Brief History of the Consent Decree –

Why we need H.R. 718 and S.1557

 For decades, the National Park Service has worked closely with the residents of and visitors to the Cape Hatteras National Seashore to preserve the fundamental purposes for which the park was created, that is, to provide public access to the seashore while preserving the natural habitats of wildlife, both indigenous and migratory.

 In 2007, an Interim Federal Plan was put in place to regulate access to the National Seashore until the final plan is in place in April 2011.  It was adopted through a public process and was being implemented by the National Park Service in a fair and effective manner, balancing public access with resource protection.

 In January of 2008, the Southern Environmental Law Center, on behalf of the Audubon Society and the Defenders of Wildlife, filed a lawsuit seeking to enjoin the National Park Service from further management of the Park pursuant to the 2007 the Interim Plan.  The complaint alleged that the Park Service Interim Plan was inadequate to protect and preserve the natural resources of the National Seashore as required by Executive Order 11644.  E.O. 11644 requires generally that ORV use in national parks be managed “so as to protect the resources of those lands, to promote the safety of all users of those lands, and to minimize conflicts among the various uses of those lands.”

 The remedy requested was to enjoin all ORV access to the Bodie Island Spit, Cape Point, South Beach, Hatteras Spit, North Ocracoke and South Ocracoke on Cape Hatteras National Seashore for the duration of the litigation or until a final plan is adopted.   Since most of the National Seashore is inaccessible except by vehicle, this action would make these areas unavailable for recreation purposes for all, including the elderly, the handicapped, families with small children, fishermen and birdwatchers, among others, 24 hours a day, 12 months of the year until the final plan is in place.

 Dare County, North Carolina, Hyde County, North Carolina, and Cape Hatteras Access Preservation Alliance filed a motion to dismiss the complaint and were granted the right to intervene on Dec. 14, 2007.   Despite objections by Dare County, the National Park service chose not to defend the lawsuit and negotiations began between the U.S. Attorney, representing the National Park Service, and the environmental groups.  Dare and Hyde Counties and the Preservation Alliance were excluded from these negotiations.  After weeks of negotiations, the framework of a settlement was presented to Dare County for comment.   Changes were requested but were rejected and no settlement was reached. 

 Several days after the failed negations, Dare County and Hyde County were presented with a take-it-or-leave-it option and given one hour to decide whether to accept the settlement as presented and enter a Consent Decree or risk total closure of the Cape Hatteras National Seashore Recreational Area for the remainder of 2008 and the entirety of the 2009 and 2010 seasons.

 The counties for practical reasons reluctantly entered into the Consent Decree, as they could not risk full closures for three entire seasons.  The Consent Decree effectively overrides any authority of the National Park Service to make reasoned judgments as to the management of the Cape Hatteras National Seashore and resulted in closures of beaches that were unprecedented in the history of the Park.

 The Consent Decree was not implemented until May of 2008 by which time bird nests had, for the most part, already been established and tourist plans and financial commitments already made.  Even so, the Consent Decree with its severe limits on access to the National Seashore and had a severe negative impact on the 2008 season.  In 2009, the consent decree has had a devastating effect on the economy, the residents and business owners of Cape Hatteras and Ocracoke. Local family businesses that have been on Hatteras Island for decades are closing or are barely hanging on.  This area depends on the summer tourist season to support the economy through the winter.  If the 2010 season is lost, as it surely will be if the Consent Decree remains in place, it is unlikely that these businesses will be able to survive, and a part of our heritage that makes Hatteras unique will be lost forever.

 H.R. 718 and S. 1557 would restore the authority of the National Park Service to preserve beach access to the seashore, which is critical to protect our cultural heritage, our economy, and the public’s right of access to their seashore, while protecting the Park’s resources.

NPS Resource Management Field Summary Reports – Synopsis

The first full season under the Consent Decree

  The 2009 bird-breeding season at the Cape Hatteras National Seashore experienced better than normal nesting weather.  Temperatures at the Seashore were cooler than normal. No tropical storms or nor’easters flooded the islands.  Normal rainfall amounts fell.  Conditions suggested better than average results might be expected.  Actual numbers reported by the NPS through August 7, 2009 indicate results have not been better, and in some cases are worse, than in 2008. 

 In the case of the piping plover (PIPL), 2009 compared to 2008 recorded fewer breeding pairs (9 vs. 11), fewer hatched eggs (19 vs. 22), and fewer fledged chicks (6 vs. 7).  The Consent Decree went into effect on May 1, 2008, after the arrival of the PIPLs for the 2008 breeding season.  The results for 2008, and for 2009 (the first full year under the Consent Decree) have shown no improvement from what was experienced under the Interim Plan in effect in 2006/2007.  The 2009 fledge rate of .67 per breeding pair matches the 2006 results.

American oystercatchers (AMOY) nesting results for 2009 were also worse than in 2008.  Assuming all remaining chicks as of August 7 successfully fledge, 2009 will record 14 fledged chicks compared to 17 recorded in 2008.  AMOY’s do not breed until four years of age, so the increase in the number of breeding pairs in recent years should be attributed to management policies prior to the Consent Decree.

Results for black skimmers and other colonial waterbirds for which closures are established have not yet been quantified by the NPS.  The turtle-nesting season is still in progress with nests and false crawls numbers to-date similar to what were experienced in 2008.

Observations suggest that black skimmers continue to nest in limited numbers on the seashore with the Consent Decree having no noticeable improvement.  However, as in 2008, skimmers have nested in great numbers on Cora June Island.  David Allen of the North Carolina Wildlife Resource Commission said there were “over 100 black skimmers” and some common terns on Cora June Island after viewing pictures this summer.   Although only 500 yards behind the Hatteras Village ferry docks, Cora June is not technically part of the Seashore and therefore is excluded from the NPS statistics. Also, approximately 250 to 300 black skimmers, 30 common terns and 300 least terns have been observed nesting on the beaches south of the Oregon Inlet groin on Pea Island.  However, this area is also excluded from the results reported by the NPS because it is managed within the Pea Island Wildlife Reserve, even though it is a part of the Seashore.  

 The results have not supported the closure policies dictated by the Consent Decree.  In fact, factors other than ORV or pedestrian activities have had a more significant impact on results.  The NPS recognizes that predators are responsible for significant loses of bird and turtle eggs and hatchlings.  Since 2002, over 800 predators have been trapped on the Seashore.  Numbers of trappings have increased substantially over the past two years after the NPS hired a full-time trapper.  Some have surmised that predator activity on the beaches may have actually increased as a result of the Consent Decree due to the absence of ORVs and pedestrians.  Another factor negatively impacting the breeding success of all shorebirds is the loss of habitat due to vegetation growth that has occurred in areas used for nesting in prior years.  The absence of ORV activity as a result of closures during the non-breeding season (September thru March) has contributed to the unchecked vegetation growth in these areas.  A third factor that negatively impacts results is weather.  Storms did not impact the bird-nesting season in 2009, and it remains to be seen if storms (combined with the NPS policy of not relocating turtle nests from at-risk locations) will negatively impact the 2009 turtle hatches.

 When costs are considered, the appropriateness of the Consent Decree is even more questionable.  Thru 8/16/2008 (only three and a half months after its implementation), the NPS spent $316,000 more than what would have been spent under the Interim Plan (per Supt. Mike Murray) and continues to incur incremental costs during 2009 (aprox. $300,000 to $400,000).  As a result of the Consent Decree settlement, the plaintiffs were paid $100,000.  These costs are real, but the cost to the U.S. taxpayers does not even approach the cost to the economy of the islands, nor the diminished quality of the visitors’ experience at the Cape Hatteras National Seashore.

Beach Access Report Summary

Cape Hatteras National Seashore Recreational Area

  On the birthday of our nation, America’s first National Seashore welcomed visitors by closing 67.8% of its beaches to ORV use and 20% to all human use. The most popular beaches at the Seashore were not only closed for July 4^th, but for the entire months of May, June and July.