A New Rule Balances Wildlife and Off-Road-Vehicle Use on a North Carolina Beach

Five years ago tire tracks carved by recreational off-road vehicles traced a path of destruction over dead birds and demolished eggs. Today least tern chicks, nesting loggerhead sea turtles, and piping plovers are flourishing at North Carolina’s Cape Hatteras National Seashore. After a legal battle waged by Audubon North Carolina and Defenders of Wildlife, represented by the Southern Environmental Law Center, the National Park Service issued a new rule put into effect this past February that allows ORV access in certain areas within the seashore while also protecting sea turtles and birds. Yet despite this initial compromise, pending congressional legislation and civil litigation could negate the park service’s ruling, threatening bird species, other wildlife, and plants on the shore.

“Historically, Cape Hatteras National Seashore has been very important for birds that depend on the barrier islands for nesting, migratory stopovers, and wintering areas,” explains Walker Golder, Audubon North Carolina’s deputy director.

How to manage Cape Hatteras has been a conservation issue for decades. In 1972 President Richard Nixon issued an executive order requiring the Interior Department and the National Park Service to develop rules regulating ORV use on public lands for the purpose of protecting public safety, minimizing conflicts among land users, and protecting natural resources. President Jimmy Carter clarified the order five years later, saying federal agencies must close areas to ORV use whenever such use was adversely affecting natural resources.

In spite of the two executive orders, the National Park Service never finalized an ORV management plan for Cape Hatteras, relying instead on a draft interim plan developed in 1978.

But from what the Park Service has experienced in recent years, it is possible the draft was never finalized because of controversy and political pressure,explains Mike Murray, superintendent of the Cape Hatteras National Seashore. “ORV management at the seashore is a longstanding, emotionally charged, and highly polarized issue,” he says. “There was resistance to portions of the 1978 draft plan, such as a proposed ORV permit requirement, just as there’s resistance to the new plan and regulation. I can fully understand why it has been so difficult for the Park Service to complete an ORV management plan and special regulation at the seashore.”

As the years passed, growing numbers of people drove on the fragile shores. And more ORVs meant more people in remote areas. Protection for birds decreased, as did breeding productivity, while disturbance increased. The seashore’s bird populations began to decline. In 1992, 14 years after the NPS began managing the area based on the draft interim plan, only 12 piping plover breeding pairs made use of the shore. By 2003 that number dropped to two. Only one chick fledged that year (none fledged in 2002 and 2004). From 1995 to 2004 the number of common tern nests on the shore decreased 76 percent, from 739 to 180. By 2007 the number of terns and skimmers nesting on the seashore’s beaches had reached historic lows. Indeed, black skimmers and gull-billed terns were absent as a nesting species that year.

“When we began to see problems, we began to work with the seashore to raise awareness of the issues and the need to protect birds on the beach,” Golder says.

Because of this effort and to address a continuing decline in nesting bird populations, in 2006 the Park Service, after a yearlong feasibility assessment, issued an Interim Protected Species Management Strategy to provide resource protection guidance until a long-term ORV management plan and regulation could be developed.

“We commented repeatedly that the Interim Protected Species Management Strategy was inadequate,” says Golder. “They did focus on piping plovers in 2007 but ignored other birds, sea turtles, science, and the recommendations of the U.S. Geological Survey.”

“Unfortunately, the Interim Strategy did not even incorporate the measures that the government’s own scientists identified as necessary to protect wildlife at the seashore,” says Julie Youngman, senior attorney at the Southern Environmental Law Center. “The natural resources of Cape Hatteras were not being protected for future generations.” Jason Rylander, senior attorney for Defenders of Wildlife, adds, “It was not a legally valid ORV management plan by any means."

On October 18, 2007, Audubon and Defenders of Wildlife, represented by the Southern Environmental Law Center, sued the National Park Service, arguing that its governance of ORVs was inadequate. The Cape Hatteras Access Preservation Alliance, a pro-ORV lobbying group, and Dare and Hyde counties, where the seashore is located, intervened in the suit. After several months the parties agreed to implement another temporary but stricter science-based plan regulating ORV use on Cape Hatteras until the National Park Service finalized a formal ORV management regulation. Under these stricter protections, rare wildlife began to rebound, with several species breeding in record-setting numbers.  In 2010, for instance, the seashore had 15 fledged piping plover chicks, 26 fledged American oystercatcher chicks, and 153 sea turtle nests. The court agreement also set a deadline for the final rule to be adopted.

After several years of study, research, and public participation, the National Park Service put its final regulation into effect this past February. The rule allows for year-round ORV beach access on 28 of the shore’s 67 miles while simultaneously protecting birds and other wildlife.