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

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

Congressional legislation and a pending civil suit threaten the future of a new rule that protects wildlife and allows vehicles on Cape Hatteras National Seashore. 

By Anna Sanders
Published: 06/12/2012

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. 

"We feel the final rule was very much a compromise," says Heather Starck, executive director of Audubon North Carolina. "It was not everything we hoped for in terms of protecting wildlife," she adds, noting there are more miles devoted to ORV users than she thought were necessary."The folks that use ORVs in Cape Hatteras are only about two percent of the people that visit the seashore."

Still, the Cape Hatteras Access Preservation Alliance continues to fight the new regulations even though the majority of the 21,000 commenters on the final environmental impact statement were in favor of the restrictions. In the past the group successfully lobbied in favor of the interim plan on Cape Hatteras. Between June 2008 and January 2009 members of the North Carolina congressional delegation introduced three bills, two in the House of Representatives and one in the Senate, to return to the more lenient management of ORVs under the Interim Strategy. None of those bills passed, but after the final rule was put in place, Representative Walter Jones presented one bill in the House, and Richard Burr, supported by Kay Hagan reintroduced another in the Senate. Both are designed to abolish the regulation and return to prior management measures under which protected species had declined.

Despite the previous bills' failure to pass, Mike Daulton, Audubon vice president for government relations, is cautious. "As long as there's legislation pending, the birds of Cape Hatteras are in danger," he says.

Even if the bills don't pass the House or Senate, the final ruling's supporters have civil litigation to contend with.

The Cape Hatteras Access Preservation Alliance also filed a lawsuit against the Interior Department alleging that the National Park Service failed to give ORV riders' interests meaningful consideration. Audubon and Defenders of Wildlife joined the National Parks Conservation Association, represented by the Southern Environmental Law Center, in an effort to help defend the National Park Service's regulation in the lawsuit. (The alliance declined to comment on Cape Hatteras for this article.)

"The case is basically posturing, utterly without merit," explains Ted Williams, Audubon field editor. When Williams visited Cape Hatteras beaches in 2005 and 2006 he encountered the damage ORVs cause to bird breeding grounds (see "Beach Bums," January-February 2007). The park service's new rules, he says, will sustain imperiled species. But for the rules' dissidents, human access, not species protection, is the issue.

"It's sickening to drive down this island and see rope and signs saying no," explains Carol Busbey, who owns the Natural Art Surf Shop on Hatteras Island in Buxton. Busbey has run the shop for more than 30 years, but since the draft interim plan was replaced,her business has lost a lot of weekend business. "They closed off a lot of places that were special for a lot of people," Busbey says. One week, there were two piping plover nests out on the point, she says, and "they've got acres and acres of land closed."

Commenters on Ted Williams's Fly Rod & Reed blog also express their discontent. "It's not just about ORVs," wrote one. "One piping plover nest closes over 700 acres of beach to all. This is the kind of thing we're fighting." (More fervent comments contained obscenities and had to be edited by Williams.)

Williams's response is that "when we talk about 'fairness' we need to consider all Americans for all time, not the immediate appetites of a few loud, greedy ORV operators."

Although the conservation groups are hopeful that neither the bills nor the lawsuit will reverse the progress made, the attacks do distract the groups from determining if the new protections are effective, says Starck. Even more threatening is the potential result if the new rule is overturned, she says. Political camps opposed to wildlife conservation would see the success of these measures and attempt to reverse other rulings. "If that user group sees that it was overturned here, it could be a really dangerous precedent for wildlife in this country," she says.

Keep an eye out for an upcoming story on Cape Hatteras written by Ted Williams. 


*This story was updated on June 13, 2013, to reflect a factual change. 

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Anna Sanders

Type: Author | From: Audubon Magazine

Comments

People should not be allowed

People should not be allowed to ride Off Road Vehicles. Doing so is completely unacceptable.

People should not be allowed

People should not be allowed to ride Off Road Vehicles. Doing so is completely unacceptable.

where do you live and have

where do you live and have you been to the seashore? If not, you simply cannot comment on behalf of any wildlife there or anything there for that matter. I know you have concern for this bird, but without going there and seeing it, you are as useless as the next guy in terms if legitimacy behind your opinion.

What gets me is the extreme

What gets me is the extreme closures of large stretches of beach to even pedestrians. Last time we stayed in Avon, the beach was closed even to walking both to the North and South. We had to drive down the road a few miles in our car to walk or jog more than a 1/2 mile.
This is also why we now vacation in Emerald Isle which is a few hours south. I just can't fathom that walking at the water's edge, or even through the water, is harming wildlife. I am normally a supporter of the NPS but this is ridiculous!

AGENDA 21

This entire deal sounds like and looks like AGENDA 21. View the Agenda 21 Maps on the internet and you will see that humans are to be removed from most of this country permanently. Go to UTUBE and view AGENDA 21 for Dummies.
Know that all of the former conservationists organizations are now run by animal rights radicals and AGENDA 21 deep ecologists. They don't care about humans they see all humans as evil doers. READ IT and WEAP as these people intend to take over this world by using our court system to sue you into submission.

Propoganda vs Truth

An Open Letter to the National Audubon Society, Defenders of Wildlife, National Parks Conservation Association, and the Southern Environmental Law Center

If I didn’t know better I would believe you. I love our national parks and favor conservation. Politically I am an independent who leans left on the environment. If I didn’t know better I would probably believe every word written by Ms. Sanders in Audubon Magazine and in a press release on the Audubon Society of NC website and in an editorial piece on the Defenders of Wildlife website. But, I do know better and I find your use of propaganda on this issue to be offensive and morally repugnant. I found each of these pieces lacking in objectivity and to have purposefully omitted important facts and in several cases used language that seemed designed to distort the truth or at best showed a clear lack of understanding for the situation. I know better because I know the Outer Banks of North Carolina quite well.

In none of these articles do you address the ORV permit fee. The beaches of the Cape Hatteras National Seashore on Bodie Island, Hatteras Island and Ocracoke Island have been free to all whether on foot or in a 4 wheel drive vehicle since their creation. The implementation of an arbitrary and substantial fee is completely ignored by you. Who does the fee benefit? What programs are being funded with this revenue? Is there the potential for a conflict of interest? I can tell you who it hurts; those who can least afford another bill in their life. If your argument is that the fee structure will reduce ORV use on the beach then my response is, "yes, low income families will no longer be able to drive on the beach, while the rich ones will". If the goal of the fee is not to limit traffic then why is there a fee?

I also find that all of these articles refer to ORV enthusiasts as if they were some motorcycle gang tearing up the beach in dune buggies. The vast majority of people who drive on the OBX beaches are families and fishermen who drive down the beach at 10-15mph and are just looking for bit of solitude and sand to call their own for the day. In a similar vein I found comments on your website and others referring to the "National Parking Lot" to be outright fabrication and a means of manipulating public opinion. In the 30 years that I've been visiting Hatteras Island I've never seen anything resembling a parking lot and the only really high density area that I've seen is the Cape Point in mid-summer or during a fishing tournament. By shrinking the area open to ORVs you are actually creating a scenario by which more people will be crammed into a smaller space. You've completely ignored the fact that for decades huge areas of the OBX beaches have been closed to ORVs in the summer: most of Bodie Island, Pea Island Wildlife Refuge and in front of all the villages on Hatteras Island. The tenor of your articles makes it seem like that before this new set of rules it was chaos. That is not true. The only thing these new rules have really accomplished is to shrink the area of beach that can be driven on, particularly around Cape Hatteras Point, thereby increasing the likelihood that the so-called parking lot will actually appear someday as the space is squeezed tighter and tighter by more and more restrictions; and to charge a fee for something that was one of the last great free things that you could do east of the Mississippi.

I found your comments about the safety of children to be utterly ridiculous. You make it sound like vehicles are just driving into areas dominated by pedestrian beach goers. The children who were playing on the beach in areas where ORVs were allowed, most likely got there in their parents SUV. I always felt that my own son was completely safe playing on those beaches provided I actually acted like his parent and supervised him. The new pedestrian only area south of Cape Hatters Point is also a joke. People are not going to be lugging their kids through a mile of sand dunes for a day at the beach. I've hiked to the Cape Hatteras Point and it's not easy. I've also driven on the section of beach now reserved for pedestrians and the ORV traffic was sparse. The pedestrian traffic was non-existent. Now the vehicles that used to park there will most likely end up at the Cape Point. I have to wonder if this part of your larger strategy to shut the Cape Hatteras Point down to all human traffic. I know those new pedestrian only areas will be deserted, which I’m guessing is your ultimate goal. While I’m writing this, the fact is that the entire Cape Hatteras Point is closed to all traffic including pedestrians and from Haul Over to Frisco is essentially closed to ORV traffic for a total distance of over 10 miles. Is it really necessary to shut down that much of the beach for nesting?

I began this by stating that I was a left of center independent who is pro-conservation. I have to tell you that you’ve alienated me and now I understand all of the vitriol that I’ve seen expressed toward environmental groups and “liberals”. You’ve shown almost no understanding of the long term fallout from activities such as these. You may say that you’ve made efforts to work with the locals who’ve built their lives on sliver sand but your articles reflect that you haven’t. You’ve managed to alienate the people who should be your biggest supporters, the citizens who love what you love. Rather than training and educating the locals to carry your flag, you’ve created enemies. You didn’t pick a fight with big oil or a logging or mining company. You picked a fight with families. We all want to preserve the Outer Banks of NC and all the other special beautiful places in our country but you’re not going to be able to sustain that by going to court. How long do you think your rules will last if we have a republican senate and president? You chose to sue rather than educate. You’ve made it more difficult for people like me and our political leaders to embrace conservation. For now on I will read your propaganda with my eyes open and hope that someday when these rules are repealed via legislation that your methods will change.

You obviously do not know

You obviously do not know Cape Hatteras as well as you claim. I lived in Cape Hatteras for a number of years, and there were many weekends, especially on the summer holidays, where the beaches looked like a parking lot. Even though I lived close to the beach in Buxton, I avoided going to the beach on 4th of July to avoid the holiday parking lot.

You ask, "do the beaches have to be closed for nesting?" The answer is an emphatic "YES!" Many of the shorebirds, such as the American Oystercatchers, take their pre-fledgling from the nest at the base of the dune all the way down to the water's edge. So, even when beach goers want to "just walk at the water's edge" or "drive at the high tide line", they may inadvertantly scare or injure these pre-fledgling birds! Since they are pre-flegling they cannot fly, so their first instinct for defense is to let their camoflauge hide them in the sand. So, you most likely will not see them even if you run them over! (and YES, I have seen more than a few birds hurt this way)

No compromise from ORV side

As far as compromise the ORV side is like the guy who starts a fight then files a complaint with the police when the person he is beating up cries for help.
Their idea of compromise is to dictate a solution and then to scream,  intimidate  and coerce others to agree to what they want. The Interim Plan was decided as to what they (ORVers) wanted because they had a powerful ally in the dept of Interior, David Smith who directed NP director Fran Mannila to get r done. That's  the reason Audubon and others had to go to court. The ORV groups are the reason the negotiations failed.  The ORV side lies and misrepresents facts.  It is how  they got the a bill in congress  and another lawsuit started. They could care less about birds, turtles, safety of others or  anything that stands in the way of their ORV driving privileges. They have  their own local  radio station that spews out a one sided misrepresentation of facts on a continual loop, most likely paid by and from their local county official's  budget. It is disgusting something like this could happen in the United States. 1000's of decent people have been fooled by their propaganda.

ORV ruts, etc.

I do live on Hatteras Island. I have lived here for more than 30 years. The reason there are fewer ruts now is because FINALLY there are restrictions on the previous policy of 'drive wherever you want' ! Thank you Audubon for fighting for keeping our national park an area where animals can still live without humans tromping them.
I, am just one of the many locals, that is quiet on this issue because of how the loud-mouth and nasty ORV leaders try to run thisplace like it is their kingdom.
and, by the way, this island has been packed with tourists this year- so I wish the ORV group would stop lying about loss of business. If the few tackle shops have lost business-it is their OWN fault for crying that the 'sky is falling' so their own clientele stopped visiting. The handful of loud mouth bullies need to get a life and move on, and stop whining on the boards.
and oh- I love how they claim Audubon is lying about the facts, when it is they who are making up numbers that are not science based!

ORV ruts are all over ORV Beaches

Yes Pat I live here. The ocean beach has few bugs compared to everywhere else. Bugs are worse in the village.
Plenty of great beaches for pedestrians to get to and walk, for now. If the interim plan is put into place those beaches will become ORV beaches. This is what really erks me about you guys. You cry about the loss of pedestrian access but have an agenda of doing away with all the year round pedestrian access beaches. This is why you want the interim plan reinstated. if you were just concerned about pedestrians you would have had Congremen Jones write a proposal to deal just with resource closures.
Show me an ORV beach that doesn't have ruts criscrossing and meandering from dune to the timeline.

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