ORV Derb Carter Won ! the Part we have been waiting for.

N&O reports that Judge Boyle approved the negotiated settlement of the SELC lawsuit against the National Park Service. Not sure when it will take effect.

U.S. District Court Judge Terrence Boyle asked several questions during an hour-long hearing Wednesday before approving the agreement between environmentalists and the National Park Service.

Apparently he decided not to try to modify the settlement.
Ciao

ORV Have you wondered Why Derb Carter even got the chance to win? The history Part

It is easy to blame the SELC and its partners for the lawsuit that may close our beaches. Its easy to say the NPS should have adopted rules on beach driving several decades ago. Ok, there are lots of people to blame. Their motivations are clear and not particularly sinister in their context. Environmental groups protecting the environment and a bureaucracy, well, being a bureaucracy, The real mystery of this saga is Judge Boyle. The judge who started the chain last summer by declaring beach driving illegal, The Judge has telegraphed his intention see ORV use in the seashore curtailed if not eliminated. There are a lot of problems in the world a powerful federal judge could target, drugs, poverty, free speech. What pushed Judge Boyle to focus on four wheeling on a small strip of sand? Some friends pointed me to a story, a story that may explain just that.
The story opens in Ocracoke, a June night in 2003. Four young freinds come to the island to celebrate the end of school. They have been partying and the driver is drunk. The driver's name in George Wheatley, one of the freinds is a German exchange student named Juliane Strauch:

Wheatly arrived in a Jeep owned by his father's business. Witnesses said he drove along the beach recklessly, getting his Jeep stuck in the sand twice.
Then Wheatly got two male friends and Strauch into his Jeep and took off. Witnesses estimated that he was driving at 50 or 60 mph. Suddenly, the Jeep disappeared. When Strauch's friends arrived at the scene, they found the Jeep flipped over in the water.
Wheatly and one other passenger were uninjured. Another passenger was slightly injured. Strauch died at the scene.

The incident happens in a national seashore, on US government property so the case ends up in federal court. The case goes to trail:

The jury found him guilty of:

• Knowingly killing Juliane Strauch in the commission of (1) unlawful acts not amounting to a felony, that is, driving while impaired and reckless driving, or (2) in the commission in an unlawful manner and without due caution and circumspection of a lawful act which might produce death.

..He could receive a maximum sentence of six years imprisonment, a $250,000.00 fine, and three years of supervised release.
In addition, WHEATLY was found guilty of the following misdemeanors:

• Reckless driving;
• Unsafe operation of a motor vehicle
• Possession of alcohol by a person under the age of 21;
• Carrying an open container of alcohol within a vehicle; and
• Driving under the influence.

He pled guilty to not wearing a seatbelt, also a misdemeanor.

George Edward Wheatly Jr., 20, of Beaufort, was sentenced in U.S. District Court to three years, nine months in federal prison, to be followed by three years of supervised release, then five years of probation.

Lets take a step back. In 1940 CR Wheatly was a delegate to the Republican National Convention. CR Wheatly is George Wheatly's grandfather. in 2004 Jule Wheatly, another family member, served in the Executive Committee of the state Republican party. The Wheatly family is prominent in NC Republican circles, especially if those circles are in eastern North Carolina.
The Judge who presided over the Wheatly case, the judge who sentenced George Wheatly to 3 years in prison was appointed to the bench by Pres. Ronald Reagan in 1984 after working for Sen Jesse Helms in congress, them moving to Elizabeth City to join a local law firm. That Judge was Terrance Boyle, Chief Judge of the U.S. District Court for the Eastern District of North Carolina.
It is not hard to accept that the tragic death of a young exchange student joy riding on an unsupervised beach made an impression on Judge Boyle. It is not hard to accept that sentancing the son of a prominent Republican family, a family he undoubtedly knew, made a lasting impression.
I don't know the precise relationship between Judge Boyle and the Wheatlys. I feel confident they knew each other. Others, tell me they are close but I don't know that. They don't need to be close for the events to touch Judge Boyle. In fact participants don't know need to know each other for the tragic death of a young German girl to anger a powerful federal judge, to make him aware of the dangers of unregulated beach driving.
Blue Radio has a page devoted to the Wheatly-Strauch story. I can't find much else on the web about the incident. It happened 6 years ago, a lot has changed. Judge Boyle, apparently has not. He is still concerned about beach driving and how he is using his role as a judge address that concern.
I expect that this week Judge Boyle will set his hand to a settlement in the ORV lawsuit. That settlement was framed by the lawyers from the SELC, the NPS and the intervenors like Dare County and that settlement will be framed by George Wheatly and Juliane Strauch.
I started of by talking about the motives of the SELC and the NPS. Judge Boyle's motives are not as clear but his interest now has a context and tha may help us understand his actions.
Ciao

English is the Official Language of this BLog

Well, I took a vote and I voted that English is the official language of this blog. This is really convenient since English is the only language I know well enough to write this blog in. [see note] Once upon a time I could parlez francais pretty good but there is not much reason to parlez except with those crazy Canadians who wind surf on the ice flows in the sound in March.
I have heard of a service that would translate this blog into Urdu or Hebrew or whatever they speak in SoNag but I don't need it. I am taking this action because you may not have noticed my limitations and I wanted to make sure you know that I only speak English. I also expect that by declaring English the official language this blog I will help people learn English. I am not sure how that works but I am assured it will help by lots of other people who only speak English.
By the way comments written in Spanish or submitted from towns that don't let me go to the beach will not be published, after all English was good enough for Jesus so it's good enough for me.
Disclaimer: Declaring English the official language of this blog does not relieve this blog of any statutory requirements even though it might sound like it does. Please don't sue me, I only did this to help you!
Chow time
Bob
Note: English majors, fifth graders and Uncle Jack may read that sentence and disagree with it.

ORV Derb doesn't win till the fat Judge sings Part 10 or 11 I lost count

In my last post I commented that the settlement didn't contain some elements that Judge Boyle had indicated he thought were appropriate, permits, limits on the size, weight and number of vehicles on the beach etc. Apparently Judge Boyle noticed that as well. The Island Free Press reports that Judge Boyle has asked the National Park Service to respond to questions about the settlement (technically it is called a consent decree). The questions suggest Judge Boyle meant what he implied earlier.

Boyle had not responded to Wednesday’s settlement until this afternoon.
Today he asked the Park Service to respond in writing within seven days to seven questions. The information he wants is:

• Whether the consent decree established any control over access to beach driving at existing seashore ramps.
• The description and location of the ramps from Highway 12 to the beach as they now exist on the seashore.
• Whether there will be under the consent decree a numerical count of the number of vehicles that enter or have access to the beach.
• Restrictions or limitations on the type, size, weight, and characteristics of vehicles that will have access to the beach under the consent decree.
• Whether the consent decree requires separate permitting and qualification of a driver and vehicle, including a processing fee before either driver or vehicle are eligible for beach driving.
• Whether the consent decree requires safety screening or qualification of beach drivers.
• Whether the consent decree takes into account the safety of bathers and pedestrians.

Do we see a pattern here? I am not sure how much leeway the Judge has in redrafting the settlement but I know he can simply say "I do not accept the settlement. Come back with something better or go to trial". Since he has already indicated his opinion that the SELC has a compelling case, it is pretty easy to see where this path might lead.
I am told the judge has a record of being overturned on appeal but that takes time. Economic damage happens quickly. You can't replace revenue lost because people didn't come yesterday. The demand for access will weaken as each dollar drives someplace else to go fishing or vacation or sunbath or even bird watch. Judge Boyle knows this and so does the SELC and its partners. The intervenors and the NPS really have no leverage. Any concessions they get they have to take.
My best advice. Subscribe to the IFP email news service and you will get the latest info as it becomes available. I will comment but they have the facts faster than I can get them.

Also on the IFP is a nice letter from Mike Berry, the former EPA official, who wrote the N&O last week. (see this post). I am not quite so concerned about judicial activism as he is but he makes good points about the legislative requirements for decisions and the freedom the judge is taking in setting public policy in this case. No doubt Judge Boyle wants rules and really isn't looking for balance or science to help him reach a decision.
Thanks for stopping by.
Ciao

ORV Congrats Derb Carter you won

The ORV law suit has been settled. All the parties have accepted the settlement, though it is not clear just how happy the intervenors (Dare and Hyde County and some ORV groups). You can read the consent decrees and see some maps at the Island Free Press. The Va. Pilot has a story as well.
It looks like a loss of access to some parts of Oregon Inlet, Cape Point and Ocracoke Inlet, especially if piping plover chicks hatch. One good provision is a deadline for the negotiated rulemaking process. Monicell0 at OBR has some highlights.
I don't have enough info to explain what this will mean in real terms. There is no permitting system nor is there an absolute limit on the number of vehicles. Both elements identified by Judge Boyle as important. When it becomes clear just what the limits are I will point you there.
Ciao

Start Walking - Today

Today is National Start Walking Day. The national spokesman (Donny Osmond) aside, this is a great idea. I walk just about every day and it makes me feel good. When I started I could barely do 20 minutes. Now walks of several hours are easy. I even completed the OBX Half Marathon at a walking pace.
If you need a kick let this be it. Walking is easy, it doesn't take much time (30) minutes can produce results). All it takes is a desire.
Get started today, at lunch, after work even after dinner. I do mine in the morning, it really kick starts my day.
Like the ad said, Try it, You'll like it.
Ciao

ORV - We May Find out if Derb Carter Won Part 9*9

Thanks to Monty at OBR for the news. It appears my previous post was either misinformed or prmature. Now the Va. Pilot and the Island Free Press report a settlement has been reached. There is a statement at the SELC web site announcing the settlement and saying how happy Derb Carter is (why not he won). Dare County's web site has a statement the talks have failed. From the Va. Pilot report:

"Both sides in a legal battle that threatened to close six prime areas on Hatteras Island to off-road vehicles have reached an agreement in principle to settle the case.
A statement today from the environmental groups that filed suit challenging the management of driving along the beaches of the Cape Hatteras National Seashore did not provide details of the agreement.

But it said the Southern Environmental Law Center, the Defenders of Wildlife and the National Park Service would file a joint motion in U.S. District Court to continue the case until April 16.That would allow the defendant-intervenors, essentially a third party in the case, to vote on the agreement. They are the Dare County Board of Commissioners, the Hyde County Board of Commissioners and the board of the Cape Hatteras Access Preservation Alliance. "

Not sure when we will learn what it says. Best guess is to watch the ORV meesage boards and the IFP for the news. They seem to have the best info. The SELC release quotes Dare lawyers Outten and Leiberman as being "pleased", and more:

Statement from Bobby Outten and Larry Liebesman, attorneys for Defendant-Intervenors: "Bobby Outten, Dare County Attorney and Larry Liebesman , Holland and Knight LLP , outside counsel for Defendant-Intervenors, are very pleased that the parties have reached agreement in principle and will recommend to intervenors that the settlement be approved as soon as possible next week. John Couch, President of the Outer Banks Preservation Association has indicated that he will recommend approval of the settlement to his Board as soon a possible.[emphasis added]"

Mike Murray, Superintendent, Cape Hatteras National Seashore: “This is the best of all possible outcomes. I am very pleased all parties have reached an agreement in principle.”

This has to be good news. Dare, Hyde etc must have gotten some concessions or they would have just let the judge order the closure. Bobby Outten is pretty close lipped. If he is quoted as recommending the settlement then it must be something that the county can support. He would not put his board in that position with some signals from the elected leaders that they can live with the outcome. What that outcome is I have no idea and if there is any truth in the OB Sentinel report that the SELC and its partners renigged on an initial offer, as they renigged on not sueing during Reg Neg, (sorry I just had to write that little tongue twister) it may be pretty restrictive. Pure speculation on my part says that DC and Hyde would not agree to any plan that cut off ALL access to any popular area, though they might agree to some numeric limits. We should know soon.
Thanks for your time, sorry for reporting prematurely.
Ciao

What he said KWYCost on Dr. Gray

Simple mesage, read this post at KYScoast.
Skip has it right. There is no "science" in hurricane forecasting. There may be someday and the research is well intended but I am reminded of my good friend Dr. Pilkey and his love of the limelight at the expense of reasoned dialog. Thanks Skip.
BTW. I have not heard from Mr. Baker, who is a journalist yet. Mr. Baker, where are you?
Ciao

ORV - Where is Jimmy Carter - Part news Part rumor

WAVY TV 10 reports that negotiations broke off yesterday without a settlement. The OB Sentinel has a more complete reportN No telling where this will lead. The Sentinel reports that the SELC and its partners agreed then renigged on buffer areas around habitat protection areas.

Negotiations by the attorneys representing all the parties went into the evening on Wednesday, when they reached agreement on parameters for a resolution to present to their respective clients. They had agreed on buffers for nesting birds that would create opportunities for recreational access. Those buffers may have caused closures depending on the movement of the birds, but the opportunity for access would still be available.
However, on Thursday when the two sides met to finalize the details of the agreement, it became clear the Plaintiffs were not willing to agree to the terms proposed by the attorneys. The National Audubon Society and Defenders of Wildlife expanded the size of buffers they were willing to accept to a size that would effectively eliminate opportunities for access and eliminated five of the six areas of concern from consideration.

This does ot bode well given the message Judge Boyle sent last Friday about his willingness to grant the preliminary injunction. Further it is a clear indication about the real objective of the Plaintiffs. They goal is to limit (or eliminate access) as opposed limiting access sufficiently to protect the endangered birds. Read the post from yesterday about the science in this area.
If you want a sense of where the judge might go, read the transcript from the hearing last Friday in the previous post. Monty at OBR has some insight on the process and correctly analyzes the ability of Dare County to affect federal government policy.

For a really well written piece with a very different slant check out KWCoast on how we have changed and how he views the effects of that change. Skip writes beautifully and he makes some points that while I don't like the implication about access, I have a hard time refuting. The case for limits, presented very well.
Ciao

Ciao

ORV why Derb Carter should lose - Part 7 or 8 I lost count

Really good column in today's N&O by one Micheal Berry. Mr. Berry is not happy about the SELC and the NPS sittling in a room, outside public view, setting access policy for the CHNS with any public input. He thinks it will lead to bad policy:

There are predictable outcomes from this court action. The settlement will result in restrictive beach usage.

For many years, environmental organizations have targeted the 12 percent of the shoreline that is the most ORV accessible part of the park. In effect they are transforming the most popular recreational areas into six new wildlife refuges, so as to prevent ORVs on the beach.

Under the settlement proceedings, there is no public discussion of economic impact. The "settlement" will definitely affect the lives and economic well-being of thousands of citizens who live and own businesses and property in the villages on the Outer Banks. Businesses will close, and families will suffer. The value of property will decrease.

Just as bad, there will be a substantial loss in recreational enjoyment, such as surf-fishing, for hundreds of thousands of citizens who visit the park and its unique environment.

There will be no serious consideration of environmental fact, because there is no peer-reviewed science to support the claims of species loss as the result of ORV traffic. [emphasis added] Environmental organizations claim expertise that the court accepts at face value, yet there has been no data to support the claims. Science explains how the environment works by way of measurement and quantification. Without data, there is no science. Without science, there is no basis for effective management.

This is not just some jeep jockey blowing off steam. It seems that Mr. Berry has some experience in this field. The N&O tells us that "Michael A. Berry, a former senior manager for the Environmental Protection Agency, served as deputy director of the National Center for Environmental Assessment at RTP. He has taught public health, environmental science and business and environment courses at UNC. He is a consultant specializing in evaluation of environmental quality and human health effects, environmental management strategies and policy."

Take that Derb.
Also the transcript of the hearing last Friday on the prelimnary injunction is now on the Island Free Press web site [article] [transcript] Judge Boyle seems to suggest severe limits (100 not 1000) on vehicles and possibly weight and size limits as well as permitting. If you want an outline of what is coming check it out.
Ciao
Note: If you want the background just search this blog for ORV or go the Island Free Press for an excellent summary.

ORV Has Derb Carter Won? Party on Derb

I learned this morning that negotiators for the SELC, NPS and the intervenors (Dare and Hyde County et.al.) "are making progress" in negotiations in Raleigh. The talks started yesterday and will continue today. Not sure what "progress" but if it leads to a negotiated settlement it will be better than the alternative offered by Judge Boyle ordering the SELC injunction.

ORV: Has Derb Carter won Part 04/04/08

This morning brings reports from the hearing yesterday in Raleigh on the SELC suit over ORV use in the Cape Hatteras National Seashore Recreation Area. To catch up see note below. The Virginian Pilot has the story as does the Island Free Press (a great source on ths issue)
Attorneys for the SELC and the NPS reported that they are near a settlement of both the injunction request and the lawsuit the injunction stems from. Apparently the settlement would replace the interim rules on beach driving. Dare County and its intervenor partners have not been part of the negotiation process to this point, a development that doesn't bode well for ORV use. Needless to say the environmental groups are happy.

"We view the results of today’s hearing as very positive,” Rylander said, adding that the judge indicated that he was inclined to grant the preliminary injunction before he gave the parties more time to work on an agreement.
“We believe the settlement” Rylander said, “will provide protection for wildlife and provide for ORV access for much of the year.”

Bobby Outten, Dare County attorney, said it is the assumption of the intervenors that “we will be part of a settlement”

Judge Boyle, Outten said, indicated that he want “transparency” in the process and wants all groups with a stake in the outcome to be part of a settlement.

Outten said Boyle noted some “parameters” he wants to see covered in a settlement. Among them, Outten said, were consideration for the traditional, cultural, and historical uses of the beach, concern about the volume of traffic the beaches can sustain, and the idea that different areas of the beach may need different rules.

“He indicated that he realized the value of the Point,” Outten said. “He seems to respect the concerns of the access and recreational community and the legitimacy of user groups.”

“I think we are in a better position than we were yesterday,” said John Couch, president of the Outer Banks Preservation Association, who attended the Raleigh court session.

“The chips are on the table now,” he said. However, he added the position of strength clearly lies with the plaintiffs, the environmental groups. “They have the upper hand.”

Couch's comment is reflected in the Pilot report which recognizes Judge Boyle's familiarity with the area and the issue:

"With the courtroom filled with supporters of off-road vehicle access on the seashore, the judge said that the plaintiffs - the National Audubon Society and Defenders of Wildlife - have a 'compelling case'[emaphsis added] for closing the beaches before the bird nesting season starts.

Lora Taylor, an attorney with the U.S. Department of Justice, told Boyle that the proposed agreement would recognize the need to balance protection of the seashore's resources with the public's right to reasonable access."

Boyle's remarks about a "compelling case" has to be part of what motivated the NPS to move towards settlement but I also expect that pressure from the locals and the ORV groups may have forced their hand as well. The NPS seemed poised to simply give in. Lets hope the settlement is, in fact, a negotiation not a capitulation. All credit to Dare County for seeing the threat this lawsuit posed early on and getting a seat at the table. If they had not been paying attention and willing to take action, expensive action (good lawyers cost real money) we would be left to rely solely on the kindness of the National Park Service. In other words we would be screwed. Thanks Warren, Allen, Richard et. al. It is obvious your investment in Bobby Outten was a wise one.
Judge Boyle has given the SELC and its partners a big club, lets hope they show restraint in how they use it. It will also be interesting to see how the negotiated rulemaking process moves after a settlement. You have to think the groups in the lawsuit will have little to gain in a quick resolution that offers them less that the environmental protection offered by the settlement.
Ciao
Note.You can get the background in this ORV blog post though the press reports also provide a quick summary.

Va Pilot: Parties work to settle

The Virginia Pilot reports that the SELC and the National Park Service have requested that the hearing on the prelininary injunction be postponed while they work on settling the injunction request.

"... the plaintiffs, Defenders of Wildlife and the National Audubon Society, and the federal defendants, the National Park Service, filed motions Wednesday asking that the hearing be continued for a week to allow more time to reach a settlement.

The intervenor defendants, Hyde and Dare counties and the Cape Hatteras Access Preservation Alliance, objected, saying the proposed order would agree to terms of which they would not be aware"

The second paragraph in this quote makes this development even more interesting. Obviously the NPS is not working with the intervenor on the suit. I have argued in previous posts that the NPS does not mind the injunction since takes the burden of protecting shore birds off there shoulders and puts it on the SELC, its partners and Judge Boyle. The NPS response to the injunction was a weak mea culpa, now when after the intervenors have filed a response that can't be ignored the NPS moves to cut a deal.
The deal part is probably smart, I have suggested that strategy before since I feel the SELC has an excellent chance of winning its case. I was not suggesting that the NPS be the ones cutting the deal. They will sell out the park or a song and Dare County et al are wise to be concerned.
Watch this space for the next installment.
Ciao

ORV Today is the day Derb Carter will win

I hope the rally on Wed night went well. As OBR suggests public pressure is not a useful tool in influencing judges rulings but it might get the attention of the US Attorney working on the case.
Today is the day for oral arguments in the request by the SELC for a preliminary injunction but the Island Free Press reports it may not happen. You can find some history and links to a lot more information in this ORV issue post
You get a sense that Dare County is trying to lower expectations about today's hearing when you read this OB Sentinel report of a meeting on Hatteras Island.

Bobby Outten, attorney for Dare County, told the audience at the Fessenden Center that the interim plan adequately controls beach driving while protecting shorebirds and other natural resources.
"But, the signals we are getting is that the judge is still attached to the presidential executive order," explained Outten.Outten said Dare County, as one of the interveners in the lawsuit, could appeal the court's decision on the temporary injunction, but that an appeal might take anywhere from six to 18 months.
"So even if we were to appeal a decision we didn't like, we clearly would be impacted this season and most likely next season," he said.

This is not a man who exudes confidence. I expect the message Dare County wants to send is that we are doing everything we can to stop this and we will continue to.
The Island Free Press is doing a great job of covering this event so check there for the latest newss then click through to a couple of local advertisers. It helps. Thanks to Irene for her good work.
Ciao

Moving On - The Last Post

After over 2 years of off and on posting to this site I have decided to close it down and focus on my MySpace page. I have been posting on Myspace and making new friends there and it seems that no one cares about my former life as a the criminal mastermind of the conspiracy known as the Town of Nags Head. No one cares about ORV driving or ocean outfalls or (hush yo mouth) beach nourishment!!. Why no one even cares about anything except inviting me to virtual play!!.
So good bye faithful readers. It has been a gas. The next time you read my stuff it will be on April 2nd.

Ciao