Beach Access Issues
April 18, 2008

Guest Column….ORV rulemaking was out of public sight,
but the settlement is very visible

I want to thank the Island Free Press for keeping this ORV regulation and beach closure issue in full public view.  I also want to thank those citizens, attorneys, county officials, and civic leaders who worked tirelessly these many weeks to preserve public access to the shores of the Cape Hatteras National Seashore by way of motor vehicle. No one ever said the law is fair, but all citizens have the right to equal treatment and respect under the law and to the right of public participation.

I have never seen anything like this in my 40-year career as a public health environmental scientist, manager, and educator.  I have read the pending consent decree, which still must be approved by the federal judge overseeing the case, three times and still cannot believe that a federal court would consider such an order without  public comment. 

This settlement is an environmental regulation ordered by the court without public review and comment, with no consideration of economic impact and with no hard look at the scientific basis for numerous technically related requirements found in the document.  Yet, this agreement will significantly change our way of life and access to the seashore. 

From my point of view, this is a classic example of how citizens in an open, free society lose their rights to participate in the business of their government. This is certainly not what I and others fought for in Vietnam 40 years ago.  In fact, it does not get much more totalitarian than when a single federal court gives exclusive decision-making rights to a small number of well-financed environmental activists and special-interest lawyers to dictate how the general public and local community will access public land, in this case Cape Hatteras National Seashore, which has a tradition of usage rights, including the right to access the beach with a motor vehicle.

The environmental activists’ lawyers do have privileges that most citizens do not enjoy. They have a license to practice law, participate, and be heard in court.  As officers of the court they have a special privilege of talking directly to a very powerful federal judge who can cause significant events to occur, like a beach closure that affects us all.

This litigation is less about species protection and more about ORV restriction.

There has been no opportunity for public participation, comment, and input with regard to this new ORV regulation. For any environmental regulation issued by the federal government, citizens have the right of public review and comment as provided by the Federal Administrative Procedures Act.  Under the Federal Advisory Committee Act, citizens also have a right to know about and attend federal government meetings, especially when those meeting involve special-interest organizations trying to influence the government.  Under the Freedom of Information Act, citizens have a right to obtain all unclassified information, such as scientific information and correspondence with special-interest parties, that is held by the federal government

There has been no public discussion and review of economic impact with regard to this settlement.  The widely referenced 2003 Vogelsong Study (Cape Hatteras National Seashore Visitor Use Study, August 2003) has been used as the primary source of economic analysis for ORV regulation these past few years. Only in recent months has the federal government submitted that unpublished study for peer review. The findings of that peer review have not been disclosed in advance of this consent decree.   Several months ago, the professional economist James C. Luizer clearly and rigorously demonstrated in open public comment that the study was greatly flawed in terms of its analytical methods, and biased in its survey questions and ORV counts.  His comments, and those of many others, have been ignored by the federal government.

Last year, the U.S. Fish and Wildlife Service submitted  for public review a draft economic analysis that relied heavily on the to 2003 Vogelsong study, along with out-of-date census information and incomplete Small Business Administration data.  That analysis was little more than an insulting “paper study.”  The authors of that study, who reside in Cambridge, Mass., demonstrated no first-hand knowledge of the economic structure of the region they were hired to assess.  There was no economic data collection field work.  The study failed to recognize that virtually all businesses in the villages on Hatteras and Ocracoke islands are "small businesses," which are affected to some degree by reduced visits and park usage. 

The federal courts have time and again ruled that before environmental regulations are promulgated by the government, there must be a hard look at the scientific basis for those rules. This is called the Hard Look Doctrine and is known to all students of environmental law. The science is called "environmental criteria."

For the federal government to justify the need for the rulemaking such as that found in the consent decree, there must be a basis in recognized and published science. In this consent decree, there is a clear and gross absence of scientific information underpinning all technical aspects of the rule.

Particularly, there is no peer-reviewed science to support the claims of species loss as the result of ORV traffic. That claim has not been verified. Environmental activists have claimed the loss of species due to ORV traffic on the beach through press releases. That is not the way credible science is presented or reviewed.

Given the significant economic consequences and beach access loss to the public prior to regulation, our federal government owes the public an answer to the following questions about the factual and scientific basis:
•    What in totality are the criteria—studies, science and protocols used as the basis for the regulation and its technical content?
•    Who are the specific authors of those science-based materials and who do they work for and represent -- government, universities, environmental activists groups, etc.?
•    What is the area of expertise and what are their qualifications as researchers?
•    Where can the public acquire the raw or original data used to create the criteria or science base?
•    Were the studies on which the criteria based peer reviewed or published?
•    Who were the independent peer reviewers?
•    What protocols were used to collect the data and were they ever peer reviewed?
•    Where, when, and how were the data collected?
•    What quality control system and statistical analysis process was used in data collection and presentation?
Questions like these are always asked in open public science review before an environmental regulation as significant as this one is presented to the public.

Finally on top of all the insult delivered to the public by being sidelined and ignored by our government, there is the matter regarding legal fees.  We, the hardworking, over-taxed citizens of this nation now have the pleasure of paying otherwise well-financed environmentalist lawyers our tax dollars for suing us. Their organizations are tax exempt. Oh, how great does it get!

This old citizen soldier will have a lot more to say about this in the days to come.

(Dr. Michael A.  Berry served as any Army officer in Vietnam in the 1960s.  After returning to civilian life he earned a Doctorate in Public Health and worked in the U.S. Environmental Protection Agency, where as a senior manager and scientist, he served as the Deputy Director of National Center for Environmental Assessment at Research Triangle Park, N.C. During his 28-year career with EPA, he had extensive interactions with environmental organizations, local governments, the federal courts, U.S. Congress, universities world-wide, and institutions, such as the National Academy of Sciences, the World Health Organization, and the North Atlantic Treaty Organization. For more than 20 years, Berry taught public health, environmental science, and business and environment courses at the University of North Carolina.  He is currently a writer and part-time consultant, specializing in the evaluation of environmental quality and human health effects, environmental management strategies, and policy.) 

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