Hello from Surf City! Update of last post concerning ORV use on the Outer Banks of North Carolina.
From: Cyndy_Holda@nps.gov
To Elected Officials, Negotiated Rulemaking
Participants, and Media
Contacts:
Late yesterday the park received the following court
order from U.S.
District Court Judge Terrence W. Boyle. NPS will
consult with DOI and DOJ
attorneys today to determine how to respond. We will
share additional
information when it is available.
(See attached file: Vasile Matei order.pdf)
Mike Murray
Superintendent
Cape Hatteras NS/ Wright Brothers NMem/ Ft. Raleigh
NHS
(w) 252-473-2111, ext. 148
(c) 252-216-5520
fax 252-473-2595
CONFIDENTIALITY NOTICE
This message is intended exclusively for the
individual or entity to which
it is addressed. This communication may contain
information that is
proprietary, privileged or confidential or otherwise
legally exempt from
disclosure.
ATTACHMENT:
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
NORTHERN DIVISION
UNITED STATES OF AMERICA, )
)
v. )
)
VASILE MATEI, )
)
Defendant. )
O R D E R
This case was tried before the undersigned as a criminal trial on July 16,2007, at the
regular criminal term of United States District Court at Elizabeth city; North Carolina. The
Defendant, a resident of Virginia, was charged with operating a vehicle without due care on the
Cape Hatteras National Seashore ("CAHA").
The alleged violation occurred on the afternoon of May 27,2007, a Sunday, and the midholiday
day of the Memorial Day weekend. Testimony at trial included that of a United States
Park Ranger, on duty at the time and location of the violation. The testimony established that
there was traffic on a narrow strip of sand extending from the ramp in the vicinity of the Oregon
Inlet Fishing Center, south and east along the oceanfront beach in the direction of Oregon Inlet,
which is an open body of water connecting the Atlantic Ocean with the Albemarle, Parnlico,
Croatan, and Currituck Sounds, through a tidal inlet. The area, consisting of sand dune and tidal
beach, is characterized by a narrow passage along the beach south of the entry ramp and an
expanding area of accreted sand. Since the construction of the high rise bridge on Highway 12
across Oregon Inlet linking the south end of Bodie Island with the north end of Pea Island, the
Case 2:07-mj-01075-BO Document 2 Filed 07/17/2007 Page 1 of 4
areas had developed irregularly. All of the land on the south side of Bodie Island is within the
National Seashore.
This particular area is characterized as a fragile transitional over-wash area, which has
historically been a valuable and declining resource for endangered shorebirds and turtles. In
recent seasons, there have been extensive bird enclosure areas located throughout this area, and
turtle nesting has traditionally taken place in this area. See generally, NATIONAPLA RKS ERVICE,
PIPINGP LOVER(C HARADRIUMSE LODUSM) ONITORINAGT CAPEH ATTERANSA TIONAL
SEASHOR2E0,0 6 ANNUALR EPORT( 2006), available at: http://www.nps.gov/cahdnaturescience/
upload/2006%20PIPL%20Fina1%2OReport-2.pdf [hereinafter PIPINGP LOVERA NNUALR EPORT];
NATIONAPLA RKS ERVICEC,A PEH ATTERANSA TIONASLE ASHOR2E0 06 SEAT URTLEA NNUAL
REPORT (2006), available at: http://www.nps.gov/caha~naturescience/upload/
2006%20Sea%20Turtle%20Fina1%20Report.pdf [hereinafter SEAT URTLEA NNUALR EPORT].
The testimony at trial established that United States Department of Interior pilots with the
Park Service made an overflight on May 27 and counted approximately 1,200 vehicles located in
the over-wash area. Because camping overnight is prohibited, all of the traffic was in transit at
some point on the date of the violation. The Court takes judicial notice that at a minimum one
occupant per vehicle was at the scene. Further, it is reasonably expected that there were two or
more persons per vehicle in such a recreational setting, making between 2,500 and 5,000 people
a reasonable estimate of the number of people crowded onto this narrow, fragile, environmentally
sensitive area on the Sunday of Memorial Day weekend.
On the date and time of the violation, Defendant attempted to drive a large four-wheel
drive vehicle off the beach and into an area adjacent to the dunes, ultimately intending to exit on
Case 2:07-mj-01075-BO Document 2 Filed 07/17/2007 Page 2 of 4
the ramp. Because of the high volume of traffic resulting in degradation of the beach, there were
deep ruts in the sand, some being feet in depth. Operating a vehicle in these conditions, only feet
from with sun bathers, families and children on the beach creates a serious hazard for injury or
death. The evidence at trial demonstrated that Defendant drove at a speed dangerous for
conditions, traveling in an erratic and serpentine manner through the ruts in the sand causing
spray of sand and danger to people on the beach. Defendant was cited for this behavior failing to
drive with due care. After a hearing the evidence, the Court found beyond a reasonable doubt
that the violation had been established.
By executive order, President Nixon required that the Department of the Interior publish
regulations defining specific trails and areas for the use of off-road vehicles "(ORV"). Exec.
Order No. 11,644,37 C.F.R. 5 2877 (1972), as amended by Exec. Order No. 11,898,42 Fed.
Reg. 26,959 (May 24,2977). The regulations to designate which areas are open to ORV traffic
must promote safety for all users, minimize damage to public lands and wildlife, and take into
consideration endangered or threatened species. 43 C.F.R 5 8342.1, The designation process
must include public participation, and include local landowners and other interested parties. Id. 5
8342.2. Once a plan is approved, areas and trails must be clearly identified so that the public will
be aware of the applicable limitations. Id Operating a motor vehicle is prohibited except where
the Park Service has specifically designated that ORV use is permitted, in accordance with the
aforementioned regulations. 30 C.F.R. 4 4.10; 1 8 U.S.C. 5 357 1. Thus, where the Park Service
fails to create a plan for ORV use, ORV is prohibited.
CAHA does not have regulations in place to govern ORV traffic. Consequently, it is also
a violation to operate a motor vehicle on Cape Hatteras National Seashore without prior authority
Case 2:07-mj-01075-BO Document 2 Filed 07/17/2007 Page 3 of 4
and is punishable by up to $5,000.00, six months in prison, or both. 18 U.S.C. § 3571. By
permitting unregulated ORV traffic on CAHA, Defendant and others come dangerously close to
accidents with pedestrians including children. Indeed, ORV traffic directly impacts attempts to
protect endangered species from human encroachment. From April 1 to August 3 1, 2006, the
Park Service recorded 47 ORV violations of barricaded closures for bird nesting areas. PIPING
PLOVERA NNUARLE PORT9 . AS the home to five species of sea turtles, two of which are
threatened and three of which are endangered, 23 ORV violations of sea turtle closed areas were
recorded in the 2006 season. SEAT URTLEA NNUARLE PORT1 1 -12 . Although the impact of ORV
traffic on endangered species and risk to pedestrians is yet unmeasured, without an ORV plan in
place, the Park Service is without the manpower to enforce many of the rules in place on heavily
trafficked days like that of the date of violation. Accordingly, it is a violation to operate an ORV
on CAHA without authority from the Department of the Interior or its designee, and Defendant
must pay $1 00 fine and special assessment.
SO ORDERED, this 1 7 day of July, 2007.
&RRENCE W. BOYLE
UNITED STATES DISTRICT JUDGE
Case 2:07-mj-01075-BO Document 2 Filed 07/17/2007 Page 4 of 4
Till next time....
Tight lines!
Johnny "FishinTopsail"
http://fishintopsailpics.blogspot.com/
http://nascardailynews.blogspot.com
Everyone has to be somewhere ..... I'll be fishing!
Freedom isn't free! Someone has paid, for you and for me.
50799
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