| July 1, 2008
Guest Column: The case for passing legislation that returns management of the seashore to the Park Service
By JEFFREY GOLDING
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
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
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
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
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
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
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
Please help return our National Seashore Recreation Area to the true stewards of this resource.
“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.)