House Subcommittee Considers Bill to Relax ORV Rules for Cape Hatteras National Seashore

ORV users at a Cape Hatteras beach. Photo by A. Pitt.

The House was in recess for a month, but that ended September 8. Now there’ll be a flurry of hearings, including many of great interest to national park users and managers.

Among the items on today’s agenda is a House subcommittee hearing on a bill proposing to reinstate older, more lenient rules for ORV beach driving at Cape Hatteras National Seashore.

The current rules, imposed to protect shorebird and sea turtle nesting sites, seasonally and intermittently restrict beach driving access to popular fishing areas. Environmentalists defend the currently strict controls on beach driving, arguing that protecting wildlife resources should trump recreationists’ demands for convenient ORV access to the beach. Beach driving fishermen have strongly protested the strict rules. They argue that the federal government has greatly exaggerated the threat posed to wildlife by ORV driving on the beach, and that the current rules make it unreasonably difficult to get to traditionally popular fishing areas. Area businesses detest the restrictions too, citing reduced spending by ORV users.

Today the House Subcommittee on National Parks, Forests and Public Lands will consider a bill, H.R. 6233 (Jones), that would reinstate the Interim Management Strategy governing off-road vehicle use at Cape Hatteras. The Interim Management Strategy, is an older, more lenient set of rules that was in force until this past April when environmentalists won an out-of-court settlement (the 2008 Consent Decree) compelling the National Park Service to adopt stricter regulations for beach ORV use at Cape Hatteras. The bill’s sponsor, Representative Walter Jones (R-N.C.), essentially wants Congress to negate the out-of-court settlement.

The environmental NGOs that won the out-of-court settlement -- Defenders of Wildlife and the National Audubon Society -- believe that the stricter rules that the settlement brought about are appropriate and should remain in effect. At today’s hearing, a lawyer representing the NGOs will testify that the current strict rules for protecting the nesting habitat of piping plovers and sea turtles have played a key role in the recently improved nesting success of these species.

While we await the outcome of this debate, the National Park Service continues to work on its ORV Management Plan for Cape Hatteras. The project uses the negotiated rulemaking approach, a consensual planning strategy that relies on a federal advisory committee of local community and national interest groups.

When finally implemented, will this negotiated set of rules bring an end to decades of conflict over ORV use and protected species management at Cape Hatteras National Seashore? Nobody really believes that, but at least it will remove some of the uncertainties.

Comments


There is absolutely no reason for ANY vehicles other than emergency rescue vehicles to be driven on the beaches....Many species of animals are adversely impacted by this intrusion. Also what good can come of gasoline and motor oil leaching into the sand and the water? If people want to surf fish,let them carry their gear themselves! It is a sad state of affairs when the comfort of lazy humans trumps innocent animal life.

This controversy is much more complicated than it may seem at first glance. The scientific evidence doesn't imply that ORV beach driving should be totally banned at this seashore, only that it should be subject to reasonable rules benefiting protected wildlife species. Right now the interested parties are arguing about what those rules should be. We encourage Traveler readers to review our recently-published articles on this topic, which include discussions of the circumstances surrounding ORV beach driving at Cape Hatteras.

Stella Maris,

Spoken like someone who has never actually visited CHNSRA. Some folks seem to think this area is something akin to Daytona Beach, where the beach is just an extension of the highway. That is simply not the case. I submit below photo to give you some perspective on just what this area is like with vehicles on it:

Now, can you imagine carrying the gear for a whole family to this remote location? Please note there are no roads, boardwalks, etc. for foot traffic to originate from.

So, taking what you said to task, do you think that ORV use is more detrimental to species than Mother Nature? Have a look below:

How about this? I don’t see the first tire track or “oil leaching” in this photo, do you?

These photos were taken Labor Day Monday, 9/1/08, after the passage of a cold frontal boundary. Now, imagine what a hurricane strike would do.

Quite simply, this area goes under water repeatedly at any and all times of the year. ORV’s are not the greatest threat to the species in question.

Nature is.

These are thin strips of sand that are repeatedly subjected to the most severe punishment the Atlantic Ocean can dish out. As dapster most correctly points out: Mother Nature is the real bruiser here, not ORV use.

I've been to Cape Hatteras many times and have never found these vehicles or their occupants to be a problem or a threat to the environment in any way shape or form. I mean if you want to split hairs, every time it rains in Zion the massive oil covered parking lots send waves of nasty petrochemical pollution directly into the nearby Virgin River. I'd be willing to bet this gelatinous gunk is way more voluminous than whatever gets dripped into the sands of Hatteras. I'm sure even more automotive filth gets washed into the Merced in Yosemite Valley and the side gorges of the Grand Canyon but so far I haven't heard anyone complain about what dripping oil pans are doing to the quality of the environment in these places.

The bottom line is that Cape Hatteras is a barrier strand that comes and goes with the seasons and Atlantic storm cycles and was primarily set aside as a place of recreation, with a sane regard for preserving the natural environment within reasonable bounds. If the Department of Interior proves too pigheaded about how to manage this recreation area reasonably I suggest that North Carolina take over and find a more suitable agency to run a most important asset to that state's tourist economy.

Bob,

I have posted here testimony compiled and submitted by Hatteras Local Virginia Luizer.

I apologize for the length, but it does tell the whole story, from the beginning toi where we are now, in the most concise single document I've seen yet.

I'll back away for a while now. Sorry to jump in twice so early in the thread.

Beamis, as always, thank you for your spot-on comments.

dap

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To: Subcommittee on National Parks, Forests, and Public Lands of the House Committee on Natural Resources
From:
Date: September 9, 2008
Re: Testimony In Support Of House Bill 6233 And Senate Bill 3113 To Reinstate The Interim Protected Species Management Strategy At Cape Hatteras National Seashore Recreational Area (CHNSRA)

Please enter the following as testimony in support of House Bill 6233 and Senate Bill 3113 to reinstate the Interim Protected Species Management Strategy at CHNSRA. As I will demonstrate below:

1. there is a precedent for the requested legislation,
2. despite the continued pressure from SELC, DOW and Audubon (hereafter referred to as SELC), NPS has made significant progress in the new rulemaking process,
3. the modifications to the Interim Protected Species Management Strategy that resulted from the consent decree violate the Federal Code of Regulations and NEPA, and
4. the USGS Protocols are not binding.

PRECEDENT

Executive Orders 11644 and 11989 issued in 1972 and 1977 respectively required all agency heads to develop rules to manage the use of ORVs on federal lands. Executive Orders 11644 and 11989 have been the subject of continued litigation. For example, in 1999 Bluewater Network filed a petition asking the courts to require the NPS to develop a special rule for ORV use. It was in direct response to this petition that on July 20, 2000, Denis P. Galvin, Deputy Director, NPS, DOI spoke to this committee regarding the DOI’s intent to follow the existing rules on snowmobile use in the national parks until such time that new rulemaking was completed.” In 2005 Bluewater Network filed a request to enjoin ORV use at all National Parks not in compliance with Executive Orders 11644 and 11989. It was in response to this request for injunction that Congress passed legislation to authorize snowmobile use at Yellowstone National Park. Based upon the intention of CHNSRA to enter into a negotiated rulemaking process, Bluewater Network exempted CHNSRA from the request for injunction allowing CHNSRA to continue to manage ORVs under existing rules. As of this date, Bluewater Network has settled its lawsuit. In this regard, Bluewater has not objected to Glen Canyon National Recreation Area in Utah or Cape Lookout National Seashore in North Carolina continuing to apply existing rules so long as they continue to work toward completion of the rulemaking processes that are underway. Quite simply, there is ample precedent for allowing park units to follow existing rules while completing the new rulemaking process.

RULEMAKING PROGESS AT CHNSRA

CHNSRA had made several attempts to comply with Executive Orders 11644 and 11989 between 1978 and 1999. The newest attempt began in 2001 when NPS contracted four studies designed to provide a scientific basis for managing recreation and ORV use at CHNSRA. These studies were presented to the public in 2003. In February 2005, NPS announced its plan to run a traditional rulemaking process and a negotiated rulemaking process simultaneously. In that same year, in response to increasing pressure from DOW and Audubon to do more to protect sensitive species and from visitors objecting to the ever-increasing and unpredictable resource closures, NPS proposed an interim plan designed to “protect sensitive species and provide for recreational use ... until a long-term ORV management plan/EIS is developed.” Despite the temporary nature of the proposed interim plan, NPS adhered to all NEPA requirements including conducting multiple public meetings, providing multiple opportunities for public comment, and providing hard copies of the 300 plus page Environmental Assessment to all interested parties. The Interim Protected Species Management Strategy was finalized in July 2007 when USFWS issued a “no jeopardy” opinion and the Atlanta office of the NPS issued a “finding of no significant impact”. Should you still have doubts as to whether the Interim Plan provides the type of ORV management required by NPS mandates, consider the background in support of Warren Judge’s testimony to the Subcommittee On National Parks Of The Senate Committee On Energy, the Interim Protected Species Strategy submitted on July 30, 2008. In this document Attorney Liebesman makes a compelling argument that the Interim Protected Species Strategy, when combined with other park management policies, serves the intended purpose of providing the type of ORV management policies required by Executive Orders 11644 and 11989.

On October 18, 2007 SELC filed a lawsuit challenging the adequacy of the Interim Protected Species Management Strategy. At the January 2008 Negotiated Rulemaking Committee meetings the public and committee members responded by challenging SELC’s commitment to the negotiated rulemaking process and accusing SELC of attempting to compromise the negotiation process. SELC responded by noting that the decision to file the lawsuit was made prior to the establishment of the negotiated rulemaking committee. SELC went so far as to state that there was no reason to expect that the negotiated rulemaking committee would be approved. While the establishment of the negotiated rulemaking committee was not published in the federal register until December 2007, the following facts demonstrate that there was every reason for SELC to expect that the negotiated rulemaking committee would be approved and for SELC to act accordingly.

1. SELC, DOW, and Audubon were all included in proposed negotiated rulemaking stakeholder list published on April 4, 2006.
2. The Negotiated Rulemaking Feasibility Analysis dated April 4, 2006 clearly stated that legal action on the part of stakeholders had the potential to compromise good faith negotiations among the committee members.
3. Recognizing the potential impact of their involvement in the Bluewater lawsuit discussed above, another applicant to the committee, the National Parks Conservation Association, exempted CHNSRA from the Bluwater lawsuit. Despite the fact that the National Parks Conservation Association was never appointed to the committee, they did not rescind the exemption.

On February 20, 2008 SELC filed a request to enjoin ORV use at the most popular areas of CHNSRA. This action was taken despite the facts:

1. that SELC accepted membership in the negotiated rulemaking committee,
2. that SELC participated in the development of a draft of ground rules, including one that called for members to refrain from using the courts to settle disputes, and
3. that the above-referenced ground rule was developed because of the potential for legal actions to compromise good faith negotiations.

SELC defended their actions by asserting 1) that the ground rules had not been formally approved, and 2) that the lawsuit and the request for injunction were based solely on alleged deficiencies in the Interim Protected Species Management Strategy as opposed to the long-term ORV management plan/EIS. While the first assertion is clearly splitting hairs, the second assertion is not consistent with the facts. Stated more specifically, the request for injunction repeatedly states that one of the reasons ORV use should be enjoined is because CHNSRA does not have a long-term ORV management plan/EIS. As such, SELC alleges that CHNSRA is not in compliance with Executive Orders 11644 and 11989. As further evidence that the request for injunction is not based solely upon the alleged deficiencies Interim Protected Species Management Strategy, consider the fact that the absence of a long-term ORV management plan/EIS was the single factor Judge Boyle cited when he stated that he was inclined to issue the requested injunction on April 4.

As predicted in the negotiated rulemaking feasibility analysis of 2006, the set of events described above have had a significant negative impact on the process of negotiating a long term ORV management plan/EIS. The final act of sabotage, however, involved not just SELC but the governmental agencies that we are expected to trust with the final say over a long-term ORV management plan/EIS that balances resource protection with recreational uses of the Seashore—that is, NPS, USFWS, and DOI. The act of sabotage to which I refer consists of six weeks of negotiations regarding modifications to the duly authorized Interim Protected Species Management Strategy that were conducted without the knowledge of either the Interveners in the case or the negotiated rulemaking committee. The exclusion of the negotiated rulemaking committee not only served to compromise the rulemaking negotiations but, ultimately led several negotiated rulemaking committee members to call for the removal of SELC, DOW, and Audubon from the committee.

On April 4, 2008, Judge Boyle did instruct SELC to permit the Interveners to come to the table regarding the negotiated modifications to the Interim Protected Species Management Strategy. The Interveners, however, came to the table knowing full well that the Judge was ready to issue the injunction and thus, were at a distinct disadvantage. Even more appalling is the fact that the Interveners were not permitted to take the agreement to their respective constituencies prior to the final filing of the agreement (consent decree) on April 16, 2008. Given the potential impact of the injunction and without input from their constituencies, the Interveners took the only reasonable course of action—that is, they signed the decree and put the best face on it lest the judge refuse to accept the decree. Based upon the two court orders that followed on April 19 and April 22, Judge Boyle’s acceptance of the decree was far from certain.

The bottom line is this, during the past 7 years NPS has finalized a rule that will allow NPS to fulfill its mandate to balance resource management with appropriate public access—that is, the Interim Protected Species Management Strategy. At the same time, NPS has made considerable progress in the development of the long-term ORV management plan/EIS. This progress is nothing short of amazing considering the time spent in court and the added demands placed upon management by consent decree requirements. Finally, despite the distrust bred by SELC’s demands and the lack of openness regarding the settlement of the SELC lawsuit, the committee has agreed to continue their deliberations and to try to reach consensus on as many of the issues as is possible. While it would be preferable to have a rule that was based upon consensus among the negotiated rulemaking committee members, this consensus is not a prerequisite to the successful completion of the long-term ORV management plan/EIS. In fact, based upon the progress made to date and the obvious commitment to this project, there is every reason to expect that the current effort to complete the long-term ORV management plan/EIS will be successful.

VIOLATIONS OF THE FEDERAL CODE OF REGULATIONS AND NEPA

As per the consent decree, NPS conceded one point only, “that a special regulation designating ORV routes and areas at the Seashore has not yet been issued.” Stated more specifically, NPS was quite clear that their decision to enter into the consent decree was not to be taken as any admission or final adjudication of the issues of fact or law with respect to the Plaintiffs’ claims regarding the Interim Protected Species Management Strategy. In fact, the rationale for brokering the agreement was that Judge Boyle had already stated that in the absence of a special regulation designating ORV routes and areas, ORV use at CHNSRA is not legal. Based upon this understanding of NPS’s position, I was shocked and dismayed when Mr. Wenk, Deputy Director, NPS, DOI told the Subcommittee On National Parks Of The Senate Committee On Energy And Natural Resources that the DOI could not support the Senate Bill (3113) to reinstate the duly authorized, NEPA compliant Interim Protected Species Management Strategy. Quite simply, I expected Mr. Wenk to respond in the same fashion as Mr. Galvin did in 2000 and support the rule that resulted from the NEPA process designed to produce rules that strike the balance between resource protection and other uses of the park. I found it even more offensive that two other agencies (Office o f Management and Budget and the President’s Council on Environmental Quality) that were not a party to the consent decree and that are responsible for implementing NEPA supported Mr. Wenk’s position.

Public Use of the Park

Title 36 of the Code of Federal Regulations states that when closures are of a “magnitude and duration that will result in a significant alteration in the public use pattern of the park area” or “are of a highly controversial nature”, such closures are to be “published as rulemaking in the Federal Register.” The changes in public use patterns resulting from the consent decree have been significant. For example, during the period of May 5 through August 14, the implementation of the consent decree resulted:

1. in the effective closure of anywhere from 35 to 48% of the beaches normally available to ORV users (see Appendix A),
2. in the effective closure of anywhere from 20 to 30% of the beaches normally open to pedestrians, and
3. in the effective closure or the most popular areas (the point and the four inlet spits).

With respect to the nature of the closures resulting from the consent decree, obviously, the closures have proven to be extremely controversial. As such, the modifications resulting from the Consent decree should have been subjected to the rulemaking process.

Section 9 Exception Does Not Apply

Executive Orders 11644 and 11989, do not alter the above noted rulemaking requirements but rather are intended to further the purposes of NEPA. The only exception to rulemaking is provided in Section 9. Section 9 provides that agency heads can unilaterally close Off Road Vehicle Use areas but only if it is determined that Off Road Vehicle use is causing or will cause “considerable adverse effects” on the resource. SELC alleged that, based upon a comparison of bird populations in 1999 and 2007, Off Road Vehicle use has caused the type of “considerable adverse effects” noted in Section 9. As demonstrated below, the facts do not support the alleged “considerable adverse effects” of Off Road Vehicle use.

NPS began implementing the portions of the Interim Protected Species Management Strategy as early as 2005. These management policies differed considerably from past practice. The being the case, analysis of current management policies should be limited to 2005 through 2007. In this regard consider the following facts:

1. The false crawl ratio for 2007 included 24 false crawls that occurred in an area closed to recreational use. USFWS suggested that any efforts to ascertain the impact of recreational use should not include the observations from this area. Following USFWS’s recommendation, the recalculated false crawl ratio is 1.09:1.
2. The recalculated 2007 false crawl ratio of 1.09:1 is comparable to the 7 year average false crawl ratio of 1.04:1.
3. The recalculated 2007 false crawl ratio of 1.09:1 is not only well below the reinitiation trigger, it is very close to the Interim Plan goal of 1:1.
4. The number of breeding pairs of Piping Plover has been trending upward since 2003.
5. USFWS anticipates that this trend will continue and attributes the increases to the implementation of the Interim Protected Species Management Strategy.
6. The Piping Plover fledge rate for 2007 (.67) exceeded the 10 year average for the period of 1994 to 2003 (.607).
7. The Oystercatcher population has been steady for the last 3 years (22, 21, 24 in 2007, 2006, and 2005, respectively).
8. The Oystercatcher fledge rate for the last 3 years (.43) has exceeded the average for the past 10 years (.37).
9. Colonial Waterbird numbers continue to be highly variable with a significant number exhibiting a preference for newly created dredge islands.

Based upon the above data, there is no justification for supplanting the NEPA compliant Interim Protected Species Management Strategy with a modified version that has not been subjected to the rulemaking process.

Consent Decree Fails to Provide a Balance Between Benefits and Costs

The rulemaking process is designed to produce rules that balance the benefits derived from resource protection with the costs associated with the proposed protective measures. As I will demonstrate below, the failure to attempt to project the probable benefits to the resource and the cost associated with the new policies has not resulted in the balance sought by the rulemaking process.

As Mr. Wenk acknowledged during his testimony to the Subcommittee On National Parks Of The Senate Committee On Energy And Natural Resources, three months is clearly not enough time to evaluate the impact any policy change will have on bird or turtle populations. That said, it is possible to make some preliminary evaluations with respect to the impact the consent decree has had bird and turtle productivity. As you will recall, the major change resulting from the consent decree involved significant increases in the recreational free buffers provided in nesting areas. Based upon the fact that there were fewer storms during the 2008 nesting season and assuming that the new policies will halt the alleged declines of birds and turtles, 2008 productivity measures would be expected to show significant improvement. Upon reviewing the productivity measures presented below, it should be clear that there was little, if any, improvement in bird and turtle productivity.

1. The false crawl ratio for 2008 of .92:1 (101/92) is NOT significantly different than the recalculated 1.09:1 ratio for 2007.
2. The fledge rate for Piping Plover observed in 2008 (.64) is NOT significantly different from the fledge rate observed in 2007 (.67).
3. The .74 fledge rate for Oystercatchers is NOT significantly different from the .5 fledge rate observed in 2007.

With respect to the costs associated with the consent decree, SELC, based upon occupancy taxes for May and NPS visitation statistics as of June, concludes that the consent decree policies have had “little to no effects on tourism.” It is patently ridiculous to draw any conclusions from such a limited data set. Furthermore, NEPA requires a much broader investigation into the costs associated with resource management plans. The list presented below provides a sampling of the type of costs to be considered. Upon reviewing the list, it should be clear that the observed costs associated with the consent decree are far from minimal. Furthermore, it should be equally clear that the potential for economic harm should the consent decree remain in effect is substantial.

1. Additional management costs under the consent decree are expected to top $353,000.
2. The comments attached to the 11,600 plus signatures on the petition in support of the House Bill 6233 and Senate Bill 3113 clearly demonstrate a significant negative impact on visitor use and experience.
3. Some businesses have reported losses of up to 30%.
4. The comments attached to the 11,600 plus signatures on the petition clearly demonstrate a large potential for lost revenues should the extensive closures continue.
5. The closure of the most popular areas to ORV use has the potential to displace the majority of approximately 750,000 visitors that come to CHNSRA for the express purpose accessing the park’s beaches via ORV. In the event that the displaced visitors react by going elsewhere, there is the potential for significant loss of revenues in all sectors.
6. The time frame of the most extensive closures, May through August, accounts for nearly 70% of the total number of visits to CHNSRA. If even one quarter of these visitors decide to go elsewhere, many of the small businesses that make up the Island economy will find it difficult to survive.

In view of the facts 1) that the consent decree is based SOLELY upon the USGS Protocols contracted for the Interim Protected Species Management Strategy, and 2) that the Protocols “do not attempt to balance the need for protection of these species with other activities that occur at CAHA”, the above-described failure to balance benefits and costs is not unexpected. In point of fact, as evidenced by the following quote, USGS never anticipated that the Interim Protected Species Management Strategy would be based SOLELY upon the USGS Protocols.

“…be considered by the National Park Service (NPS), along with federal laws and mandates, NPS policies, other scientific information, and public input, in developing management plans and conservation strategies implemented at the Seashore.”

In fact, NPS did exactly as USGS suggested. They considered the Protocols in conjunction with the wealth of data collected since monitoring of species began in 1999. Furthermore, as per NEPA requirements:

1. NPS included a no action alternative and a less restrictive alternative which included procedures for applying discretion when conditions change—a recommendation made by USGS,
2. NPS evaluated the impacts of each of the alternatives as they related to visitor use and experience and the local economy, and
3. NPS evaluated the management costs of implementing each of the alternatives.

A thorough review of the 300 plus page Interim Protected Species Management Strategy Environmental Assessment clearly demonstrates that NPS considered a wide array of information before selecting the preferred alternative that became the Interim Protected Species Management Strategy. Given the significant alterations of public use patterns, the failure to present a fact-based compelling need for immediate action, and the potential for excessive costs, the modifications placed into effect by the consent decree should have been subjected to above-described rulemaking process.

USGS PROTOCOLS ARE NOT BINDING

The above description of the analysis that culminated in the Interim Protected Species Management Strategy begs the question, why does the Consent decree rely SOLELY upon the USGS Protocols? Because SELC insists that the USGS Protocols were the only peer-reviewed science considered in the development of the Interim Protected Species Management Strategy. This being the case, SELC asserts that NPS is required to use the USGS Protocols as the basis for resource management. Furthermore, according to SELC, NPS is not permitted any discretion with respect the specific protective measures outlined in the USGS Protocols—that is, the USGS Protocols have become the bible.

Actually, the Protocols are not peer-reviewed science. The Protocols are a summary of published scientific data. Furthermore, with respect to the published scientific data reviewed, USGS made the following observation:

"published scientific data on which management is based is often incomplete and less specific to the particular location of species under management than is desirable."

The lack of complete and specific data is one reason that the USGS stated that the protocols were preliminary suggestions to be considered in conjunction with other appropriate data. That is, NPS was right to consider the vast amount of data collected as a result of monitoring efforts and should NOT be limited to using the USGS Protocols as written.

Finally, the peer reviews that SELC references are nothing more than a review by the published authors conducted for the purpose of verifying that their work was accurately summarized. That is, they are NOT the type of peer review normally associated with science that is used as the basis of resource management plans.

SUMMARY

Mr. Wenk summed up the Department’s position in the following manner.

“The Department supports allowing public use and access at Cape Hatteras National Seashore to the greatest extent possible while ensuring protection for the Seashore’s wildlife, including the federally protected species that are the focus of present concern, for this and future generations of park visitors. Because we believe that the April 30, 2008, consent decree will accomplish this objective better than the original 2007 Interim Management Strategy for the period until a final ORV plan and rule are adopted, the Department cannot support S. 3113.”

As I have demonstrated above, the Department does not appear to have exercised due diligence in verifying SELC claims with regard to the alleged “considerable adverse effects” of ORV use at CHNSRA. Similarly, the Department does not appear to have done anything to verify that the claim that consent decree will allow for continued access to the seashore’s beaches. The Department has not even bothered to consider the costs associated with the consent decree. In fact, Mr. Wenk sounds like he is regurgitating SELC and DOW press releases. The only possible support I can see for Mr. Wenk’s position is that in the absence of a special rule, Judge Boyle was prepared to grant the injunction. If the only options are no ORV use or the Consent decree, than certainly the Decree accomplishes the Department’s objectives better than original 2007 Interim Management Strategy which would result if Judge Boyle closing the seashore to ORVs. There is one problem, however, with the Department’s position. By accepting the decree and giving up discretion with respect to the protective measures employed at CHNSRA, the Department has relinquished NPS’s authority to manage the park.

As noted earlier, congress enacted legislation that authorized snowmobile use in Yellowstone. The difference between the Yellowstone legislation and the proposed legislation for CHNSRA is that the Department representative, Mr. Galvin supported the legislation proposed for Yellowstone. Please do not allow the lack of support from the Department to keep you from passing this legislation. In this regard, I ask that you do what the Department did not. Give the data a good hard look and based upon a real review of the facts decide if the Interim Protected Species Management Strategy was developed in accordance with NEPA. Furthermore, give the arguments presented by Attorney Liebesman a good hard look and decide if the current management policies, in conjunction with the Interim Protected Species Management Strategy satisfy the intent of Executive Orders 11644 and 11989. If you decide that the Interim Protected Species Management Strategy is NEPA compliant and that the combination of the Interim Protected Species Management Strategy and current management policies do satisfy the intent of Executive Orders 11644 and 11989, please do everything in your power to make sure this legislation is passed. Send a message to environmental extremists that SELC represents. Make it clear that they cannot use endangered species or species of concern as a tool to overturn valid rules promulgated by our government land managers. Put the authority to manage CHNSRA back into the hands of NPS where it belongs.

cc: Subcommittee On National Parks Of The Senate Committee On Energy And Natural Resources
The Honorable Richard Burr -- 202-228-2981
The Honorable Elizabeth Dole -- 202-224-1100
The Honorable Walter B. Jones, Jr. -- 202-225-3286
The Honorable Mark Basnight, Senator -- 919-733-8740
Dirk Kempthorne --
Dan Wenk --
Warren Judge -- 261-9988
Allen Burrus -- 986-2004
Michael Murray --
Mary Bomar --
Mr. Pete Benjamin --


ORV Impacts

"Preliminary analysis indicates that major storm events may have the ability to �wipe the slate clean� as they move sediment off shore. In terms of the compaction, sediment grain sizes, and beach faunal communities, storms may remove all damage that is caused by ORVs, allowing new populations of animals to inhabit the area."

"Impacts of ORVs on inter-tidal communities appear to be low. The dynamic nature and location of their habitat waterward of ORV traffic appear to protect them from the impacts (crushing or burying) associated with ORVs. "

Dr James Perry
College of William and Mary/Virginia Institute of Marine Science
Determination of Status of Existing Natural Resource Impacts from Recreational Use of Cape Hatteras National Seashore: Literature Review and Ecological Assessment

Individual research study conducted in conjunction with the NEPA process that led the Interim Protected Species Management Plan that was finalized and implement in 2007--Note, the older plan is only one year old.

"To develop a comprehensive literature search which will assist the park service in the development and implementation of a comprehensive off-road vehicle use plan."

I don't see any end in sight for this controversy. Neither side is going to be happy with anything, and I doubt the success of the RegNeg committee. People hold their beliefs too tightly on both sides.

Stella, I bet you have never been to Cape Hatteras National Seashore And RECREATIONAL AREA! ( not wildlife refuge) Driving on the beach is not only a tradition that dates back before ww2 it is a Necessity to access remote areas of the seashore. The key word here is remote areas, parts of our NP are concidered wilderness areas that can only be accessed by ORV and that is the beauty of this seashore. This is a place where you can bring your family set up on the beach for the day and enjoy the birds and turtles while you take a walk down the beach and shell collect, then go swimming in the ocean in the meantime your 12 foot surf rods are out and who knows what you might catch for supper. Why would people want to take that away from us! The last thing you would want to do is get into statistics but here are a few. There has never been a recorded incident where an ORV harmed a bird or turtle accept by NPS vehicle. You might say vehicles rut up the beaches but you obviously don't realize that the Outerbanks are a forever changing geography where everything is erased by the wind sand and tides on a daily bases. You might say we trash up the beaches, that would an outright lie.We take care of the beach and keep it clean not the so called environmentalist or the National Park Service. We volunteer and used to do it proudly untill some in the NPS and DOI turned to the darkside and are obviously being "taking care of " by special interest groups. So mind your own business and leave our National park and Recreational area alone.

Another side to the ORV access that the SELC and DOW don't want you to realize is that access to the beach per the consent decree also restricts pedestrians. That is in most instances you are not allowed to even walk there if you would be so inclined.

People, this is not a wildlife sanctuary this is a national recreation area as defined by Congress in the 1950's. Let's keep it as such.

Something that is being missed here is that during bird closures these areas in question are off limits to all human activity. Not just ORV's but anyone that takes a notion to stroll along the seashore risks arrest and heavy fines just for walking on the beach in a protected area. What an incredible shame that this is allowed to happen in a National Seashore that our tax dollars pay for.

As several on this page have stated both sides are adament in thier beliefs. I have been visiting and driving on the beaches of NC for more than 40 years . Before the advent of the SUV and when there were no restrictions. Each year there are more and more restrictions and less area to enjoy. This summer our family made it's yearly visit and it was a down right shame to look and see literally miles of beach that was not accessable to anyone except the " authorities" that seem to be on it every evening. This island depends upon the tourist trade for it's livelyhood and with out access to the beaches it will be economically devestated. In fact this year has been a bad one already. There needs to be some type of solution that involves comprimise that will protect both sides. The facts show that vehicle use is not the culprit but more the weather. This strip of sand has constant winds and many storms that present more of a threat than the few off road vehicles that use it. The areas that we use are not user friendly without vehicle access. Let's try and get this opportunity solved soon so we can all enjoy the island again.

As several on this page have stated both sides are adament in thier beliefs. I have been visiting and driving on the beaches of NC for more than 40 years . Before the advent of the SUV and when there were no restrictions. Each year there are more and more restrictions and less area to enjoy. This summer our family made it's yearly visit and it was a down right shame to look and see literally miles of beach that was not accessable to anyone except the " authorities" that seem to be on it every evening. This island depends upon the tourist trade for it's livelyhood and with out access to the beaches it will be economically devestated. In fact this year has been a bad one already. There needs to be some type of solution that involves comprimise that will protect both sides. The facts show that vehicle use is not the culprit but more the weather. This strip of sand has constant winds and many storms that present more of a threat than the few off road vehicles that use it. The areas that we use are not user friendly without vehicle access. Let's try and get this opportunity solved soon so we can all enjoy the island again.

Mr. Finegan,

JTH supplied the document I was about to bring up myself. This designation is indeed not listed on the NPS website for the area, and has curiously disappeared and reappeared over the years for reasons unknown.

To those of us on the ground down here, it is very much not a triviality. It may be the keystone to our argument when this issue returns to court. Notice I didn’t say “If”…

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In other news:

Eddie’s comment is spot-on.

Here’s a look at another look at the “slight of hand” moves that SELC uses in their favor. Look at the below “Google Earth” based map put out by the CHNSRA NPS. The area we are looking at is Hatteras inlet, with the South end of Hatteras Island visible on the right, and the North end of Ocracoke Island visible on the left.

Please pay particular attention to the area marked “Ramp 59”. Notice that an area marked in orange color, which denotes “Pedestrian Access Only” is bracketed by areas marked in red on both sides, which denotes “Closed for Resource Protection”. This means no human/canine entry at all, period. Once you reach one of these areas, you will see one of these this blocking your way, depending on whether it’s bird or turtle season:

Also, please note the immense buffer zone that surrounds this now-drowned turtle nest. You can see a family standing at the other side of the closure. A bit excessive, perhaps?

The only way you can access this seemingly “Open” area is by boat, and the inlet is not a place to be taken lightly due to ocean swells that enter it, and an approximately 3 knot current that runs through the inlet at all times except slack tides. You don’t want to take your canoe there, trust me.

The SELC talking heads would include this area in their touting of percentages of beach open, but it cannot be accessed! There have been many instances of this throughout this summer under the Consent Decree.

I worked at Fire Island National Seashore a few years ago and lived on the island. When I was considering returning, I asked if I could drive my Jeep 4x4 to my duty station from Long Island (so I could live on Long Island instead of living in isolation for a month). No. Only law enforcement are allowed to drive on the beaches and a small number of Fire Island residents (who live in private communities that pre-date the park). I socialized quite a bit at the only microbrewery on Long Island, and when people found out I was a national park ranger, they asked me why they couldn't get permits to drive to their houses. I didn't know. I couldn't get one either. Had to be law enforcement.

Meanwhile, I helped wildlife biologists set up exclosures and monitor the piping plover population. (They often drove off-road Polaris vehicles.) I always had to walk the beach, and when I did, the most damage was not done by vehicles (although vehicle tracks are arguably an aesthetic damage--but just wait for the next storm surge or high tide). The most pollution came from plastics and other nastiness coughed up by the surf.

The real issue at Fire Island was the birds. So, close the beach to travel when you gotta protect the nests. But after that, open driving to local residents, including non-LE rangers, and perhaps provide sections for low-impact recreational uses (ORV on the beach--not dunes).

Alas, it would seem that the bill may have died in committee yesterday. Voting was divided strictly along party lines. Go figure. The vote was close, though.

From the "Island Free Press":

Even as the witnesses were testifying in the House, the Senate Committee on Energy and Natural Resources dealt the legislation what may be a fatal blow. The Senate committee voted 12-11 not to report the bill, S3113, out of committee. The vote split along party lines, with Republicans, including North Carolina’s Sen. Richard Burr, voting to report the bill out of committee and Democrats voting against it. Since this Congress will probably recess at the end of the month for the year, it seems increasingly unlikely that the legislation to set aside the consent decree will be passed.

A big thanks to all who fought for this bill. Special thanks the the NC and mostly VA representatives who co-sponsored the bill and fought for the rights of their respective constituents.

Also a big thanks to everyone who has posted on either side of this issue. I have learned much from you all, and I hope you feel similarly. Spirited debate is always informative as long as one keeps an open mind.

The bill may be reintroduced next year. Otherwise, I see no other alternative than a return to the Judicial Branch of our government to resolve this issue. This time, however, it hopefully will involve more than just a single biased federal judge. The Eco groups have much to fear from sworn testimony and cross-examination.

Their "science" and spin will not withstand the truth in that setting.

dapster said:

"The Eco groups have much to fear from sworn testimony and cross-examination."

I daresay 'Eco groups' have become environmentalism's own greatest liability. The laws they use to tie the United States in administrative knots weren't meant for these kinds of purposes. Congress has been grappling with the problem for years, and at some point they will undertake a package of reforms that will put an end to this 'subversion & perversion' of public law.


Oh, come on Ted Clayton. The endangered species law was EXACTLY written to do this because it was the last gasp of the effort to stop America from destroying its diversity of species. Real laws of nationwide land use, habitat destruction or releasing chemicals into the environment were too little too late. The endangered species act was a desperation move, to absolutely stop extinctions by forcing changes in human activities that threatened those species. Don't you remember the number of times it would be said that the destruction to the environment was an "unintended consequence" or an "unexpected side effect?"

To the extent possible the law was intended to interject the Fish and Wildlife Service into this "unintended" ambiguity with explicit science and actions and strategies to FORCE a change in destructive activities.

The only widespread public disapproval of the law has come when species without any charisma were ridiculed in well-funded attacks to trivialize the value of the species and undermine the respect for the public servants involved. (accompanied by constant interference by political appointees resulting in over-long administrative procedures, and critically underfunded budgets, to try the public patience.)

The public certainly does not feel this way about shore birds. And remember, threats to birds was one of the very largest original reasons for the passage of the endangered species act.

Oh, come on Lepanto!

The endangered species act was a desperation move, to absolutely stop extinctions by forcing changes in human activities that threatened those species.

If certain human activities are causing species extinction, then they indeed must be curtailed. We are agreed on that point. However, it is not the responsibility of humanity to preserve the “snapshot in time” of species present in 2008. Natural selection must be allowed to rule, not NEPA protocols. Predator species have been “relocated” via trapping our outright killing in the name of threatened species. That to me is playing God.

Consider how many species became extinct on this planet before humans arrived on the scene. Some species just can’t cut it in the world, and they slowly slip away. While truly sad, it is what nature intended.

The only widespread public disapproval of the law has come when species without any charisma were ridiculed in well-funded attacks to trivialize the value of the species and undermine the respect for the public servants involved.

Can you expand on the non-charismatic animals you cite? I have no recollection of any ad campaigns as you describe.

I agree with Mr. Clayton completely in that simple environmentalism and caring for the welfare of species has grown into a more “Extremist” movement of late. This country finds itself mired in lawsuit upon lawsuit over circumstances that could be resolved by other means.

The case in point with CHNSRA is that a few radical groups believe that mere human presence on the beaches is a detriment to either shorebird fledglings or sea turtle nests. This has not been proven, even under the Consent Decree. Literally millions of dollars have been spent, and resulted in 3 more fledged birds than 2007. One or two storms in the spring would have made the numbers less than last years.

Turtle nests have seen an increase this year, but most likely due to the 3-year nesting cycle of the loggerhead. Recent storms will have an impact on those numbers as well, especially since nests are not moved for any reason on CHNSRA. However, they are moved <50 miles to the North in the Pea Island NWR if they are found to be in an area that would be detrimental to their survival. Reasons given for moving/not moving have been described as CHNSRA is under DOI/NPS. PINWR is under USFWS/DOA. I still don’t see where that makes any logical sense. But then, when have politics ever been logical or rational?

We want to Protect and Preserve, not Prohibit. Humans have a place in this world also, and should not be excluded.

Lepanto et al,

It is not unusual to see the implementation of a 'good idea' (e.g., Endangered Species Act) demonstrate the need for adjustment(s) down the road. It is also not unusual to see the emergence of a "Perverse incentive" as an unintended consequence of a law.

Right now, environmentalists are still celebrating the Listing of the polar bear ... which is not endangered, but hypothetically could be, some day, maybe. While dedicated environmentalists are pleased, many of a more independent turn of mind chuckle & shake their heads at the clever subterfuge. This undermines the overall credibility of the environmentalist message, and the stature of the ESA.

The Endangered Species Act (more specifically the unintended use of it, i.e., attacking the oil industry of Alaska by listing polar bears when they aren't endangered) has been a perennial bone of contention in Congress for many years.

Essentially, the ESA is used by NGOs to effect legislation through the courts that is properly enacted only through Congress. That's wrong, it's a problem, and it is recognized in Congress that steps should be taken to stop it.

It would be in the interests of environmentalists & the environment to modify how the ESA works (it allows NGOs to function as a virtual Fourth Branch of the Government) earlier and more-incrementally, rather than wait for the eventual loss of the political conditions that protect it today.

Lepanto, I would ask that we all hold in mind that it is unlikely we will manage to 'save the environment' by the passage of laws alone. Without a consensus among the voting citizens that certain goals are important to us, it is unlikely that environmentalism-by-edict will stick. Credibility is important, and the ESA is not doing well with too many Americans.

The inability of a powerful, charismatic figure like Barack Obama to gain a clear ballot majority over a compromised figure like John McCain, and the ease with which McCain has placed Obama on the defensive by picking an environmentalism-doubter like Sarah Palin for a running-mate, really tells us where the Endangered Species Act stands with much of America.

There are a lot more Sarah Palins where that one came from, and the enthusiasm for her is only the leading hint of a potential political tsunami. Environmentalism is indeed at risk.

Quote: Leoabnto

To the extent possible the law was intended to interject the Fish and Wildlife Service into this "unintended" ambiguity with explicit science and actions and strategies to FORCE a change in destructive activities.

Right, and the ESA was followed and Fish and Wildlife Service issued a no jepardy opinion on the management plan SELC challenged and changed.

Oh, I forgot SELC trumps all federal agencies.

It doesn't matter if you call it Cape Hatteras NSRA (a NPS designation that doesn't exist) or NS. The General Authorities Act of 1974 says all NPS units regardless of designation will be managed the same, responsible to the same management policies, and will still have to obey all federal law including the NPS Organic Act, ESA, Migratory Bird Treaty Act, NEPA, etc. So, you can call it a recreation area, call it a purple planet, whatever, as long as it in the NPS system, the NPS will still have to manage for these resources just the same; they can't ignore it because the public chooses to call the Park by a different name.

Anonymous (Sept 13) references:

"The General Authorities Act of 1974 says all NPS units regardless of designation will be managed the same... "
Actually, however, there are wide, dramatic & diverse variations in how the resources of many NPS units are handled.

Perhaps the GAA '74 intends a narrower ('technical') application of its language than 'general usage' would suggest. Certainly, there are indeed 'radical' differences in how the various NPS units are regulated. They are obviously not all handled "the same".

One of our recent Presidents had an industrial pallet load of Regulations hauled out for public display, to dramatize the pickle we've gotten ourselves into, 'dog-piling' ever more rules into an increasingly incomprehensible heap.

There is nothing to exempt our Parks from the 'disease' of run-away rule-making. Bottom line: We have laws to serve the needs of the Country & Citizens, and when they become such a mess that folks of ordinary mental means don't know or can't agree what they do or don't mean, they may no longer be capable of filling their intended role, and are not of benefit to either the Country or the Citizens.

Or, they may be used to fill roles for which they were not intended.

Powerful words by Mr. Clayton:

Essentially, the ESA is used by NGOs to effect legislation through the courts that is properly enacted only through Congress. That's wrong, it's a problem, and it is recognized in Congress that steps should be taken to stop it.

I have now seen this "lever" in action with my own eyes. It is most certainly a misappliaction of the original intent of the ESA. Its usage needs to be halted.

It would be in the interests of environmentalists & the environment to modify how the ESA works (it allows NGOs to function as a virtual Fourth Branch of the Government) earlier and more-incrementally, rather than wait for the eventual loss of the political conditions that protect it today.

DOW/AS/SELC are certainly acting as a fourth branch with respect to the CHNSRA. If left as-is, it will certainly be challenged. I also agree that the ESA will suffer far worse if changes are forced upon it rather than being brought about internally.

I would ask that we all hold in mind that it is unlikely we will manage to 'save the environment' by the passage of laws alone. Without a consensus among the voting citizens that certain goals are important to us, it is unlikely that environmentalism-by-edict will stick. Credibility is important, and the ESA is not doing well with too many Americans.

I think a growing majority of Americans are beginning to tire of having the will of "Large Special Interest Groups" shoved down their throats. Here's a list of at least 11,000 American Citizens who don't think the situation in CHNSRA is credible:

http://www.gopetition.com/online/18790.html

Also, the "RA" designation does indeed exist, and is quite important to this issue. Once again, proof submitted in this document, which was part of the enabling legislation:

TITLE 16--CONSERVATION

CHAPTER 1--NATIONAL PARKS, MILITARY PARKS, MONUMENTS, AND SEASHORES

SUBCHAPTER LXIII--NATIONAL SEASHORE RECREATIONAL AREAS

Sec. 459. Cape Hatteras National Seashore Recreational Area;
conditional establishment; acquisition of lands

When title to all the lands, except those within the limits of
established villages, within boundaries to be designated by the
Secretary of the Interior within the area of approximately one hundred
square miles on the islands of Chicamacomico, Ocracoke, Bodie, Roanoke,
and Collington, and the waters and the lands beneath the waters adjacent
thereto shall have been vested in the United States, said area shall be,
and is, established, dedicated, and set apart as a national seashore
recreational area for the benefit and enjoyment of the people and shall
be known as the Cape Hatteras National Seashore Recreational Area:
Provided, That the United States shall not purchase by appropriation of
public moneys any lands within the aforesaid area, but such lands shall
be secured by the United States only by public or private donation.

Cape Hatteras wildlife and visitors will benefit from a reduction in ORV traffic on the beaches. When I went there, it was a disappointment to see how the motor vehicles dominated the beaches. Something had to be done because beach traffic kept increasing, and bird nesting populations were rapidly going downhill. Assateague Island National Seashore could be a good model for regulation at Hatteras -- half the beach mileage is open to ORVs, half closed. Only 145 vehicles are allowed in the Maryland part at any time, 48 in the Virginia part. Drivers must display an annual permit issued by NPS. The consent decree was a valuable first step toward reasonable long-term limitations on ORVs.

Geezer, I think everyone has had enough "good models" falsehoods, lies and fake science from you people from the darkside. Quote "The consent decree was a valuable first step toward reasonable long-term limitations on ORVs." We have more than eleven thousand people on a petition that would beg to differ with such lies. Futhermore if it was really about reasonable limitations for ORVs why won't the NPS allow the reg/neg meatings to be recorded. Whats to hide? let me tell you, "good models" ,falsehoods, lies and fake science.

Dapster, sorry got behind and missed your question on species held up to ridicule. Cannot be a surprise to anyone. Several examples, such as Snail Darter, liverwort, etc.