Legislation to Nullify Settlement

This article is by Irene Nolan from the Island Free Press (see also this commentary posted June 18, 2008):

Legislation seeks to nullify consent decree and reinstate interim plan on ORV use

June 11, 2008

U.S. Sens. Elizabeth Dole and Richard Burr and U.S. Rep. Walter Jones introduced legislation in the Senate and the House of Representatives that would nullify a "consent decree" and reinstate the National Park Service’s interim strategy to govern ORV use on the Cape Hatteras National Seashore until there is a long-term rule.

The "consent decree" was signed on April 30 by U.S. District Court Judge Terrence Boyle. It was the settlement of a lawsuit filed last fall by environmental groups, which charged that the park’s interim strategy did not go far enough to protect birds and turtles on the seashore. The groups also charged that because the Park Service did not have a long-term rule that ORV use on the seashore was illegal.

The effect of the consent decree has been to close down larger sections of the beach than ever before during the spring and summer pre-nesting and nesting seasons, especially at four popular recreational areas, Bodie Island spit, Cape and South Beach, Hatteras Inlet, and South Point on Ocracoke.

The consent decree was agreed upon by all parties to the lawsuit. They include Defenders of Wildlife and the National Audubon Society, represented by the Southern environmental Law Center, the National Park Service, and Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance (CHAPA).

The decree cannot be appealed, so ORV access groups began lobbying for legislation that will allow the park to continue to operate under its interim plan, which was officially adopted last summer, though parts of it had already been implemented the previous year.

Many islanders and visitors have been unhappy with the new resource management by consent decree, which includes larger buffers for nesting birds and a ban on night driving. Island business owners are worried about the long-term economic damage of closing the areas, including Cape Point, the most famous fishing spot on the East Coast.

Though these same people were not happy with parts of the interim plan, they preferred it to the requirements of the consent decree while a negotiated rulemaking committee works on a long-range plan that is expected to be completed by the end of 2010.

The stated purpose of the very brief, two-page bill, Senate Bill 3113 and its companion House Bill 6233, to “to reinstate the Interim Management Strategy governing off-road vehicles use on the Cape Hatteras National Seashore, pending the issuance of a final rule for off-road vehicle use by the National Park Service.” The bill has only two short sections – one to reinstate the interim strategy and one that says the consent decree would no long apply.

‘I share the concerns of many North Carolinians about the negative ramifications that severely restricting off-road vehicle use at CHNS will have on the local community and economy,” said Dole. “beach users and members of the local community deserve to have their voices heard to ensure the development of a long-term plan that protects the natural habitat of the Seashore while maintaining its economic and recreational benefits.”

“As Ranking Member on the National Parks Subcommittee, I always try to make sure that North Carolinians have access to our state’s scenic treasures,” said Burr. “It is unfortunate that people are prevented from accessing Cape Hatteras at times because of the new restrictions. I am certain we can come to a compromise that allows people to have access, while at the same time addressing any potential environmental concerns.”

“The consent decree has once again shown that managing the Seashore through the courts without public input is always a bad idea,” said Jones. “This bill would restore reasonable public access and would bring the public back into the process on a level playing field by reinstituting the Interim Management Strategy until the Negotiated Rulemaking Committee can produce a final rule.”

If the bill is enacted, the National Park Service’s Interim Management Strategy will go into effect immediately and end when there is a long-term rule.

The word about the introduction of the legislation spread quickly on Hatteras and Ocracoke by phone and e-mail, with many folks, who were unhappy about the consent decree, expressing their excitement.

“It brought tears to my eyes,” said Frank Folb of Frank and Fran’s tackle shop in Avon who is a beach access advocate and a member of the negotiated rulemaking committee.

“It’s some of the best news I’ve heard in a while,” said John Couch, president of the Outer Banks Preservation Association.

“I think it’s a great thing,” said Allen Burrus of Hatteras, vice chairman of the Dare County Board of Commissioners. “If it can be passed, it will mean that negotiated rulemaking will have a better chance to work.”

Environmental groups had a different reaction.

A press release said that the interim strategy had “proven woefully inadequate” in safeguarding natural resources.

"This attack on the laws that safeguard our parks and seashores could set a dangerous precedent," said Jason Rylander, attorney for Defenders of Wildlife. "Basing the management of Cape Hatteras on the desires of a handful of special interests would do a disservice not only to the wildlife and natural resources the seashore was created to protect, but also to the thousands of visitors who travel to the seashore to enjoy those same resources each year."

The release noted that legal action would not have been necessary if the Park Service had complied with the law and implemented responsible ORV management plans.

"This bill would put back in place a failed plan to manage the natural resources of the seashore and degrade a national treasure established for the enjoyment of all Americans," said SELC attorney Derb Carter.

"Management under the interim plan was clearly not working, resulting in some of the lowest numbers of nesting birds in the history of the seashore," said Chris Canfield, Executive Director of Audubon North Carolina. "The consent decree represents an approach that was agreed to by all parties involved - including the Park Service, both local counties and representatives of the beach driving community."

Late yesterday, ORV access advocates were planning an all-out appeal to islanders and visitors who are unhappy with the consent decree to write their senators and congressmen.

“At least, now, we have something specific to tell people to do,” Couch said, referring to many folks who contacted area businesses and organizations asking what they could do to help.

What they can do, Couch said, is immediately contact their senators and representatives in their own states and seek their support for the bills.

Spokesmen for Burr’s and Jones’ office were not specific about a time frame on the legislation, but both Burr’s deputy press secretary, David Ward, and Jone’s media contact, Kathleen Joyce, said that the North Carolina sponsors of the bill would keep it moving as swiftly as possible.

The bills must go to committee, be reported on, be voted on, and then must go to conference if the House and Senate versions differ.

Congress will take a week off the first week in July and will have a summer recess in August.

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