressure is for interested citizens to call their elected leaders and ask for them to contact NPS and DOJ and demand that they embrace the intervenors arguments and briefs. If enough pressure is put on in DC it could make a difference. If you are local here are the numbers:
Senator Elizabeth Dole (R- NC) 202-224-6342
Senator Richard Burr (R- NC) 202-224-3154
Representative Walter B. Jones, Jr. (R - 03) 202-225-3415
Do not email, they get thousands. A phone call is much better. Ask them to respond back to you when the action is taken.
If you are not in eastern NC try this link to get your contact information.
As I have stated in previous posts, I think the NPS leadership wants the preliminary injunction as a way to get them off the hook for severe ORV limits. That position won't change unless the Administration wants it to change. They won't want it to change unless Congress thinks it is important. Congress won't get involved unless they think the public is watching. If you want ORV access maintained or even if you want a fair negotiated rulemaking process you need to call now. Not tomorrow, not next week but right now. All the lawmakers say they support ORV access now they can prove it.
You can read the full text of the brief on the IFP website. Thanks again to them for providing very good timely coverage of this issue.

Note: This post follows several other posts. For background you can read the following posts.
Judge Boyle rules ORV use illegal
Why Derb Carter will win (Part1) (Part 2) (Part 3.141...)
All of these posts and more on the issuce can be found this a Google search of the blog for the term ORV. Not all the search results are relevant but several have good background.
The blog Outer Banks Republic has also written about the issue as has Bill's Outer Banks Beach Life. I strongly recommend both these sites as regular reading. They have lots of good current info and (mostly) well reasoned opinion.

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