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What's the Solution For Cape Hatteras National Seashore?

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What's the correct image of ORV use at Cape Hatteras National Seashore, the top photo, taken by A. Pitt, or the bottom photo used by the Southern Environmental Law Center?

The spit of sand that buffers the North Carolina coast from the worst the Atlantic Ocean can toss at it carries an array of contentious issues that seemingly have no easy answers. Foremost among the issues at Cape Hatteras National Seashore these days is the use of off-road vehicles to negotiate beaches that are either far from parking lots or which are just far enough from those lots to make it difficult to carry all your gear for a weekend fishing trip.

Cape Hatteras, authorized as America's first national seashore in 1937 but not actually established until 1953, is a beach lover's jewel. The heart of North Carolina's Outer Banks, the cape offers some of the best beaches in the country, is renowned for its surf fishing, has some of the East Coast's best waves for surfing, and has a decided tinge of wildness that is a welcome respite from the Mid-Atlantic's metropolitan areas.

Off-road vehicles long have been allowed on the national seashore. Unfortunately, the seashore hasn't had a formal off-road management plan in place, and that's why discussions centered on Cape Hatteras often grow heated.

The hot button is the fact that the cape's beaches and dunes attract wildlife: of late much has been made of the nesting shorebirds and sea turtles and whether off-road vehicles are impacting them. The divisions over that question are well-defined. Perhaps no topic other than guns in the parks illicits as many comments to the Traveler as ORVs and Cape Hatteras.

Are ORVs out of control, as the lower photo used by the Southern Environmental Law Center might suggest, or does the top photo provided by A. Pitt better capture ORV use on the cape?

Mr. Pitt has been visiting the cape since 1972 and owns land in Frisco that provides him and his family a welcome escape from their Richmond, Virginia, home. He's well-versed on the ongoing dispute surrounding ORVs on Cape Hatteras; since April he's written hundreds of members of Congress to try provide an ORVer's viewpoint of the ongoing debate and to question points raised by Defenders of Wildlife and the National Audubon Society, the two groups who, through the Southern Environmental Law Center, sued the National Park Service for its failure to develop an ORV management plan for the national seashore.

The lawsuit was settled earlier this year when all involved signed a consent decree that was designed to provide short-term management of ORV and pedestrian traffic in shorebird and sea turtle habitat while a long-term plan is developed. Unfortunately, not everyone is thrilled with the consent decree's provisions. Anglers and families that long have used ORVs to reach their favorite spots on the seashore complain that the decree is too restrictive and over-reaching.

What's important for all to remember is not only that ORVs long have been permitted at the national seashore and more than likely will continue to be allowed access in some fashion, but also that there is wildlife habitat on the seashore that needs protection because it is utilized by species protected under the Endangered Species Act.

"I have a vested interest in the area," says Mr Pitt. "It's truly my paradise! Most of the folks who speak out on this issue are fishermen/women. I speak out for beach access for any reason, whether it be fishing, surfing, or just sitting there playing Parcheesi.

" ... I support BOTH species protection AND ORV access, as do most beach users in this area," adds Mr. Pitt. "I truly believe that they can both be attained, if the 'eco' groups will indeed negotiate in good faith."

To some, "ORV" is a pejorative, a word that equates with four-wheelers charging willy-nilly across the landscape. Is that the case at Cape Hatteras, or are the "ORVs" there more likely to be pickup trucks and SUVs their owners use to reach beaches that otherwise would take walks ranging from perhaps a half-mile to nearly 5 miles to reach?

As the attached map shows, there are quite a few ORV and pedestrian restrictions between May 15 and September 15 to protect shorebird and sea turtle nesting habitat. Are those restrictions excessive? There certainly are hard opinions on both sides of that question.

While that question will continue to generate heated comments, let's hope all those involved will arrive at an acceptable solution through the National Park Service's long-term ORV management plan and not insist on a legislated solution from Washington.

Comments

One should read the minutes of the case that resulted in the Consent Decree. Judge Doyle threaten to close the beaches entirely unless all the parties involved agree to his decree. I don't call that arbitration, I call it extortion. Judge Doyle should be impeached!


Jesse,

Welcome to the debate! I thought this one had run it's course.

Your comments are totally correct. NCFWS keeps tabs on the dredge islands in the inlet, and also the "Bird Islands" that are just WNW of North Frisco/South Buxton. These bars are literally covered with birds, and their sheer size make islands like Cora June, (Dredge), look small by comparison. As you stated, these islands are mammalian-predator free with the only predation occuring from other bird species such as gulls, and are protected from ocean overwash. I'd be all for creating a chain of them behind the barrier islands and let the birds and the AS have it all! But wait... Then they coudn't drive out in their own ORV's to do some bird watching...

I have a fiscally sound plan that would take the burden off the American taxpayer and the fed's in these cases:

If an ECO wins a lawsuit against the NPS, make THEM foot the bill for all the changes that must be implemented.

You would see the lawsuits stop instantly.

dap


We are for protecting the wildlife and Habitat, because we are apart of it and want to continue to be a part of it. That is why the ORV groups do beach sweeps,not environmental groups. It is ORV groups offering the reward for vandelized bird closures,not the enviromental groups, they're too busy looking for the next law suit . If the Environs used common sense they would not waste their time and our money sueing to close areas that are dangerous to wildlife itself and concentrate on habitat that produces much greater results. Example, Cape Point is well known for it's frequent overwashes and predation. Why do environs want birds to nest where they are more likely to be washed away or ate ? It's already happened in 2008, the forced concent decree did not protect the birds from mother nature. As it did not protect the turtle nest from T.S. Hanna, record number nests (all over the east coast not just on CHNS) and all that had not hatched drowned. One fact environs leave out is that it is storms and predation that cause 100% of the pipping plover fatalities on the CHNS,not people or ORVs.
The environs also leave out of their bird count the thousands of birds that have voted with their wings to nest on dredge islands on the sound side of Hatteras and Ocracoke instead of CHNS, which is a few hundred yards away, I say again, these birds that they claim is in decline nest by the thousands just a few hundred yards from the Park. The very islands the environs sued to keep from having them built, these island are perfect habitat,little predation and protected by the main islands from storm surges, they have produced astonishing numbers recorded by the NCFW. The Environs claim that since the birds are not nesting on the park,they do not count. Doe's this answer sound like it is coming from someone negociating in good faith ??? No it does not ,they know it is not people or ORVS causing a so called decline on CHNS, but rather storms and predators,but they can't make any money sueing nature or God, or the state for making dredged islands.
The pipping plover will soon be taken of the Endangered Species list as threatened, what will they use as a poster child then ? The fact is it is not about protecting birds , it's about making a wildlife reserve for them to enjoy just themselves to watch birds dancing and doing the dirty. Well there's 13 miles of Pea Island Wildlife Reserve just a few miles away, got there and enjoy nature how you see fit, we want to fish and swim, what CONGRESS PROMISED WE COULD DO !


Gentlemen,

Thank you both again for your insight on this matter. It is definitely something worth exploring when this issue once again goes to court. (Notice I didn't say "If"...) It would seem that these practices do fall under the "C&T" heading, but I do see that "securing" them legally would be problematic, especially this late in the game. Had this point been pondered prior to the lawsuit that created the CD, it may have had a chance to be enacted. These days, I have my doubts. It would seem that "Establishment" may exist today, by your descriptions, and the fact that ROW's exist in the guise of "Interdunal" roads that are located for the most part West of the dune lines, with many of these roads being decades old. The beach itself could also be considered an ROW, in many places.

I do consider this to be useful information against what we face in CHNSRA, as we need every legal loophole out there to help keep access. I plan to get this information in front of those who can make the best use of it, and see what they think. Thank you both again for your excellent descriptions of how a similar issue played out in far-away Alaska, and how it can possibly work in Cape Hatteras. I think I understand it well enough now to attempt to pass it along. Warning, some plaregism of your posts may be necessary! I hope you don't mind...

Thanks again!

dap


James R. Pepper,

I wanted people to see that just because their favored activities on Cape Hatteras are customary & traditional, that does not mean they will be meaningful (much less decisive) in court. So I provided examples.

At the same time, I wanted to counter the general assumption that things customary & traditional are the mark of fuzzy-headed thinking. That C&T is the recourse of whimsical or even whiny folk. Again, I used examples.

Some of these illustrative examples are admittedly less than fully-willing participants in my thesis, but I think they inform us in useful ways even if they are slightly tortured.

Rights-of-way is a useful example, because it underscores the factor of "scope": having the right to use a certain trail has no bearing on other trails or routes in the same area or in other areas. There is no such thing as a "right to movement", which allows us to use whatever route one would like. Rights-of-way are ('have' to be) "established" and they are limited to a specific scope - free movement is not an "entitlement". Customs & traditions likewise have a scope, are established, and are not entitlements.

But the important non-similarity between ROW and C&T, is that C&T cannot be secured under 'common law', as can ROW. To "secure" a C&T practice, it must be recognized 'in writing'. In a Treaty, as part of an Enactment of a duly authorized Agency of the Government (NPS), by Act of Congress, or within contracts between any combination of public & private parties. All of these documents & instruments have been used to recognize - and "codify" - specific customary & traditional practices as rights. But the right exists, only after it's in writing, not just because C&T has been established.

Customs & traditions are almost always "established" informally, in a fashion that parallels common law provisions, but they are "secured" only under formal legal purview.

The precedent in Alaska for the legal recognition of customary & traditional practices does not mean that other cases of C&T are now guaranteed recognition. What has happened in Alaska, though, has certainly added muscularity & stature to customs & traditions as contenders in the legal process. Events & conditions in Alaska make it far easier and more credible, for folks everywhere to look at their own customs & traditions as meaningful players in the social & legal scene.

I agree with James' statement...

"The rights are not "secured" based on custom. Custom in Alaska informed the Congress, and the Congress then determined what statutory uses would be permitted, subject to reasonable regulation. There was no inherent customary and traditional "right" of access, and no such prior right exists on the beaches of Hatteras."

... and I hope my statements in this comment are compatible with his.


Ted Clayton: “customary and traditional” does not provide any rights on the beaches of Hatteras.

I am confused about how you present your case because at times it sounds these are common law rights, at other times, you seem to be saying they are statutory.

You say: "A right is secured, based on a C&T: in this case, by being codified in an Act of Congress."

The rights are not “secured” based on custom. Custom in Alaska informed the Congress, and the Congress then determined what statutory uses would be permitted, subject to reasonable regulation. There was no inherent customary and traditional "right" of access, and no such prior right exists on the beaches of Hatteras.

If the Congress chooses to enact rights of access, it can.

If the Congress chooses to authorize the National Park Service or the Fish and Wildlife Service to manage access via regulation, it can, and has.


dapster,

Oh, what people do on the beaches of Cape Hatteras is 'customary & traditional' alright; the challenge is to 'secure' a legally enforceable right to continue the practices - based on the claim that they are C&T.

Rights-of-way can be won, simply by using a route for a sufficient span of time. After a time, common use of a right-of-way can no longer be stopped, even though there was never any title to the ROW. 'Common use' of a route establishes a legal ROW, all by itself. (That's not part of C&T, but just an example of how a right can be 'secured'.)

Notice in a previous comment, that Wrangell-St. Elias Park (14 million acres, with 2 million acres of private inholder property) provides for inholder-access, subsistence activities, and recreational ATV use, "In abidance with ANILCA ... ". A right is secured, based on a C&T: in this case, by being codified in an Act of Congress.

Another example of the "codification" of C&T is seen in Treaties, such as those the U.S. signed with many Tribes. I believe, though, that the phrase has long been widespread in documents & contracts, aside from dealings with Natives.

The stature & merit of custom & tradition appears to me - anecdotally - to be enjoying a rising social profile, and this could lead to more legal applications.

Governments often seek to minimize the opportunity to make claims based on custom & tradition. France has often been paralyzed, thanks to guarantees extended to secure various customary conditions. The military moves members to new bases frequently, in important part to prevent them becoming too comfortable or too cozy in any one place ... and expecting they can just stay there indefinitely. Bureaucracy is famous for entrenching & fortifying their own customs & traditions.

Therefore, in a situation like Cape Hatteras where the principle object of contention is plainly an established pattern of customs & traditions, it is common that the terms of enactment make no reference to C&T. Instead of focusing discussion on what people are & have long been doing (and how their pattern of usage might be modified, regulated or limited), the focus is instead placed on protecting bird & turtle nests. That way, officialdom "neither confirms nor denies" that anything customary & traditional is at stake. They ignore it.

My intent is not to say that the users of Cape Hatteras are necessarily going to win anything in court by proving their usage is customary & traditional, but rather to point out that although C&T is generally ignored, events in Alaska demonstrate that substantive matters can be and are based on C&T. Major precedents have been established that tie C&T to Nat'l Parks in Alaska.

A great strength of appeals based on customary & traditional practices, is that ordinary citizens can understand the concept & principle of it, intuitively. It is easy to relate & empathize with those who's values & lifestyle are expressed in such customs & traditions.

It is not an accident, that affairs at Cape Hatteras are not address as customary & traditional, even though they obviously are.


Mr. Pepper and Mr. Clayton,

Your insightful comments on the "Customary & Traditional" aspect of park management were quite enjoyable and thougt provoking. We on this coast generally know little of Alaska due to proximity. The comment about "exotic events and far away and irrelevant" also aptly describes the situation as it is in the CHNSRA, at least as it began. Very little news reaches the rest of the lower 48 about this area, generally. With the amount of tourism in the area, though, more of the general public from a larger geographic area have become aware. Hence the ever-larger public outcry.

Your descriptions on the "C & T" also may apply to a type of net fishing that is done in CHNSRA. A vehicle, always a pickup truck, brings a net boat to the beach. Said boat is launched into the surf with the net trailing. The net is anchored on the end opposite the boat, and the boat then proceeds to pull the net out into a large semi-circle, arcing back towards shore. The net is then brought up onto shore and the fish retrieved. I’ve seen these fishermen doing this for as long as I’ve been visiting the area. I would assume that this probably was accomplished using horse and buggy at some point in the past. Manually heaving the boat, (reminiscent of the surf boats of the Lifesaving Crews that preceded the Coast Guard), manually would be a chore. I’m sure mechanization was utilized as soon as it was available and practical.

I also agree with this statement:

“For example, are SUVs on Cape Hatteras any different than Model T Fords lined up on the sand in the 1920s? Or even the horse & buggy of the 1800s?”

Before the CC Camps of the Roosevelt era, there simply were no roads on the barrier islands, and all driving was done on the beach from the Virginia Capes to the South end of Hatteras Island. So in my mind there is no difference with respect to mode of transportation utilized. It is also true that the original charter for CHNSRA was written to specifically include beach access for motorized vehicles to the coastline. I don’t recall that there were any stipulations for TYPE of access at that time.

Could these items fall under the customary and traditional heading? Sounds very similar to me. I would very much like to hear your thoughts on this.

dap


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