Wednesday, February 20, 2008

Injunction To Stop Beach Driving, ORV Access, and ruin the Outer Banks of NC


Copied from the ISLAND FREE PRESS, photo by Buddy Swain.

I am going to attempt to see through the redness of rage and try to write this article in a manner which may accurately reflect the facts and try my best to keep the four-letter words to a minimum. This may be the most important article I have ever posted, so I hope any and all fans of the beaches of North Carolina will listen up and listen well.


As of today, February 20th, Derb Carter (919-967-1450) at attorney for the Southern Environmental Law Center (to be referred to as SELC), on behalf of the Defenders of Wildlife ( Referred to henceforth as DoW, Contact Person: Jason Rylander: 202-772-3245) and the National Audubon Society (Henceforth referred to as NAS, Contact Person: Chris Canfield: 919-929-3899) filed an injunction in federal court to suspend beach driving on portions of the Cape Hatteras National Seashore, in areas that "that have been identified as being most critical to threatened and endangered shorebirds in order to protect them before the upcoming breeding season begins."


What does this mean?

I'll give the short version. The DoW and NPS have been trying for years to shut down access to the beaches of North Carolina to ORV users. (For clarification, ORV means Off Road Vehicle and refers to any vehicle capable of driving in the sand; trucks, cars, dunebuggies, 4 wheelers, motorcycles, whatever.)  Their primary claim in recent years has been to tout the "national seashore" as a protected location for the Piping Plover, and a few other shore birds. Basically, they want to ruin the entire economic infrastructure of the east coast of north carolina for a few birds which aren't even native to the area.


First and foremost, those of you who love birds need to understand something that apparently the DoW and the NPS fail to realize, no matter how many times it gets brought up. There is NO SUCH THING as the Cape Hatteras National Seashore. Let me explain...


Originating August 17, 1937 (see reference 3 at the bottom of this article for details) a large part of the seashore of North Carolina was marked off by congress for the specific use of "public recreation."  On January 12, 1953 it was actually established and put into existence. I will translate public recreation into "people being able to enjoy themselves" for the sake assuming that was the general intent. Furthermore, the area is not, wasn't ever, and has never been a "State Park." The fact that the state-owned land is managed by the "National Park Service" and the simple abbreviation of "Cape Hatteras National Seashore Recreational Area" into "Cape Hatteras National Seashore" seem to have confused people into believing that this is actually "Cape Hatteras National Park," or maybe Cape Hatteras Piping Plover Park, or some other such nonsense. The area in question is comprised of 30,319.43 acres, or 122.7 square miles, of seashore. Basically the US government got together at the behest of many citizens and agreed that we east coasters of North Carolina could have 0.22% of our great State of North Carolina for public recreation.  Yes, that's right, you read it right 1 fifth of 1 percent of our state is reserved as the Cape Hatteras National Seashore Recreational Area. (For those who like obtuse facts, the land in question occupies .0000003237% of the land mass of the United States. Yeah, less than 1/3 of one millionth of one percent)


Why again are they fighting to get this injunction? To preserve endangered shore birds and species of flora, such as the Piping Plover, the Seabeach Amaranth, the Colonial Waterbird, and the American Oystercatcher, among other species.

I'm going to detail some of these right away, and save others for further discussion.

The American Oystercatcher:

(taken from the NAS' Own web site!)
American Oystercatcher can be found breeding in the U.S. along the Atlantic coast from Massachusetts south to Georgia, and in selected localities along the Gulf Coast in Florida, Alabama, Louisiana, and Texas. In recent years the number of records of the species north of Massachusetts has increased with several breeding records from Maine. American Oystercatcher is also a permanent resident of marine coastlines throughout the Caribbean and Central and South America. The northernmost breeding populations, from Massachusetts to Virginia, are migratory, and appear to spend the winter in the southeastern United States. Birds found along the southern Atlantic Coast and the Gulf Coast seem to be permanent residents. A number of Audubon Important Bird Areas (IBAs) provide critical nesting, migratory, and wintering habitat for American Oystercatchers. These IBAs include North Carolina's Cape Hatteras National Seashore IBA which supports 30 nesting pairs; Georgia's Altamaha River Delta IBA, which supports up to 250 oystercatchers during migration/winter; Florida's Big Bend Ecosystem IBA, within which 400-600 wintering birds can be found at Cedar Keys National Wildlife Refuge (NWR) and perhaps hundreds more at Lower Suwanee NWR (585 birds were seen here in November 2000); and Florida's Hillsborough Bay IBA, which hosts an average of 66 breeding pairs of American Oystercatcher. Blah Blah Blag...


Let's make sure we all understand this.

1) the Bird is NOT endangered.

2) It apparently flourishes in 9 eastern contiguous states, plus florida

3) It flourished in two other countries AND another continent.
4) HUNDREDS of them are seen elsewhere breeding just fine with no help from us.

5) CHNSRA seems to have the LEAST of them anywhere...

So, that tells me that they aren't suited as well to our climate but survive everywhere else just fine. How about we let mother nature handle this bird as she seems to already be doing a fine job of it already?


Seabeach Amaranth:

This one is easy.

1) They are native to beaches, but NOT to ours.

2) The only ones we have ever had were artificially transplanted there by us, not nature.

3) Those died...


Hmm.. seems like that wasn't meant to be either.


The Piping Plover: I am SOOO sick of hearing about this bird.
(Facts excerpted from the US Fish and Wildlife Service)

  • Piping plovers were common along the Atlantic coast during much of the 19th century, but commercial hunting for feathers to decorate hats nearly wiped them out. Following passage of the Migratory Bird Treaty Act in 1918, plovers recovered to a 20th century peak in the 1940s. Increased development and beach recreation after World War II caused the population decline that led to Endangered Species Act protection in 1986. Intensive protection has helped the population more than double in the last 20 years, but the most recent surveys place the Atlantic population at fewer than 2,000 pairs.
  • Atlantic coast piping plovers breed on coastal beaches from Newfoundland and southeastern Quebec to North Carolina
  • Storm tides, predators or intruding humans sometimes disrupt nests before the eggs hatch. When this happens, the plovers often lay another clutch of eggs. Chicks hatched from these late-nesting efforts may not fly until late August.
  • Piping plovers often gather in groups on undisturbed beaches before their southward migration. By mid-September, both adult and young plovers have departed for their wintering areas. These birds winter on the Atlantic coast from North Carolina south to Florida, along the Gulf coast, and in the Bahamas and West Indies

Let's analyze how reducing ORV Access will save these birds from what man has done to them...

  • We don't hunt them for feathers, so don't blame that on us please! Get real!
  • They PEAKED in the 1940s? Wow.. they've been declining for 60 years but it's all the fault of four-wheel drives?
  • They apparently breed in THOUSANDS of miles of coastal beaches AND in Canada, but you want to close MY beach? Why?

So, you want to stop us from driving on the beach because of a bird that has been suffering from darwinian decline for 68 years? How is that exactly going to affect the Muskrats, Foxes, Wolves, crows, deer, and pedestrian traffic that causes damage to these birds?




I'd like to start with a few simple though processes, in the hopes that someone from the Audubon bothers to read this. First, we don't drive ON the dunes. It's illegal and you can't easily do it anyway even if it WERE legal. Secondly, we locals aggressively watch out for the endangered species that are marked out on the beaches. Just because we like to drive on the beach doesn't mean we don't enjoy nature too.  Third: 90% of beach driving is done at the tide line. Absolutely NONE is done intra-dune; you can't get between the dunes and if you DID try it, some locals would make much worse of you than any law would. You do NOT destroy OUR beaches! Lastly, we are almost all driving on the sand near the tide. So, let's assume we weren't there to disturb this pretty little bird. What would happen?

A) It would drown.. there are WAVES where we are driving. It's called a tide, happens twice a day. Ring any bells?

B) It would get eaten by crabs.

C) It would get eaten by muskrats, foxes, hungry midgets, etc.


Ok.. let's forget the rights of the people to use the park for what it was intended for. Let's just analyze the economic impact of this on the beaches coastal communities. Absolutely ALL of these communities comprising the Outer Banks need the tourists for survival. Hundreds of thousands of tourists travel across the entire United States to be able to drive on our beaches, fish from our shores, and spend money in our restaurants, gas stations, hotels, and stores. The economic damage this injunction would cause is incalculable. You're talking about a locale where the population changes from 20,000 in the Winter Season to over 3 Million visitors in the summer. Drastic fluctuations in the housing economy, which is mostly built on the rental property design, would plummet property values in less than year. Restaurants that operate seasonally would lose valuable customers, followed by staff, resulting in the closing of their doors forever.  Sport and commercial fishing would suffer horrendous damage to their economies as well.


Listen up people! WE LIVE HERE! This is OUR beach and the United States Congress says it belongs to US, not to the birds, the amaranths, or to anyone else. What happens if a bird species dies off? Nothing. The world goes on. It's a scientific fact that more species disappear from earth each day than have ever been discovered in the history of exploration. Do you really think ruining our incomes, our past-times, and our economy are worth saving a few dozen birds?


You're truly out of your mind! Go play your animal politics in a REAL state park and you'll have my endorsement, my support, and even my money! But keep your filthy trifling hands off my families income and my family's beaches! Until congress decides these beaches ARE a wildlife preserve, you have no right to be here any more than anyone else. So shut up and enjoy the sun like we do!


This needs to be fought and fought now!

If you'd like to lend your voice or support to the cause, I have made a forum on the NCBBA web site, where I am the site moderator, where we members and visitors alike are discussing the injunction. You can visit the NCBBA forum here:




Reference Materials For This Article:

1) SELC Injunction Information, copied in its entirety for reference, but available for personal viewing at :


Federal judge asked to restrict driving in order to save 2008 breeding season on Cape Hatteras National Seashore

Derb Carter
SELC Attorney 919-967-1450
Defenders of Wildlife – Jason Rylander, 202-772-3245
National Audubon Society – Chris Canfield, 919-929-3899

Raleigh– Conservationists are asking a federal judge to suspend beach driving on portions of the Cape Hatteras National Seashore that have been identified as being most critical to threatened and endangered shorebirds in order to protect them before the upcoming breeding season begins. The Southern Environmental Law Center, representing Defenders of Wildlife and the National Audubon Society, filed for a preliminary injunction in U.S. District Court requesting that beach driving be halted along approximately 12 percent of the shoreline to allow birds to nest and raise chicks. The requested closures were recommended by the Park Service’s own scientists and are vital to a successful breeding season in 2008.

“At this point, every breeding season is critically important to the shorebirds that nest on Hatteras. Fortunately, by limiting driving on even this small area would help protect them during this season, giving the Park Service time to develop and implement a reasonable long-term plan to manage driving on the beach,” said SELC attorney Derb Carter. “Each year we see fewer and fewer of these species on Hatteras. Waiting any longer for the Park Service to properly manage beach driving could very well mean we have nothing left to protect.”

The organizations seek to restrict driving along those portions of the Seashore identified by scientists for the Park Service as being the most critical to nesting shorebirds. The proposed region represents approximately 12 percent of the available shoreline (see map). Importantly, the areas would still be open to pedestrian access, allowing Park visitors to continue using these areas.

The National Park Service, which is charged with developing and implementing a plan to manage beach driving to protect and preserve the region’s natural resources, is currently undertaking a process to develop future rules for driving at Hatteras. However, NPS admits the process will take at least three years to complete. Scientists agree that several species could be eliminated from the Seashore in that time.

“Waiting three more years for National Park Service to figure this out is simply not an option. We can’t risk repeating the unfortunate events of last year by losing even more of Cape Hatteras’ wildlife,” said Defenders of Wildlife staff attorney Jason Rylander. “The Park Service’s actions are not only negligent, but also illegal.”

Cape Hatteras National Seashore is home to nesting shorebirds, such as the threatened piping plover, the common tern, and the American oystercatcher. The number of colonial waterbirds nesting on Seashore beaches declined from a high of 1,508 nests in 1997 to 212 nests in 2007 - an 86 percent decline in 10 years. Last year, two of the imperiled shorebird species, gull-billed terns and black skimmers, disappeared entirely from the Seashore. Since 1995, common terns have been all but eliminated at the Seashore while American Oystercatchers have seen their numbers decline by almost one half since 1999.

Cape Hatteras National Seashore is currently operating under an interim management plan that doesn’t adequately protect the area’s wildlife and consistently favors ORV access over protection for threatened and endangered species. In fact, according to materials provided by the Park Service at recent public hearings, less than one percent of Cape Hatteras National Seashore is permanently closed to vehicular use for the protection of natural resources. Under the Park Service’s interim management plan, this year is expected to be another extremely poor one for nesting birds.

“The only way to safeguard everyone’s access to Cape Hatteras is to put a responsible, science-based vehicle management plan in place now. That the Park Service has failed to do so imperils not only the birds and natural areas, but also the safety of all visitors,” said Chris Canfield, executive director of Audubon North Carolina.

The Park Service has failed to develop a permanent beach driving management plan for decades despite being legally required to do so. In addition to federal regulation requiring such protection, in 1973, President Nixon ordered all federal agencies, including the National Park Service, to regulate beach driving to protect natural resources. Most recently, U.S. District Court Judge Terrence Boyle issued an order concluding that driving on the Seashore is illegal as the Park Service has failed to adopt beach driving regulations.



2) Island Free Press Article, February 19, 2008, copied in its entirety for reference, but available for personal viewing at:


Environmental groups will seek injunction to stop beach driving
Breaking News

The environmental groups that have sued the National Park Service over its interim protected species plan at Cape Hatteras National Seashore will ask a federal court judge on Wednesday, Feb. 20, for a temporary injunction to stop beach driving until the lawsuit is settled.
Environmental group seek injunction to stop beach driving
The environmental groups that have sued the National Park Service over its interim protected species plan at Cape Hatteras National Seashore will ask a federal court judge on Wednesday, Feb. 20, for a temporary injunction to stop beach driving until the lawsuit is settled.
Members of a negotiated rulemaking committee that is working on a long-range plan to regulate ORV use on the seashore got the news Tuesday afternoon in an e-mail from Patrick Field of the Consensus Building Institute, one of the facilitators working with a committee to negotiate a long-range ORV plan.
“The plaintiffs in the lawsuit over the interim plan and those members of the Committee let us know this afternoon, Tuesday, that they plan to file a request for a preliminary injunction with the District Court tomorrow, Wednesday, February 20th.
“Once the document is filed with the court, they will provide a copy of that (request for a) preliminary injunction to us to forward to the Committee.”
The Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center (SELC), filed a lawsuit against the National Park Service on Oct. 18 in federal district court in Elizabeth City over its failure to adopt regulations to manage beach driving at the Cape Hatteras National Seashore.
The suit claims that the interim protected species management plan under which the Park Service has been operating does not do enough to protect species of shorebirds and sea turtles that nest on the seashore.
The groups also filed a 60-day notice of intent to sue over violations of the Endangered Species Act in connection with the interim management plan.
The lawsuit contends that the interim plan, which is intended to protect the birds and turtles until a long-range plan is adopted, does not go far enough.
The National Park Service is currently involved in two concurrent processes to formulate a long-range plan for ORV use on the seashore beaches.
They are:
  • An ORV Management Plan and Environmental Impact Statement (EIS). The Plan/EIS will guide the management of ORV use at Cape Hatteras for the next 10 to 15 years and is required by the National Environmental Policy Act.   The first public scoping meetings were last year, and now the National Park Service has developed a list of preliminary options for ORV management. The Park Service hosted a series of public information meetings in January to answer questions about the options and will accepted public comment on the alternative options until Feb. 15.
  • A negotiated rulemaking advisory committee had its first meetings on Jan. 3 and 4 at the Avon Fire Hall.  This committee is appointed under federal law by the Secretary of the Interior to assist the Park Service in developing rules for operating ORVs on the seashore. The next meeting of the committee will be Feb. 26 and 27 in Kill Devil Hills.

You can find more information on the negotiated rulemaking committee and other efforts to develop an ORV plan in the Shooting the Breeze column at the top of the front page of this Web site.
Other relevant links on the Free Press site are:
The Island Free Press will continue to post updates on the plan by the environmental groups to seek an injunction.

3) Title 16 of the U.S. Code, Chapter 1, Subchapter LXIII, Section 459 (Designating the area for recreation, not preservation)

Copied in its entirety, but available at:


From the U.S. Code Online via GPO Access [] [Laws in effect as of January 3, 2005] [Document not affected by Public Laws enacted between January 3, 2005 and June 19, 2006] [CITE: 16USC459] TITLE 16--CONSERVATION CHAPTER 1--NATIONAL PARKS, MILITARY PARKS, MONUMENTS, AND SEASHORES SUBCHAPTER LXIII--NATIONAL SEASHORE RECREATIONAL AREAS Sec. 459. Cape Hatteras National Seashore Recreational Area; conditional establishment; acquisition of lands When title to all the lands, except those within the limits of established villages, within boundaries to be designated by the Secretary of the Interior within the area of approximately one hundred square miles on the islands of Chicamacomico, Ocracoke, Bodie, Roanoke, and Collington, and the waters and the lands beneath the waters adjacent thereto shall have been vested in the United States, said area shall be, and is, established, dedicated, and set apart as a national seashore recreational area for the benefit and enjoyment of the people and shall be known as the Cape Hatteras National Seashore Recreational Area: Provided, That the United States shall not purchase by appropriation of public moneys any lands within the aforesaid area, but such lands shall be secured by the United States only by public or private donation.

(Aug. 17, 1937, ch. 687, Sec. 1, 50 Stat. 669; June 29, 1940, ch. 459, Sec. 1, 54 Stat. 702.)

Change of Name

Words ``national seashore recreational area'' substituted in text for ``national seashore'' pursuant to act June 29, 1940.




Update to Post: 23-Feb, 2008: I had a comment from "Jim and Ginny" that was well formed, but it was throwing off the size of the blog screen, so I'm removing it from comments, but placing it here in its entirety.


Injunction Myths Dispelled
Formatted version can be found at

SELC Injunction Myths include the following:
1. adequate protection requires that USGS protocols be implemented,
2. species at CHNSRA are in a downward spiral bordering on extirpation,
3. requested year round closures represent 12% of the available shoreline, and
4. the economic impact will be consistent with the .05 to .08 percent of the economic value generated by all park visitation.

If this were the case, then why did USFWS issue a no jeopardy opinion? Furthermore, why did USFWS state that the Interim Plan may even improve Plover habitat? Finally, why would NPS, at the federal level issue a finding of no significant impact?

As per the quote below, USGS does not view the protocols as the minimum required protection.

“This document was produced by the United States Geological Survey, Patuxent Wildlife Research Center, at the request of Cape Hatteras National Seashore. The information and recommendations presented are the professional opinions of the scientists that analyzed and interpreted the scientific data associated with protected species at the Seashore. This information will be considered by the National Park Service (NPS), along with federal laws and mandates, NPS policies, other scientific information, and public input, in developing management plans and conservation strategies implemented at the Seashore.”

In support of this claim, SELC quotes figure for two years—1999 and 2007. I added Colonial Water Birds tallies from 2000 & 2004 (source Park Planning Interim Protected Species Handouts).
· 1999 -- 1,155 pairs,
· 2000 -- 465 pairs,
· 2004 -- 964 pairs, and
· 2007 -- 217 pairs (While there were fewer Colonial Water Birds at CHNSRA, newly constructed Cora June Island was home to one of the largest mixed tern/black skimmer colonies in the state with good numbers of nesting adults that successfully fledged hundreds of chicks—see Feb. news at

This is far from a steady decline inferred from the data presented for 1999 and 2007. It is, in fact, representative of the high variability in nesting pairs referenced by the NPS with 2004 coming close to the 1999 recorded pairs. Finally while the tallies for CHNSRA are low in 2007, a new alternative breeding site, Cora June Island, was a resounding success. So what is the overall population for our area, 217 pairs or 217 pairs plus the nesting pairs that “successfully fledged hundreds of chicks”?

The map for the year round closures does not specify the actual miles included in the requested year round closures. That said, the map is comparable to the critical habitat designation. Using the data from the critical habitat designation and a thorough review of 2007 beach access reports, I determined that the requested year round closures total approximately 12.9 miles. As for the miles of shoreline actually available to ORVs, the total is 41 miles (57 minus 16 miles of beach closed for more than a decade). Bottom line the requested year round closures actually account for 31% (12.9/41) of the shoreline available to ORVs during the winter and 37% (12.9/34.8) of the shoreline available during the summer when seasonal closures are in effect. This is a far cry from the 12% figure provided by SELC.

SELC got these figures from an economic impact study contracted by USFWS in conjunction with the attempt to re-designate critical habitat for the piping plover. This study relies on the Vogelsong Survey. Furthermore, SELC claims that the minimal impact identified in the USFWS economic impact study will be mitigated by the 13% of visitors who would visit more often if ORVs were not allowed on the beach. The 13% figure also comes from the Vogelsong study.

Neither USFWS nor SELC disclose the fact that, the Vogelsong study also states that 32.4% that indicated that they would visit less frequently, and 29% said that they “would not return at all if this beach were closed to ORVs.” That is, as many as 61.4% visitors indicated that they would visit less often or not return at all if ORVs were not permitted on the park’s beaches. So how does a 61.4% decrease in visitation result in a .05 to .08 percent impact on the economic value generated by all park visitation? If you really want to know, read the following critique of the economic impact study published by USFWS.


  1. Tommy,

    You are so right. I didn't want to overload people since most of my readers are housewives, but what you have stated, so eloquently, is exactly what is going on. I hope you have a lot of people view your site.

  2. There's still the issue of The Organic Act, which applies to all NPS sites, whether they be Recreation Areas or Historic Landmarks, they've got to abide by it.


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