Sunday, April 20, 2008
OBPA Settlement Summary
The Following is a summary to the key terms of the Proposed Consent Decree ("CD") entered into between Plaintiffs Defenders of Wildlife and National Audubon Society, Defendants National Park Service and US Fish and Wildlife Service and Intervenor Defendants Dare and Hyde Counties NC and the Cape Hatteras Access Preservation Alliance. The Proposed Decree was filed with the Court on April 16, 2008 and is not official until signed and entered by Judge Terrence Boyle, U.S.District Judge for the Eastern District of North Carolina who will likely hold a hearing on this proposal. The key terms of the settlement are as follows:
· Date for Final ORV Management Plan and Special Regulation: Sets a deadline whereby NPS must complete an ORV Management Plan by December 31, 2010, and complete and promulgate the final Special Regulation by April 1, 2011.
· Modified Interim Management Plan: Interim Management Plan will still remain in effect although modified by the terms of the CD which will control in the event of conflict.
· Pre-Nesting Areas: NPS will establish pre-nesting areas at Bodie Island Spit, Cape Point, South Beach, Hatteras Spit, North and South Ocracoke by March 15 of each year; in future years NPS will follow the pre-nesting areas that have already been identified for this year to the maximum extent possible.
· Buffers: NPS will establish buffers for nesting/breeding birds and for foraging unfledged chicks. Buffers are as follows (in meters and feet):
(1) Breeding and Nest buffer: piping plovers, 50 m (164 ft.); Least Terns, 100 m (328 ft.); American Oystercatchers, 150 m (492 ft.); and Other Colonial Waterbirds, 200 m (656 ft.).
(2) Unfledged chick Buffer: Least Terns, Colonial Waterbirds and American Oystercatcher, 200 m (656 ft.); piping plovers, 1000 m (3281 ft.) for ORVs and 300 m (984 ft.) for pedestrians. If disturbance from ORVs and/or pedestrians, as observed by NPS staff, occurs within a given buffer distance, the buffer zone will be expanded in 50 m (approx. 164 ft.) increments until no disturbance occurs. Non-essential ORVs are prohibited within the buffer areas. When the 1000 m (3281 ft.) buffer zone is in effect for unfledged piping plover chicks, pedestrians will be allowed limited access to the protected area during daylight hours only. This provision will cover access within a narrow walking and sunbathing corridor that extends 10 m (33 ft.) landward from the mean high tide line, provided a buffer of 300 m (approx. 984 ft.) is maintained.
· Modification of Unfledged Piping Plover Chick Buffer: NPS may allow ORV access within the 1000 m piping plover chick buffer two weeks after the chicks hatch if a 300 m (984 ft.) buffer is maintained between the plover chicks and ORVs. The chicks will be monitored from dawn to dusk and the modified area will not be open to ORVs each morning until the location of the brood is determined by an NPS monitor, and an adequate buffer has been assured. The ORV access within the 1000 m buffer will be closed immediately if adult plovers and chicks move within 200 m (656 ft.) of ORVs or an ORV access corridor and the NPS staff with authority to close the area to ORV access are on-site. This provision is void if a piping plover chick at any location is injured or killed by an ORV within the 1000 m buffer.
· Ocean Backshore Closures: For the benefit of all bird species, sea turtles, and sea beach amaranth, NPS will provide an ORV-free zone in the Ocean Backshore at least 10 m (33 ft.) wide and running the length of the site wherever habitat exits, provided there is sufficient beach width to include an ORV corridor of at least 20 m (66 ft.) above mean high tide line. This ORV-free zone will be established from March 15 to November 30 in all locations open to ORV use and not in front of the villages and outside of the pre-nesting areas.
· Reports and Opportunity to Comment: By January 31 of each year, NPS will provide the court as well as Plaintiffs and Intervenors with FWS reports regarding plovers, sea turtles, and seabeach amaranth, and with their own data on all species. By February 20 of each year until a final special regulation is issued, NPS will provide public notice of proposed pre-nesting closures for the six areas identified above and allow for Plaintiffs and Intervenors to comment on the pre-nesting areas by March 1. NPS must respond to these comments by March 15.
· Violations of Pre-Nesting Areas and Buffers: If NPS confirms that a deliberate act has occurred that disturbs or harasses wildlife or vandalizes fencing, nests, or plants the pre-nesting area or buffer shall be expanded automatically by 50 m (164 ft.). If a second such act occurs in the same area, the buffer will be expanded automatically by an additional 100 m (approx. 328 ft.). If a third such act occurs, the buffer will be expanded automatically by an additional 500 m (approx. 1640 ft.) or more if NPS finds it is necessary to minimize the extent of further disturbance. NPS will provide public notice of such violations to the extent possible.
· Night Driving: To increase the chances of successful turtle nesting, NPS will close all potential sea turtle nesting habitat to non-essential ORV use from 10 p.m. to 6 a.m. from May 1 until November 15. However, between September 16 and November 15, NPS may issue night driving permits for authorized non-essential driving between those hours.
· Education: Prior to the 2009 breeding season, NPS will provide educational information about protected species at all ORV access points and redesign the Seashore beach driving brochure to concisely communicate the regulations and potential penalties for violations. NPS will also establish a 24-hour phone line that citizens can use to report illegal activities and unsafe conditions at the beach.
· Modifications: The court may modify any requirements of the CD for good cause shown by any party to the Decree, including any deadlines. Prior to seeking modifications the parties must use a dispute resolution process specified in the Decree.
· No Precedence: The decree is entered into solely for the purposes of settling the case and the CD may not be used in any other legal proceeding. This provision is intended to ensure that the decree will not be treated as binding or establish any requirements that will impact the negotiated rulemaking process. However, nothing precludes any party from discussing the terms of the CD at the reg. neg. meetings.
· No Waiver of Rights: Nothing in the Decree waives the rights of any party with respect to any future legal proceeding including any future challenge to any special regulation that may eventually be adopted.
· Dismissal and continuing Jurisdiction: The Decree settles the entire case and Plaintiffs will dismiss their suit with prejudice. However, the court retains continuing jurisdiction to resolve any disputes under the decree.
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· Date for Final ORV Management Plan and Special Regulation: Sets a deadline whereby NPS must complete an ORV Management Plan by December 31, 2010, and complete and promulgate the final Special Regulation by April 1, 2011.
· Modified Interim Management Plan: Interim Management Plan will still remain in effect although modified by the terms of the CD which will control in the event of conflict.
· Pre-Nesting Areas: NPS will establish pre-nesting areas at Bodie Island Spit, Cape Point, South Beach, Hatteras Spit, North and South Ocracoke by March 15 of each year; in future years NPS will follow the pre-nesting areas that have already been identified for this year to the maximum extent possible.
· Buffers: NPS will establish buffers for nesting/breeding birds and for foraging unfledged chicks. Buffers are as follows (in meters and feet):
(1) Breeding and Nest buffer: piping plovers, 50 m (164 ft.); Least Terns, 100 m (328 ft.); American Oystercatchers, 150 m (492 ft.); and Other Colonial Waterbirds, 200 m (656 ft.).
(2) Unfledged chick Buffer: Least Terns, Colonial Waterbirds and American Oystercatcher, 200 m (656 ft.); piping plovers, 1000 m (3281 ft.) for ORVs and 300 m (984 ft.) for pedestrians. If disturbance from ORVs and/or pedestrians, as observed by NPS staff, occurs within a given buffer distance, the buffer zone will be expanded in 50 m (approx. 164 ft.) increments until no disturbance occurs. Non-essential ORVs are prohibited within the buffer areas. When the 1000 m (3281 ft.) buffer zone is in effect for unfledged piping plover chicks, pedestrians will be allowed limited access to the protected area during daylight hours only. This provision will cover access within a narrow walking and sunbathing corridor that extends 10 m (33 ft.) landward from the mean high tide line, provided a buffer of 300 m (approx. 984 ft.) is maintained.
· Modification of Unfledged Piping Plover Chick Buffer: NPS may allow ORV access within the 1000 m piping plover chick buffer two weeks after the chicks hatch if a 300 m (984 ft.) buffer is maintained between the plover chicks and ORVs. The chicks will be monitored from dawn to dusk and the modified area will not be open to ORVs each morning until the location of the brood is determined by an NPS monitor, and an adequate buffer has been assured. The ORV access within the 1000 m buffer will be closed immediately if adult plovers and chicks move within 200 m (656 ft.) of ORVs or an ORV access corridor and the NPS staff with authority to close the area to ORV access are on-site. This provision is void if a piping plover chick at any location is injured or killed by an ORV within the 1000 m buffer.
· Ocean Backshore Closures: For the benefit of all bird species, sea turtles, and sea beach amaranth, NPS will provide an ORV-free zone in the Ocean Backshore at least 10 m (33 ft.) wide and running the length of the site wherever habitat exits, provided there is sufficient beach width to include an ORV corridor of at least 20 m (66 ft.) above mean high tide line. This ORV-free zone will be established from March 15 to November 30 in all locations open to ORV use and not in front of the villages and outside of the pre-nesting areas.
· Reports and Opportunity to Comment: By January 31 of each year, NPS will provide the court as well as Plaintiffs and Intervenors with FWS reports regarding plovers, sea turtles, and seabeach amaranth, and with their own data on all species. By February 20 of each year until a final special regulation is issued, NPS will provide public notice of proposed pre-nesting closures for the six areas identified above and allow for Plaintiffs and Intervenors to comment on the pre-nesting areas by March 1. NPS must respond to these comments by March 15.
· Violations of Pre-Nesting Areas and Buffers: If NPS confirms that a deliberate act has occurred that disturbs or harasses wildlife or vandalizes fencing, nests, or plants the pre-nesting area or buffer shall be expanded automatically by 50 m (164 ft.). If a second such act occurs in the same area, the buffer will be expanded automatically by an additional 100 m (approx. 328 ft.). If a third such act occurs, the buffer will be expanded automatically by an additional 500 m (approx. 1640 ft.) or more if NPS finds it is necessary to minimize the extent of further disturbance. NPS will provide public notice of such violations to the extent possible.
· Night Driving: To increase the chances of successful turtle nesting, NPS will close all potential sea turtle nesting habitat to non-essential ORV use from 10 p.m. to 6 a.m. from May 1 until November 15. However, between September 16 and November 15, NPS may issue night driving permits for authorized non-essential driving between those hours.
· Education: Prior to the 2009 breeding season, NPS will provide educational information about protected species at all ORV access points and redesign the Seashore beach driving brochure to concisely communicate the regulations and potential penalties for violations. NPS will also establish a 24-hour phone line that citizens can use to report illegal activities and unsafe conditions at the beach.
· Modifications: The court may modify any requirements of the CD for good cause shown by any party to the Decree, including any deadlines. Prior to seeking modifications the parties must use a dispute resolution process specified in the Decree.
· No Precedence: The decree is entered into solely for the purposes of settling the case and the CD may not be used in any other legal proceeding. This provision is intended to ensure that the decree will not be treated as binding or establish any requirements that will impact the negotiated rulemaking process. However, nothing precludes any party from discussing the terms of the CD at the reg. neg. meetings.
· No Waiver of Rights: Nothing in the Decree waives the rights of any party with respect to any future legal proceeding including any future challenge to any special regulation that may eventually be adopted.
· Dismissal and continuing Jurisdiction: The Decree settles the entire case and Plaintiffs will dismiss their suit with prejudice. However, the court retains continuing jurisdiction to resolve any disputes under the decree.
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