We owe a tremendous debt to Irene Nolan and her Hatteras Island Free Press for their exhaustive coverage of the ORV issue. As I have contended for some time, it is no coincidence that the Southern Environmental Law Center and their two partners--the Audubon and the Defenders of Wildlife reneged on their agreement with the Negotiated Regulation process (aka Neg Reg, where stakeholders were supposed to bang out an ORV driving compromise and where parties agreed beforehand not to sue until the process is over).
Derb Carter is no fool. Judge Boyle has for years telegraphed from the bench his dislike of beach driving in general and his disdain for the fact that Cape Hatteras Seashore's NPS managers had failed to come up with an ORV plan. The SELC didn't need to "shop" judges to uncover an amenable venue; Jude Boyle basically held out a huge neon sign to them that said "seek and ye shall find a friend".
The Neg Reg is over, and the Park Service has settled on a plan. This plan, after intense reading, actually closes more beach more often than the current interim plan forced upon the park and the county by Judge Boyle himself. The NPS, perhaps correctly, states that a more restrictive plan would be more predictable, since it would reduce the number of "floating" closures. As bad as this sounds, in the long run, for the sake of our tourists, knowing that 9o% of the closings will be the same year after year would allow visitors to plan their trips and avoid surprises once arrived. Yet, even this more Draconian plan doesn't rise to a level that satisfies the Audubon and I suspect they will sue to get their way if the NPS doesn't amend the plan to their liking once the public comment period ends.
But, to really gain insight into just how far off the reservation this federal judge can be (and, to my utter embarrassment, he was appointed by a Republican president), here is a sample from the Island Free Press from the March 2010 'Status Conference", which is a regularly scheduled meeting during the "enforcement" agreement between the judge, the plaintiffs, defendants, and intervenors. The link to the entire article is here.
The first 15 minutes of the conference were devoted to an uninterrupted dialogue between Boyle and Derb Carter of SELC representing the plaintiffs. They discussed the plaintiffs’ status report and notice of compliance to the consent decree.
In it, SELC noted the hostile behavior of the intervenors in the suit.
Boyle’s opening question to Carter was, “If the intervenors are hostile, why retain them?”
Boyle went on to observe that the SELC’s original complaint sought relief within the NPS, seeking nothing except the federal government’s compliance with federal law, specifically the National Environmental Policy Act.
“I was concerned about their standing” from the outset, Boyle stated, going on to note that the intervenors voluntary agreed with the consent decree. The judge asked, “Why do they need to be in the case?”
Intervenors are specifically Dare and Hyde County and one access group--CHAPA. "Standing" is a legal term that says the parties, while not defendants, are affected enough by the possible legal proceedings to have a significant interest in the outcome--in other words, third parties to the suit acting in their own self-interest. Apparently, the judge seems to think neither Hyde nor Dare county really have any standing in this case since "all" SELC sought was to get NPS to comply with federal law. This has been a major issue in the entire case...Boyle has expressed his lack of concern for the economic impact on Hatteras Island or the two counties, and taking their cue, SELC has worked hard to push economic and cultural arguments out of the process. Watching SELC and Boyle interact is like watching the pitcher and catcher in baseball game signal one another while Dare and Hyde stand on second trying to steal the signs, but to no avail.
And part of Boyle's latest hostility to the intervenors is they agreed to the consent decree. In a prior blog I contributed to, I stated that Dare & Hyde committed a grievous error in signing the decree and that it would come back to haunt them. Better we had shut the beach down in 2008 and fought the good fight than to agree in front of a judge to accept a bad proposal and then try to "take it back" later. In case you live on Hatteras, here is what Boyle thinks of your concerns:
Boyle then stated that people on Hatteras were “complaining about something that’s not impacting on them.”
Now, follow these words from the judge and his exchanges with NPS and US Fish & Wildlife personnel:
Boyle said. How does turtle nesting in the regulated seashore compare with the nesting situation in the Currituck wildlife refuge, where beach traffic is unregulated?
“You couldn’t have a better scientific model,” said Boyle, than a comparison of the complete degradation of Currituck with the controlled access in the seashore.
Note: Currituck beaches and Hatteras/Ocracoke have very little in common as most beach goers know. See more below.
Boyle asked Murray if the 2009 improvement wasn’t a good demonstration of the earlier degradation of habitat from beach driving. Murray replied that in earlier years there had been a statewide decline in nesting shorebirds and waterbirds , that weather is always a factor, and that there is natural cycle in nesting behavior.
Boyle stated that what changed between 1995 and 2009 was the increase in beach driving.
Judge Boyle then asked a series of questions about the shoreline distances of the Currituck refuge versus the distances of the three areas of the seashore. He stated that the NPS was willing to compare the three seashore areas and he couldn’t see why they wouldn’t add the beach area from Nags Head to Currituck to the mix for comparison. In his view, Currituck looks very much like north Bodie Island.
Boyle then called from the spectators Dennis Stewart, U.S. Fish and Wildlife Service wildlife biologist for Pea Island and Currituck refuges. He asked Stewart to comment on the similarities of Currituck and the seashore. Stewart replied that the Currituck refuge of 4,000 acres is laid out like a checkerboard, not a large single unit like the seashore and Pea Island. The eastern boundary of the refuge stops at the mean high tide line, and that leaves a corridor for beach driving. Technically, there is no driving on the beach behind the refuge boundary signs.
Boyle told Stewart he was trying to get him to recognize the similarities among Currituck, Pea Island, and Cape Hatteras. Stewart insisted that there are confounding factors in trying to make comparisons. For example, he said, Pea Island records 13 sea turtle nests, but as one goes north, the number of nests drops off. Currituck has no more than one or two nests.
The entirety of the above quotes are instructive. Boyle is dead-set on comparing Currituck, more than 100 miles north and further west--to our subject area-- Pea Island and Cape Hatteras. Currituck's ORV area is much closer and more environmentally and geographically akin to False State Cape Park and Back Bay NWR in Virginia. In fact, cross the fence by foot where Currituck ends and one enters False Cape. Apparently, Judge Boyle is either ignorant of, or chooses to ignore that very few sea turtles nest just across the border in Virginia at a park where ORV's have been banned for decades, but also an area that hosts damned few people-- unless one is willing to hike for miles to access the southern end of the park. The truth is, turtles have always nested in smaller numbers north of Hatteras, primarily because of the colder water. If the judge actually chose to get off his bias, he'd also note turtle nests increase dramatically as one travels south--again in response to the Gulf Stream and warmer climes. Virginia sea turtle nests are extremely rare, and there is no reason to believe the situation would be different on the 24 miles of beach south of the state line in Currituck.
And note his total rejection of Murray's observation that bird populations went up and down all over the NC coast in the time period ORV driving increased and that one year of data (Plovers actually did worse in 2009 than 2008, the second year of the current 'ban') was not reliable. Instead, Boyle chose to believe the only "change" was in ORV driving and therefore divined an unprovable and totally non-scientific causal effect where absolutely none exists.
The final set of comments from Boyle, which I placed in bold and italics reveals the judge literally browbeating a scientist in an attempt to get him to agree with the faulty preconceptions the judge holds dear.
God save this honorable court. Or rather, save us from it.