The Back Bay Wildlife Refuge "Sand Freeway" Case: A Legal Victory in Danger of Political Emasculation

As urban populations in ever increasing numbers flee the smog and heat of city summers, they bring with them to formerly rural and wild areas the urban problems of crowding and environmental degradation. A case in point is the once remote Back Bay National Wildlife Refuge bordering the Atlantic Ocean in extreme southeastern Virginia which today is sandwiched between burgeoning "second home" beach developments. Vacationers' use of the beach as a "sand freeway" to their vacation spots to the south spawned so many visitor safety, beach erosion, and wildlife protection problems that the Interior Department moved to severely restrict access to the refuge, declaring the 150-vehicle-per-hour weekend rate inimical to the wildlife protective purposes of the refuge. The resultant furor raised by landowners thus denied convenient motorized access to their property culminated in a recent decision by the Court of Appeals for the Fourth Circuit¹ upholding Interior's authority to take radical steps to protect the environmental integrity of lands under its jurisdiction.

The Court of Appeals affirmed the right of the Bureau of Sport Fisheries and Wildlife (recently renamed the U.S. Fish and Wildlife Service) to ban driving on therefuge beach to all but a handful of year-round beach residents who traverse the beach on their way to nearby Virginia Beach. The two-page decision affirmed an outspoken district court opinion that found specious plaintiffs' arguments that the United States does not own the foreshore² of the refuge, that the foreshore is held in public trust for the common use of citizens, and that the Bureau's final environmental impact statement on the proposal to close the refuge to vehicular traffic was inadequate.

The legal resolution of the case, what the plaintiff's attorney termed a "hands down victory"³ for the government and the 15 intervening environmental groups, may not be the ultimate resolution of the dispute. Political pressure exerted at Interior to compromise the ban on driving through the refuge, and a vaguely worded bill introduced in the House which would permit "reasonable and necessary" vehicular access to the refuge threaten to reopen the "sand freeway" and hasten the destruction of the Back Bay refuge.

The Dispute

The Back Bay Wildlife Refuge was established in 1938⁴ at a time when Virginia Beach, a resort some 15 miles to the north, was in its infancy. The refuge encompasses 4,600 acres of barrier beach, wetlands, and open water maintained primarily as a breeding ground and sanctuary for migratory waterfowl. Back Bay, the body of brackish tidewater separating the beach from the mainland, is the center of an historic wintering area for the once endangered greater snow-goose as well as a home for terns and several thousand other shore, marsh, and water birds. It is one of the last wild spots along the Atlantic Flyway.

The 4.2 miles of the refuge fronting on the Atlantic Ocean is part of a sand barrier island, often only a few hundred yards and never much over a mile in width, that runs north and south along the coasts of Virginia and North Carolina. Although beachcombers established the first community on these "Outer Banks" in the early 19th century, from 1870 until 1930 the number of families residing on the portion between Kitty Hawk and Back Bay seldom exceeded 40.⁵ Most of this population traveled back and forth to the mainland by boat, but wagons and later automobiles were commonly used to transport supplies down the beach.

Since 1930 the Commonwealth of Virginia has accquired the seven miles of beach that stretch from the southern refuge boundary to the North Carolina state line for development as a state park. The remaining 25 miles of beach south to Caffey's Inlet held one small village whose population had dwindled by 1965 to about 10 or 15, an occasional hunt club that came to life for two months each winter, and "a handful of commercial netters with ancient rusty trucks [who] made a sparse living along the shore."⁶ Otherwise, from the refuge south, the beach and grass-covered dunes remained virtually untouched by man. "But," as District Court Judge John A. MacKenzie wrote in his opinion,

[t]his Eden was not destined to continue. In the face of our expanding population and the dwindling supply of shore property, the pall of progress, as it must to all men, came to the Outer Banks.⁷

In the mid-1960's several land developers bought most of this North Carolina beach, subdividing much of it into 100 foot, half-acre lots that garner from $9,000 for properties bordering the marshes of Currituck Sound, up to $35,000 for slightly larger "oceanfront" rectangles that are literally lapped by the waves, sandwiched [5 ELR 10149] between the first line of dunes and the high water mark of the Atlantic. Though the developments lack streets, garbage and trash pickups, sewage disposal facilities, schools, shopping, and water from sources other than shallow, frequently brackish wells,⁸ eager purchasers have snatched up hundreds of these lots. As of April 1973 when the district court examined the area by helicopter and beach vehicle, there were 15 to 20 houses costing as much as $10,000 and over 150 "vintage bus bodies" and newer trailers providing lot owners weekend retreats.

From the south, the only vehicular access to the new subdivisions is along the beach from Kitty Hawk or via a dirt road being developed along the path of an older "cart track" that "wandered around the bayberry bushes under the telephone line stretching to the north."⁹ This road through the dunes crosses private property and, according to a HUD property report for one of the beach developments, might be restricted or fenced off, leaving only the beach for access. Using this route, the distance to a point known as Penny's Hill, a popular dune-buggy racing spot 16 miles below the refuge, from a point midway between Norfolk and Virginia Beach, the nearest metropolitan areas, is 101 miles and takes approximately 140 minutes.¹⁰ The only access from the north is along the beach, traversing the 4.2 miles within the Back Bay refuge. On this route the distance between the two points mentioned above is only 39 miles and requires 98 minutes, travelling on the beach at a conservative speed of 20 to 30 miles per hour.¹¹

By 1969 the then Bureau of Sport Fisheries and Wildlife of the Interior Department, the agency that administers the refuge, recognized that the burgeoning stream of dune buggies, scooters, motorcycles, and other types of all-terrain vehicles threatened the safety of the foot-bound visitors and, more emphatically, resulted in "harsh environmental degradation." Specifically, vehicles killed small beach crustaceans, sand crabs, and turtles, frightened beach birds, and threatened the destruction of the beach itself through increased erosion and dune degradation. The volume of traffic forced the Bureau to abandon certain wildlife protection projects such as isolating a section of the beach to encourage the re-creation of tern nesting areas.

After public hearings and a promise from the City of Virginia Beach to assist with enforcement, the Bureau promulgated interim regulations for the 1970 season that restricted driving to the intertidal zone and limited vehicle speed to 35 miles per hour. In 1971 the regulations were revised but the flow of traffic and resultant damage to the refuge remained unabated. On one Sunday in June, 1971, 875 vehicles passed a beach checkpoint at a rate of 150 per hour. On the same day, refuge personnel, now devoting much of their time to traffic management, observed 410 violations of refuge regulations. By 1972 the menace had increased, with nearly 20,000 vehicles passing along the refuge beach during the three summer months leaving it "worse than a plowed field."¹²

Clearly, the use of the beach as a thoroughfare to resort property farther south had become inimical to the primary objectives underpinning the dedication of the area as a wildlife refuge.¹³ The Bureau proposed to limit vehicular access to the refuge to year-round, full-time residents of the outer banks who could prove residence prior to January 1972. They published notice in the Federal Register,¹⁴ held public hearings, and prepared an environmental impact statement.¹⁵ When the regulations became effective on March 30, 1973, the Outer Banks property owners and developers filed suit to keep the beach open.

Finding the northern route through the wildlife refuge the only "reasonable" access to their property, district court judge John A. MacKenzie granted the plaintiffs a temporary injunction in April 1973 forbidding the enforcement of the Bureau's rules and granting daytime access to homeowners and permission for a monthly trip for property holders. The judge concluded that immediate and irreparable harm would befall those homeowners denied access to their property to make repairs and guard against vandalism, while little damage would occur to the beach from these temporary transits. He gave no consideration to the alternative access route from the south in the order or memorandum.

The Judicial Resolution

On February 26, 1975, after a full trial on the merits, Judge MacKenzie dissolved the preliminary injunction and reinstated the regulations promulgated by the Bureau of Sport Fisheries and Wildlife. In an opinion that leaves no doubt as to his disdain for ecologically unsound beach developments, the judge handily dismissed the plaintiffs' tenuous arguments that the United States did not own or could not prohibit access to the foreshore since public passage through that area is protected under the public trust doctrine. With equal dispatch he thwarted the plaintiffs' NEPA attack, deciding that not only was the disputed impact statement adequate, but hinting that a statement might not even be necessary when the Bureau affirmatively acts to protect the environmental quality of a refuge.

One of the plaintiffs' basic contentions, both before the district court and the Court of Appeals, was that the [5 ELR 10150] Bureau's environmental impact statement was inadequate in a variety of ways. Plaintiffs argued that the statement was general and conclusory, containing no objective scientific data,¹⁶ that it was styled as a promotional document in favor of the proposal,¹⁷ that it was used to justify an agency decision already made, rather than as a device to inform the decision-making process,¹⁸ that it lacked detailed consideration of alternatives,¹⁹ and, most importantly, that it mentioned but failed to examine the secondary, cumulative and long-term impact on other areas now forced to absorb the stream of traffic bound for the North Carolina Outer Banks north of Kitty Hawk.

Though even officials at the Justice and Interior Departments admit that the impact statement might have been more incisive and comprehensive, only this last contention was addressed explicitly by either the district court or the Fourth Circuit. The lower court quite forthrightly confessed its prejudice at the outset. Referring to those who crossed the refuge to reach their property to the south as "trespassers," the court flatly stated that it was "unconvinced" that an impact statement was necessary. Since there was an alternative access route, travel through the refuge was mere convenience, and thus, regulations forbidding that convenience apparently did not reach the level of a major federal action significantly affecting the environment. In fact, concluded Judge MacKenzie, only the opposite situation would require an impact statement. That is, were Interior to allow the degradation caused by the vehicular traffic to continue unchecked, then NEPA would apply.

The conclusion that the Bureau's affirmative move to protect the refuge was exempt from NEPA's impact statement requirement is arguably dictum, however, since the lower court went on to decide that the statement that was prepared was "complete in all respects." The Court of Appeals, moreover, ignored the lower court's statements about the necessity of a impact statement in its own conclusion that the one prepared was "entirely adequate." Though recognizing the document's failure to consider a substitute means of access to the beach south of the refuge, the appellate court decided that there was no necessity for such consideration since the proposed action was merely the limitation of motorized traffic through the refuge, not provision of transportation to the area south of it.Though some significant impact to areas affected by the new routes is likely to occur, that impact appears sufficiently removed, so as not to warrant consideration as an impact of the Bureau's proposal to close the refuge to vehicles.

Presumably, since both courts found the Bureau's action environmentally warranted and reasonable in light of the alternative access to propertysouth of the refuge, both closed one eye and looked the other way when it came time to judge the impact statement. One found an excuse in the frank belief that NEPA should not apply; the other found a more convenient if less intellectually honest answer by viewing the proposed action apart from its more geographically distant though still causally direct consequences.

The other line of argument most avidly pursued by the plaintiffs was that the United States did not and could not own the foreshore in fee simple or, if it did, could not prohibit general public access, since that swath of sand was public trust property held in common for use by Virginia citizens for hunting, fishing, fowling, and passage.

Neither the district court nor the Fourth Circuit found any merit in these contentions. The extent of property condemned in 1938 for the formation of the refuge, the courts explain, is clearly described in the condemnation order as running to the mean low tide mark. That condemnation extinguished all conflicting proprietary rights.²⁰ Likewise, though less certainly setled, that exercise of eminent domain extinguished any usufructory rights that conflicted with the land's dedication to wildlife protective purposes. Both courts seem to believe that since the government obtained title to the entire fee by condemnation there was no part of the bundle of sticks which it did not own, and thus no legal obstacle to halting the flow of vehicles across this federal land.

At first blush this ruling seems to flow contrary to an evolving stream of cases granting the public a common law right of access to beaches through the theories of prescriptive easement, irrevocable dedication, or the public trust doctrine.²¹ The lower court made such short shrift of this argument that it is difficult to ascertain the court's view as to the propriety and viability of these theories in related situations. Implicitly, the court made in clear that when the government is acting to protect a legitimate, legislatively sanctioned public interest such as the preservation of wildlife habitat in an officially designated wildlife refuge, arguments supporting another "public interest" that is destructive of that primary interest will be viewed with little favor.

Explicitly, however, neither court is quite so expansive. In dismissing the plaintiffs' "common lands trust" argument by mockingly wondering what sort of fishing, hunting and fowling could possibly occur in a thin intertidal zone while it is being traversed by thousands of [5 ELR 10151] automobiles, the district court simply stated that "[p]ublic trust property is subject to eminent domain."²² The Fourth Circuit concurred, stating simply that "[t]here was left in the State of Virginia no remaining interest [after the 1938 condemnation] and, hence, no legal impediment to the Secretary's withdrawal of the right of passage exists."

Even without delving too deeply into the intricacies of the dedication or public trust theories one can readily distinguish this case from those that have led to the application of these theories to breach access disputes. These distinctions, while not recognized by the courts in this case, may have underlain their instinct to dismiss the plaintiffs' public trust contentions so summarily.

First, and most obvious, the public uses of the seashore that are historically protected by the state's administration of a "public trust" are not prohibited by the refuge vehicle rules. Access to the refuge beach is hardly affected; motorized travel across it is what is severely curtailed. Fishing, walking, swimming, and ordinary, unobtrusive recreation activities are not forbidden; what is halted is the creation of a motor vehicle thoroughfare.

The essential distinction narrows to the simple question of what public purposes or public interests are to be protected by a public trust. Any vaguely recreational and heretofore condoned use need not be forever perpetuated if the qualitative difference between the passage of a few wagons or rusty trucks and the invasion of a horde of modern vehicles is properly recognized.

In the instant case, unlike the usual beach access dispute, the nature of the interest to be protected by the public trust is susceptible to specific definition by reference to the congressional dedication of the beach to wildlife protective purposes and to the Virginia General Assembly's approval of that dedication. The usufructory rights are still common; they are only modified to the extent necessary to fulfill the legislatures' determination²³ that one particular public interest inherent in the use of a beach, namely, the preservation of wildlife habitat, must not be subjugated or destroyed by others. In short, Congress and the Virginia legislature have empowered the Secretary of the Interior to distinguish between common use and common abuse with a specific prejudice in favor of wildlife to be included in his calculus. When Congress stated that public recreational use of such lands "shall be permitted only to the extent that it is practicable and not inconsistent … with the primary objectives for which each particular area is established,"²⁴ it established, in effect, the perimeters of the common investment to be protected by the public trust. As long as a legitimate general public interest remains within those perimeters, even though some interests are excluded, the public trust remains properly administered. To argue that this trust includes a use not just different from but actually inimical to the declared legislative expectations would be strained at best.

But the most striking portion of the district court's opinion is not the part that examines the legal issues involved. The real guts of the case are in the portion that forthrightly if not with typical judicial "discretion," summarizes the political aspect of the dispute. Judge MacKenzie firmly aligns himself against the unbridled development by writing:

It is utter folly to believe that 30 miles of beach can be divided into 50 and 75 foot lots to be populated by any number of cottages and that passage to such an area can be accomplished along 20 feet of hard sand fronting just behind the breakers of the Atlantic Ocean.

Terming the litigation a "delaying action," the judge warned of a build-up of "such a pressure of ownership as to politically force a road through the Back Bay National Wildlife Refuge." Harking back to legislative language authorizing the creation of "inviolate" wildlife sanctuaries,²⁵ the judge called such a course "a rape of these facilities," but lamented that this fate could not be prevented by his court.

The Political Response

As Judge MacKenzie intimated, the future of vehicular traffic through the Back Bay Wildlife Refuge was not finally determined by the ultimate judicial resolution of the case before him. The court fight was but one aspect of the pitched and often emotional battle being waged by Outer Banks property owners and developers to keep the "sand freeway" through the refuge open.

Political action by the owners followed hot on the heels of the lower court's decision to uphold the driving ban. Less than a month after the district court's ruling nearly a thousand sign-carrying landowners, beach buggy enthusiasts, and sympathizers gathered at the refuge for a mile-long protest march down the wintry beach. One of the march leaders, the chairman of the "Concerned Citizens for Conservation and Recreation," decried the court's approval of the refuge vehicle regulations as a denial of their "God-given rights as citizens of the United States."²⁶

Though Interior Department officials were initially unmoved by such appeals, area politicians were not. Trying to mollify their constitutents, the congressman from the Virginia Beach district and one of Virginia's senators arranged meetings between the landowners and developers and Interior officials to attempt to effect a compromise. Though Interior refused to relent pending the Court of Appeals decision, there is some indication that now that their authority has been recognized, they might be willing to negotiate.

The faint indications that Interior might backslide, [5 ELR 10152] despite speculations that it would then be subject to a suit by those environmental groups that intervened on its behalf in the recent litigation, were not enough for the developers. Citing Interior's "inflexible"²⁷ position, United States Representative Robert W. Daniel (R-Va.) introduced a bill designed to permit vehicular access through the Back Bay Wildlife Refuge for Outer Banks property holders. The bill, expected to be fleshed out through legislative history, provides for "such access as may be reasonable and necessary without injury to, or degradation of … [the] refuge."²⁸ The entire North Carolina delegation and all but two of Virginia's Representatives joined in sponsoring the legislation.

Nor does the "pressure of ownership" stop with mere numbers of property holders. A week after Representative Daniel introduced the Back Bay legislation the Washington Post disclosed that he had accepted a moderately sized campaign contribution from one of the developers who stands to profit from a relaxation of the vehicleregulations at Back Bay, and that the developer's son is a member of the Representative's staff.²⁹

Whether Interior can continue to withstand such potent regional political force to protect the environmental integrity of this particular wildlife refuge is now beyond legal analysis and into the realm of rank political speculation. Regardless of the eventual disposition of Representative Daniel's bill, the legal solution to an environmentally portentious dispute has been temporarily eclipsed by political influence and may eventually succumb to a legislative solution. The lesson for environmentalists is obvious. Though the resources of both the Interior and Justice Departments were effectively employed to win a resounding victory in the legal battle, the whole Back Bay Refuge regulations war may be lost for a lack of political clout. As in the Alaska pipeline dispute,³⁰ the second front may prove so weak as to negate the expense and effort expended on the first.

Yet the implication of the Back Bay case for future wildlife refuge versus development wars is favorable to the environmentalist faction. Even if the pace of second home development slackens, other refuges, game ranges, national parks, forests, and seashores are certain to feel the pressures of increased "recreational" use. The Back Bay case, even if the refuge itself is someday crossed by a road, stands firmly against this pressure — unmistakable judicial approval of Interior's authority to regulate its land so as not to forfeit a precious or fragile public interest to some environmentally destructive public use. So long as Interior takes affirmative steps to protect the ecological integrity of those lands, its authority appears pleasantly broad. Should it choose to disrupt the legislatively-protected natural status quo one can foresee far sharper judicial scrutiny of such authority.³¹

1. Coupland v. Morton, No. 75-1390, 5 ELR 20507 (4th Cir. July 7, 1975).

2. The "foreshore" is that area of the beach between the mean low tide and mean high tide marks.

3. Thomas H. Willcox, Jr. quoted in The Washington Post, July 10, 1975, p. A1.

4. Now administered primarily under the authority of Migratory Bird Conservation Act, 16 U.S.C. §§ 715 et seq.; National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. § 668dd, ELR 41809; 16 U.S.C. §§ 460k et seq.

5. Final Environmental Impact Statement, Proposal Relating to Restriction of Vehicular Use on the Back Bay National Wildlife Refuge, Virginia, Dept. of Interior, Bureau of Sport Fisheries and Wildlife, EIS 730036F, p. 1 (Dec. 29, 1972) available from ELI.

6. Coupland v. Morton, 5 ELR 20504, (E.D. Va. Feb 26, 1975).

7. Id.

8. HUD Property Report, Whalehead Club, Sections 1 through 16, available through Dept. of HUD or through Kabler and Riggs, Realtors, 3713 S. Sandpiper Rd., Virginia Beach, Va. 23456.

9. Coupland v. Morton, supra, n. 6.

10. EIS, supra, n. 5, pp. 25, 26.

11. Id.

12. Dennis Holland, Manager, Back By National Wildlife Refuge, as quoted in The Washington Post, July 10, 1975, p. A13.

13. See 16 U.S.C. § 460k; 16 U.S.C. § 668dd(b)(1)(c) and (d), ELR 41810.

14. 37 Fed. Reg. 447, 50 C.F.R. part 28 (Jan. 12, 1972); 38 Fed. Reg. 5339 (1973).

15. Supra, n. 2.

16. NRDC v. Grant, 355 F. Supp. 280, 297, 3 ELR 20176, (E.D.N.C. 1973).

17. Brooks v. Volpe, 350 F. Supp. 269, 2 ELR 20704, (W.D. Wash. 1972).

18. See SIPI v. AEC, 3 ELR 20525 (D.C. Cir. June 12, 1973); EDF v. Hardin, 325 F. Supp. 1401, 1403, 1 ELR 20207, (D.D.C. 1971).

19. As required by CEQ guidelines, 40 C.F.R. § 1500.8, ELR 46006; and NEPA, 42 U.S.C. § 4321 et seq., ELR 41009, § 102(2)(c)(iii).

20. United States v. 19.86 Acres of Land in East St. Louis, 141 F.2d 344, 348 (7th Cir. 1948).

21. See Comment, Public Rights and the Nation's Shoreline, 2 ELR 10184 (1972); see also Note, The Public Trust Doctrine: A Useful Tool in the Preservation of Sand Dunes, 49 N.C.L. Rev. (1971).

22. United States v. Carmack, 329 U.S. 230, 67 S. Ct. 252 (1946); Stockton v. Baltimore and N.Y.R.R. Co., 32 F. 9 (C.C.N.J. 1887).

23. See n. 4, supra, especially 16 U.S.C. § 460k; and § 7.1-17 Code of Va. of 1950, Amended.

24. 16 U.S.C. § 460k.

25. 16 U.S.C. §§ 715 et seq.; brief for Appellee at p. 31.

26. Petersburg (Va.) Progress, Mar. 10, 1975.

27. Press Release for H.R. 8644, from the office of Rep. Robert Daniel (R-Va.), July 15, 1975.

28. H.R. 8644, July 15, 1975.

29. The Washington Post, July 25, 1975, p. C1.

30. Cf. ELR Comment, Alaskan Oil Pipeline New Up to Congress, 3 ELR 10042 (1973).

31. See ELR Comment, National Wildlife Federation Challenges BLM Rules Governing Off-Road Vehicle Use on Federal Lands, 4 ELR 10180 (Nov. 1974); National Wildlife Federation v. Morton, 5 ELR 20362 (D.D.C. May 22, 1975).