Issues...

It is clear that significant facts have been ignored in the preparation of this DEIS. The success of turtle nesting and piping plover nesting and fledging is virtually unchanged since the de facto ORV plan was implemented in 1978. The primary causes of failed nesting and fledging are overwhelmingly predation and weather events which have occurred for hundreds of years. ORV caused mortality is a fraction of 1%. The USFWS and NPS personnel have caused more plover mortality. Yet, the NPS chooses to attack those users who are very sensitive to the wildlife in the CHNSRA.

The DEIS options all include restrictions which, when implemented as they have been under the consent decree, will unnecessarily close miles and miles of beach access both from the ocean and sound side. The many options describe no action which can circumvent a nesting closure in order to access an open area of the beach. Thus, while a stretch of waterfront may be "open" it is inaccessible. This represents nothing more than verbal trickery and masks the true available waterfront.

The specifics of option F, the NPS preferred option, require at least some comment as commenting on all options would extend beyond the available space and time constraints. Overall, the DEIS suggests there would be 52 of 68 miles of the waterfront "open" to ORV access but it is not clear that this includes any calculation of sound side access for ORVs or pedestrians. CCA NC strongly believes the "buffer" or closure areas suggested for piping plovers in various stages of nesting and fledging are beyond excessive. For nesting piping plovers 50 meters is more than adequate and as is 200 meters for unfledged chicks. To suggest that unfledged chicks of a bird that is less that 1 foot tall requires over a mile of seashore is ludicrous! All this with no pass through or corridor around these areas closes vast areas of the CHNSRA to the American public. All other shore birds should be allocated no more than 30m for nesting and 30m for unfledged chicks with pass through corridors as there is no legal requirement to provide excessive buffers. In addition, the NPS fails to recognize the role played by the spoil islands behind Bodie Island, Hatteras Island, Pea Island National Wildlife Refuge and Ocracoke Island in the breeding of shore birds. These areas are typically with a few hundred yards of the CHNSRA and harbor large populations of shore birds. If the NPS truly wants to help the population of piping plovers they should investigate the usage of large cages placed around the nests to keep predators out of the nests. These are used in the Northeast where the major piping plover nesting takes place. The NPS and the USFWS seem content to kill hundreds of other wildlife to try to protect piping plovers but refuse to implement simpler techniques improve shore bird breeding success while improving access as well.

Option F describes measures required to "improve turtle breeding success". Many of the restrictions described in option F have little basis in peer reviewed science. For example, there is no evidence that night driving of ORVs has any impact on turtle nesting or hatchling survival. There have been no female turtles killed by ORVs. To protect turtle nests and improve hatchling success, CCA NC recommends relocation of turtle nests when they are laid in areas exposed to weather events. Using the fences used on the Pea Island National Wildlife Refuge that are keyhole shaped are more effective for turtle hatchlings and would allow continued use of ORVs at night.

The surf zone of CHNSRA has been used for a hundred years for the purposes of swimming, sunbathing, fishing, birding and shelling. ORV usage is critical to the pursuit of these activities as much of the surf zone would be inaccessible without ORVs. The NPS, throughout the DEIS, seeks only to restrict ORV usage without proposing ways to improve access for ORVs and providing expanded habitat for those species which are threatened or endangered. It seems the NPS has forgotten the CHNSRA was established as a recreation area. Pea Island National Wildlife Sanctuary is for wildlife, yet under the de facto rules in place from 1978, there has been little difference in the successful breeding of piping plovers or endangered sea turtles. CCA NC urges you to revert to those rules put in place in 1978 to provide maximum access for ORVs and the American citizens.

Gamble to increase commercial take by up to 50 percent heads for public hearings

WASHINGTON DC - Anglers will soon have the opportunity to comment on a new effort to increase the coastal commercial harvest of striped bass by 20 to 50 percent, after the Atlantic States Marine Fisheries Commission's (ASMFC) Striped Bass Management Board voted this week to send the proposal out for public hearing.

Last February, conservationists were stunned when the Board chose to ignore a litany of significant concerns from scientists and enforcement officers about the health of the striped bass population, and instead directed its staff to draft the proposal. This week's 10-6 vote to send the proposal out for public hearing indicates that many members of the Board are committed to ramping up commercial harvest even as anglers are seeing serious warning signs on the water.

"This is the wrong message at the wrong time for striped bass, but it is not surprising," said Charles Witek, chairman of CCA's Atlantic Fisheries Committee. "When recently faced with even worse situations involving weakfish and the southern New England stock of winter flounder, both very badly depleted and both faced with apparent increases in natural mortality, ASMFC ignored clear scientific advice and voted to maintain harvest at unsustainable levels. Our greatest conservation challenge may simply be to convince managers at ASMFC to do their jobs."

Among the recent information presented to managers was a report on the declining trend in the striped bass Juvenile Abundance Index, a report from law enforcement personnel on "significant and unreported" poaching in the Exclusive Economic Zone, and a report on the potentially devastating impact of Mycobacteriosis in Chesapeake Bay, the primary striped bass spawning ground for the entire Atlantic Coast, where 70 percent of the fish sampled had lesions associated with the disease. In aquaculture, Mycobacteriosis infections are virtually always fatal.

 
"While the stock is still not overfished nor undergoing overfishing, ASMFC's Striped Bass Technical Committee recently issued a report which predicts that the number of adult bass will steadily decline through the year 2015. Clearly, a cautious approach is warranted, yet the Board has chosen to roll the dice with the most important recreational species on the East Coast," said Richen Brame, CCA's Atlantic Fisheries director.

Unlike the 1970s when rampant overfishing was the primary cause of the stock collapse, the current wide variety of factors that are negatively impacting striped bass will be much more difficult to address. Nonetheless, Connecticut, Rhode Island, New York, Delaware, Maryland, the Potomac River Fisheries Commission, the District of Columbia, Virginia, North Carolina and the U.S. Fish and Wildlife Service voted to push forward with increasing commercial harvest.

"This is a dangerous, unnecessary gamble," said Brame. "We will be doing our part to make sure managers know that anglers do not want to risk the future of this fishery by increasing commercial harvest."

On February 18, 2010 the North Carolina Marine Fisheries Commission (MFC) held a special meeting in New Bern devoted to addressing measures intended to govern the interaction of sea turtles with large mesh monofilament gill nets, nets which are primarily designed and used in North Carolina to catch estuarine Southern flounder.

This past July, the National Marine Fisheries Service (NMFS) put the Division of Marine Fisheries (DMF) on notice that illegal taking of sea turtles had been documented in our state coastal waters, and that the DMF must address this problem in all North Carolina coastal fisheries. To protect sea turtles, temporary rules were implemented last summer. These rules included closing the use of gill nets in several estuarine bodies where high numbers of turtles are found.

Background

All sea turtles, found in state coastal waters, are designated as either threatened or endangered under the federal Endangered Species Act (ESA). That designation means that except under a very narrowly defined exception to the law, any take (interaction or other harm) of sea turtles is unlawful. That exception, found in Section 10 of the ESA, provides that the federal agency has discretion to issue an Incidental Take Permit (ITP) allowing for the taking of a limited, specified number of individuals of a species incidental to an ongoing, otherwise lawful, human activity, such as fishing. An ITP may only be issued if doing so will not further threaten the protected species.

In a November 30, 2009 letter NMFS informed DMF that in order for some commercial fisheries to continue, additional closures would be necessary. NMFS instructed DMF to come up with an interim plan to reduce the illegal take of sea turtles while a statewide ITP for all coastal waters was sought. The DMF, together with input from their biologists and NMFS crafted a plan (hereinafter, "Plan A"), which was outlined in a January 11, 2010 letter from DMF to Dr. Roy Crabtree, Regional Southeast Administrator for NMFS.

Inadequate Response

The purpose of the February 18, 2010 meeting of the MFC was to review and approve DMF's proposed measures for protecting sea turtles while traditional fisheries were allowed to continue. However, at that meeting the MFC rejected DMF's Plan A out of hand. Instead, the MFC acted to draft its own measures intended - in the Commission's view - to "protect" sea turtles while allowing traditional fisheries to continue. The measures the MFC adopted will virtually guarantee that many more protected sea turtles are harmed or killed in 2010, thereby violating the ESA. For that reason, this plan (hereinafter, "Plan B") will not be acceptable to NMFS and may result in NMFS closing the entire large mesh gill net fishery.

But the shortcomings of Plan B do not end with its inadequate protection of sea turtles. Southern flounder have been overfished since the widespread use of large mesh monofilament gill nets began some two decades ago. Presently, gill nets account for the majority of the state's Southern flounder harvest. Significantly, the MFC did not even discuss, and does not know - whether its Plan B will suffice to stop this overfishing. So it must be that politics, rather than science (or law, since Plan B does not comply with ESA protections) was the basis upon which Plan B was crafted. The MFC sought no input from the Southern flounder Advisory Committee (SFAC), a citizens committee designated to advise the MFC on its Southern flounder fishery management plan (FMP). This sends a twofold message to the SFAC: (1) the SFAC is irrelevant, since the MFC ignored the Committee's hard work to develop a FMP that ends overfishing; and (2) overfishing is not a real concern of the Commission. It is not surprising that three veteran, valuable SFAC members recently resigned in disgust.

But the problems don't even stop there. At the beginning of the MFC meeting last week, Chairman Rob Bizzell reminded MFC Commissioners of the recent Executive Order Number 34, a proclamation from Governor Perdue designed to prevent conflict of interest from affecting decisions by state boards and commissions appointed by the Governor (like the MFC). Executive Order 34 was in large part a response to public fallout from the highly publicized, recent scandals affecting the highest levels of state government. The Executive Order provides that each commissioner "shall act always in the best interest of the public without regard for her or his financial interests," and requires that any person having a financial interest in a matter before the commission must recuse himself from voting on the matter. It certainly appears that the MFC ignored those rules at last week's meeting. The motion to approve Plan B was made by a seafood dealer, Commissioner Bradley Styron of Quality Seafood, who admitted that about one third of his income comes from Southern flounder. The motion was seconded by another seafood dealer, Commissioner Joseph Smith, Jr. of Atlantic Seafood. So much for Executive Order 34, intended to restore public trust in the integrity of state government.

FOR IMMEDIATE RELEASE: Monday, Feb. 22, 2010

CONTACT: Michelle Nowlin (919) 613-8502 nowlin@law.duke.edu

KAREN BEASLEY SEA TURTLE RESCUE AND REHABILITATION CENTER FILES FEDERAL LAWSUIT TO ENFORCE PROTECTIONS OF ENDANGERED SEA TURTLES

TOPSAIL ISLAND, N.C. – The Karen Beasley Sea Turtle Rescue and Rehabilitation Center has filed a lawsuit in federal court asking the State of North Carolina to stop authorizing gill net fishing in violation of the Endangered Species Act (ESA).

The lawsuit cites studies by the National Marine Fisheries Service, the National Oceanic and Atmospheric Administration, and the North Carolina Department of Marine Fisheries that have found gill net fishing in North Carolina waters results in the injury and death of sea turtles protected by the ESA. The suit was filed in the U.S. District Court for the Eastern District of North Carolina.

The suit alleges that defendants North Carolina Department of Marine Fisheries (DMF), North Carolina Marine Fisheries Commission, and DMF Director Dr. Louis Daniel have issued permits and licenses that “have resulted in the illegal take of estimated thousands of protected sea turtles over the previous decades, and continue to result in the illegal take of protected sea turtles today.”

Michelle Nowlin, supervising attorney for the Duke Environmental Law and Policy Clinic, which represents the Beasley Center, said the lawsuit asks the state of North Carolina to enforce existing laws.

“Our client is asking North Carolina to enforce the law to aid the recovery of these threatened species,” Nowlin said. “We value the rich history of commercial fishermen and fishing communities in our state. However, gill nets are a destructive gear and the prevailing method of use injures and kills sea turtles and threatens their existence.

“Almost every Atlantic state with significant sea turtle populations has banned or severely restricted these nets in areas where sea turtles nest and forage, proving that commercial fishing can prosper without this harmful technology. After years of trying to address these problems through regulatory channels, sea turtle populations continue to decline. We must ask the court to enforce the law so that sea turtle populations may recover to the point where the legal protections afforded by the Endangered Species Act are no longer needed.”

All of the five sea turtle species found in North Carolina waters are designated as either threatened or endangered under the Endangered Species Act, according to the United States Fish and Wildlife Service. After hatching on the beach, sea turtles spend the rest of their lives in the water, traveling ocean currents and foraging for food. They face a variety of threats, from habitat damage caused by polluted runoff to direct injury and death from being hit by motorboats and ships. Gill nets constitute one of the biggest threats: Sea turtles caught in the nets are trapped under water, and they typically drown or suffer severe lacerations while struggling to free themselves. As a consequence of these threats, only a small percentage of sea turtles reach reproductive age.

The Karen Beasley Sea Turtle Rescue and Rehabilitation Center is a nonprofit animal hospital in Topsail Island, N.C., where volunteers have cared for injured and sick sea turtles since 1997.

The Center’s director, Jean Beasley, founded the hospital to build on work started by her daughter Karen, who died of terminal cancer soon after organizing a project to protect the turtles nesting on Topsail Island. More than 200 injured and ill turtles have been treated and released back into the wild by the Beasley Center. The Beasley Center treats several individuals from each of the five species found in North Carolina waters — Loggerhead, Green, Leatherback, Kemp’s Ridley and Hawksbills — at any one time.

Duke’s Environmental Law and Policy Clinic is a joint venture of Duke’s Law School and its Nicholas School of the Environment. The clinic’s activities are conducted as part of the schools’ academic mission and do not represent an official endorsement or policy of Duke University, and the Environmental Law and Policy Clinic and Duke University are not parties to this litigation. Clinical students work in teams on cases and projects with local and regional nonprofit groups on environmental conflicts relating to water quality, air quality, natural resources conservation, sustainable development, public trust resources, and environmental justice, and their work is supervised by licensed attorneys. The clinic represents nonprofit organizations and low-income clients who qualify for representation under the North Carolina State Bar’s practice rules, which allow law students to provide legal services to clients in specific circumstances.

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Key Recovery Act projects on the move forward

WILMINGTON, NORTH CAROLINA -Two American Recovery and Reinvestment Act (ARRA) projects to be built by the U.S. Army Corps of Engineers Wilmington District at Lock and Dam No. 1 on the Cape Fear River will improve dam safety and improve conditions for endangered fish species.

"We are delighted to move forward with these projects," said Col. Jefferson M. Ryscavage, Wilmington District commander. "This is a great example of much-needed work made possible because of ARRA funding. Dam safety and environmental enhancement are both key parts of our mission - as is the economic benefit of the jobs supported by the construction."

The construction projects will:
* Fulfill a long-standing environmental mitigation requirement from the Wilmington Harbor Deepening project.
* Offer employment opportunity in Bladen County, N.C., where unemployment had reached 12 percent by September 2009.
* Offer opportunities to local quarries to supply materials in a state that has more than 10 percent unemployment.
* Improve dam safety on a structure that is the major water source for southeastern North Carolina.