Cape Hatteras Beaches Closed To Orv Use !!

[derf]

ok , what i know right now , and it isn't a lot ...
there was a lawsuit , and since there isn't a orv plan for cape hatteras a judge has ruled that all the beaches are closed to orv use .
i'm not a lawyer , but this doesn't look good ....

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
UNITED STATES OF AMERICA, )
)
v. )
)
VASILE MATEI, )
)
Defendant. )
O R D E R
This case was tried before the undersigned as a criminal trial on July 16,2007, at the
regular criminal term of United States District Court at Elizabeth city; North Carolina. The
Defendant, a resident of Virginia, was charged with operating a vehicle without due care on the
Cape Hatteras National Seashore ("CAHA").
The alleged violation occurred on the afternoon of May 27,2007, a Sunday, and the midholiday
day of the Memorial Day weekend. Testimony at trial included that of a United States
Park Ranger, on duty at the time and location of the violation. The testimony established that
there was traffic on a narrow strip of sand extending from the ramp in the vicinity of the Oregon
Inlet Fishing Center, south and east along the oceanfront beach in the direction of Oregon Inlet,
which is an open body of water connecting the Atlantic Ocean with the Albemarle, Parnlico,
Croatan, and Currituck Sounds, through a tidal inlet. The area, consisting of sand dune and tidal
beach, is characterized by a narrow passage along the beach south of the entry ramp and an
expanding area of accreted sand. Since the construction of the high rise bridge on Highway 12
across Oregon Inlet linking the south end of Bodie Island with the north end of Pea Island, the
Case 2:07-mj-01075-BO Document 2 Filed 07/17/2007 Page 1 of 4
areas had developed irregularly. All of the land on the south side of Bodie Island is within the
National Seashore.
This particular area is characterized as a fragile transitional over-wash area, which has
historically been a valuable and declining resource for endangered shorebirds and turtles. In
recent seasons, there have been extensive bird enclosure areas located throughout this area, and
turtle nesting has traditionally taken place in this area. See generally, NATIONAPLA RKS ERVICE,
PIPINGP LOVER(C HARADRIUMSE LODUSM) ONITORINAGT CAPEH ATTERANSA TIONAL
SEASHOR2E0,0 6 ANNUALR EPORT( 2006), available at: http://www.nps.gov/cahdnaturescience/
upload/2006%20PIPL%20Fina1%2OReport-2.pdf [hereinafter PIPINGP LOVERA NNUALR EPORT];
NATIONAPLA RKS ERVICEC,A PEH ATTERANSA TIONASLE ASHOR2E0 06 SEAT URTLEA NNUAL
REPORT (2006), available at: http://www.nps.gov/caha~naturescience/upload/
2006%20Sea%20Turtle%20Fina1%20Report.pdf [hereinafter SEAT URTLEA NNUALR EPORT].
The testimony at trial established that United States Department of Interior pilots with the
Park Service made an overflight on May 27 and counted approximately 1,200 vehicles located in
the over-wash area. Because camping overnight is prohibited, all of the traffic was in transit at
some point on the date of the violation. The Court takes judicial notice that at a minimum one
occupant per vehicle was at the scene. Further, it is reasonably expected that there were two or
more persons per vehicle in such a recreational setting, making between 2,500 and 5,000 people
a reasonable estimate of the number of people crowded onto this narrow, fragile, environmentally
sensitive area on the Sunday of Memorial Day weekend.
On the date and time of the violation, Defendant attempted to drive a large four-wheel
drive vehicle off the beach and into an area adjacent to the dunes, ultimately intending to exit on
Case 2:07-mj-01075-BO Document 2 Filed 07/17/2007 Page 2 of 4
the ramp. Because of the high volume of traffic resulting in degradation of the beach, there were
deep ruts in the sand, some being feet in depth. Operating a vehicle in these conditions, only feet
from with sun bathers, families and children on the beach creates a serious hazard for injury or
death. The evidence at trial demonstrated that Defendant drove at a speed dangerous for
conditions, traveling in an erratic and serpentine manner through the ruts in the sand causing
spray of sand and danger to people on the beach. Defendant was cited for this behavior failing to
drive with due care. After a hearing the evidence, the Court found beyond a reasonable doubt
that the violation had been established.
By executive order, President Nixon required that the Department of the Interior publish
regulations defining specific trails and areas for the use of off-road vehicles "(ORV"). Exec.
Order No. 11,644,37 C.F.R. 5 2877 (1972), as amended by Exec. Order No. 11,898,42 Fed.
Reg. 26,959 (May 24,2977). The regulations to designate which areas are open to ORV traffic
must promote safety for all users, minimize damage to public lands and wildlife, and take into
consideration endangered or threatened species. 43 C.F.R 5 8342.1, The designation process
must include public participation, and include local landowners and other interested parties. Id. 5
8342.2. Once a plan is approved, areas and trails must be clearly identified so that the public will
be aware of the applicable limitations. Id Operating a motor vehicle is prohibited except where
the Park Service has specifically designated that ORV use is permitted, in accordance with the
aforementioned regulations. 30 C.F.R. 4 4.10; 1 8 U.S.C. 5 357 1. Thus, where the Park Service
fails to create a plan for ORV use, ORV is prohibited.
CAHA does not have regulations in place to govern ORV traffic. Consequently, it is also
a violation to operate a motor vehicle on Cape Hatteras National Seashore without prior authority
Case 2:07-mj-01075-BO Document 2 Filed 07/17/2007 Page 3 of 4
and is punishable by up to $5,000.00, six months in prison, or both. 18 U.S.C. § 3571. By
permitting unregulated ORV traffic on CAHA, Defendant and others come dangerously close to
accidents with pedestrians including children. Indeed, ORV traffic directly impacts attempts to
protect endangered species from human encroachment. From April 1 to August 3 1, 2006, the
Park Service recorded 47 ORV violations of barricaded closures for bird nesting areas. PIPING
PLOVERA NNUARLE PORT9 . AS the home to five species of sea turtles, two of which are
threatened and three of which are endangered, 23 ORV violations of sea turtle closed areas were
recorded in the 2006 season. SEAT URTLEA NNUARLE PORT1 1 -12 . Although the impact of ORV
traffic on endangered species and risk to pedestrians is yet unmeasured, without an ORV plan in
place, the Park Service is without the manpower to enforce many of the rules in place on heavily
trafficked days like that of the date of violation. Accordingly, it is a violation to operate an ORV
on CAHA without authority from the Department of the Interior or its designee, and Defendant
must pay $1 00 fine and special assessment.
SO ORDERED, this 1 7 day of July, 2007.
&RRENCE W. BOYLE
UNITED STATES
Case 2:07-mj-01075-BO Document 2 Filed 07/17/2007 Page 4 of 4

[derf]

from the Associated Press :

Judge Rules Driving Illegal At Cape Hatteras Seashore

July 18, 2007 03:58 PM

Although a Virginia man faces a $100 fine for reckless driving on the beach at Oregon Inlet, a federal judge says imposing such a fine is illegal.

The ruling by District Court Judge Terrence Boyle came yesterday in a case where he fined the man for driving carelessly in the sand on Memorial Day.

Boyle wrote that the National Park Service was required to have a formal plan for use of off-road vehicles in the park, and where the Park Service fails to create a plan for such use, off-road vehicles are prohibited.

But the superintendent of the Cape Hatteras National Seashore says the ruling doesn't mean the park will shut down the popular practice of using four-wheel-drive vehicles on certain areas of the beach.

Superintendent Mike Murray says it will take several years to finalize the plan. Some areas already are off-limits under an interim management plan to protect nesting sea turtles and birds, such as piping plover.

(Copyright 2007 by The Associated Press. All Rights Reserved.)

[Gollum]

I'm no lawyer either but I read and write legal documents all day.

It looks like the judge is more requiring the NPS to make a plan to use ORVs. Until they have that plan, you can't drive there.

The judge made a lot of noise about the turtles and other wildlife and the amount of "human disturbance" was being caused. That doesn't really have much to do with the issue I think.

It is certainly not an all out ban. I look at it more as requiring the NPS to come up with ORV rules.

Certainly though, it isn't great news. But it isn't that bad. It can always be appealed.

[derf]

an e-mail just recieved from the NPS :

National Park Service News Release
FOR IMMEDIATE RELEASE: DATE July 18, 2007
CONTACT: 252-473-2111 ext. 148

NPS ANNOUNCES UPDATE ON BEACH ACCESS

Superintendent Mike Murray stated today that the National Park Service
(NPS) is currently evaluating and considering how to respond to the recent
Court Order that was issued by U.S. District Court Judge Terrance W. Boyle
on Tuesday, July 17, 2007. The order indicates that NPS is not in
compliance with legal requirements to authorize and manage off-road vehicle
(ORV) use at the Seashore. For the time being the Seashore continues to
operate under an Interim Strategy and beaches remain open to off-road
vehicles (ORVs) for the immediate future, with the exception of beaches
that are closed due to resource protection areas, annual seasonal village
closures and safety closures.

As background, ORV use on Outer Banks beaches predates the 1937
authorization of the Seashore. Prior to paving NC Highway 12 in 1954,
island residents and visitors routinely used the beaches and interdunal
areas as a transportation route. The completion of the Bonner Bridge
across Oregon Inlet in 1963 made access to Hatteras Island much easier
which resulted in increased vehicle use of beaches for recreational
purposes and use has continued to increase. ORV are currently used to
access the beaches for many forms of recreational activities including
swimming, sunbathing, surf fishing, bird watching, surfing, shell hunting
and scenic driving.

Executive Order 11644 (1972), amended by Executive Order 11989 (1977),
required certain federal agencies permitting ORV use on agency lands to
publish regulations designating specific trails and areas for this use.
Title 36 of the Code of Federal Regulations Section 4.10 requires units of
the National Park System allowing ORV use to designate use areas and routes
by special regulation. Despite previous efforts since the late 1970s, the
National Park Service (NPS) has yet to develop an ORV management plan or
regulation that would provide the necessary management and regulatory
framework to manage ORV use at the Seashore.

To address these issues, Seashore staff has been working on a three-pronged
approach. First, in January 2006, NPS issued an Interim Protected Species
Management Strategy (Interim Strategy) to guide protected species
management practices within the park for approximately 3 years until a
long-term ORV management plan and regulation can be developed. A final
decision document and Finding of No Significant Impact (FONSI) for the
Interim Strategy was approved on July 13, 2007 by Regional Director
Patricia Hooks. Second, on December 11, 2006, NPS announced in the Federal
Register the intent to develop an ORV management plan and environmental
impact statement, and has since completed the initial public scoping in
March 2007 for that planning process. Finally, on June 28, 2007 NPS
published in the Federal Register a Notice of Intent to establish a
negotiated rulemaking committee to assist the NPS with development of the
required ORV regulation. The public comment period for this Notice of
Intent ends on July 30, 2007.

In addition to the procedures and restrictions identified within the
Interim Strategy, other federal regulations apply to ORV and beach use.
These include, but are not limited to, prohibitions on unsafe operation of
a motor vehicle, reckless driving, carrying open containers of alcoholic
beverages in a motor vehicle, and driving under the influence of alcohol or
drugs; requirements to comply with posted speed limits, use seatbelts, stay
within posted ORV corridors, and stay out of posted closures; and
prohibitions on disorderly conduct, pets off leash, illegal camping,
illegal beach fires, and littering.

More information about these planning processes can be obtained at the Cape
Hatteras National Seashore Off-Road Vehicle Negotiated Rulemaking and
Management Plan project website at http://parkplanning.nps.gov/caha. If
you wish to receive electronic information regarding the Off-Road Vehicle
issue, please contact the park at or call 252-473-2111 ext. 148 or send an
email to cyndy_holda@nps.gov and request to be added to the mailing list.

--NPS

[wizardude]

Originally Posted by derf

a judge has ruled that all the beaches are closed to orv use .
i'm not a lawyer , but this doesn't look good ....

That's putting it lightly For some reason the thought of scrimping/saving/to hopefully have a Spring and Fall week, good fishing or not, somehow made the other 50 weeks of pain and misery worth it. Talk about airing down,popped all my balloons.... Even if it's eventually restored, won't be soon enough, and all the little cry babies are just loving this, and will probably finally get their way, just feels like the beginning of the end

Sorry for venting, and hope it works out for you guys in the long run. For myself, if it isn't reversed by Drum season my fishing is done.

Best of Luck!

[Heavy Duty]

According to locals, the beaches are not currently closed. There are several things being considered around this order. CAHA is looking into a permiting process to avoid things such as this. It can also be argued that with the Interim Strategy now APPROVED, that the Seashore has a plan that meets the intent of the executive order.

Howard Quillen
Director - AMSA
Treasurer - UMS

[derf]

the best explanation i have seen :

Published on Wednesday, July 18, 2007

Judge calls it illegal, but beach driving to continue at Hatteras

RALEIGH, N.C.
The Associated Press

The National Park Service will continue to allow off-road driving on the beaches at Cape Hatteras National Seashore, even though a federal judge pointed out recently the popular practice is technically illegal.

In sentencing a motorist to pay a $100 fine for reckless driving on the Outer Banks beach near Oregon Inlet, U.S. District Court Judge Terrence Boyle noted Tuesday that because the park service does not have a formal plan governing the use of off-road vehicles in the seashore, their use is prohibited.

That's right, said seashore superintendent Mike Murray. But the park service plans to allow such off-road driving to continue while they develop such a plan.

"It's a clear statement that there's no authority to allow off-road vehicle driving on the beach," Murray said. "Under federal regulations and executive orders, the park service needs to develop an (off-road vehicle) management plan and regulations."

Parts of the seashore _ which includes Bodie, Hatteras and Ocracoke islands on the Outer Banks _ already are off-limits under an interim management plan designed to protect nesting sea turtles and birds, such as piping plover, Murray said.

But others are open, and driving four-wheel-drive vehicles on beaches at the Outer Banks is as popular as fishing, sunbathing and flying kites.

"There's just more people than ever," said Mary Haggerty, who lives on Ocacroke Island. "They do need a management plan. You can't lie down on the beach where they have cars."

The driver Boyle fined was cited on May 27, a day when the park service counted about 1,200 vehicles on the beach near Oregon Inlet. The volume of traffic caused deep ruts in the sand, creating dangerous conditions for sunbathers and others at the beach, according to testimony at the man's trial. He was ticketed for driving fast and erratically as he tried to leave the beach.

Boyle's ruling in that case does not order the park service to stop motorists from driving on the beach. It merely notes that under an executive order signed by President Nixon, the agency is required to define specific trails and areas for the use of off-road vehicles.

Murray said the seashore hadn't complied with the executive order about beach management for decades, but he has been at the park for 18 months and didn't know why.

"I'm doing the best we can to move forward to address the compliance requirement through a plan and regulations," Murray said. "The park service has been working on this for the past few years."

Jason Rylander, a staff attorney of the Washington-based Defenders of Wildlife, said Boyle's ruling "should serve as a wake-up call to the National Park Service."

Rylander said his organization has filed notices of intent to sue the seashore over the issue twice in the past, but hasn't followed through as the group negotiated with the park service officials. If such lawsuit is ever filed and litigated, Rylander said, a judge could potentially order beach driving be stopped.

[SteveZ]

Originally Posted by derf

the best explanation i have seen :

Thanks for the update.

[Steve in Mass]

Not to make light of this at all, but I DID have to chuckle at a comment made by Frank Folb on his site:

"I am again out of town tomorrow and Thursday, but if this stands I must make hard decisions on cutting help to a minimum and reducing my stock as well.

I guess my next option will be to get a booze permit and turn the joint into a combination topless bar and bait and tackle store and rename it 'Tits and Tackle' or 'Boobs and Bait'. Okay girls I have ordered the pasties."

At least Frank is keeping his sense of humor during this very difficult time.

[ooeric]

there are no roads in sand? how is it reckless?
if you get stuck. obviously its natural to gun it to get out..

i just dont understand how treehuggin birdlovers penguinlicker parkservice people think sometimes.



tits and tackle would be a great store.. lol
sale sale! get your floating tit bobbers! get singles or doubles! comes in big sizes to humongous ones!

[beachtoad]

So does Ocracoke fall under all this? I would assum so see as it is NPS run.

[derf]

Originally Posted by beachtoad

So does Ocracoke fall under all this? I would assum so see as it is NPS run.

it probably will as it is part of the cape hatteras park
it shouldn't have anf effect on cape lookout ...

[Mike D]

I'll be down last week of Aug. with the family as usual.

Any updates on access?

Should I just check with the B&T's when I get there?

[beachtoad]

So whats the status on this was just looking at so other sites and couldn't find much updated. Anyone been down? Are the beachs open? are they enforcing it?

[derf]

Originally Posted by beachtoad

So whats the status on this was just looking at so other sites and couldn't find much updated. Anyone been down? Are the beachs open? are they enforcing it?

the beaches are open except for the 'seasonal closures ' and turtle and nesting areas , pretty much the same it is every summer .
but , that could change at any time ...