| May 23, 2008
Guest Column: The consent decree is a classic example of bad public policy
By MIKE BERRY
I discuss the current situation and make recommendations for some of
the actions the public might take in response to closures, I wish to
state clearly for the public record that I have been for the past four
decades, and remain today and forever in the future, professionally
committed to protection of the environment. I am primarily
concerned with environmental conditions that affect the health and
well-being of humans and with the conservation of natural resources
that are essential components of a healthy environment. Given the
ever-changing environmental conditions brought about by growing human
populations and expanding regional and global economies,
effective environmental management is more essential now than ever
before, but never at the expense of violating human and Constitutional
I read the growing number of letters to the editor of this paper about
the current closures at the Cape Hatteras National Recreational
Seashore, I find the full range of unhealthy emotions, including
sadness, disbelief, shock, disappointment, anger, and citizen
outrage. When I read these comments from people from across the
nation, I focus on some specific thoughts.
Because of the current consent decree and closures, the public is being
pushed out and denied access to a treasured environment in which it,
too, has a rightful place. Environment is the sum of all external
conditions affecting the life of an organism. Humans show concern about
the environment because it is our home and constitutes those many
interacting conditions essential for our existence.
The public is being denied a role and opportunity to suggest ways that
an environment that it cherishes deeply can be effectively
managed. The federal government -- including the Congress, the
federal judiciary, and Departments of Interior and Justice -- has
failed in its duty to protect the Constitutional rights of the public
to have a say in the management of its park environment.
There is a clear difference between science-based, socially responsible
and equitable environmental management and a growing political movement
Responsible environmental management uses sound science and
professional judgment to balance the human needs and rights of people
with the need to manage and sustain natural processes. As a public
health professional, I will always place the health and well-being of
humans first, and I will never accept a political philosophy that
suggests people are less important than other species. Increasingly,
"environmentalism" places species ahead of humans. Sadly, this
new-age philosophy has crept deeply into our political process.
Humans should never be completely shut out or deprived of their
environment, so that other species should prevail or dominate.
With a good understanding of science—knowledge of how the
environment works—humans can make rational decisions and manage
conditions so as to connect with their environment and at the same time
provide for the existence of other species.
The environmental activist lawyer's comment to the court and to the
media in U.S. District Judge Terrence Boyle’s court on April 30
that this consent decree and "settlement" represents a "win-win"
management program is about as far away from the fact as one can
The park management formula laid out in the consent decree is a new
public policy. This new park policy was put together on the fly in
about 10 days behind closed doors, without any open discussion of
scientific fact, explanation and justification of environmental
management strategies, or consideration of the many needs and desires
of the general public. In this court-approved settlement, the
federal government agrees to respond to the dictates of three
non-governmental special interest groups for the next three
years. Citizens cannot even challenge the Park Service or these
non-governmental groups about this management policy.
Essentially, this consent decree takes the Cape Hatteras National
Recreational Seashore and turns it into a national maternity ward and
nursery for five bird species and turtles.
Every legitimate public policy in our democratic society is based upon
the Constitution. Public policy is intended to provide for the public
good and the rights of persons and that begins with the protection of
citizens and promotes conditions that enhance social well-being.
Citizens have a right to be a part of and have a say in the formulation
of governmental policies that affect their lives. However, in this
consent decree we have public policy created by dictum and without
benefit of comment or review.
In addition, the consent decree appears to grant special rights to
species, overlooking the fact that the Constitution grants rights only
to persons. There is nothing in the Constitution that grants any
right to a bird or turtle. That fact is seemingly not being taught in
law schools these days.
Traditionally, federal courts interpret and render opinions on the law
and protect citizen rights as spelled out in the Constitution or the
federal statutes. It has been long recognized that Congress and the
courts do not have the technical knowledge or resources to manage
national parks. That is why Congress established the National Park
Service. Park Service professionals are responsible for making
technical judgments and management decisions with regards to the
peoples' park. However, this consent decree is the product
of a process called "judicial review." Increasingly, especially with
regard to environmental issues, this judicial process is properly
criticized as "legislating and managing from the bench."
In the April 30 court hearing, the judge acknowledged about five
different times the need for public participation and review, but then,
at exactly one hour into the hearing, he completely set aside any
public concern or comment and signed off on the settlement. The Outer
Banks community intervenors had no choice but to go along with the
agreement or have the beach shut down completely. The court knew that
and could have at least opened the settlement to include public
This consent decree is a classic example of how not to formulate
environmental policy. It is good example of why good public
policy must always be transparent and provide for public review and
comment. The formulation of good policy takes thoughtful planning
and organization, time for citizen interaction and review, including
science review, much along the lines of what is currently being
attempted with the negotiated rulemaking process.
No reasonable person doubts the need for an ORV management plan for the
seashore, especially in the face of regional population growth and
improved highway systems onto the Outer Banks.
After many years of Department of Interior foot-dragging, the
negotiated rulemaking committee began its meetings in January. Under
the direction of a highly experienced and professionally competent park
superintendent, the National Park Service went out of its way to
encourage public participation in ORV management for the Park.
However, the environmental activist organizations, who now control a
large portion of the park through consent decree, agreed months ago to
take part, along with dozens of other citizen stakeholders, in a highly
visible process of good faith negotiation. The primary
purpose is to provide factual information to the Park Service for an
effective ORV management plan, provide equitable consideration of all
citizen groups, and avoid costly litigation. Through their
litigation, while sitting as major participants of the negotiation
process, the environmental activists violated their agreement and
indicated beyond any doubt they have no intention of good faith
negotiation. Within the recent judicial review, no consideration was
given to the desirability and benefits of a publicly transparent
regulatory negotiation process or the breach of agreement and inequity
of the lawsuit.
Much like the United States Supreme Court test for identifying
pornography: "You know it when you see it," a "bad public policy" is
one that produces an obvious bad outcome. Inside of one month,
the consent decree has been shown to be bad public policy to the point
of being a "public nuisance."
Here are some bad outcomes:
The public has been deprived of public participation and park access
rights. The public has been denied access to a park and shoreline it
owns. Particularly affected now and in the future are the disabled and
elderly members of our society who cannot get to the beach even on foot.
The consent decree has created enormous public anxiety and
outrage. Already this new policy has been the catalyst for
threats of physical violence, public disobedience, slander, and
vandalism. Under no circumstance can such behaviors be condoned by
those of us who are working hard to restore justice and sanity to this
situation through political and legal processes. We cannot allow the
breaking of any law in response to this awful situation, no matter how
emotional conditions become.
Park Service professionals, many having years of specialized training
and experience and decades of faithful public service, have been
stripped of their professional prerogatives to make judgment calls and
deal reasonably and equitably with the public they are sworn to serve.
The consent decree has contributed to a distrust of government.
Government officers are forced to arm themselves and enforce laws that
they themselves find as disturbing and unreasonably constraining as the
There are unnecessary tensions among citizen groups. People who have
some legitimate special interest in bird or nature watching, or simply
walking or sitting on an ORV-free region of the shoreline, are now
viewed as the enemy of the ORV or surf-fishing public.
Especially disturbing to me as a citizen soldier of this nation is that
the consent decree establishes a policy of retaliation and punishment
for the general public when violations of the consent decree occur.
Every time there is an act of vandalism, the Park Service is required,
without any management discretion, to significantly extend boundaries
and widen non-access areas. This serves no practical management need
and is simply a "punishment," much along the lines of what I have
personally observed and fought against in a police state on foreign
shores. So as to prevent further denial of beach access, citizen groups
have been forced to reach into their own pockets to offer substantial
amounts of reward money for the identification of and conviction of
those who break the law as dictated by the consent decree.
Visitors to the National Park and Outer Banks community are down.
Visitor habits and plans are changing. Already hundreds of trips to the
Outer Banks have been canceled or redirected to other parts of the
country because of actual or threatened beach closures
The local economy has been adversely affected by the consent
decree. Already this policy has produced significant economic
harm to small family businesses. For some businesses, revenues are down
50 percent or more. Gas station, restaurant, and motel revenues are
down. There are also indirect costs. Small businesses cannot pay
suppliers, mortgages and health care policies can not be paid, persons
must seek unemployment payments and food stamps, employees who face
years of uncertainty look for other jobs off the island. Some
long-time residents of the island are planning to relocate.
Risks of ORV and pedestrian accidents will increase as ORVs and
pedestrians are forced into smaller areas. There is an absence of
public parking and unclear direction and access to the shoreline.
The judge himself predicted this in the April 30 hearing. There will be
more parking along Highway 12 as visitors seek foot access to the
seashore. Damages to sensitive sectors of the park environment will
increasingly occur as ORVs and pedestrian traffic are channeled into
smaller regions of the park, overrunning the carrying capacity of those
sectors of the ecosystem. It is just a matter of time before the Park
Service must prevent the crossing of dunes to preserve vegetation and
If this is how public policy is going to be made in this age of
environmental concern, may heaven help us. We have three more
years of this deplorable situation.
So what might the public do? There are two primary actions that
can be taken immediately -- seek out political support and focused
legislation and closely examine and question the science and technical
basis for the closure.
Political support and focused legislation
The public must recognize that elected members of the United States
Congress have sworn responsibility to legislate constitutional policy
that serves the public interest and need. Your vote and that of
every other citizen is powerful and important. Political leaders and
policy makers need your vote to survive. Politicians listen and respond
to voters before an election. After the election, they tend to become
superficial and dormant. Between now and November is the very
best time to contact those running for elected public office and get
their personal commitment and word to restore your rights of
participation in policy and usage decisions that affect your rightful
use of a national park.
The first obvious step should be to ask Congress to immediately pass
legislation that restores full control of the park to the Park Service,
which answers to the public and just not special interest groups.
As part of this special legislation, Congress should again reaffirm and
ensure that public comment and review must be required for all
regulations related to beach access by ORV. The Congress must
also ensure that there be identification and open science review of all
technical content of the ORV management plan. The Congress must
specifically direct and fund a comprehensive economic analysis of the
impact of ORV regulation that includes an analysis of trade-offs and a
search for unintended consequences.
As an alternative to the above, Congress should be asked to enact
simple legislation -- similar to that related to Yellowstone National
Park on snowmobiles. Such legislation would enable the National
Park Service locally to continue to implement an effective interim
management plan that went through a very transparent, legal, and fair
National Environmental Policy Act review; scientific peer review; and
public review and comment process. The public should ask that the
interim plan that was terminated by the non-transparent court
settlement be allowed to remain in force until a final plan can be
prepared, publicly reviewed, and promulgated by 2011.
Question the scientific basis for the closures
Good environmental policy must always be based on sound science.
All substantive and responsible environmental management and policy
begins with a basic understanding of how the environment works.
Every science answers the basic question, "how?" A science is a
particular branch of knowledge derived from objective principles
involving the systematized observation and experimentation with matter
and processes of the physical and biological world. Science is a
body of definitions and proven concepts and used to explain how
particular processes function.
Scientific knowledge is derived from the scientific method. The
scientific method is a process known as hypothesis testing. It is
a procedure in which we conjecture possibilities (hypothesize); design
and execute an experiment to test the hypothesis; make and measure
observations; collect and analyze data; and draw conclusions whereby we
accept or reject the hypothesis. Science explains how the
environment works by way of measurement and quantification. Without
data, there is no science. Without science there is no basis for
The scientific method forces us to go beyond personal opinion and
political correctness. Given that the absence of open
peer-reviewed science is a root cause of the current closures, it is
extremely important that an educated public begin immediately to always
question the science and ask the all important questions -- "Where is
the data?" and "How was the data used to make management
decisions that affect our access rights?" We have a right to that data
and these answers, especially because they paid for it or because the
data are being used to control their lives.
In all sciences, particularly wildlife science, there are many
uncertainties, data gaps, and limited observations. These
limitations always need to disclosed, especially when the "fuzzy
science" is being used to regulate public behavior.
In this recent judicial review and consent decree there was no open
consideration of environmental fact-based solid science. There is
no publicly available peer-reviewed science to support the claims of
species loss as the result of ORV traffic.
The environmental organizations claimed expertise, which the court and
federal agencies accepted at face value. Yet the public has seen
no actual data, let alone trends based on data to support their
claims. There was no open peer review of studies, or any
explanation of how decision-makers used the studies and the science to
calculate various closure distances and protective boundaries that have
now denied the public access to the shoreline.
We can ask the National Park Service, U.S. Fish and Wildlife Service,
and Department of Interior to establish a review panel made up of
senior government scientists, who are at arms length, to research the
science related to the Outer Banks and the ORV management issue.
These government scientists should be recruited from throughout the
federal government and should be non-affiliated with any special
interest group related to the ORV issue. They can be asked to do
• Review and comment on the strengths,
weaknesses, and limitations of the key studies used to make closure
decisions as required by the consent decree or any future ORV
• Explain specifically how the science is used
to calculate or justify closure boundary distances for various species
so as to demonstrate that they are not mere opinions or arbitrary
• Recommend alternative management options that
might allow a better balance of public access and species protection
based on their unbiased review of the science.
• Consider new science. Answer
questions concerning the science asked by all interested members of the
The public can reclaim its rightful place in the discussion of the
important issue that will shape access to the national seashore for
years 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 in North
Carolina. 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, who lives in Chapel Hill, 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.)