April 18, 2008

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.

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