1. does NOT qualify as a special regulation for ORV use, thus does NOT remedy the violation of Executive Order 11644, as amended by Executive Order 11989,

2. violates a variety of Congressional Acts (including but not limited to NEPA, Federal Administration Act, Federal Advisory Committee Act), and

3. represents a unconstitutional delegation of Federal Authority.

Based upon the above, the only remedy that will ensure that CHNSRA is managed as intended by Congress, is for Congress to enact legislation authorizing ORV use as practiced over the past several years and in compliance with the 2007 Interim Protected Species Plan (hereafter referred to as Interim Plan) until such time as a final special regulation governing ORV use is finalized.  That or an Executive Order to the same effect.

No Remedy for Violations of Executive Order 11644, as amended by Executive Order 11989

The main focus of the court proceedings and the responses to Judge Boyle’s questions (see Detailed Time Line and Documents for transcripts) were the failure of the Park Service to develop a special regulation for ORV use as required by Executive Orders 11644 and 11989.  The consent decree approved by Judge Boyle does NOT include any specific regulation of ORV use.  In point of fact, the Park Service clearly states in their April 25, 2008 response, “the proposed consent decree is not intended to be a substitute for the Special Regulation.”  Quite simply, the violation of Executive Orders 11644 and 11989 noted by Judge Boyle has not been rectified and, as such, the consent decree continues to allow the very violations objected to by Judge Boyle.

Violation of Congressional Acts

SELC’s lawsuit alleged that the 2007 Interim Plan violated NEPA and the ESA.  The Park Service did NOT concede this issue.  Nonetheless, without a full hearing as to the alleged violations of NEPA and the ESA, the consent decree was approved and supplants the 2007 Interim Plan with one of the more protective alternatives from the original EA–USGS Moderate Protocols.  Furthermore, despite the repeated claims that the increased restrictions placed upon recreational use as a result of implementing more protective measures would have a devastating impact on the local economy with spillover effects accruing to Dare County and beyond, no attempts were made to measure the potential economic impact. 

Instead Judge Boyle accepted SELC’s claim that the balance of harm to species outweighs the potential injury to the local economy.  SELC’s claim was based upon the projected economic impact of that additional restrictions that could occur as part of the USFWS Critical Habitat Designation—that is, approximately 0.05 to 0.08 percent of the economic value generated through all visitation to the Seashore.  Even a cursory review of the economic impact statement published by USFWS reveals that the environmental impact study published by USFWS is not only based upon assumptions that violate the rule of reason but, also may be construed as a negligent attempt to understate the impact of closures by using, as a base, data that USFWS knew to be unreliable for the purposes of estimating economic impacts of their actions. (see USFWS Economic Impact Study of 2007, James C. Luizer’s Comment 2006, and the peer review of the Vogelsong Study 2008)

Finally, and most egregious was the fact that the Interveners were not permitted to seek input from their constituencies.  Essentially, the agreement presented on April 4 was the product of two entities—SELC and the Park Service.  The negotiated rulemaking committee that met four times during the negotiating period was never apprised of the fact that the SELC and the Park Service were negotiating a change in the Interim Plan, let alone given the opportunity to participate.  On April 4 Judge Boyle acquiesced to allow the Interveners to become party to the negotiated settlement to the litigation but only after stating that he was prepared to close the most popular areas of CHNSRA to recreational use.  The interveners bargaining from a definite disadvantage were permitted to take the proposed agreement to their boards but NOT to their general membership.  In fact the details of the consent decree were not made public until they were filed with the court on April 16, 2008.

Quite simply, SELC has managed to replace the 2007 Interim Plan with " their" preferred rule.  This new rule was NOT developed following the Congressional Acts designed to protect the public from unnecessary rules, regulations, and economic harm.

Unconstitutional Delegation of Federal Authority

The consent decree includes a host of reporting requirements and requirements for pre-approval of any and all modifications to the provisions of either the Interim Plan or the ammendments effected by the consent decree.  These provisions have the potential to limit the Park Service’s ability to respond to changing conditions in a timely fashion, especially in the event that the parties to the consent decree cannot agree upon whether or not to accept proposed changes to the decree.  Furthermore, the consent decree does not leave any room for discretion on the part of the Park Service.    In point of fact, the consent decree calls for resource protection buffers that far exceed those commonly used at other seashores.  Bottom line, the government attorneys have abdicated the NPS’s responsibility for both rulemaking and daily management of CHNSRA.