The Battle Over a North Carolina Beach Continues

There’s no fish-and-wildlife issue I’ve complained about more than the mismanagement of off-road vehicles (ORVs) on public land (see “Beach Bums,” for example). But there I was on Memorial Day weekend 2012, tooling around in one on Cape Hatteras National Seashore, the 67 miles of “Outer Banks” that seal Pamlico Sound and the coast of North Carolina from the Atlantic. What’s more, I was being guided by two public enemies, at least of the local populace. Had I gone over to the dark side?

It depends what you believe to be important. My guides, two Audubon activists, had instructed me not to identify them because they’re being threatened and harassed for their wildlife advocacy. As pariahs on the Outer Banks, they fear for their lives.

Observing shorebirds and waterbirds isn’t easy when these barrier-beach islands are packed with tourists. But I was seeking something else—answers to how the National Park Service’s new plan for managing beach driving was working and how the motorized-access lobby was responding.

When I visited the seashore in 2005 and 2006, I found it managed more for ORVs than for wildlife or the general public. Shorebirds, colonial waterbirds, and sea turtles were at historic lows and declining. Hatchlings and eggs were being crushed. Turtles were being lured away from the sea by headlights. Birds were being driven off breeding and feeding habitat. Deep tire ruts trapped chicks and impeded pedestrians. ORV traffic intimidated and endangered the public.

Now, thanks to a lawsuit filed by the Southern Environmental Law Center on behalf of Audubon and Defenders of Wildlife, the Park Service is doing better. On February 15, 2012, the agency implemented its “final plan” for managing motorized access. While far from perfect, that plan is revolutionary in that it places birds, sea turtles, and pedestrians on nearly equal footing with ORVs.

But pushed by parochial interests, North Carolina lawmakers—Representative Walter Jones (R), Senator Richard Burr (R), and Senator Kay Hagan (D)—are moving to nix the plan and plunge the seashore back into the motorized chaos I encountered on my earlier visits. While the “Beach Roadkill Bill,” as their legislation is called by its many critics, succeeded in the House, it may fail in the Senate. Now when tourists enter Outer Banks shops they’re provided with laptops and asked to send Senate Democrats this message: “Audubon lies; the [bird] numbers are lies.” A friend of mine overheard this exchange between two female shoppers: “I can’t believe Audubon makes up such lies. Who would have thought that? So glad we know now.”

I asked Walker Golder, Audubon North Carolina’s deputy director, to assess the final plan. “It’s okay, not great,” he replied. “Provisions for sea turtles are pretty good. Night driving is prohibited during nesting season. The plan doesn’t provide adequate protection for nonbreeding birds. Different species have separate needs. Red knots move through late in the season. Piping plovers move through early in the season. You can’t just focus on breeding and ignore nonbreeding. And the plan doesn’t consider how breeding habitats change on barrier beaches.”

That said, Golder and the entire environmental community agree that the final plan is light years ahead of what preceded it—no plan at all till June 13, 2007 (in violation of a 1972 executive order by President Nixon requiring the Department of the Interior to complete a regulatory plan for ORVs within six months), and from then till April 29, 2008, a grossly inadequate “interim plan.” So for 35 years the seashore had flouted the Endangered Species Act, and for 36 it had flouted its enabling legislation, the Migratory Bird Treaty Act, and the Park Service’s own “Organic Act,” which directs the agency to “conserve the scenery and the natural and historic objects and wildlife therein . . . leave[ing] them unimpaired.”

Having worked diligently to get a decent interim plan, Audubon and Defenders were left with no option other than to sue. On April 30, 2008, they won a consent decree (a legally binding agreement signed by plaintiffs and defendants and enforced by the court) that provided the first significant protections for birds and sea turtles as well as a blueprint for the final plan. 

Meanwhile, the park service was attempting a “negotiated rulemaking,” bringing in the U.S. Institute for Environmental Conflict Resolution. The idea was to get the ORV and environmental communities to engage in rational discourse and compromise on regulations. Twenty-eight negotiators were selected. The four from state and federal governments said little. Of the remainder, 17 represented motorized access; seven, wildlife-pedestrian interests.

The facilitators directed negotiators to “commit to the principles of decency, civility, and tolerance,” proscribed “personal attacks, name calling, and other such negative behaviors,” and cheerily predicted that “the negotiated rulemaking process should not delay either the notice or the final regulation.”