Fiasco at
Cape Hatteras National Seashore:
Overzealous Judge
or Justified Closures?

I first heard whispers of trouble at the Cape Hatteras National Seashore a few years back. This was further brought to my attention when a Hatteras resident put this story on Outer Banks Revealed. I didn’t know much about it, except for what I read, and I found it very confounding. Not having seen the exact impact of Judge Terrence W. Boyle's decree, I imagined it was little more then an extension of what I had seen in the past. You see, the development where our Hatteras Island vacation rental in Salvo is located abuts the Cape Hatteras National Seashore for the 15 miles it runs from Salvo to Avon. In the past, I had seen areas fenced off to protect nesting birds and turtles that had come ashore to lay their eggs. I imagined the latest "settlement" to be little more than an extension of this. I have struggled mightily about whether or not to write anything, as I have tried to keep Outer Banks Revealed apolitical and more family oriented, but the details of this case have haunted me since our most recent trip to the Outer Banks. If you stay in the northern part of the Outer Banks, you are probably totally unaware of the issue. If, however, you stay in Hatteras or Ocracoke, you've been affected.

The extent of this case was brought into focus on our trip to the Salvo house this year (2009). I was doing my normal thing of not much and relaxing on the beach when I noticed something that seemed strange to me. Usually, there are a good number of people beyond the "No Off Road Vehicle (ORV) Area" where we hit the beach. On this day, there were none. I thought it odd, but chalked it up to the fact that it was a very overcast day. The next day when I was making a trip to Avon, I discovered the true culprit. Every one of the access roads that lead onto the beach for ORV driving where closed except for one down by Avon. So now the true impact of the "consent decree" had come clearly into focus. Judge Boyle, the Audubon Society and the "Defenders of Wildlife" had effectively shut down 75% of the 15 miles of beach. Now, they will claim that it is only a short distance that has been closed, and that the majority of the beach remains open. So, let me ask you, if you close off the only access to the beach, even though you do not technically close the other areas which you cannot reach without this access, haven't you really closed the entire beach? Also, if you look at the Google maps that show the current status of ramps, it reveals that as of today, every single access route has been closed to ORV traffic, with limited pedestrian access.

I have no doubt that people will accuse me of having a slanted view on this issue, since I own a rental property in Salvo. Let me be clear. The beach area that my renters would use is unaffected by Judge Boyle and his decree, as it is in the town of Salvo and does not come under the jurisdiction of the Park Service. The only thing that would affect my renters would be if they wanted to drive on the beach for any number of reasons, including bringing elderly members of the family down to the ocean. Also, as my wife will attest, I am not a political person. I do not waste my time watching the "talking heads" on Fox, CNN, or MSNBC, as I see no purpose to their brain-washing ways. I do, however, take offense to bullies. And to me, this is a clear example of that. Let me explain.

First of all, the origin of this case was as a result of a DUI charge in the Cape Hatteras National Seashore. Judge Terrence Boyle presided over the case and threw out the charge because the Park Service did not comply with a Nixon era decree that rules and regulations be set up around ORV driving at the Cape Hatteras National Seashore. As a result, Judge Boyle reasoned, that since there was no rules established, the person could not be convicted of DUI. (You'd think that the state of North Carolina, which DOES have DUI rules would certainly think otherwise.) The Audubon Society and the "Defenders of Wildlife" then sued the Park Service because they determined that since there were no rules that HAD to mean that the birds and turtles were not adequately protected. So began the long and twisted thought process of how a DUI charged led to the shutting down of long stretches of the Cape Hatteras National Seashore in the name of bird safety. This is not the first time that this threesome has teamed up to rule in favor of wildlife over people. In the case National Audubon Society v. US Navy, Judge Boyle decision was later determined to have been "overly broad" as determined by the Appeals Court. Could this also be the case here?

In the spirit of full disclosure, Judge Terence W. Boyle has been twice nominated to the United States Court of Appeals for the Fourth Circuit, by both George HW and George W Bush. In each case, the nomination never made it to the Senate floor. He holds the dubious distinction of serving as the longest standing nominee to an appointment to the Court of Appeals not to be acted upon, a victim of Republicans and Democrats fighting. Further, his opponents have taken great joy in painting a tawdry picture of his judicial record, making it appear he votes his wallet versus the common good, a clear ethics violation.

The issue I have with Judge Boyle has nothing to do with the above. It has to do with his one-sided leaning in favor of the facts of this case. He is quoted as saying in the Outer Banks Sentinel in the midst of negotiations between the two sides in court, that he was about to come down on the side of the Defenders of Wildlife and the Audubon Society unless the two sides reach a compromise. At that point, how can a compromise be reached? He has already made it clear that, just as in the Navy case, he is going to rule in favor of the Audubon Society. Why should they negotiate further? This was tantamount to holding a gun to the heads of the defense. In addition, the way the consent decree is written, if any damage befalls any of the warning signs, the buffer zone would immediately and automatically be widened. THERE IS AN ASSUMPTION OF GUILT BEFORE PROOF OF GUILT. This is UNCONSTITUTIONAL! The folks on the side of the Audubon Society and Defenders of Wildlife have just as much to gain by vandalizing the signs as the other side does as this means a widening of the buffer zone, meaning more beach is shut down.

Judge Boyle has a history of siding with environmentalist. In one article I read reviewing his credentials, it says:

In a key area of law, Boyle has consistently ruled for the environment over commercial and governmental interests.

With respect to Boyle's environmental record, Derb Carter, senior attorney at the Southern Environmental Law Center in Durham said, "Judge Boyle is willing to apply the law as he sees it. And he showed a lot more courage than many political leaders in the state in making this ruling."

Carter said in an earlier article "As a lawyer, what I want in a judge is someone who is smart, thorough, understands the law and gives you a fair hearing ... Those are all qualities that I have found in Judge Boyle."

Note that Derb Carter is the lawyer who headed the Defenders of Wildlife case and this article is dated April 2005, long before the Cape Hatteras National Seashore fiasco began. "As he sees it" does not imply an impartial application of the law, but rather a very subjective one.

Now let’s look at the two sides of the fight. The Audubon Society and Defenders of Wildlife versus the Park Service, Dare and Hyde Counties and the people of Dare and Hyde County. This is a mismatch. We all know the Audubon Society as a noble group, but in this case they, and the Defenders of Wildlife, are nothing more than a bunch of sharp lawyers set to get what they want. They are a major lobby group in Washington, who know the law and can bend it to their desires. On the other side is a hodge-podge grass roots effort of very different groups, such as the ATV group, the Charter Fishing Group, local vacation realty companies, united four wheel drive association, the Park Service Group, and a list of others all with very different agendas and struggling to find enough money to defend against a very big war chest, further enhanced by Toyota’s contribution of $10 million to the Audubon Society. Clearly, that $10 million will not be all used here, but you get the sense that you have the New York Yankees taking on the local little league team. Not a fair fight.

This has had dire impact on local life. The Island Free Press has written numerous articles on the topic talking about the adverse impact on the economy. When we were down this year, there were numerous store fronts that now stand vacant in Avon. Is this attributed to the current state of the national economy or what is happening with the beach closings is hard for me to say, but I am certain that it can not be helping. Perhaps Tommy has done the best job of summing up the issue from the local perspective. Often colorful and opinionated, leaving no doubt which side he comes down on, Tommy does, however, back his thoughts up with facts. It is well worth the read.

If you have a love for the area, do get involved and write your congressmen and Senators. and ask them to support HR 718. A petition has also been raised to address the issue. Sign it here. The organization that is leading the "David" side of this David and Goliath fight is Preserve Beach Access group. Read what they have to say and you decide. The Park Service is also required to issue periodically the results of the beach closures in terms of nesting birds, and so forth. Here is a copy of one such report. Originally targeting the Piping Plover population, an endangered species, it now includes many other types of "non-endangered" shorebirds, like the oyster catcher. As one friend said to me, "The biggest population of oyster catchers lives on the roof of the Food Lion (a supermarket) in Avon", to which I replied, "Well you can’t drive on the Food Lion roof either." Do the results justify the destruction of a way of life?

In her confirmation hearings, Judge Sonia Sotomayor summed up the responsibility of a judge as follows:

No, sir. That's -- I don't -- I wouldn't approach the issue of judging in the way the president does. He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law.

Has Judge Boyle applied this same standard? Has he not created a whole new set of laws as it applies to the Cape Hatteras National Seashore and ORV driving? Should not the Court of Appeals, as it did in the Navy case, step in and again reverse Judge Boyle’s "application" of the law as overly broad?

The most ironic thing about this entire controversy is that it now pits a simple people who have sought to protect the environment and the wildlife that inhabit the National Seashore as the villains in the case. This case is not about birds and turtles. It is about a judge who over stepped judicial prudence and the pack of lawyers who cemented it into reality. I guess that is why a lawyer never needs to fear being attacked by sharks … professional courtesy.

What's Your Views on the Beach Closings?

Now that I've given you some background, what is your view of the current situation at the Cape Hatteras National Seashore? What can be done to reach a true win-win compromise? Will you get involved? How?

Click below to see the views from other visitors to this page...

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