Beach Access Issues
May 23, 2008

Guest Column: The consent decree is a classic example of bad public policy

By MIKE BERRY



Before 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 rights.

As 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 called "environmentalism." 

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 get.  

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 hearings.

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 public.

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 dune structure

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 effective management.

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 the following:

•    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 management plan.

•    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 management actions.

•    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 public.

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.) 






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