Download:
pdf |
pdfCase 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 1 of 30
FILED
Attachment A: Consent Decree of April 30, 2008
APR 3 0 Z008
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
DENNIS P. IAVARONE ClERK
US~~fC; cO~Ri, EONC
BY ~5 0;
No. 2:07-CV-45-BO
DEFENDERS OF WILDLIFE, et al.,
CONSENT DECREE
Plaintiffs,
v.
NATIONAL PARK SERVICE, et al.,
Defendants,
and
DARE COUNTY, et al.,
Intervenor-Defendants.
WHEREAS, Defenders of wildlife and the National Audubon
Society (collectively,
"Plaintiffs"), commenced this action on
October 18, 2007, against the National Park Service ("NPS"); the
United States Department of the Interior ("DOl"); Dirk
Kempthorne, Secretary of the Interior; Mary A. Bomar, Director of
NPS; and Michael B. Murray, Superintendent of Cape Hatteras
National Seashore ("Seashore")
(collectively,
"Federal
Defendants") ;
WHEREAS, by Order dated December 18, 2007, this Court
granted the motion of Dare County, North Carolina; Hyde County,
North Carolina; and the Cape Hatteras Access Preservation
Alliance (collectively,
"Intervenor-Defendants"), to intervene as
defendants in this action;
Page 1 of
23
J
OEPCU<
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 2 of 30
WHEREAS, on December 19, 2007, Plaintiffs filed an Amended
Complaint adding the United States Fish and wildlife Service
(~FWS")
and H. Dale Hall, Director of FWS, as defendants and
additional claims under the Endangered Species Act
U.S.C.
§§
(~ESA"),
16
1531-1544;
WHEREAS, Plaintiffs' Amended Complaint alleges that Federal
Defendants' Interim Protected Species Management Strategy,
approved on July 13, 2007, and Federal Defendants' failure to
issue a long-term plan and special regulation governing off-road
vehicle
(~ORV")
use at the Seashore, violate the National Park
Service Organic Act
(~Organic
Act"), 16 U.S.C.
Seashore enabling legislation, 16 U.S.C.
§§
§
I, et
~;
the
459-459a-l0;
Executive Order 11644, as amended by Executive Order 11989 and
implemented by 36 C.F.R.
16 U.S.C.
§§
§
4.10; the Migratory Bird Treaty Act,
703-712, and Executive Order 13186; the National
Environmental Policy Act
(~NEPA"),
42 U.S.C.
§
4321, et
~;
and
the ESA;
WHEREAS, the Court has stated in previous cases that ORV use
is unauthorized at the Seashore in the absence of a Special
Regulation issued pursuant to 36 C.F.R.
§
4.10 designating ORV
routes and areas, united States v. Matei, 2:07-M-I075 (E.D.N.C.
July 17, 2007); United States v. Worthington, 2008 WL 194386
(E.D.N.C. January 2, 2008);
WHEREAS, Federal Defendants concede that a Special
Regulation designating ORV routes and areas at the Seashore has
Page 2 of 23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
not yet been issued pursuant to 36 C.F.R.
§
Page 3 of 30
4.10;
WHEREAS, Plaintiffs, Federal Defendants, and Intervenor
Defendants, through their authorized representatives, and without
any admission or final adjudication of the issues of fact or law
with respect to Plaintiffs' claims (except as set forth in the
preceding paragraph), have reached an agreement that they
consider to be a just, fair, adequate, and equitable resolution
of the claims contained in Plaintiffs' Amended Complaint;
WHEREAS, Plaintiffs, Federal Defendants, and Intervenor
Defendants agree that it is in the interest of the pUblic, the
Parties, and judicial economy to resolve the claims in this
lawsuit without protracted litigation;
NOW, THEREFORE, Plaintiffs, Federal Defendants, and
Intervenor-Defendants agree, and the Court hereby ORDERS,
ADJUDGES, and DECREES, as follows:
1.
Final ORV Management Plan and Special Regulation:
Federal Defendants shall complete an ORV Management Plan for the
Seashore by December 31, 2010, and will complete and promulgate
the final Special Regulation by April I, 2011.
2.
Modified Interim Management Plan: Pending the
implementation of the final Special Regulation referenced in
paragraph 1 above, the Selected Alternative of the Interim
Strategy ("Interim Strategy"), as described in the Finding of No
Significant Impact ("FONSI") approved July 13, 2007, shall remain
Page 3 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 4 of 30
in full force and effect, except as modified by the following
provisions of this Consent Decree.
If there is a conflict
between the Interim Strategy and the measures described in this
Consent Decree, the Consent Decree shall control.
3.
Pre-nesting areas: NPS shall by March 15 of each year
establish pre-nesting areas on Bodie Island Spit, Cape Point,
South Beach, Hatteras Spit, North Ocracoke, and Ocracoke South
Point.
The pre-nesting areas shall be marked with symbolic
fencing consisting of wooden posts, bird usage signs, strings,
and flagging tape.
4.
For the 2008 breeding season, the pre-nesting areas
shall be as delineated on the maps attached hereto as Exhibits 1
through 7 and incorporated by reference.
These areas shall not
be reduced to accommodate an ORV corridor, including in the event
of naturally occurring erosion or accretion of the area, except
in emergency situations.
The pre-nesting areas shall remain in
place until the later of July 15 or two weeks after the last
tern, black skimmer, American oystercatcher, piping plover, or
wilson'S plover chick within the area has fledged, as determined
by two consecutive monitoring events.
5.
In the years following the 2008 breeding season, NPS
shall establish pre-nesting closure areas at Bodie Island Spit,
Cape Point, South Beach, Hatteras Spit, North Ocracoke, and
Ocracoke South Point that incorporate to the maximum extent
Page 4 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 5 of 30
possible the areas delineated in the 2008 prenesting closure maps
attached as Exhibits 1 through 7.
6.
Plaintiffs, Federal Defendants, and Intervenor-
Defendants recognize that Bodie Island Spit, Cape Point, South
Beach, Hatteras Spit, North Ocracoke, and Ocracoke South Point
are dynamic areas that may change from year to year.
If
substantial changes occur to these areas, NPS shall establish
pre-nesting closure areas consistent to the maximum extent
possible with the 2008 breeding season prenesting areas.
These
pre-nesting areas shall include to the maximum extent possible
the soundside intertidal zone, areas of moist soil habitat, ocean
backshore, dunes, dry sand flats, overwashes, and blowouts.
The
pre-nesting areas shall also include areas of the ocean tidal
zone consistent to the maximum extent possible with the 2008
breeding season pre-nesting closures.
7.
Buffers: NPS also shall establish buffers for observed
breeding behavior, including but not limited to territorial
behavior, courtship, mating, confirmed scrapes, or other nestbuilding activities; for breeding adult piping plover foraging
outside of an established closure; and for nests and chicks.
The
buffers, which are consistent with the recommendations of the
Piping Plover, Atlantic Coast Population, Recovery Plan, as
developed by FWS with assistance from the U.S. Atlantic Coast
Piping Plover Recovery Team, and the recommendations of the U.S.
Geological Survey, Moderate Protection Protocols, and which take
Page 5 of 23
Case 2:07-cv-00045-BO
Document 65
into account other relevant factors,
Filed 04/30/2008
Page 6 of 30
shall apply to ORVs and
pedestrians as explained below:
TABLE OF RELEVANT ORV AND PEDESTRIAN BUFFERS
Breeding Behavior/Nest Unfledged Chick Buffer
Species
(m)
Buffer (m)
50
Piping Plover
1000 (ORV only)
'q~,~._.
~.a s
t:._Te r n
Other Colonial
Waterbirds
funerican
Oystercatcher
8.
300 (Pedestrian onl.Y.L__
200
/06------.., --.., - - - - - - - '
100
~OO
/00
1150
When multiple species are present, the greatest
applicable buffer distance shall be used.
The buffer areas shall
be marked with symbolic fencing consisting of wooden posts, bird
usage signs, string and flagging tape, to the extent possible in
light of physical characteristics of the closure and the high
tide line.
9.
If disturbance from ORVs and/or pedestrians, as observed
by NPS natural resource management staff, occurs within the given
buffer distance, the buffer zone shall be expanded in 50 m
increments until no disturbance occurs.
Behaviors indicating
disturbance include defensive displays, alarm calls, flushing or
leaving a nest or feeding area, and diving or mobbing
pedestrians, dogs, or vehicles.
Plaintiffs, Federal Defendants,
and Intervenor-Defendants recognize NPS natural resource
management staff may cause a disturbance amongst the species
during the course of their monitoring activitiesi any disturbance
Page 6 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 7 of 30
caused by NPS monitoring shall not be cause for an expansion of
the buffer zone.
10.
areas.
Nonessential 1 ORVs are prohibited within the buffer
Pedestrians are prohibited within the buffer areas,
except for when the 1000 m unfledged piping plover chick buffer
is in effect.
When this 1000 m buffer is in effect, pedestrians
may be allowed limited access to the protected area, during
daylight hours only, as follows: pedestrians may be permitted
within a narrow walking and sunbathing corridor that extends 10 m
landward from the mean high tide line, provided a buffer of 300 m
from piping plover chicks, and the respective buffers for
breeding/nest/unfledged chick buffers of the other species, is
maintained.
NPS shall prohibit pets, kite flying,
frisbee
throwing and similar activities at all times within the 1000 m
unfledged piping plover chick buffer.
11.
The ORV closure area shall extend for 1000 m on each
side of a line drawn through the nest site and perpendicular to
the long axis of the beach.
The resulting closure area shall
extend from the ocean side low water line to the bayshore low
water line or the dune line if no bayshore habitat exists.
Vehicles may be allowed to pass through portions of the protected
area, where the protected area is considered by NPS natural
resource management staff to be inaccessible to piping plover
The term "essential vehicle" is defined in the FONSI at Table
3, page 40.
Page 7 of 23
1
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 8 of 30
chicks because of steep topography, dense vegetation, or other
naturally occurring obstacles.
All of the ocean beach at Cape
Point, South Beach, and North Ocracoke and all of the bayshore
and ocean beach at Bodie Island Spit and Ocracoke South Point
will be considered accessible to piping plover chicks in these
areas.
Within the 1000 m piping plover unfledged chick buffer at
Hatteras Spit, all of the ocean beach and that part of the
bayshore beach at the overwash fans and from the inlet east to a
point 200 m east of the point where the Spur Road from the Pole
Road meets the bayshore will be considered accessible to piping
plover chicks in these areas.
12.
As set forth below, NPS retains the discretion to
modify the 1000 m unfledged piping plover chick buffer, if NPS
natural resources staff determines a modification is acceptable:
During daylight hours only, NPS may allow ORV access within
the 1000 m unfledged piping plover chick buffer two weeks after
the chicks have hatched; when ORV access is permitted, a buffer
distance of 300 m between piping plover chicks and ORVs shall be
maintained at all times.
The chicks will be monitored from dawn
to dusk by NPS staff with at least one full season experience
monitoring piping plovers or snowy plovers.
The modified access
area will not be open to ORVs, each morning, until the location
of the brood has been determined by an NPS monitor and an
adequate buffer has been assured.
If a piping plover adult or
chick moves within 200 m of ORVs or an ORV access corridor, the
Page 8 of 23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 9 of 30
NPS staff on site shall immediately take protective measures to
close and re-establish the 1000 m buffer, including contacting
law enforcement to begin evacuation of the area; no additional
nonessential ORVs shall be allowed within the 1000 m unfledged
piping plover chick buffer.
Monitors shall not disturb chicks. 2
NPS recognizes that this provision, if exercised, increases the
risk to piping plover chicks; therefore, this provision is void
if a piping plover chick at any location is injured or killed by
an ORV within the 1000 m buffer.
NPS retains the discretion to use this modification
provision selectively and to re-establish the 1000 m buffer at
any time, if it deems the full closure to be necessary.
13.
Locations of the buffers described in paragraphs 7-12
above shall be adjusted to accommodate chick movement.
NPS
retains the discretion to enforce greater restrictions as
necessary to protect the species.
14.
Plaintiffs, Federal Defendants, and Intervenor-
Defendants recognize that prompt establishment of buffers at the
initiation of prenesting and/or breeding behavior is vital to the
successful nesting of colonial waterbirds, piping plovers, and
American oystercatchers.
NPS shall assign trained biologists or
2Because monitors must be present from dawn to dusk, even
"normal" monitor disturbance has the potential to disrupt chick
development; therefore, this provision is an exception to
paragraph 9.
Notwithstanding this provision, the parties
acknowledge that monitors may cause disturbance during nest
surveys or in locating chicks each morning; this shall not be
considered a disturbance for the purposes of this section.
Page 9 of 23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 10 of 30
field technicians to monitor Cape Point, South Beach, Hatteras
Spit, North Ocracoke, and Ocracoke South Point at least once
every two days from March 15 to April 15, and daily from April 16
to July 15, to determine if any birds are exhibiting prenesting
and/or breeding behavior.
NPS shall monitor Bodie Island Spit at
least daily from March 15 to July 15.
15.
For breeding piping plover, the provisions in the FONSI
related to adult foraging, Table 2, page 36, remain applicable.
If no piping plover are observed utilizing such a foraging
closure over a two-week period of time, the closure will be
removed.
16.
If NPS observes prenesting and/or breeding behavior of
colonial waterbirds, piping plovers, or American oystercatchers,
NPS shall establish the appropriate buffer as quickly as
possible, but always within 8 daylight hours.
Upon discovery of
an active nest or chicks that are outside an existing closure,
protective measures shall be taken immediately to close and
establish the buffers described above.
Symbolic fencing with the
applicable buffer distances stated above shall be installed as
soon as NPS staff can reasonably be mobilized to erect the
fencing, but always within 6 daylight hours.
17.
The foregoing pre-nesting and/or breeding behavior
closures and buffer requirements and other consistent provisions
of the Interim Strategy are minimum measures, and nothing set
forth herein prevents NPS from exercising its discretion to
Page 10 of 23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
provide additional protections as needed.
Page 11 of 30
Additionally, when
nesting occurs in the immediate vicinity of paved roads, parking
lots, campgrounds, buildings, and other facilities, NPS retains
the discretion to provide resource protections to the maximum
extent possible while still allowing those sites to remain
operational.
18.
Ocean Backshore Closures: For the benefit of all bird
species, sea turtles, and seabeach amaranth, from March 15 to
November 30, in all locations not in front of the villages,
outside of the pre-nesting areas described above, and open to ORV
use, NPS shall provide an ORV-free zone in the ocean backshore at
least 10 m wide and running the length of the site, wherever
back shore habitat exists, provided there is sufficient beach
width to allow an ORV corridor of at least 20 m above the mean
high tide line.
This zone shall be adjacent to the toe of the
primary dune whenever a primary dune exists (i.e., ORVs should be
restricted to a corridor between the mean high tide line and the
edge of the zone of the protected backshore).
For the 2008
breeding season only, ocean backshore closures shall be
established no later than June 1.
19.
Reports: By January 31 of each year until the final
Special Regulation is promulgated, NPS shall provide Plaintiffs
and Intervenor-Defendants a copy of the written reports provided
to the Fish and Wildlife Service
(~FWS")
Page 11 of
23
as part of the
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 12 of 30
Biological Opinion reconsultation process for the piping plover,
sea turtles, and seabeach amaranth; these reports include
information regarding buffer violations.
For colonial waterbirds
and American oystercatchers, in lieu of providing an annual
report, NPS shall provide Plaintiffs and Intervenor-Defendants
the data collected on colonial waterbirds' and American
oystercatchers' breeding activity, along with copies of the
previous year's closure request documentation and the written
closure request forms for these species.
Also by January 31 of
each year until the final Special Regulation is promulgated, NPS
shall provide the Court with a copy of these reports along with a
written summary of the progress of the Negotiated Rulemaking
Advisory Committee for ORV Management at the Seashore ("Reg.
Neg.") .
20.
By February 20 of each year until the final Special
Regulation is promulgated, NPS shall provide public notice of the
proposed pre-nesting areas for Bodie Island Spit, Cape Point,
South Beach, North Ocracoke, and Ocracoke South Point for that
year's breeding season.
The pre-nesting area maps shall include
locations for all known piping plover and American oystercatcher
nests within the area during the preceding breeding season.
Plaintiffs and Intervenor-Defendants may submit comments on the
proposed pre-nesting areas to NPS by March 1.
NPS, to the extent
it determines a response is required and/or is appropriate, will
Page 12 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 13 of 30
respond to Plaintiffs' and Intervenor-Defendants' comments by
March 15.
21.
Subject to 16 U.S.C.
§
5937, within the reports and
data provided to Plaintiffs and Intervenor-Defendants pursuant to
paragraph 19 above, NPS shall include GPS coordinates, to the
extent available, for sea turtle nests and false crawls,
shorebird nests, symbolic fencing locations, and colony
perimeters for colonial waterbirds.
22.
Retained NPS Authority for Park Management: NPS retains
discretion at all times to enforce more protective closures or
take other measures, if considered necessary, consistent with its
obligations under law and this Consent Decree.
23.
Violations of Pre-nesting Areas and Buffers: At all
established pre-nesting areas and buffers, if, in the opinion of
NPS, a confirmed deliberate act that disturbs or harasses
wildlife or vandalizes fencing, nests, or plants, is documented
by NPS personnel, the pre-nesting area or buffer shall be
expanded automatically by 50 m.
If a second such act occurs at
the same area, the buffer shall be expanded automatically by an
additional 100 m.
If a third such act occurs, the buffer shall
be expanded automatically by an additional 500 m or more, if NPS
determines it is necessary to minimize the extent of further
disturbance.
To the extent possible, NPS shall provide public
Page 13 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 14 of 30
notice of violations and the relevant applicable buffer
expansions.
24.
Night Driving: To increase the chances of successful
turtle nesting, NPS shall close all potential sea turtle nesting
habitat (ocean intertidal zone, ocean backshore, and dunes) to
nonessential ORV use from 10 p.m. until 6 a.m. from May 1 to
November 15, except as set forth in paragraph 25 below.
25.
Between September 16 and November 15, NPS may issue
night driving permits for authorized nonessential driving between
the hours of 10 p.m. and 6 a.m.
The permit application process
shall have an educational component, and the permit shall contain
restrictions on light use.
During the September 16 to November
15 time period, NPS retains the discretion to limit night driving
to certain areas or routes, based on resource protection
considerations.
26.
After September 15 all remaining unhatched turtle
nests, once they reach their hatch window, shall be protected by
full beach closures, in addition to the fencing methodology
described in the Interim Strategy.
27.
NPS recognizes some risk to turtles exists if beaches
are open to ORVs prior to completion of turtle patrols; NPS shall
complete turtle patrols as expeditiously as possible each
morning.
Page 14 of
23
Case 2:07-cv-00045-BO
28.
Document 65
Filed 04/30/2008
Page 15 of 30
Education: Prior to the 2009 breeding season, NPS shall
have the following provisions in place to enhance the public's
understanding of the protected species and responsible use of the
Seashore:
NPS shall provide educational information about
protected species at all ORV access points.
NPS shall redesign
the Seashore beach driving brochure to concisely communicate the
regulations and potential penalties for violations.
NPS shall
establish and post a 24-hour phone line that citizens can use to
report illegal activities and unsafe conditions on the beach.
29.
For the 2008 breeding season, NPS will make a good
faith effort to begin the initiation of the educational programs
set forth above.
In furtherance of this effort, by May 15, 2008,
NPS will order new signage aimed at more clearly communicating
applicable regulations and will post applicable requirements on
its website, including its obligations under this settlement.
30.
Duration:
This Consent Decree shall expire
automatically upon the effective date of the final Special
Regulation described in paragraph 1 above.
31.
Voluntary Dismissal: Based upon the representations and
commitments herein, Plaintiffs' claims are hereby DISMISSED WITH
PREJUDICE pursuant to Fed. R. Civ. P. 41(a) (2).
32.
Modifications:
The Court may modify any requirements
of this Consent Decree, including the deadlines for any actions
Page 15 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 16 of 30
specified in Paragraph 1 above, for good cause shown by the
Plaintiffs, Federal Defendants, and/or Intervenor-Defendants.
Before seeking modifications to this Consent Decree, Plaintiffs,
Federal Defendants, and/or Intervenor-Defendants shall use the
dispute resolution procedures specified in Paragraph 33 below.
33.
Dispute Resolution:
Plaintiffs, Federal Defendants,
and Intervenor-Defendants agree to provide opposing counsel
written notice, if practicable, of any disputes or requests for
judicial relief related to compliance with this Consent Decree.
Plaintiffs, Federal Defendants, and Intervenor-Defendants agree
to attempt to resolve any disputes for a minimum of thirty days
after providing written notice and prior to seeking relief from
the Court.
Plaintiffs, Federal Defendants, and Intervenor-
Defendants agree that the sole remedy for breach of this Consent
Decree shall be enforcement of the terms of the Consent Decree.
Plaintiffs, Federal Defendants, and Intervenor-Defendants agree
that contempt will not be sought for an alleged breach of the
Consent Decree but also agree that this prohibition on seeking
contempt does not apply to subsequent orders of the Court issued
to enforce this Consent Decree.
Plaintiffs agree not to seek to
reinstate the Complaint or to bring or prosecute any claims
contained therein in this or any other legal proceeding.
Nothing
in this paragraph is intended to preclude the parties, or their
Page 16 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 17 of 30
representatives, from engaging in informal communications to
attempt to resolve any potential disputes.
34.
No Precedence: Plaintiffs, Federal Defendants, and
Intervenor-Defendants stipulate and agree that this Consent
Decree is entered into solely for the purpose of settling this
case, and for no other purpose, and this Consent Decree shall not
be cited or otherwise referred to in any other legal proceeding,
in which the parties or counsel for the parties have or may
acquire an interest, except as necessary to effectuate the terms
of this Consent Decree.
This Consent Decree shall not be binding
on the Reg. Neg. as they develop the final Special Regulationj
nothing in this provision precludes any party from discussing the
terms of the Consent Decree at the Reg. Neg.
35.
Anti-Deficiency Act: Nothing in this Consent Decree
shall be interpreted as or constitute a commitment or requirement
that Federal Defendants obligate or pay funds in contravention of
the Anti-Deficiency Act, 31 U.S.C.
36.
§
1341.
Statutory Obligations: No provision of this Consent
Decree shall be interpreted as or constitute a commitment or
requirement that Federal Defendants take action in contravention
of NEPA, the ESA,
the Administrative Procedure Act ("APA"), or
any other law or regulation, either substantive or procedural.
Nothing in this Consent Decree shall be construed to limit or
modify the discretion accorded to Federal Defendants by NEPA, the
Page 17 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 18 of 30
ESA, the APA, or general principles of administrative law with
respect to the procedures to be followed in making any
determination required herein, or as to the substance of any
final determinations.
37.
No Waiver of Rights: Plaintiffs do not waive any right
they may have to bring suit against Federal Defendants for any
violations of law which may arise relating to the ORV Management
Plan and Special Regulation described in Paragraph 1 above,
including, but not limited to, violations of NEPA, the ESA,
the
MBTA, the APA, or Federal Defendants' responsibilities under 36
C.F.R.
§
4.10.
Further, by entering into this Consent Decree,
Federal Defendants and Intervenor-Defendants do not waive any
claim or defenses they may have in any action brought by the
Plaintiffs challenging the ORV Management Plan, Final
Environmental Impact Statement, and Special Regulation described
in Paragraph 1 above.
Plaintiffs, Federal Defendants, and
Intervenor-Defendants agree that any challenge to the ORV
Management Plan, the Special Regulation, or other agency action
set forth in Paragraph 1 above shall be brought in a separate
action and not pursuant to this Consent Decree.
38.
Attorneys' Fees: Federal Defendants agree that
Plaintiffs are prevailing parties and entitled to reasonable
attorneys' fees and costs pursuant to the Equal Access to Justice
Act, 28 U.S.C.
§
2412, up to and including the date of execution
Page 18 of
23
Case 2:07-cv-00045-BO
of this Consent Decree.
Document 65
Filed 04/30/2008
Page 19 of 30
Plaintiffs and Federal Defendants agree
to attempt to resolve Plaintiffs' claim for fees and costs
expeditiously and without the need for Court intervention.
By
entering into this Consent Decree, Federal Defendants do not
waive any right to contest fees claimed by Plaintiffs or
Plaintiffs' counsel, including the hourly rate,
in any future
litigation or continuation of the present action.
39.
Severability; Court Acceptance:
Wherever possible,
each provision of this Consent Decree shall be interpreted in
such a manner as to be effective and valid.
If any provision of
this Consent Decree is prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provision or the remaining provisions hereof.
However, in
the event the Court does not accept any part of this Consent
Decree, each party to the Consent Decree reserves the right to
withdraw from the Consent Decree and proceed with the existing
litigation.
40.
None of the provisions or obligations of this Consent
Decree shall become effective and binding unless and until the
Court accepts this Consent Decree and enters an Order approving
its terms.
41.
Entire Agreement:
This Consent Decree constitutes the
entire agreement of Plaintiffs, Federal Defendants, and
Page 19 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 20 of 30
-
Intervenor-Defendants, and no statement, agreement or
understanding, oral or written, which is not contained herein
shall be recognized or enforced.
42.
Authorization:
Each undersigned representative of the
Plaintiffs, Federal Defendants, and Intervenor-Defendants
certifies that he or she is fully authorized to enter into and
execute the terms and conditions of this Consent Decree, and to
legally bind such party to this Consent Decree.
The terms of
this Consent Decree apply to, are binding upon, and inure to the
benefit of Plaintiffs (and their successors, assigns, and
designees), Federal Defendants, and Intervenor-Defendants.
43.
Continuing Jurisdiction:
Notwithstanding the dismissal
of this action, the Court retains jurisdiction to resolve any
disputes arising under the Consent Decree and for issuing such
further orders or directions as may be necessary or appropriate
to construe, implement, modify, or enforce the terms of this
Consent Decree, and to resolve any motions relating to attorneys'
fees.
See Kokkonen v. Guardian Life Ins. Co. of America, 511
U.S. 375 (1994).
Page 20 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 21 of 30
Respectfully submitted, this 16th day of April, 2008.
FOR PLAINTIFFS
By: lsi Derb S. Carter, Jr.
DERB S. CARTER, JR.
Southern Environmental Law Center
200 W. Franklin Street, Suite 330
Chapel Hill, NC 27516
Telephone: (919) 967-1450
Facsimile: (919) 929-9421
NC Bar No. 10644
By: lsi Geoffrey R. Gisler
GEOFFREY R. GISLER
Southern Environmental Law Center
200 W. Franklin Street, Suite 330
Chapel Hill, NC 27516
Telephone: (919) 967-1450
Facsimile: (919) 929-9421
NC Bar No. 35304
By: lsi Jason C. Rylander
JASON C. RYLANDER
Defenders of Wildlife
1130 17th Street, N.W.
Washington, D.C.
20036-4604
Telephone: (202) 682-4604
Facsimile: (202) 682-1331
D.C. Bar No. 474995
Page 21 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 22 of 30
FOR FEDERAL DEFENDANTS
GEORGE E.B. HOLDING
United States Attorney
BY:
lsi Lora M. Taylor
LORA M. TAYLOR
Assistant United States Attorney
Federal Building, Suite 800
310 New Bern Avenue
Raleigh, N.C. 27601
Telephone: (919) 856-4907
Facsimile: (919) 856-4821
Maryland Bar
BY:
lsi Kevin W. McArdle
KEVIN W. McARDLE
Trial Attorney
wildlife & Marine Resources Section
Environment & Natural Resources
Division
United States Department of Justice
601 D Street, N.W.
Room 3912
Washington D.C. 20004
Telephone:
(202) 305-0219
(202) 305-0275
Facsimile:
BY:
lsi Lyle Laverty
LYLE LAVERTY
Assistant Secretary
Fish and wildlife and Parks
Department of the Interior
Page 22 of
23
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 23 of 30
FOR INTERVENOR-DEFENDANTS
By: lsi L.P. Hornthal, Jr.
L.P. HORNTHAL, JR.
Hornthal, Riley, Ellis &
Maland, LLP
P.O. Box 220
Elizabeth City, N.C.
27907
Telephone: (252)335-0871
N.C. Bar No. 2186
By: lsi L. Phillip Hornthal, III
L. PHILLIP HORNTHAL, III
Hornthal, Riley, Ellis &
Maland, LLP
P.O. Box 220
Elizabeth City, N.C.
27907
Telephone: (252)335-0871
N.C. Bar No. 14984
By: lsi Lawrence R. Liebesman
LAWRENCE R. LIEBESMAN
Holland and Knight
2099 Pennsylvania Ave., N.W.
Suite 100
Washington, D.C.
20006-6801
Telephone: (202) 419-2477
D.C. Bar No. 193086
By: lsi Lois Godfrev Wve
LOIS GODFREY WYE
Holland and Knight
2099 pennsylvania Ave., N.W.
Suite 100
Washington, D.C.
20006-6801
Telephone: (202) 419-2477
D.C. Bar No. 429674
IT IS SO ORDERED this
~
day
Of~'
2008
J~C/'
~
T~ENCE
W. BOYLE
UNITED STATES DISTRICT JU
Page 23 of
23
E
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 24 of 30
02008 Requested Closure
r··.
, .·..:
, 2007 Pre-nesting Closure
- - 07-0B Wlnter Carsonite
_
07-0B Wlnter Closure
-
High Tide 3/B/2008
Produced by CAHA RMACZ
IEx. 1
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 25 of 30
02008 Requested Closure
r'4 ..· .12007 Pre-nesting Closure
- - 07-08 Wnter Carsonlte
1.0mile closed to ORVs
and ~destr1 ans
l1li 07-08 Wnter Closure
- - High Tide 212712008
o
I
02
0.4
I
0.6 Miles
I
14March2000
1 Ex. 2
Case 2:07-cv-00045-BO
o
Document 65
Filed 04/30/2008
Page 26 of 30
2008 Reques:ed Closure
C~:] 2007 Pre-nesting Closure
- 07·08\I\oInter Carsonite
III] 07-08\I\oInter Closure
o
0.125
025
I
I
I
10 March 2008
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 27 of 30
HI08-004 Overwash Fans Pre-nesting Closure Request
02008 Requested Closure
,',.
i
..
.,.
_; 2007 Pre-nesting Closure
PoleRd closed 0.7mile
- - 07-08 Wnter Carsonite
. . 07-08 Wnter Closure
01
I
0.2 Miles
I
10Martn 2000
frod"- by CAHA RM ACZ
lEX. 4
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 28 of 30
CJ 2008Requested Closure
r::::J
2007 Pre-nesting Closure .
- - 07-08Wnter Carsonite
"f;'
III! 07-08Wnter Closure
: - - HighTide 2/2712008
Fl'oducal by CAlIA RM ACZ
I Ex. 5
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 29 of 30
A-_ by CAllARMnz
10 March200a
I Ex. 6
Case 2:07-cv-00045-BO
Document 65
Filed 04/30/2008
Page 30 of 30
IF't*'",
National Park service
1 'C..,J
U.S. Departmenter tne Irrtenor •
CapeHatteras N:ltional Seashore
NorthCarolina
0108-001 South Ocracoke Pre-nesting Closure Request
o
c:::;
2008 Requested Closure
2007 Pre-nesting Closure
- - 07·08 Wnler Carsonite
. . 07·08 Wnler Closure
- - Mid Tide 1011612007
015
Ftoduoe:lby CAHA RMACZ
03
0.6 Miles
10March 2008
| File Type | application/pdf |
| File Modified | 2009-04-22 |
| File Created | 2008-04-30 |