April 5, 2008

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.
Note.You can get the background in this ORV blog post though the press reports also provide a quick summary.

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