ORBA Court upholds NPS’s off-highway vehicle rules in Cape Hatteras

Joshua Learn, E&E reporter
E&E PM: Monday, June 23, 2014

A federal court has upheld rules designed to protect endangered species from off-highway vehicles in North Carolina’s Cape Hatteras National Seashore.

The Outer Banks Preservation Association sued the National Park Service in 2012 seeking to overturn NPS regulations that restrict some areas of the beach from off-highway vehicles during certain times of the year.

On Friday, U.S. District Judge Terrence Boyle of the U.S. District Court for the Eastern District of North Carolina ruled that the Park Service “took the requisite hard look at the environmental impacts of its proposed agency action as required by [the National Environmental Policy Act] and that its final decision was reasonable and neither arbitrary nor capricious.”

Access to and use of Cape Hatteras’ beaches have been serious points of contention in North Carolina. Conservation groups argue for better protection of endangered species that nest in the area, such as leatherback turtles and piping plovers, and local fishing and business interests want freer access to remote beach areas.

“We’re very pleased that Judge Boyle has upheld the National Park Service’s beach driver rules,” Jason Rylander, senior attorney at Defenders of Wildlife, said in a phone interview. He said the off-highway vehicle regulations, which took effect in February 2012, bring Cape Hatteras in line with most other seashores in the United States.

“There used to be no permits. There was nothing, no regulation at all,” he said. “It was basically the Wild West.”

Rylander said Defenders of Wildlife worked for more than a decade with other groups such as the National Audubon Society to bring regulation to parts of the seashore. “They’re reasonable, they’re effective and they’ve been very successful both for wildlife and for people,” he said.

On its Cape Hatteras website, NPS says the number of sea turtles nesting on the beach has gone up significantly since the agency began to restrict night driving on parts of the beach in an interim plan that began in 2008. It said the shoreline, home to five species of sea turtles, including the endangered loggerhead and leatherbacks, averaged 77.4 sea turtle nests between 2000 and 2007, but that figure increased to 112 nests in 2008, 153 in 2010 and a record 254 in 2013.

NPS said artificial light can stop pregnant females from coming onto shore to lay eggs, make hatchlings more visible to predators and confuse hatchlings as they try to reach the water.

“It is a great day for birds and sea turtles that depend on the beaches of Cape Hatteras National Seashore,” Walker Golder of Audubon North Carolina said in a release. “The recovery of sea turtles and birds has been well underway since the Park Service adopted a responsible management plan. Today’s decision will let the recovery continue for the benefit of both wildlife and people. North Carolina’s beach-sharing formula is showing success and is a model for coastal states throughout America. The benefits to wildlife and future generations are priceless.”

Rylander said the new plan does a good job integrating recreational and conservation interests. Under the plan, which took effect in February 2012, much of the beach is open year-round and other parts change depending on the season.

But the OBPA — a nonprofit organization that sued NPS through its Cape Hatteras Access Preservation Alliance project — believes the rules go too far, closing off areas of the beach that are inhabited only by species that aren’t endangered, like certain terns and American oyster catchers.

David Scarborough, OBPA treasurer, said although the organization doesn’t dispute that certain species need protection, many of the restricted areas “in terms of miles are for species that are neither endangered or protected.”

He believes the agency’s rules deny access to some of the more remote areas of the beach.

“We’ve been trying to ensure that access is provided,” Scarborough said in a phone interview. “These areas are often in fairly remote locations where it’s difficult for an individual to get to and take advantage of the seashore.”

He said keeping these areas open to off-highway vehicles would “lighten the load” on some of the more accessible beaches by spreading tourists and other beach users out along the shoreline.

“We believe there’s an appropriate balance between resource protection and recreational use,” he said. “We do not believe that what the Park Service has put in place is balance.”

He said that people can no longer reach certain fishing spots and that some tackle shops and other businesses focused on beach activities have suffered or gone out of business.

But Rylander said the area’s overall economy has improved despite the new regulations, citing “record occupancy” at tourist locations. “It’s really been a win-win both for people and wildlife,” he said.

Scarborough said he plans to keep on fighting. Of Boyle’s ruling, he said, “Certainly we were disappointed in the decision and we felt like we had a strong case.”

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