Category Archives: LEGAL
ORIENTAL – This town, which likes to tout itself as a ‘working waterfront community,’ gave the green light Tuesday night for two unrelated boat washes, although state regulatory hurdles remain for each operation.
Both Point Pride Seafood, owned by local seafood magnate Chris Fulcher; and Whittaker Creek Yacht Basin, owned by marina operator Knute Bysheim, were required to apply for so-called ‘Special Use Permits.’ As fate would have it, the applications were not coordinated in any formal way – both projects just happened to hit the town meeting agenda on the same night.
Fulcher’s quest is by far the bigger of the two projects. In fact, one critic (town resident Bob Arrington) compared the ‘travel lift’ required in order to wash Point Pride’s massive fishing trawlers to another, existing lift used by a local boat repair yard.
“It will be a 300-ton lift which would dwarf the (other) lift in a way you cannot imagine,” said Arrington. .
And, let’s make another thing clear. The term ‘boat wash’ is a misnomer when describing either Fulcher’s or Bysheim’s projects.
These projects are far from what landlubbers might envision. Fulcher and Bysheim are not doing the typical souped-up car wash — complete with hoses, brushes, and a high semi-enclosed structure — where weekend warriors rinse off their beloved vessels after excursions into the area’s brackish waters.
Oh no! Not at all! Let’s just say Fulcher’s will be MEGA, and the Bysheim’s FAIRLY LARGE.
Since the late 1990s, almost all economic development– which has come in fits and starts – in Oriental has been governed by a zoning and a land use manual, known as the Growth Management Ordinance. The document contains a “Table of Permissible Uses” for each of the town’s handful of zones. For example, the table lists ‘travel lift operations’ as an OK type of thing in a commercial zone – requiring just a fairly routine land use permit.
But, ‘boat wash’ is a bit scarier! It hints at runoff, contaminants, cleaning solvents – and the like. So, in its wisdom, the GMO demands more caution on the part of elected officials – hence the lofty-sounding mandate for a “Special Use Permit.”
Applicants, like Fulcher and Bysheim, are always leery of one requirement for Special Use Permits – the dreaded public hearing! There, concerned citizens sign up to express their grievances, often emphatically! Then, once the public hearing has been concluded, granting of a Special Use Permit requires seven, separate affirmative votes by elected officials to ensure everything is ‘above board’ (pun intended):
- The project is within the jurisdiction of the town.
- The project’s written application is complete in all respects.
- The project complies with the relevant chapter of the Growth Management Ordinance
- The project will not endanger the public’s health or safety.
- The project will not injure the value of adjoining or abutting properties.
- The project is in harmony with existing uses.
- The project comports with all of the town’s various plans – for example, harbor-front management, vision statement, drainage, etc.
Commissioner Barb Venturi, the board’s senior statesman (having served longer than anyone else) waxed eloquent when she reminded the large crowd that a document – drafted 10 years ago after much public input – instructs elected officials to adopt policies intended to preserve Oriental’s ‘working waterfront.”
“I look at those trawlers in the harbor and they almost seem like mythical beings to me,” she said. “And, in our town, for the most part, commercial and recreational boaters mingle well. People don’t come here to look at the sailboats. Instead, they say ‘Wow!’ and then start taking photos of all the trawlers.”
Former girl now eyes boys’ bathroom
Dissenting judge livid
From various media reports
RICHMOND – In a case that may have repercussions in North Carolina over the state’s recently passed legislation regulating public bathrooms, a federal appeals court in Richmond ruled Tuesday that a transgender high school student — born as a female — can sue the local school board, because officials want her / him to use what has been labeled as a ‘Unisex bathroom.’
The 2 to 1 decision by the U.S Court of Appeals for the Fourth Circuit, prompted a scathing dissent from Judge Paul V. Niemeyer, appointed in 1990 by the ‘first’ President George Bush:
This holding completely tramples on all universally accepted protection of privacy and safety that are based on the anatomical differences between the sexes. And, unwittingly, it also tramples on the very concerns expressed by G.G., who said that he should not be forced to go to the girls’ restrooms because of the “severe psychological distress” it would inflict on him and because female students had “reacted negatively” to his presence in girls’ restrooms. Surely biological males who identify as females would encounter similar reactions in the girls’ restroom, just as students physically exposed to students of the opposite biological sex would be likely to experience psychological distress. As a result, schools would no longer be able to protect physiological privacy as between students of the opposite biological sex.
This unprecedented holding overrules custom, culture, and the very demands inherent in human nature for privacy and safety, which the separation of such facilities is designed to protect. More particularly, it also misconstrues the clean language of Title IX and its regulations. And finally, it reached an unworkable and illogical result.
Leaders of the North Carolina General Assembly announced Monday they have obtained the necessary three-fifths majority in both chambers and will convene a special session on Wednesday to address a radical Charlotte City Council ordinance allowing men to share public bathrooms and locker rooms with young girls and women.
Lt. Governor Dan Forest, President of the Senate; and state House Speaker Tim Moore released the following statement:
“The Senate and House have received the necessary number of signatures from members of the General Assembly to call themselves back into session. In accordance with the State Constitution, we will so call for a special session. We aim to repeal this ordinance before it goes into effect to provide for the privacy and protection of the women and children of our state.”
BAYBORO – Kathy Cayton, a revered county employee who retired last week after almost two decades, fights tears on Monday night, Nov. 16, as Pat Prescott, chairman of the Pamlico County Board of Commissioners reads a Proclamation of Appreciation.
One ‘whereas’ extolled “Cayton’s professionalism, friendly attitude and desire to serve others, which has endeared her to many in the area.” Another cited her “supporting role in the completion of many large endeavors including but not limited to 1) the construction of the Pamlico County Law Enforcement Center, 2) construction of the Pamlico County Department of Social Services Building, and 3) recovery from Hurricane Irene.”
Cayton and her husband have deep roots in the area, and are expected to remain in Pamlico County during their retirement years.
Bayboro, North Carolina – District Attorney Scott Thomas announced that, in Pamlico County Superior Court this week, his office was able to obtain the following felony convictions in cases involving illegal drugs and violent offenses. Resident Superior Court Judge Ken Crow presided over this session of court. Each defendant pled guilty prior to having the cases called for trial. Assistant District Attorney Laura Bell prosecuted the cases in court.
STEPHANIE NICOLE HOPKINS, 30, of Alliance, was convicted of two counts of Attempted Trafficking in Heroin. On September 10, 2014, the Pamlico County Sheriff’s Department received information that HOPKINS would be coming into Pamlico County with heroin for the purpose of selling it. Sheriff’s investigators set up surveillance in the area of Grantsboro, where HOPKINS was said to be going. When HOPKINS arrived at the Bojangles parking lot, officers were waiting for her. They approached, detained, and eventually arrested HOPKINS, and recovered 3.5 grams of heroin and various drug paraphernalia. A subsequent search of HOPKINS’ residence yielded another 3 grams of heroin. Judge Crow imposed two sentences: the first was a prison sentence of 13 to 25 months, and the second 16 to 29 months. Judge Crow suspended only the second sentence, and, once HOPKINS serves the first prison term, she will be on supervised probation for three years. The car that HOPKINS was driving, a GMC Envoy, was seized and forfeited to the Pamlico County Sheriff’s Department.
Two cases below – FORD and LOVICK — resulted from Operation Clean Slate, an extended initiative by Sheriff Chris Davis to combat illegal drug sales:
EMARI LI MARISSA FORD, 24, was convicted of three counts of Possession of Heroin with Intent to Sell or Deliver. During Operation Clean Slate, the Sheriff’s Department Drug Task Force set up controlled purchases of narcotics throughout the county. A cooperating witness purchased narcotics from individuals in the county ,and these purchases were monitored by the Sheriff’s Department and were recorded with audio and video equipment. FORD conducted three separate transactions with the
witness in January and March of 2015. FORD was sentenced to a prison term of 8 to 19 months. As with every other defendant, FORD will be subject to nine months of post- release supervision after she serves the prison sentence, and will be subject to a number of conditions, including random drug testing.
CARLA MARIE LOVICK, 40, of Vandemere, was convicted of one count of Possession of Heroin with Intent to Sell or Distribute. As in the case of FORD, above, LOVICK conducted a transaction with the cooperating witness in December 2014. LOVICK had no prior criminal record before this case, and was sentenced to 6 to 17 months in prison. In light of her age and lack of record, Judge Crow suspended the sentence and placed LOVICK on supervised probation for two years, and listed a number of restrictions on LOVICK during that time. In addition to drug testing, she will be subject to warrantless searches and seizures of her person, her vehicle, and her residence while on probation.
JORDAN CAHOON, 25, of Grantsboro, was convicted of one count of Assault on a Law Enforcement Officer with a Firearm. On May 30, 2015, CAHOON was wanted for a robbery that occurred in Craven County. A description of CAHOON and a suspect vehicle had been given to all officers in the area. Trooper S. Casner of the North Carolina State Highway Patrol saw a vehicle in the Reelsboro area that matched the suspect vehicle and approached to investigate. Shortly after Casner was able to determine that CAHOON was in the car, CAHOON fled the area on foot. Casner chased CAHOON, eventually deploying his Taser to stop CAHOON. Casner had begun to handcuff CAHOON when CAHOON began to struggle and fight with Casner. During the fight, CAHOON got his hand on the trooper’s firearm and was able to get the hood (safety strap) unsnapped before Casner regained control of CAHOON. During the effort to regain control of CAHOON, Casner’s right hand was broken. Judge Crow sentenced CAHOON to a prison term of 26 to 44 months, which he ordered to run consecutively to any sentence resulting from the Craven County robbery. In Craven County, CAHOON was convicted of Common Law Robbery, and sentenced to 12 to 24 months in prison, which results in a total prison sentence of 38 to 68 months.
MATTHEW PAUL DUNHAM, 32, was convicted of Possession of a Firearm by Convicted Felon, three counts of Breaking and Entering, and three counts of Breaking and Entering a Motor Vehicle. In February, 2015, the Pamlico County Sheriff’s Department received information that stolen property, which included firearms, was located at a residence in Oriental, North Carolina. The Sheriff’s Department and the North Carolina State Bureau of Investigation obtained and executed a search warrant at the residence and recovered an assortment of tools that were recently stolen from the Pamlico County Schools Maintenance Department building and trucks, and items that were recently stolen from an unrelated storage unit, as well as two rifles. Investigators found that DUNHAM had broken into those locations and brought the items to the Oriental residence. Judge Crow imposed three consecutive sentences: first, 19 to 32 months in prison, followed by two sentences of 11 to 23 months each. Judge Crow suspended the latter two sentences and placed DUNHAM on supervised probation, after he is released from prison, for three years, and included the condition that DUNHAM complete the TROSA residential drug rehabilitation program.
Or: “The Mysterious Case of Oriental’s Missing Minutes!”
ORIENTAL – Please stick with this: The story is equal parts funny, serious, and confusing. The narrative concerns a controversial land swap, but also has elements of a fascinating TV-show ‘who-done-it?’
If North Carolina had no huge, gaping exceptions to its professed policy and law mandating Open Meetings at all levels of government, there would be no story – and a blank spot on the page of this newspaper.
However, these exceptions exist! Elected officials may legally hobnob in so-called ‘closed meetings’ where rank-and-file citizens are excluded from all discussions and deliberations.
One exception allows behind-doors-meetings when elected officials want to negotiate real estate deals — which is what the Town of Oriental commissioners did a lot of during late 2011 and the first six months of 2012.
However, in a nod to the Freedom of Information Act, Sunshine Laws, and other loophole laden regulations, most closed meetings in North Carolina are required to be documented – supposedly by a fastidious, studious, and diligent note-taking fiend of one sort or another!
And, please note – when things happen afterward that render such secrecy null and void, governments are required to release the written minutes of closed meetings. Usually, these minutes have been sanitized to the nth degree. All of the juicy stuff never, ever finds its way onto a black-and-white page.
Occasionally, though, some relevant stuff sneaks through.
Now, that’s what former Oriental town commissioner David Cox was hoping for when he recently requested a passel of Closed Meeting minutes. Cox has been a thorn in the town’s side since July 2012, when officials approved swapping a large swath of South Avenue right-of-way in exchange for a waterfront parcel – where construction is now underway for a park, restrooms, and other amenities.
This gets confusing, but here goes: Cox claims the town never owned the right-of-way. Rather, all of South Avenue had been dedicated more than a century ago to town residents at large.
“The town can’t trade what it does not own,” Cox has been known to say on more than one occasion.
Well, nevertheless, the deal went through in late June of 2012 – but not over the dead body of Cox. He is quite alive, and quickly sued town officials with both barrels. Recently, Cox agreed not to appeal a court ruling that favored the town.
And, that settlement now transforms a great deal of once secret, closed session minutes into public fodder!
If you want to spend hours on end contemplating the legal complexities of the case, Cox is your man. E-mail him at: email@example.com
In recent weeks, those of us who follow town politics have heard rumors – and public pronouncements – that at least some of the ‘Closed Session Minutes’ requested by Cox are missing!
“These seem to have walked away from Town Hall,” said Commissioner Barb Venturi during the Aug. 4 town meeting.
And, town manager Diane Miller – who was not on the payroll way back when all of this stuff was going on – added: “We are attempting to recreate what we cannot locate,” referring to sometimes unreliable audio recordings of all town sessions – both closed and open.
Monday, Aug. 10, in an unusual Special Meeting of the town board, recently appointed mayor Warren Johnson read from a prepared statement, in which he acknowledged “a book of Closed Session minutes that is not currently able to be located” and also conceded “minutes missing from Town Records” attributable to a closed session held on Jan. 13, 2012.
Cox may never find a smoking gun, but his request for closed session minutes did uncover some interesting tidbits. Turns out town officials were mad as hell at Cox for filling his lawsuits. And, town officials were giving serious consideration to pursuing ‘sanctions’ against Cox – a rarely used legal maneuver intended to discourage perceived-to-be frivolous lawsuits by imposing financial penalties on a plaintiff — in this case, Cox.
There’s more of course. Read all of Johnson’s two-page statement in the PDF below:
By David Cox
When the Oriental Town Board closed Avenue A on July 3, 2012, and the end of South Avenue on April 2, 2013, they swindled me and other property owners out of our private property rights.
I’m not making this up.
The principle is spelled out in more than a century of North Carolina Court decisions, most clearly in a 1956 NC Supreme Court case, Town of Blowing Rock v. Gregorie:
“It is a settled principle that if the owner of land, located …[in a] town, has it subdivided and platted into lots and streets, and sells and conveys [any of] the lots … with reference to the plat… he thereby dedicates the streets, and all of them, to the use of the purchasers, and those claiming under them, and of the public.”
“Purchasers of [such subdivision] lots … acquire vested rights to have all and each of the streets shown on the map kept open.”
“To have deprived those who purchased lots with reference to the original map, and those claiming under them, of appurtenant rights in and to the streets, for the purpose of vesting such rights in another merely for private use would run counter to provisions of the Constitution of North Carolina, Art. I, Sec. 17, and to the 14th Amendment to the Constitution of the United States.”
That’s exactly what the Town Board did. They took my vested rights in South Avenue and vested them in another merely for private use.
Does the precedent still apply? The North Carolina Court of Appeals thought so as recently as 2009 when it restated the principle in Town of Oriental v. Henry, in which the court ruled against a landowner who claimed to own the waterfront portion of South Avenue as his property:
“Generally, where lots are sold and conveyed by reference to a map or plat which represents a division of a tract of land into subdivisions of streets and lots, such streets become dedicated to public use, and the purchaser of the lot or lots acquires the right to have each of the streets kept open. Wofford v. Highway Commission (1965).”
Soon after the Town of Oriental was formed, the N.C. courts held the same rights arise when developers sell lots by reference to streets marked on the ground or depicted in town maps.
The courts have also held that subdivisions with public areas fronting waterways give lot purchasers private rights of water access. This means that when my wife and I bought our Academy Street property, we bought a water-access lot. When the Town closed the end of South Avenue, it reduced the value of every non-waterfront property in the old village.
These cases, and many others, establish that the Town government stole my (and my neighbors’) private property rights in Avenue A and South Avenue, in violation of the NC street closure statute, a statute designed to prohibit closings which unconstitutionally interfere with private property rights.
My property rights in the streets arose in 1899 when Robert P. Midyette and Lou B. Midyette, along with a handful of others, created a subdivision of their lands in order to form a town.
Lou marked the streets on the ground with stakes and assigned them names. The Midyettes and other landowners then sold lots with deeds describing the marked streets as lot boundaries. One of the first lots sold by Lou after marking the streets was part of my present property, and the deed described the property as bordering on Academy Street.
The Town government had a survey made of all the streets marked out by Lou (see adjacent map.) As you can see, it includes Academy Street, South Avenue, and the street later known as Avenue A, which is shown on the map as Smith Point Ave.
The crowning glory of the street layout was that 11 streets led to the water. The jewel in that crown was South Avenue, a sixty-foot right of way leading to the harbor.
This was important to my wife and me when we chose to purchase property in Oriental. We had cruised from Maine to the Dry Tortugas. Everywhere we went, the wealthy were buying up waterfront to keep ordinary people out. They built houses so high and wide that people couldn’t even see the water. We were losing our national connection to the sea.
Except in Oriental. Oriental’s residents fought higher buildings and smaller setbacks. As mentioned above, the Oriental Town Board sued to eliminate Henry’s false claim of ownership of the South Avenue waterfront. The Town won. This was the kind of town we wanted to live in.
When Henry’s fence came down, my wife and I rode bicycles down to the water every morning and evening. It was our public right and our private property right. We didn’t need permission from anyone. We were thrilled when, in 2011, the Town sought grant funds to build a pier on the 80 feet of South Avenue waterfront extending 130 feet into the harbor to host six to eight boat slips.
The 2009 decision in Oriental v. Henry should have ended any thought of a private takeover of Town rights of way. By that time, the Town Government had known for more than two decades it had no legal authority to lease, barter or sell a public street.
Unfortunately, in January 2012, the Town Board proposed to exchange the very same end of South Avenue it had wrangled back from Henry in 2009 (at a legal cost of some $25,000) — and the entire length of Avenue A – in exchange for a small parcel of real estate from seafood proprietor Chris Fulcher. Problem is, the Town Board didn’t own either right of way. As Professor David Lawrence explains in his report titled “Property Interests in North Carolina City Streets,” a town can never sell a public right of way because the only thing the town “owns” is the right to keep the street available for use by the public. It is a pretty universal rule that you don’t get to sell or trade something you don’t own.
After the Town Board announced its deal with Mr. Fulcher, I expressed my concerns to the Mayor, commissioners and manager that they were replacing a public right of access with a property in which the public had no rights, and which the Town could sell away at any time. I suggested the Town could achieve its stated goals — while ensuring a permanent public right of water access from the property — by having Mr. Fulcher include a deed restriction (like Lou-Mac Park) or dedicate the property to the public.
They refused. “We don’t want to tie our hands,” as Mayor Bill Sage wrote and as Commissioner Barbara Venturi recited. Commissioner Larry Summers explained they did not want to restrict the town’s future ability to sell the property in order to buy some other property elsewhere.
I urged the Town Board to seek written opinions from the NC Attorney General and the School of Government, as then Town Attorney Ben Hollowell did years earlier in like circumstances. The Town Board refused, no doubt fearing the Attorney General would nix their plan in a public document.
It became apparent that Town government wasn’t interested in legal niceties. The fix was in.
While I was certain then (and still am) the Town had no authority to exchange a public right of way for real estate, if the deal had guaranteed permanent public access to the new property I would not have filed suit.
But the deal called for no such assurance. The new property is not a public amenity, but rather a financial asset owned by the municipal corporation, which it may or may not allow the public to use until it may well receive a good enough offer, ultimately selling to a private purchaser.
The Board’s “Resolution” to use the property as a park is meaningless. In a case heralded by the Town Board’s attorneys during my litigation, the NC Court of Appeals held that the town of Valdese could sell a property it owned in fee simple at any time, despite its having been used for a public park.
If my case was as good as I say it is, why did I lose? Good question.
The statute allowing appeals of street closings says “any person aggrieved” may seek a court review of its legality. Both I, and my attorney, believed my status as a taxpayer and citizen challenging what amounted to a fraud by my town government was enough to establish I was a “person aggrieved” within the meaning of the statute.
The Court disagreed, deciding that “person aggrieved” refers only to someone who owns a property interest in the streets and has suffered a personal injury to those interests by the closure. Since I had not included a claim of personal injury to my property rights in my complaint, I had failed to establish standing. The Court did not rule that the Town Board had acted lawfully, or that it would have been impossible for me to establish standing. Only that I had not included the necessary words in my complaint to seek court review of the closing.
The Court’s opinion noted twice it was NOT ruling on my South Avenue challenge, and gave me a roadmap for continuing that case. I could establish standing in South Avenue if I included a claim of personal injury in my complaint, included enough facts to show I own property in the same subdivision as South Avenue, and made legal arguments about subdivision owners’ private rights in subdivision streets.
I made sure all of these elements were included in my South Avenue case before the next court hearing.
At that hearing the Town Board’s attorney bragged that as a young lawyer he had used same arguments to win a NC Supreme Court decision blocking a mall development from taking over streets in his client’s subdivision. He then simply asserted that the theory did not apply to my case because the Town had made a map of the streets. He did not explain how a Town map of streets erased private property rights, or address any of the cases I had cited holding that private rights DO arise when developers sell lots according to a town map or a streets staked out on the ground.
He did not need to do so. He knew the judge was going to rule in favor of the Town Board under any excuse, leaving me to face yet another appeal. And that is what the judge did. The judge also invited the Town Board to submit a new motion for sanctions against me to recover its attorney costs since the Court of Appeals’ Avenue A decision, approximately $20,000.
After filing the necessary paperwork to preserve my right to appeal, I decided to withdraw. Not because I was afraid of losing South Avenue at the Court of Appeals or of the threat of sanctions – I had corrected all the mistakes made in the Avenue A case and complied with all the requirements explained to me by the Court of Appeals in that case.
I withdrew because I had a good idea how much time and work would be involved in pursuing an appeal on standing, followed by subsequent procedural battles and up to three more appeals. Because of the Town Board’s commitment to spending as much treasure as needed to delay reaching a decision on the merits of my challenge, I could look forward to at least three or four more years of legal wrangling, and I was already drained from the previous three years.
Even so, I made it clear to attorney Scott Davis that if the Commissioners continued to pursue sanctions against me as threatened, I would have no choice but to continue my appeal to the Court of Appeals. They dropped the sanctions idea like a hot potato (Davis, the Town Board’s attorney, had previously explained that my suit was not “frivolous”) and drafted a very accommodating settlement agreement. They did not do this to be nice. They did it because otherwise I would have pursued my appeal, the Town Board’s attorneys would have lost, and it would have been impossible for them to argue successfully that the Town Board had complied with the street closure statute.
I speak out now because next week candidates for municipal office will file for election in November. Voters and property owners in Oriental need to know how thoroughly officials elected four years ago betrayed their interests. Of the Town Board members, only then-Commissioner Warren Johnson asked any of the pertinent questions that should have been asked. Officials elected two years ago did little better.
I don’t know what advice attorneys gave the Town Board behind closed doors. I do know that it was only advice. Attorneys aren’t responsible. Only elected officials are responsible to the voters. Attorneys have no authority. Only elected officials have authority. The Town Board is responsible for what is done on their behalf, whether they accept or reject advice of attorneys. I am not sure whether the Board understood the attorneys’ thinking, or whether they consulted other sources. This is especially important for elected officials who are the responsible decision makers when a Town is party to litigation.
We need elected officials who understand that.
WASHINGTON, D.C. — We surely remember the claims by candidate Obama that his Administration would be the most transparent in history. So it is somewhat surprising to hear that former CBS reporter Sharyl Attkisson has filed a Freedom of Information Act lawsuit against the FBI to secure investigative information pertaining to its investigation of her.
Attkisson has teamed with watchdog organization Judicial Watch.
So what are Attkisson and Judicial Watch suing the Dept. of Justice about? The answer is Fast & Furious, the government gun-running activity, which has been well publicized. While most people know about this matter, it is likely that most do not know about the lawsuit to force the hand of the Attorney General.
For those who do not know her credentials, Attkisson won both the Emmy and the Edward R. Murrow awards for Investigative Journalism. In February 2011, she broke the story about the Fast & Furious gun running scandal. Since then she has filed more than 100 stories about the debacle, which allegedly prompted federal authorities to hack her home and business computers.
Judicial Watch has obtained copies of emails, and from them, they know that the Obama White House and the Justice Dept sought to silence Attkisson in similar ways to other First Amendment matters involving reporters. Now she and they may finally know how far up the chain of command this matter goes.
By Fred Bonner | Special to the County Compass
Editor’s note: Fred Bonner is a respected wildlife biologist, avid hunter, and outdoors columnist, who has first-hand knowledge of the state’s Red Wolf Program, which began in 1987.
EASTERN N.C. — A recent report from the Wildlife Management Institute to the United States Fish and Wildlife Service and to our own North Carolina Wildlife Resources Commission really blasts the way that the red wolf introduction (not RE-introduction) has been conducted here in Beaufort, Hyde, Tyrell, Dare and Washington Counties since the late 1980s.
The report could mean the beginning of the end for the entire red wolf program in our state.
Steve Williams, the former Director of the USFWS and now an official with the Wildlife Management Institute, answered questions from the press regarding the report. To those media organizations that were extremely vocal in favoring the red wolf program, Williams’ comments were likely construed as a well-deserved “slap in the face.”
The lengthy report can be summarized in a few conclusions that criticize many facets of the red wolf project here in North Carolina.
1) The taxonomy of the red wolf remains unclear. A branch of science that encompasses the description, identification, nomenclature, and classification of living creatures, taxonomy uncertainty surrounding red wolves certainly contributes to the current controversy. Regardless of the outcome of further analysis of red wolf taxonomy, the U.S. Fish and Wildlife Service faces extremely difficult decisions regarding the future direction of the recovery program.
To further illustrate how the genetic make-up of the red wolves is open to serious questions, in the peer review section of the report the former head of the red wolf project in North Carolina, Mike Phillips, states that “It should be clearly noted in the report that the red wolf genome that exists is the product of selective breeding by U.S. Fish and Wildlife (USFWS) biologists in the1970s.The text on Page 18 could be expanded to note that over 400 canids were captured in Louisiana and Texas in the early 1970s and examined for red wolf traits. Of these I recall that about 43 were allowed to breed to determine the nature of pups produced. Of those that were allowed to breed, 14 were chosen as the founding stock for the captive breeding program.
“While I recognize that the USFWS biologists did the best they could with the information that was available at the time, it is still true that selectively moving animals through a review process that was based on somewhat arbitrary minimum taxonomic standards represents selective breeding that resulted in a certain phenotypic type of red wolf. There is no denying that the existing red wolf genome is something of a human construct. Given Congress’ clear intent for the 1973 Endangered Species Act to serve toconserve genetics, a clear understanding of the origins of the red wolf genome is of cardinal importance”.
2) “There is no theoretical or practical reason to believe that red wolves will constrain their activities or movements to a jurisdictional boundary, especially when red wolf density increases within that boundary and prey levels fluctuate through time.”
3) ”Current sea level rise modeling indicates that significant portions of the Alligator River National Wildlife Refuge and portions of the Albemarle Peninsula will be lost to sea level rise within the next 50–75 years. Current efforts to adapt to sea level rise, build resiliency, and restore hydrology are not complimentary to red wolf habitat needs at Alligator River or Pocosin Lakes National Wildlife Refuges.”.
4) “The project has demonstrated that captured red wolves can be successfully reintroduced into the wild and rear offspring of their own in areas without coyotes. Given that coyotes now fully occupy former wolf range, it is unclear whether red wolves can be successfully reintroduced and rear non-hybridized young without active human intervention.”
The Wildlife Management Institute report further states that “It is clear that the USFWS rules implied that red wolves would stay on refuge property or that they would be immediately recaptured and returned to refuge property. These assumptions were unrealistic and scientifically unsound. The very fact that red wolves were illegally released onto private land with and without the permission of the private landowners points out serious problems with the USFWS program management.
“USFWS staff reported to WMI that some red wolves were released on private property with the permission of the landowner. These actions appear to conflict with the rule that stated red wolves would be released on the Alligator River NWR property. WMI was provided with a list of releases that indicated of 132 releases of red wolves between 1987 and 2013, 64 were released on private property. WMI is unaware if agreements existed between the Fish & Wildlife Service and private landowners with respect to these releases; however, they appear to be in contradiction to the 1986, 1991, and 1995 10(j) final rules.
“The 10(j) Rules also stated that, at the request of the landowner, wolves would be captured on private property and returned to the refuge property. WMI found that it was a common practice to inform landowners that wolves would not stay on the refuge and would probably return to private property. Some wolves captured on private property were released on private property rather than returned to the refuge lands. These activities were contradictory to the 10(j) Rules established at the onset of the recovery program. WMI concluded that the authors of the rules were either misinformed about red wolf dispersal behavior or were unconcerned if the rules were violated. Local program staff was asked to comply with rules that were untenable. We concluded that local staff did their best to achieve program success and work with private landowners in spite of the rules because they realized the rules were not realistic for successful project implementation.”
When an international pro-carnivore (Pro red wolf) group protested the report’s findings and pointed out that their group had posted over 100,000 comments representing some 40 different nations that supported the red wolf program herein North Carolina, Williams curtly responded that we aren’t running a popularity contest here, we’re reporting on our findings of a purely scientific experiment.
In spite of the damaging findings of the Wildlife Management Report, it will take time for the red wolf program to wind-down and, hopefully, disappear from the scene. Our federal government does not like to admit to making mistakes and still save face. In the meanwhile, five eastern North Carolina counties must live with certain restrictions on how we must live with the deadly combination of predatory coyotes, red wolves and “coy-wolves.”
Until these predators are brought under control through proper wildlife management, our populations of whitetail deer and small game animals will not prosper. Meanwhile restrictions placed on coyote hunting in the five-county area by a federal court order must be tolerated..
An agreement has been reached in a lawsuit against the N.C. Wildlife Resources Commission, which will restore conditional coyote hunting in the five-county red wolf introduction area of eastern North Carolina.
The agreement will restore daytime coyote hunting on private lands in Dare, Hyde, Beaufort, Tyrrell and Washington counties by licensed or otherwise authorized hunters, with a special permit obtained from the Wildlife Commission and subsequent reporting of kill. In the other 95 counties of the state, coyote hunters may hunt during daytime or at night using artificial lights, and no special permit or reporting of coyote harvests is required.
The agreement stems from a lawsuit brought by the Southern Environmental Law Center on behalf of the Red Wolf Coalition, Defenders of Wildlife and the Animal Welfare Institute. The suit alleged the N.C. Wildlife Resources Commission violated the federal Endangered Species Act by allowing coyote hunting in Dare, Hyde, Beaufort, Tyrrell and Washington counties where a non-essential experimental introduction of the red wolf is occurring. A court-ordered injunction issued in May halted coyote hunting in the five counties, except under extremely limited circumstances.
This recent compromise restores opportunities for landowners and others to manage coyotes on their properties through daytime hunting. Coyotes are found in all 100 counties of the state and pose a predatory threat to pets, livestock and native wildlife. Hunting and trapping are effective tools for landowners to manage coyote populations on a localized basis.
Restoration of coyote hunting in the five-county red wolf introduction area requires the Commission invoke rulemaking to implement these changes. This process will be initiated as quickly as possible. Interested persons will be able to follow the progress of rulemaking by visiting www.ncwildlife.org.
The N.C. Wildlife Resources Commission requested a programmatic review of the red wolf introduction in June. The U.S. Fish and Wildlife Service will evaluate the program in the areas of science, management and public attitudes. The evaluation will be used to determine whether the red wolf introduction program is meeting the goals and objectives established under special rules of the Endangered Species Act. That determination is expected to be finalized in early2015.
Landowners are permitted to “take” or kill a red wolf or a coyote if it attacks their livestock or pets, or if it endangers human life. A red wolf that is killed incidentally by any type of legal activity, such as hunting coyotes following state regulations, does not constitute a violation of federal regulations, provided that the taking is not intentional or willful. It also must be reported within 24 hours to the U.S. Fish and Wildlife Service at1-855-496-5837 or N.C. Wildlife Resources Commission at 1-800-662-7137.