Derb Carter's new suit

I got a call from a source in Judge Boil's office yesterday. I can now confirm that the Southern Environmental Law Center has filed a suit in federal court seeking enforcement of the Endangered Species Act. The suit names the US Fish and Wildlife Service (FWS) and the Southern Shores Volunteer Fire Dept. among others aksing the court to immediately end all efforts to put out the fire in the Pososin Lakes Wild Life Refuge. I contacted Derb Carter, lead counsel for the suit, and asked him to explain the basis for the legal action

"The Endangered Species Act is supposed to protect endangered species, fire is a natural process that restores habitat and renews the environment, it helps species flourish. By trying to put out the fire in the Pocosin Lakes Reserve the FWS is endangering species. We think they should stop and just let the fire burn baby burn" Carter explained. " We believe the ESA supports us in this action since it does not name fire as a specific threat to species, As a further benefit this fire, if allowed to burn, may force people to leave the natural environment. The ESA is very specific that people endanger species not fire."

The suit specifically asks the court to restrain "all efforts to extinguish the conflagration now burning in Hyde and Tyrell County". The suit sites the FWS and the SSVFD as the prime agents trying to stop the fire. A spokesmen for the FWS responded "Makes sense to us" and explained that FWS had immediately stopped all activities in eastern North Carolina on learning of the suit (except the ongoing effort to block the replacement of the Bonner Bridge).
When contacted for comment SS Mayor Don Smith explained that since the Fire Chief's new salary was more than the Mayor's new salary we should ask the Fire Chief, noting he was too busy sulking about his betrayal by SS Town Council on the budget issue.
We contacted Defenders of Wildlife for additional comment but they explained they were too busy helping refugees from the fire find homes. A spokesman explained that "200 Black Bear and red wolves have been relocated to FEMA trailers in Swan Quarter and Pungo." DoW plans a countersuit in an attempt to require FWS to build a dome to cover the entire refuge to protect against future lightening strikes. "This tragedy could have been averted by FWS but they refuse to take reasonable steps to protect mother nature from herself."
Judge Boil has schedule a "listening" for next Monday at which time he will tell everyone what he thinks they should do!

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In a related story, the National Park Service NPS is investigating the death of a ghost crab last night on Coquina Beach, just south of the Nags Head Nuclear Waste Storage area (why else would they need all those sandbags) Visitors reported the crab was found at dawn in the middle of a tire track just east of the dune line. NPS has restricted all access to the area, which was already more isolated than the alien landing site in Roswell NM. The only vehicles permitted to drive on this beach at the time of the crab's death were NPS vehicles.

Superintendent Mike Murray has called for "a roundup of all the usual suspects" and explained that his actions were "mandated by Derb Carter who is much smarter than Don Smith and the enitre NPS put together".
The North Carolina Coastal Federation issued a statement saying "The death of this innocent creature is the result of the unbridled access to our pristine beaches and could have been avoided if everyone would just leave and move to Durham. We are trying to save you but you aren't cooperating. "

The crab's family had not returned numerous phone calls at press time.
Ciao

ORV The Part Derb knew was coming - The Stoopid People

NPS now reports that vandals pulled up a set of signs marking the closure area in the Southbeach area. The NPS range got our of HIS SUV and checked this damage.

"During the investigation, two sets of footprints were found along the edge of the fence line that extended from the dunes to the waters edge. No footprints or tire tracks were observed entering the closed area which was established to protect a least tern colony; no birds appeared to have been disturbed during the act of vandalism. As prescribed in the court ordered Consent Decree, this closure violation resulted in a mandatory expansion of the closure area by 50 meters to the west."

This was so predictable that the E groups even planned for it. They included "punishments" for the public if the stoopid people played their stoopid games, which everyone knew they would. This is purely vindictive. As you read above no footprints, zero, nada, none were found inside the closure area so the birds or the place where the birds might want to be was never violated. Never the less we lose another 50 meters (170 ft give or take a metric mile) of beach. Imagine the outcry if this expansion had the same effect as the bird nest that cut off access to the Point.
The only question now is how many more times will this happen before people realize how counter-productive it is, even harmful. Dumb. dumb, dumb. Kids can't be kids anymore. What's more it may have been (read probably was) people, young people, who are not from the area, don't surf or fish and to whom the expansion will cause exactly no pain. Ouch!!

Ciao

ORV Derb won but Monty still wants to fight.

He who knows best knows how little he knows. - Thomas Jefferson
I was afraid that my post about moving on from the access settlement might not sit well with some. Monticello at Outer Banks Republic has drafted a manifesto pointing out, rightly, the flaws of the new approach that I proposed. Much of what he says has merit. There are a lot of people who have been coming to HI and Orcacoke and Oregon Inlet to fish and surf and windsurf and kite surf and do all the things that people do best when they have unfettered access to the beach. Monty is right the modern day surf fisherman carries a lot of gear, the SUV makes it possible (and TW's loves it). The modern day sportsman of any discipline has carries more gear and more optional equipment than even ten years ago. He is right in all those things.
Monty is right that the spirit the Hatteras Island community has demonstrated through this fight and continues to demonstrate is an inspiration. Monty is right that singling out the Cadillac Escalade for my SUV example was a cheap and inaccurate shot, intended to get under his skin (at least I accomplished that).
I agree with Monte when he writes that:

the lack of any credible science to prove ORV's cause declines in bird populations, this entire court decision is nothing more than---bullshit.

The only place we disagree is that none of this matters. We can not go back to the old ways and the sooner we figure out the new ways the better off we will be. People may not want to hear it but there is NO GOING BACK. You are already looking at the de-facto plan coming from the neg reg process. The E(nvironmental) groups won't accept anything less and they have shown they are more than ready to go to court to fight. If the new rules allow access much beyond the consent decree they will file a challenge under the Endangered Species Act, Judge Boyle will hear the case and THEY WILL WIN! Go read their briefs and go read the NPS and intervenor briefs. There is little room for argument. Anything that impacts an endangered species can be stopped. They already have all the science they need in form of the USGS study for the NPS, the people who will be being sued.
Monty disparages my ideas of more access areas and some form of limited licensed vehicular access. I am not surprised. Monty has pointed out some valid limits to this strategy, so what is the next strategy? Lets start planning the Hula Hoop Hall of Fame or maybe organize a major canasta tournament. Some other draw to bring people down. Maybe we need to build a bunch of bowling alleys or some kind of new Internet Virtual Fishing Centers or whatever. The point is not that the new rules are unjust, the point is the new rules will ruin us unless we change.
The mantra of the successful organization in the 21st century is "Adapt or Die". We are not exempt from that rule. Either we work to choose our future or we have our future imposed on us.
There is no support for the plight of Hatteras Island businesses west of the Alligator River. Go read the comments on K. Kozak's article yesterday. Yes the comments are laughably uninformed and tragically insensitive but the represent how much of the nation views this battle. There is not wellspring of support that is suddenly going to rise up and remove the limits. In fact the opposite is exactly true. Audubon, DoW and the SELC will raise more money in California through there win than all the motels on Hatteras Island will take in this summer.
I may not have the right model for the new economy, but there is one and we need to start talking about it. Monty, you get one more post to cry about not not driving your Rav4 with your 40 rods and case of Reisling to Cape Point. Then you have to join me in the real world and help figure this one out.

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There is one element of the future that I think Monty sees quite accurately:

I think these birdwatchers will be exempted from the very rules they propose because someone will need to study and catalog the birds as the new rules are enacted; i.e., their access into restricted areas will continue.

The Coastal Federation currently leads "expeditions" Cape Lookout National Seashore. The unpopulated barrier island off the coast near Beaufort. Expect the same type of "educational experience" to start happening in the restricted areas around the CHNS. I understand that you the public can get to Cape Lookout so the situations are not exactly parallel but its close enough to
Expect Audubon or NCCF or the Outer Banks bird club start leading educational expeditions very soon. I don't know the personalities involved and from I gather I am glad I don't. There appear to be some very self-serving and pompous people planning profiting from recent developments.

Ciao

ORV So Derb Carter won, whats next

I thought the opening of Katherine Kozak's front page article in the Va. Pilot really captured the ORV situation well:

"Sometime before or on Thursday morning, a shorebird called a least tern laid a single egg in Cape Hatteras National Seashore. A National Park Service ranger spotted it at the end of Ramp 45 to Cape Point, a corner of the Outer Banks well known for surf fishing.

Buffers were quickly installed around the nest, making the road behind the dunes inaccessible to off-road-vehicle traffic. Even though much of Cape Point technically remains open, there is no way to get to it anymore."

The article details how everyone is playing their role perfectly. The business community is complaining about the environmental groups and the economic impact of the closures. The environmental groups are pointing to the flexible nature of the plan, while the park service is saying what I alwys said they would say: "the consent decree buffers are larger and non-discretionary,"; read "the judge made me do it". Everything is normal and everyone is saying exactly what you would expect and they are all focusing on the wrong thing.
It is time to start thinking about what happens next. It is safe to say that the current situation is probably the best we will see for some time in terms of unregulated ORV access. We can bemoan our condition or we can start thinking about how to adapt to it.
It strikes me that there are two reasons that ORV access is so important on Hatteras Island. First the geography makes it unrealistic to walk to the Point or Hatteras Inlet. The NPS simply owns too much land between us and the fish. Secondly, there is little or no public access parking on all of Hatteras Island. The Visitors Bureau lists 3 sites, I know there are more, but not many more. In the northern villages people can walk to the beach via private or semi public accesses but down south it is harder. Everything has been built on the assumption that people will drive to the beach. Ocraocoke operates on the same principal. There is more beach parking in one access in Nags Head or KDH than on all of Ocracoke. That is part of the appeal. Drive to your spot and set up camp, its convenient and its comfortable and its over.
We need a new model for accessing the beach and the fish on Hatteras Island. We can talk all we want we aren't getting the old model back.
One part of the answer is a quick investment in public access parking on NPS property. The County can help fund it. The County must help fund it, it won't get done otherwise. Make it as easy to get to the beach in Buxton as it is in Nags Head. and not just at the Lighthouse. Start scattering accesses from Salvo south. I am not an expert on access on Hatteras Island. Somebody let me know if I am missing something. If we can't drive on the beach then let us drive to the beach and park.
Beach access is one thing but access to the environmentally sensitive fishing hot spots requires a different strategy. Lets think about the interests of the various parties. The environmentalists want to protect birds from interference and they want to study the birds as well. The Park Service wants to comply with the law, meet the mission of recreation and conservation. They both want money to accomplish their goals. The visitors and businesses want to people to be able to get to the fishing grounds, people who are bringing with them the one thing everyone wants, MONEY. What this suggests is a system that transports people to the Point in a respobsible fashion, acceptable to both the E. groups and the NPS. The days of parking your Escalade in the surf and getting beer and bait from the built-in cooler are over but fishing on the Cape need not be.
When I moved to Nags Head 30 years ago, I met several people who got paid to drive fisherman up and down the beach and help them catch fish. They were called fishing guides. They knew the beach and they knew the fish. The advent of the SUV, the curtailing of beach driving (in 1977 you could still drive on the beach all year round) and the lack of fish have combined to reduce demand for guides. There are still a few around but the breed is dying.
In the post consent decree world, a fishing guide or at least a licensed NPS franchisee might be the vehicle that gets people to the fish. If we can't all be trusted with vehicles on the beach, then let the NPS tell us who is responsible and what they have to promise to be allowed to drive past nesting shore birds. There is no one right model. This could be a single 4 wheel drive or it could be a jitney service taking people to an established camp at the Point that has sanitary facilities, supplies and supervision. Needless to say the franchisees would PAY for the privilege but that money could be dedciated to species protection and habitat development. There might even be a way that the public could qualify for access, think duck blinds in Pea Island Refuge. Sound far fetched, it may be but this is how we need to be thinking, we don't need to be thinking that somehow "Doc"Brown is going to come along in his Delorian and transport us back to 1950. It is just not apt to happen. We need a new model for access and we need to figure it out pretty fast. We have a chance to use Negotiated Rulemaking to implement a new economic model but only if we figure it out first.
Spend the rest of the night complaining about the disaster that this season may become, it is very real and very important. When you wake up tomorrow start thinking about how we can adapt to our new limits. People still want to go to the beach, they still want to catch fish. We have beach and we have fish. How can we get them together, how can we comply with the new limits and how can we make enough money to live while we do it.
That is the problem. We will either find our own answer or have one imposed on us. The choice is up to us. Derb Carter won ... the first round, we all can win ... if we want to.
Ciao
Note: I wrote this whole article without pointing out that despite the lack of public access on Hatteras Island they still have more than the Town That Won't Let Me Go to the Beach; .....almost.

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

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

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

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 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.

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

ORV Why Derb Carter May or May Not Win

Looking around the Island Free Press site I found
this background piece. It lays out the history of the ORV issue up to this fall when the SELC filed its lawsuit. There is lots on this blog about the now. Here is the before. Reading it it will help you figure out how we got to this point. It lays out a lot of history of the National Park Service not adopting ORV rules. It leads up to the tenure of the current Superintendent then makes the following observation:

"It does seem ironic that the superintendent who has done more in not quite two years to straighten out the Park Service’s previous legal oversights than his predecessors is the man who may have to oversee closing the seashore beaches to vehicles.

It’s a further irony that the events that could lead to a closure were set in motion not by a powerful and well-funded environmental organization, but by the actions of one irresponsible ORV driver.

He was fined $100, but the rest of us may pay more dearly if the beaches are closed to ORVs.

We should remember that the next time we are driving on the seashore’s beaches – assuming, of course, that we have that opportunity."

Read the background then decide how important access is to you. If you think it matters then start making some calls.
Ciao
Note: The current situation and more background can be found in my last post on this topic

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.

Ciao
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.

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.
Ciao.
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.

ORV Why Derb Carter will win Part 2

From the Island Free Press, a link to a transcript of the hearing to schedule oral arguments on the injunction sought by the Southern Environmental Law Center. You can get some background in Part 1. The hearing has a definite tone and it only reinforces my sense that the injunction will be granted. Here is a sample. This comes after the SELC has outlined their case and the NPS lawyer has said they are not asking for a dismissal. (the transcript is all caps)

THE COURT: YOU ARE ONLY IN THE CASE BY LEAVE OF THE COURT. YOU ARE IN IT NOW BUT THAT WAS DISCRETIONARY; YOU ARE AN INTERVENOR.
MR. LIEBESMAN: THAT'S CORRECT.
THE COURT: YOUR CLIENTS ARE THE COUNTIES. THEY DON'T HAVE ANYTHING TO DO WITH THE MANAGEMENT OF THE NATIONAL SEASHORE; IT'S FEDERAL SOVEREIGN PROPERTY. SO YOU'VE COME IN AND NOW YOU'RE COMPLAINING ABOUT THINGS THAT THE UNITED STATES ISN'T COMPLAINING ABOUT. I MEAN, HOW DO YOU GET -- WHERE'S YOUR STANDING TO DO THAT?
MR. LIEBESMAN: WELL, I THINK --
THE COURT: -- THIS IS NOT THE SOVEREIGN SEASHORE OF DARE COUNTY, IT'S THE NATIONAL SEASHORE. IT BELONGS TO THE UNITED STATES. WHAT INTEREST DO YOU HAVE ANY MORE THAN ANYONE ELSE IN IT?
MR. LIEBESMAN: WELL, I THINK, AND WE WILL CERTAINLY ARTICULATE THIS IN OUR RESPONSES ON THE PRELIMINARY INJUNCTION. WE REPRESENT THREE LOCAL GOVERNMENTS THAT HAVE A VITAL INTEREST IN THE ECONOMY OF THE OUTER BANKS' CONCERN TO ACCESS THE RECREATIONAL COMMUNITY. WE'RE IN THE CASE AS A PARTY AND I ALSO WANT TO ADD, IT'S MY UNDERSTANDING THE GOVERNMENT IS TAKING THE POSITION NOW THAT THEY ARE NOT MOVING TO DISMISS. I DON'T KNOW IF THAT'S A FINAL POSITION AS TO WHETHER THEY WOULD EVER JOIN IN OUR MOTION TO DISMISS OR REQUEST FOR DISMISSAL. I'M NOT SURE OF THE GOVERNMENT'S DECISION AT THIS POINT.
THE COURT: THEY'RE THE REAL PARTY IN INTEREST. THEY'RE THE ONE WHO HAS THE LEGAL RIGHT OR OBLIGATION TO DO THESE THINGS, NOT THE COUNTIES. IT JUST LOOKS A LITTLE DISTRACTIVE FOR YOU TO COME IN AND BE MAKING COMPLAINTS ABOUT SOMETHING THAT NO ONE IS TRYING TO DO TO YOU.

It strikes me that the NPS might like nothing better than to have the court impose strict limits on ORV use. It takes them off the hook for the rules and lets them say "Hey don't blame us, blame Judge Boyle". All they have to do to accomplish this is lose the preliminary injunction hearing. The NPS lawyer said all of about 10 words during the hearing and Judge Boyle's anger about the issue comes through loud and clear. Just glance at the transcript to see it.

BTW. The Island Free Press has provided great coverage of the issue. Good place to go for the latest info including this excellent piece on the recent negotiated rule making committee metings.

ORV meeting Tues 2/26

I decided to look in on the NPS negotiated rulemaking committee's meeting at the Ramada Plaza in KDH Tues. morning. It was fascinating. There was almost no substantive discussion in the first 3 hours. It probably started shortly after I left and even then I don't expect it was very substantive or the substance was important.
The most important news was that the National Park Service (NPS) rejected an offer from the Outer Banks Visitors Bureau to give the NPS money to support an economic impact analysis of ORV activities in the Cape Hatteras National Seashore (CHNS).
A little history. At the first meeting of the committee, the NPS and its consultant said they didn't have enought money to do a complete economic analysis. The OBVB stepped up and offered to help (I believe the offer was $20,000 but I'm not sure). NPS was considering this offer. A subcommittee formed to oversee the analysis had a teleconference. Environmental interestes attacked the offer as an effort to extort NPS. Words, harsh words were exchanged. Things cooled off, everyone apologized. Then the NPS decides not to accept the money, saying basically if it causes that big a problem we won't take it.
Why is this important? First off the committee needs the best data possible. The more money they have the better the analysis will be. If the analysis is incomplete or insufficiently broad it may be open to challenge, first by outside experts then in the courts. If it is not top notch it can't be relied on. Superintendent Murray assured the group that NPS would find the resources to do a proper analysis.
There is a more troubling aspect to this episode. Basically the environmental groups created a phony issue. There were no strings to the OBVB money it was a gift. The analysis would have been done by the same people with the same broad oversight by the committee. No chance of conflict of interest. By raising the false issue the environmental groups get a less effective analysis opposinging their interests. Really dirty pool and then to start the name calling just makes it stink.
My questions for Mike Murray:

• Will NPS only use environmental data and analysis developed with NPS dollars. No citing outside reports, no use of existing bird counts done by other groups?

If we need independence in economic analysis then we need the same rules in environmental aanlaysis. Sounds fair to me. Don't expect that this will happen.

Enough for now. Some of you have short attention spans (grin) so I will add more in another post.

ORV Coastland Times article.

Thank you Mary Helen. Through the kindness of the reporter you can read the entire text of the Coastland Times article explaining the ORV legal battles, Who filed when when and it the puzzle fits to together. As I noted earlier not everyone get this right. Mary Helen did.
The hearing on the preliminary injunction is now scheduled for April 3rd. No word yet on when briefs will be filed or more importantly when the case will be decided.

The Coastland Times,

Lawyers in beach driving case meet in federal court

By Mary Helen Goodloe-Murphy

February 24, 2008, p. 1

On Friday (2/22) afternoon, litigating attorneys were meeting in U.S. District Court in Raleigh to set a schedule to brief and argue about a request for preliminary injunction to suspend beach driving in five locations in the Cape Hatteras National Seashore.

A status review of cases assigned to U.S. District Court Judge Terrence Boyle brought three sets of attorneys to Raleigh, attorneys for plaintiffs Defenders of Wildlife and National Audubon Society, defendants National Park Service and U.S. Fish and Wildlife and intervenors Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance.

On Wednesday, Feb. 20, the plaintiffs through their attorney Southern Environmental Law Center, filed a motion for a preliminary injunction.

The motion for preliminary injunction takes issue with the Cape Hatteras National Seashore’s Interim Protected Species Management Strategy. The strategy was put in place while a special rule about beach driving is negotiated and an environmental impact statement is prepared. This process is estimated to take three years.

The plaintiffs argue that to maintain the existence of viable populations of Piping Plovers, colonially nesting birds and American Oystercatchers, while negotiations are on-going, beach driving should be managed under protocols recommended in 2005 by the United States Geological Survey.

Those protocols call for no beach driving at five locations: Bodie Island spit, Cape Point-South Beach, both sides of Hatteras Inlet and south Ocracoke spit. The injunction does not request any prohibition against beach walking.

In a prepared statement issued by Dare County, intervenor attorney Lawrence Liebesman says ``this motion to shut down access to a large portion of the Cape Hatteras National Seashore to the recreational fishermen is unfounded.’’

Leibesman asserts that the environmental groups cannot ``have it both ways’’ by asking the court to intervene and ``police’’ the Park Service’s management of the seashore while at the same time sitting at the negotiation table. Liebesman is a Washington, D.C. attorney with the firm of Holland & Knight, L.L.P.

The memorandum in support of the plaintiff’s injunction motion is accompanied by 11 affidavits and 14 documents.

The affidavits fall roughly into two groups. One group attests to the standing of plaintiffs in the legal action. Affidavits are presented by Noah Matson, vice president for Land Conservation with Defenders of Wildlife, Christopher Canfield, executive director of Audubon North Carolina, Walker Golder, deputy director of Audubon North Carolina, who also addresses the decline of species along seashore beaches, and Patricia Moore.

The plaintiffs have lined up affidavits from six scientists: J. Peter Doherty, who conducted a wintering Piping Plover study at Bodie Island spit; Jonathan Cohen, research scientist at Virginia Tech who prepared the U.S. Geological Survey protocols under contract; Francesca Guthbert, professor at University of Minnesota and a member of the Piping Plover recovery committee; Conor McGowan, a doctoral candidate at University of Missouri who monitored American Oystercatchers for three years in the seashore; Scott Melvin, senior zoologist at the Massachusetts division of fish and wildlife; and Erica Nol, professor of biology at Trent University, Peterborough, Ontario.

An interesting affidavit from Steve Harrison, former chief of resources at Cape Hatteras National Seashore and now retired, details the seashore’s internal decision-making process for protecting endangered species during his tenure as chief, from May 1997 to October 2005.

Plaintiffs Defenders of Wildlife and National Audubon Society filed their initial complaint on Oct. 18, 2007, accompanied by a required 60-day notice.

Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance filed a request to intervene which was granted on Dec. 14.

Plaintiffs filed an Amended Complaint on Dec. 19.

In an action unrelated to the injunction filing, on Thursday, Feb. 21, intervenors filed a motion to dismiss three of six plaintiff claims made in the Amended Complaint. The motion, filed in response to the amended complaint, was accompanied by a supporting memorandum.

The intervenors argue that two executive orders addressing special rules for off-road driving do not grant third party enforcement rights and that the plaintiffs’ ``broad-based programmatic challenges’’ to the park service’s management policies do not state a claim under the Administrative Procedures Act, one of the federal laws relied on by plaintiffs.

In Dare County’s press release, Dare board of commissioners chairman Warren Judge states ``beach driving is an essential part of our heritage and an important aspect of our local economy, and Dare County is committed to doing everything possible to ensure this access to our beaches.’’

Ciao