N.C. judge gets update on Hatteras beach driving ban

ELIZABETH CITY

A beach-driving agreement brought a big change to Cape Hatteras National Seashore, but it might not be the only reason for a bounce in successful bird and turtle nestings, the park's superintendent told a federal judge Thursday.

Superintendent Mike Murray was in court to give a status report on last year's consent decree to U.S. District Judge Terrence Boyle. He said beach closings to protect nesting shorebirds would resume soon.

In April, Boyle signed the consent decree settling a lawsuit by Defenders of Wildlife and the National Audubon Society against the National Park Service. Dare and Hyde counties and a coalition of beach-driving groups had joined the action as defendants. The environmental groups had contended that an interim management plan was not adequately protecting shorebirds and turtles.

Despite nervous speculation about the judge's intentions when he called the parties to his courtroom Thursday, Boyle did little more than listen to the superintendent's status report before dismissing the hearing.

Boyle said he was looking for a follow-up and not testimony from all parties. "This is not a trial," he said, "nor is it an adversarial proceeding."

Carl Tobias, a law professor at the University of Richmond, said that for some reason, Boyle appears to have a high degree of interest in the case.

"I think the judge is going to keep a tight rein on this," he said. "I think he's watching."

As required, Cape Hatteras National Seashore submitted reports to the court about management of off-road vehicles and pedestrian access during the shorebird and sea turtle nesting seasons.

"The consent decree did cause a big change, I think," Murray told Boyle. "The closures occurred more quickly. They were longer-lasting."

Of a total of 66.8 miles of beach, 25.5 miles were open to pedestrians and 26.1 miles were open to ORVs last year, Murray told the judge. At the height of the nesting season in July, about 11 miles were completely closed. There were also 3.7 miles of beach that were open, but they were blocked by resource protection closures.

In general, Murray said, the numbers of birds and turtles that survived the nesting season were higher than before. But he declined to directly attribute that to the consent decree. "I think there are multiple factors that affect nesting success," he said.

Record numbers of sea turtles were found along the entire North Carolina coast, not just Cape Hatteras. Murray did not try to explain the increase, but he said that one difference in the seashore from the previous year was that night driving was restricted because lights are thought to confuse turtles.

Boyle seemed to associate the new limitation with increased safety, noting there were no fatal accidents after dark. "That's an achievement, because night driving had a significant number of fatalities," he said.

Paul Stevens, the seashore's law enforcement specialist, said after the hearing that the only ORV-related fatalities on the beach he was aware of were on Ocracoke Island in 2003, when one man was killed, and on Coquina Beach in 2004, when two men were killed.

Areas of the beach where piping plovers nested last year will be closed off by March 15, as required, and larger closures will follow as shorebirds and colonial nesting birds start nesting and breeding, Murray said.

An attempt by a 29-member committee of stakeholders to negotiate a long-term ORV plan was abandoned last week. Under the terms of the decree, Murray must develop an ORV regulation by next year.

Dare County, meanwhile, will continue to pursue legislation that would override the consent decree and return the seashore to management under the interim ORV management plan, Board of Commissioners Chairman Warren Judge said after the hearing.

Too much credit has been given to the nesting success of last summer, Judge said, because the protections initially put in place were established under the interim plan. "The consent decree is being given praises and accolades that it's just not deserving."

Derb Carter, an attorney with Southern Environmental Law Center, said after the hearing that the agreement has been effective in preserving the seashore's resources, but he didn't think it has essentially allowed the environmental groups to manage them.

"Our interest is that the Park Service comply with the law," he said. "We're not running the park."

 Catherine Kozak, (252) 441-1711, cate.kozak@pilotonline.com