March 15, 2008

ORV Why Derb Carter will Win Part 3.14159265

Island Free Press ... reports that the NPS has filed its response to the Southern Environmental Law Center's (SELC) request for an injunction banning ORV use at Oregon, Hatteras and Ocracoke Inlets and at Cape Point. The NPS filing does nothing to challenge my initial take on this suit. The NPS states plainly that they have not adopted ORV rules. This means that SELC meets a major legal hurdle, the likelyhood they will prevail in their suit.
Federal Defendants do not dispute that, pursuant to 36 C.F.R. 4.10, the NPS regulation implementing Executive Orders 11644 and 11989, ORV use is unauthorized at the Seashore in the absence of a special regulation designating ORV routes and areas. See United States v. Matei,2:07-M-1075 (E.D.N.C. July 17, 2007); United States v. Worthington, 2008 WL 194386 (E.D.N.C. January 2, 2008). Accordingly,Federal Defendants do not dispute that Plaintiffs have met their burden of showing a likelihood of success on the merits [emphsis added] with respect to the alleged violation of 36 C.F.R. 4.10. On this basis, the Court could find Plaintiffs are entitled to a preliminary injunction, pending adjudication on the merits of Plaintiffs' remaining claims and on the scope of any appropriate, permanent injunctive relief. See The Scotts Co., 315 F.3d at 271.
The NPS response leads by challenging the legal tests the SELC proposes for the judge to use in considering the injunction. I am not qualified to parse which is more accurate but even using the NPS test its clear that it would be not hard to make a case that continued ORV use near endangered species nesting areas meets the test. Here is the standard the NPS
“‘(1) the likelihood of irreparable harm to the plaintiff[s] if the preliminary injunction is denied,(2) the likelihood of harm to the defendant[s] if the requested relief is granted, (3) the likelihood that the plaintiff[s] will succeed on the merits, and (4) the public interest.’”
The SELC brief makes strong assestions that ORV use is doing irreparable harm to endangered species. Their brief minimizes economic damage to the area and makes legal arguments against using an economic test when considering harm under the Endangered Species Act. The NPS has given them #3 and enforcing the ESA is clearly in the public interest, as are the mandated ORV limits that the NPS has failed to adopt for about 30 years. Game, Set, Match to the SELC et. al.
The NPS make no claims about the other parts of the standard other than to argue that the court need not find harm solely based on a violation of the Endangered Species Act. This type of legal wrangling can go either way depending on how the judge is leaning. We already have some sense of that from Judge Boyle's earlier rulings and the scheduling hearing. This guy is pissed and the SELC has given him a platform to do something about it.
What is not in the NPS brief is equally telling, no discussion of how the current plan protects endangered birds, very little refutation of the SELC assertions about what actions the ESA requires. The brief makes no arguments on the scope of the requested injunction either. It does not assert economic harm to the area nor defend ORV access under the legislative mandate of the Seashore. All this issues are raised in the SELC brief and the NPS has no answer. Not a good sign.
All this makes the response from lawyers for Dare and Hyde county critical. Judge Boyle had little use for this side of the case during the scheduling hearing. As one wag wrote "it sounded WWE Friday Night Smackdown on the "CW" Network!. " They have a big hurdle trying to make arguments that the NPS doesn't join. As Judge Boyle points out the decisions about the seashore are the purview of the NPS not local government.

The NPS response only strengthens my belief that the NPS management actually believe the ORV ban is the correct action under the ESA but they don't have the guts to do it on their own. By mounting a weak defense to the injunction the NPS will lose, Then they get the protection they want for plovers yet they don't have to defend the closure. They can simply say 'Hey, the judge did it not us'. Once the injunction is granted and the new standard is in place look for the rulemaking process to drag on. With their environmental goals met the NPS and the SELC and partners, have NO incentive to negotiate anything more than the access granted under the injunction. Why should they give up what Judge Boyle is about to give them? Absolutely no reason.
My advice to those who want access: Cut a deal right now before the injunction. You have all the leverage you are going to get, Your opponents know this. Don't surrender but sit down and accept some closures and very tight rules about how you access the beach. and make the call today. If you wait you are going to find yourself in a very very weak position with no way to level the playing field.
I don't expect anyone will take my advice. The injunction was part of a strategy to polarize the debate and make sure that no one wants to compromise. It has done its job. There will be no concessions and sometime in late April there will be no ORV access to the prime fishing locations in the CHNS. This does not please me but I don't see anything that can stop it, certainly there is nothing in the NPS filings that will help.
Note the Island Free Press remains the best online source for news on the issue. If you get the Coastland Times you can benefit from their excellent coverage but you can't get it online unless I get another gift from Mary Helen.

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