Beach Access Issues
July 1, 2008

Guest Column: The case for passing legislation that returns management of the seashore to the Park Service


When Congress established Cape Hatteras National Seashore Recreation Area in 1937, its intent was to permanently provide for all Americans a unique area for their enjoyment and use.

 For years now, those of us who utilize this unique resource have been under assault by a variety of environmental special interest groups that would deny us, but not themselves, access. And, in each case where evidence was heard from both sides in the court, they were sent packing. Quite simply, their claims were refuted by sound science and law. All of this has been at the expense of the American taxpayer. What occurred April 30 in U.S. District Judge Terrence Boyle’s court in Raleigh changed everything.

It’s the piping plover that has become the “poster child” for these groups.
The plover is a relative newcomer to CHNSRA. Every bird study conducted between 1900 and 1959 shows that it was not until 1960 that the first birds arrived in the park. Plovers nest independently of one another and not in colonies. They neither feed nor care for their young from the moment they hatch. They nest in areas that are subject to frequent overwash and frequently lose nests as a result. This has already occurred at CHNSRA in the 2008 breeding season, and not just with plovers. Predation has also taken its toll this year.

The piping plovers that nest at CHNSRA are part of the Atlantic breeding population, which is considered “threatened,” not endangered. It is very important to understand that CHNSRA is on the extreme southern edge of the plovers’ breeding range, which accounts for the historically low numbers within the park. Most plovers nest well north of Cape Hatteras, from Virginia’s Eastern Shore to Newfoundland, Canada -- with the majority of nesting occurring mid-range.

I am an individual who has utilized this resource, this national seashore recreation area, for almost three decades. And like many, I am so familiar with this beach system that predicting structure changes, overwash, and the like comes as second nature. Collectively, we possess more first hand knowledge of the workings of the beaches and the wildlife at CHNSRA than any environmental group in existence. It is, therefore, no surprise that an Alberta, Canada, plover study contains the following statement: “Human presence in an area can be a very effective form of predator deterrence.” (U.S. Fish and Wildlife Service, 2000) Interesting as well is a statement by Tim Gallagher editor-in-chief of Living Bird magazine, published in the spring 2000 edition, “But the large number of people always present at beaches does have a remarkable taming effect on birds.” This reflects what we see daily as we visit our cherished beaches.

There are 21 documented ORV related plover deaths in the entire United States. Twenty of these were committed by federal vehicles. In the 47 years prior to the consent decree, not one single plover death can be attributed to an ORV user in this park. One hundred percent of plover mortality at CHNSRA has been a result of either storms or predation. That is a far cry from the 24 piping plover nests the Army Corps of Engineers destroyed recently in the name of floating two barges of alfalfa pellets down a tributary of the Missouri River.

The Defenders of Wildlife, National Audubon Society, and the Southern Environmental Law Center would have one believe that none of what I write in these pages is true, though it’s all in the public record.

The consent decree deals also with other birds, such as black skimmers, common terns, least terns, gull-billed terns, Wilson’s plovers, and American oystercatchers. None of these birds are threatened or endangered under the U.S. Endangered Species Act. The consent decree treats them as though they are and at additional taxpayer expense. It also deals with the variety of sea turtles that occasionally nest on the park’s beaches, now requiring full beach closures unlike the National Park Service’s Interim Strategy.

Some “inconvenient truths” for DOW, Audubon and SELC include the fact that under the Interim Strategy (IMS), the 2007 nesting season was the most successful piping plover breeding season in over 20 years. Currently, under the consent decree, a single plover chick is given enough beach area to cover the decks of three U.S. Navy super aircraft carriers, the largest warships on earth. In most American communities, a convicted child molester can live closer to a public school than a fisherman and his family can get to a plover.

On a positive note, the Atlantic piping plover population is fast approaching 2,000 nesting pairs -- a figure that makes them eligible for de-listing as threatened. The most recent counts show 1,700 nesting pairs. Just four years ago, the most accurate estimate was 1,400 pairs. This represents a rather dramatic increase in breeding pairs in a very short period. Unfortunately, at the cost of even more taxpayer dollars, de-listing the Atlantic plover population is probably going to be challenged in court.

The environmental groups also claim a substantial drop in black skimmer and gull-billed tern numbers. What they don’t want you to know is that the bird count for the 2007 season shows a better than 20 percent increase in numbers. They know very well that the birds chose to nest on a newly recreated dredge spoil island within sight of the park because Walker Golder of North Carolina Audubon and also a plaintiff and member of the negotiated rulemaking committee, participated in the study. In reference to this habitat, named Cora June Island, the North Carolina Wildlife Resource Commission writes:

"An outstanding success story can be found on Cora June Island, located near Hatteras Inlet. This island disappeared during Hurricane Isabel in 2003 but was rebuilt in spring 2007 during a dredging project by the U.S. Army Corps of Engineers. Only months after rising from the sea, the island was home to one of the largest mixed tern/black skimmer colonies in the state with good numbers of nesting adults that successfully fledged hundreds of chicks.

”The recent survey, which was conducted in spring 2007, is one of 10 complete coastwide surveys conducted since the late 1970s to monitor population trends, distribution of colony sites, and nesting habitat conditions. Data gleaned from the surveys help biologists make management and conservation decisions and prioritize research. The next waterbird survey is scheduled for 2010. "

They would prefer you to believe that night driving on the beaches at CHNSRA disorients sea turtles. Hence, the ban imposed by the consent decree. But they would have you ignore Pea Island National Wildlife Refuge, the northern 22 miles of beach on Hatteras Island. At Pea Island, there is no beach driving and fewer than a dozen lights visible from the sea. Very few pedestrians frequent these beaches because of the difficulty in accessing them. And yet Pea Island has no greater turtle nesting success than ORV accessible beaches but does have more false crawls and aborted nesting attempts, than the open beaches. They would also have you ignore the fact that plovers don’t nest there in spite of the excellent conditions.

Under the Consent Decree, if a turtle nests within the relatively minute portion of beach that’s still accessible by ORV, the Park Service is required to establish virtually the same nest enclosure as established within the interim strategy. Beach users may drive by, park by, and fish by this clearly marked 10 foot-by-10 foot cloth revetment at will -- until Sept. 15. On that date, the consent decree imposes full beach closures in addition to the procedures outlined in the interim strategy, making those areas impassable by vehicle or pedestrian. This is absurd and arbitrary. The consent decree clearly states that if a nest is approaching its anticipated hatch date (pre-Sept. 15) NPS is to follow the same procedures outlined in the IMS, not including full beach closures, which means that in spite of the additional “path” NPS constructs to funnel the hatchlings to the sea, the beach immediately outside this small closure is still accessible to both pedestrian and ORV use. So why is Sept. 15, the “magic” day? Because this is an arbitrary date by which perhaps some of the bird closures will have been reduced and the consent decree finally allows for “permitted” night driving. This is a thinly veiled maneuver to continue to prevent ORV access to the beach. If it was okay for me to drive by or park and fish right next the closure on Sept. 14, it should be just fine on Sept. 15.

The environmental groups don’t want you to know that at the best of times ORV users can only access less than 30 percent of the beaches at CHNSRA and that their “12 percent of the beaches affected” figure assumes 100 percent ORV access. This has not been true for many, many years. The truth is that well over 90 percent of the beach is currently closed either directly or by default. Areas bounded on both sides by closures are inaccessible even though they are technically open. The groups prefer to focus on ORVs, but the current closures prohibit pedestrian use as well. No entry means just that.

It is, I think, ironic that as I labor over this communication, The Defenders of Wildlife have just sent their members an e-mail dated June 15, 2008, that describes success as a result of the consent decree. “Since some of the most sensitive areas were closed to vehicles, birds like the piping plover and the American oystercatcher have been bouncing back.”

Plover numbers are the same as they were last year under the interim strategy.

And, according to the most recent available NPS resource management field report, American oystercatcher numbers were better last year under the interim strategy than they are this year under the consent decree. At this point in time last year, American oystercatchers had attempted 41 nests and had 17 active or hatched nests. At this point in 2008, they have attempted 33 nests but have only 16 active or hatched nests.  With the extensive closures, this can in no way be blamed on ORV drivers. This completely refutes the claims of the aforementioned environmental groups’ press releases that the American oystercatcher is somehow miraculously “bouncing back” as a result of greatly restricted ORV traffic.

The e-mail also states:

 “The emergency plan was developed to be flexible, with temporary closures that can be lifted and reopened to vehicles once wildlife is no longer using certain areas. Already, some areas have been reopened this season.”

This ignores the rash of immediate closures that followed the April 30 signing of the consent decree. Because of the consent decree, anyone with a cell phone can call NPS, report bird activity, and the Park Service is required to close the area for weeks at a time. All of the areas that have been reopened as of June 26 were initially closed because of inaccurate and perhaps false observation.

They would rather you didn’t think of them as parties to the lawsuit that has prevented the replacement of the Bonner Bridge, Hatteras and Ocracoke islands’ lifeline and only over-ground hurricane evacuation route -- a bridge with a safety rating of 4 out of 100. The bridge in Minnesota that collapsed in 2007, killing many, was rated at 27. Since when do we so blatantly condone risking the loss of human life? The environmental groups have already announced that if the new bridge is attempted as planned, they will sue.

The consent decree is an obvious attempt at changing a national seashore recreation area into a private wildlife refuge -- which has, so far, been successful at the cost of untold taxpayer dollars. Remember that the plaintiffs are consistently reimbursed their legal fees and expenses by the already strapped Park Service and Department of Interior. You must also consider the cost of constant monitoring, flying in and housing of unneeded special event teams, additional, extensive new signage, additional vehicles, law enforcement and infrastructure.

The impact of the consent decree on the economies of the villages bounded by the park has been astounding. I know this first hand because it has cost me my job at a business that is suffering economically. Conditions under the consent decree continue to fester as more Americans and foreign visitors discover that the experience they expected when they arrived at CHNSRA has been almost entirely compromised. Some have already cancelled their reservations or vowed not to return. And yet both the environmental groups and United States Fish and Wildlife Service continue to utilize the arguably inept Voglesong study as the foundation of their economic and visitor usage statements, in spite of a government-funded peer review that deems the study essentially worthless. The esteemed panel also regarded the data and its collection methods so flawed that further review of that data would be a waste of time.

The consent decree has changed the very nature of the Park. Though the environmental groups claim to want to preserve CHNSRA for future generations, I fail to see the value of a national park that remains largely inaccessible during the spring, summer, and fall, when the majority of Americans who visit the park take their vacations at this time. And if USFWS gets its way by declaring the seashore as critical wintering habitat for Great Lakes and Great Plains plover populations, though they openly admit they have no idea where the wintering birds originate, this will include the late fall and winter months as well.

Preservation has been, so far, successful without court intervention and a draconian consent decree. What choice did Dare and Hyde counties and the various beach access groups have other than to consent? It came down to either accepting an agreement that they had no voice in and hoping for the best or face certain closure and the enormous economic impact that it would spawn.

A federal judge is bound by law to render a fair decision based upon the merits of the evidence presented before the court. But Judge Boyle declared his intention to provide the environmental groups exactly what they sought without hearing any evidence from either point of view and precluded the intervening parties, Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance, from entering any evidence at all in open court. This occurred within the first few minutes of a February scheduling conference in Boyle’s court. At a later hearing, in spite of being charged by law to consider the economic impact of the proposed closures within the consent decree, Judge Boyle repeatedly declared his lack of knowledge and understanding of CHNSRA and the villages contained therein, and signed the decree anyway.  His obsession with closing Ramp 4 (Bodie Island Spit) as related in the transcripts of the April hearing is baffling. (Available on Island Free Press Web site.  Go to Beach Access Issues Page, go the end of that page, and click on archived stories.)

What the negotiations between the environmental groups and DOI promulgated can only honestly be referred to as a decree of forced consent.
CHNSRA was established first and foremost as a national seashore recreational area.
This is blatantly obvious when one reads the enabling legislation formulating and forever establishing the park, which is dated Aug. 17, 1937. It provides in part:
Sec. 4. Except for certain portions of the area, deemed to be especially adaptable for recreational uses, particularly swimming, boating, sailing, fishing, and other recreational activities of similar nature, which shall be developed for such uses as needed, the said area shall be permanently reserved as a primitive wilderness and no development of the project or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing in this area…

On June 11, 2008, U.S. Sens. Elizabeth Dole and Richard Burr and U.S. Rep. Walter B. Jones introduced bills S3113 and HR6233. These bills, if enacted, would put aside the consent decree and return CHNSRA to the management of the Park Service’s interim plan. This would effectively take management decisions out of the hands of a few special interest groups and return it to the professional scientists and staff of NPS at a considerable savings to taxpayers over the life of the consent decree.

Already these groups assail the media and their members with tales of doom were these bills signed into law. Some claim that Congress has no business even dealing with this matter. I beg to differ. Congress established this park for the American people and provided us with a place we have fought hard to preserve as the unique and dynamic place that Hatteras is -- or was.

For years, most of us have lived by OBPA’s motto, “Preserve, Protect, Not Prohibit.” For example, to this day NPS does not employ “beach clean-up crews.” We do this on our own time and at our own expense. This hardly represents a user group with a penchant for environmental abuse.

Congress reserved the right to change the nature of an established national park for itself. And so there is no question as to whether these bills should be co-sponsored and enacted.

16 U.S.C. Section 1a-1 states, "The authorization of activities shall be conducted in the light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress."

Surely this applies to forced closures as that constitutes an activity as well. Non-government organizations have taken over scientific management of a national park under this consent decree, an activity not sanctioned by Congress.

I urge every member of the Senate and House of Representatives to co-sponsor and foster these bills into law. Sound science and the weight of law should never be substituted for supposition and misleading statements.

Please help return our National Seashore Recreation Area to the true stewards of this resource.

(Jeffrey “Wheat” Golding has been a visitor to the Outer Banks for 30 years and moved to Buxton in 2007 after he was disabled in a work accident. He worked at Red Drum Tackle and joined the fight for beach access.  He was laid off from his job after a drop in business at the shop following the consent decree.  Golding grew up near the York River and Chesapeake Bay and lived next to National Colonial Historic Park.  He attributes his interest in the natural sciences to his mother, who was a teacher, and his father, who worked for the Virginia Department of Health and Department of Water Programs.  He worked for 17 years as an interpreter, presenting and teaching history, at Colonial Williamsburg.)

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