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.”

One of the negotiators was Golder. “They stacked the committee with ORV interests,” he reports. “People were screaming and yelling obscenities at us. The threats got bad enough that we asked to be seated so we didn’t have our backs to the audience. People were picketing along the roads and standing at the entrances with all these hideous signs about how awful Audubon was. The ORV folks’ position was not to give in on anything that reduced vehicle access.”

Another negotiator, who requested anonymity, told me that his participation was “the worst thing he ever did,” that the process was “extremely contentious,” and that “the motorized faction was ugly, outrageous, and in your face.” He’s had to give up his passion, surf fishing, because he believes his life would be in danger if he set foot on the beach.

Negotiators who defended wildlife had nails thrown in their driveways, were refused service at restaurants, and were warned to look under their cars before starting them. Directions to their houses were posted on the Internet. Their photos and names were printed on “wanted” posters worn on T-shirts and hung in public places, including at least one post office (though without authorization). A typical poster read: “Wanted for the economic ruin of Hatteras Island. The man is one of the leaders of the beach ban. Consider him dangerous to your livelihoods and recreation.”

On March 30, 2009, after 14 months, 11 committee meetings, and scores of subcommittee meetings and workshops, facilitators of negotiated rulemaking gave up. This was just as well because the Park Service was then able to depend more on advice of wildlife scientists for the final plan. It’s hard to figure why, before the implosion of negotiated rulemaking, the agency felt constrained to ignore the advice of those scientists (many of whom it employs), seeking instead the advice of ORV operators who, for example, believe and publicly state that piping plovers are invasive exotics.

The seashore’s enabling legislation requires that it be managed primarily as “primitive wilderness.” But seashore leadership seems never to have grasped a central fact about wilderness—that it’s for everyone but not everyone all at once. Otherwise, it dries up and blows away like an African waterhole rendered by elephants to dust.

Primitive wilderness was hardly what I encountered this past May in the vast areas still open to ORVs. Our first stop was South Beach, especially important to birds because of the rich food sources and excellent nesting habitat. Audubon had urged the Park Service to restrict parking to a back road and require visitors to walk the several hundred feet to the beach. Instead, the final plan allows motorists to drive and park on the intertidal zone. Along two miles of beach we counted two ruddy turnstones, a brown pelican, several dozen laughing gulls, and 348 ORVs, many parked so close together that doors could barely open.

Under the final plan, 28 of the seashore’s 67 miles are designated for year-round vehicle use, while 26 miles are set aside for pedestrians and wildlife. Except during peak tourism season, ORVs have access to the remaining 13 miles. While small sections may be temporarily closed to allow birds and sea turtles to nest, motorized access will be enhanced by new ramps.

Compared to other national seashores this is extremely generous to off-road motorists. For example, the Cape Cod National Seashore occasionally permits ORVs on 8.5 of the 25 beach miles it manages for ORVs. But because of bird breeding and ocean conditions, it more frequently restricts them to much less and sometimes none. On Florida’s Canaveral National Seashore, beach driving is forbidden.

Also under the final plan, ORV operators must, for the first time, buy permits—$50 for a week or $120 for a year. To hear it from the local access crowd this is extortion, but it’s the norm at other seashores. The money will help fund enforcement and implementation.

Despite the vehicle invasion at South Beach and elsewhere, I saw wilderness on beaches open only to pedestrians and of course on the Atlantic, where kite surfers were going airborne over waves. Two hundred yards out big rollers from a storm far to the south reared up into breakers, white manes trailing in the wind. Churning sand painted near-shore waters multiple shades of yellow, green, turquoise, and blue; a fog of spindrift, silver in the noonday sun, hung up and down the beach for miles. It wasn’t hard to see why Americans love the seashore or why the Park Service has had such a hard time keeping them from loving it to death.

The local mindset was written on vehicles registered in North Carolina, all with fishing-rod racks. The latest bumper sticker is a rendering of a fist clutching a tern with middle finger raised over the caption “Hey, Audubon, Identify This Bird.” Larger renditions of this classy finger salutation were plastered on businesses and residences and, incredibly, a few feet from a school.

Virtually all the nastiness issues from fishermen who fish from ORVs and some Outer Banks residents. But most vehicles I saw on South Beach had Virginia plates. Few of the Virginians were fishing. Instead they were sunbathing, picnicking, tossing balls and Frisbees, digging in the sand, swimming, surfboarding, and kite surfing. This weekend was a high point in their year. Any advocate of the human race would warm quickly to them. Despite the binoculars hanging from our necks, they smiled and waved at us. The revelers weren’t driving on the beach; they were just parked on it. They’d have been just as happy or happier if they’d been required to park on the road behind the dunes.

The sea was flatter on the Pamlico Sound side, and most cars were parked in roadside lots. Employing two important pieces of outdoor equipment (their feet), anglers waded the flats and walked the beach. Kites of every color, some held on strings but most towing surfers, rose and dipped like daylilies in a gale. On the Atlantic I’d seen perhaps a dozen; here, in less dangerous water, there were hundreds. Kite surfing is increasingly popular on the Outer Banks, perhaps because beach traffic has been controlled. In fact, the sport may be replacing motorized fishing as the main driver of the local economy.

While sea turtles and birds are at last getting meaningful protection, they need more. Turtles (mostly threatened loggerheads but some endangered greens and leatherbacks) come ashore to lay eggs. Regulations should, but do not, require the Park Service to check for new turtle nests each morning before opening beaches to the public. The seashore is vital to piping plovers, federally threatened in their Atlantic range (from Newfoundland to North Carolina), where there are only about 2,000 pairs. And the seashore provides important breeding and/or feeding habitat for such troubled species as the black skimmer, short-billed dowitcher, Hudsonian godwit, marbled godwit, red knot, American oystercatcher, Wilson’s plover, least tern, common tern, and the gull-billed tern (see “Hit-and-Run,” below). There need to be tighter driving restrictions—not just where these birds breed but where they feed.

At this writing, 2012 nesting statistics for birds and sea turtles are unavailable. But here’s what the consent decree accomplished, a trend that should continue under the final plan if it’s allowed to stand. In the 2007 breeding season, the last under the interim plan, there were 212 colonial-waterbird nests on Cape Hatteras National Seashore; in 2011 there were 1,274. In 2007 breeding pairs of piping plovers numbered 6; in 2011 there were 15. Over the same period black skimmer nests increased from 0 to 99, least tern nests from 194 to 1,048, gull-billed tern nests from 0 to 15, common tern nests from 18 to 112, fledged oystercatcher chicks from 10 to 24, and sea turtle nests from 82 to 147.

In addition to restricting driving the Park Service has undertaken desperately needed control of nest-destroying predators such as red foxes and feral cats—both alien to the Outer Banks and proliferating on garbage, including fish parts left on the beach by motorized anglers. But the local ORV community, which has never shown interest in wildlife except as obstacles, is suddenly spewing animals-rights rhetoric. For instance, Warren Judge, who represented motorized access on the negotiated rulemaking committee, offered this in his testimony on the House Roadkill Bill: “People who love animals are shocked when they discover that the National Park Service has an ongoing program to trap and kill hundreds of mammals each year . . . to protect a few species of shorebirds. Sadly, none of the special-interest groups, who claim to defend wildlife, have raised their voice as advocates for the hundreds of mammals that have been systematically murdered.”

In another effort to kill the final plan ORV defenders—organized under the Orwellian moniker Outer Banks Preservation Association—have filed a meritless and all-but-hopeless lawsuit against the Park Service. But even the earlier interim plan—which flung down and danced upon the advice of the agency’s own wildlife experts—was anathema to the association.

Deficient as it was, the interim plan im- proved on what the Outer Banks Preservation Association had been happier with—no plan. During the consent-degree litigation Steven Harrison, who retired from the Park Service in 2007, outlined what went on during his tenure as the seashore’s former chief of resource management: “There was a strong sense from my superiors that we would not and could not do more [to protect wildlife], and there were continual discussions about doing less, meaning opening areas to vehicle use. . . . It was very difficult for seashore staff . . . to protect the seashore’s resources when almost all the seashore beaches were open to unlimited vehicle use.” He went on to testify that his requests for timely beach closures to protect wildlife were routinely denied. And he recalled that when least tern chicks got run over the Fish and Wildlife Service opened a criminal investigation of the seashore, then declined to prosecute. 

The Beach Roadkill Bill, which reads like it was written for and by the Outer Banks Preservation Association, is based on myriad untruths repeated so often they are believed by most locals and a coalition of national organizations. Stumping for the bill are the Congressional Sportsmen’s Foundation and the Bass Anglers Sportsman Society along with such otherwise environmentally responsible groups as the American Sportfishing Association, the Center for Coastal Conservation, the Coastal Conservation Association, and the International Game Fish Association.

Testifying before the House Natural Resources Committee, Warren Judge recycled perhaps the most brazen of these untruths, charging that the consent decree was “prepared by a few special-interest groups behind closed doors.” But he chairs the Dare County Board of Commissioners, and both the county and the association had not only helped craft the consent decree but had promoted it. Then, as interveners in the court case, they’d signed it. 

“Restricting ORV use on the Cape Hatteras National Seashore has a negative impact on local communities and the local economy,” proclaims Senator Burr. Nosing this popular untruth all the way from Bellevue, Washington, the Center for the Defense of Free Enterprise descended on the Outer Banks like a blowfly to a squashed shorebird. In one of his “Conservative Action Alerts,” entitled “Big Green Beach Bullies Strangling Cape Hatteras Families,” the center’s executive vice president, wise-use guru Ron Arnold, accuses Audubon and Defenders of Wildlife of “choking off the lifeblood of communities that depend on” the seashore.

But in the four years since the consent decree restricted beach-driving, Dare County, which includes the seashore, has prospered while North Carolina’s other coastal counties have not. Occupancy tax revenues hit a record high in 2010 and a near-record high in 2011, despite Hurricane Irene, which blocked road access to Hatteras Island from August 27 to October 10. Hatteras Island visitors spent $27.8 million on lodging in July 2010, an all-time record until July 2011, when they spent $29.59 million. Visitation to the entire seashore has hovered between a 2006 low of 2,125,005 and a 2009 high of 2,282,543. And the state reports that during the period of recession from 2009 to 2010, Dare County experienced an 8.8 percent growth in tourism, from $766.56 million in 2009 to $834.29 million in 2010.

Why the boom? I asked Golder. “Visitors can now go to the beach without worrying about getting run over,” he replied. “They can walk without having to slog through eight-inch-deep tire ruts. They can have a memorable, safe experience without all these vehicles blasting by them. I think people have enjoyed the return of birds to the beach.”

Ever since I linked my “Beach Bums” piece in a fishing/conservation blog I administer for Fly Rod & Reel magazine, I’ve been accused of being “anti-fishing” by anglers who run ORVs on the Outer Banks. That’s like accusing the “real Ted Williams,” as I’ve heard him called to my chagrin, of being “anti-baseball.” From some of the posted invective I could have told the Park Service it was wasting taxpayer money and everyone’s time with negotiated rulemaking. Herewith, a couple of the politer comments: “BS! JUST LOTS OF BS. YOU SUCK TED!” and: “Showing your true colors there Ted!!! Nice, how much did Defenders of Wildlife, Southern Environmental Law Center, and Audubon pay you to say that?”

But this contingency only outshouts other beach anglers; it doesn’t come close to outnumbering them. The national perspective was apparent in comments such as this: “I have fished all the spots at Cape Hatteras over nearly four decades. The new plan to manage ORV use is the best thing that has happened for the seashore. . . . ORVs on the beaches were totally out of control. . . . So managing this mess is not just about birds or turtles, it is about a better experience. There are many of us sportsmen down here in Carolina quietly cheering on the enviros. Don’t believe this crap about not being able to drive anywhere on the beach or that you can’t get to a good place to fish. The loudmouths around Hatteras have had their way for too long. They need to get over it. Hatteras is going to be a better place for birds, turtles, and true sportsmen. Thanks for your help, Ted.”

After I’d said goodbye to my guides I dug out my binoculars and pointed my rental car north on Route 12, stopping every few miles to glass shorebirds and waterbirds settling onto newly protected habitat. I recalled all the boot prints I’d left here and on other Atlantic beaches with angler friends for whom sharing space with wildlife makes fishing far more than just sport.

Why is it so different on the Outer Banks? Until 1954, when the seashore got its first superintendent, locals had been allowed to do anything they pleased. And from then until 2008 they’d been allowed to do almost anything they pleased. They’ve never liked feds, especially feds who tell them they can’t do things they and their elders have done all their lives and then make them pay for what’s left. And they’ve never liked environmentalists, especially those from away who come in and dictate beach policy by suing misfeasant managers.

But national seashores belong to all Americans, not just a few loud, local property-rights radicals who have bullied and lied their way to dominance. The current ORV plan is a decent starting point. Now it’s time for all wildlife advocates to stand up and speak for vanishing creatures that can’t speak for themselves. 

This story originally ran in the September-October 2012 issue as "Beach Bullies."