| August 1, 2008
Looking at reaction to Senate hearing and assessing chances for legislation to pass
By IRENE NOLAN
Judge, chairman of the Dare County Board of Commissioners, said that he
was not surprised that a National Park Service official testified
before a Senate panel in Washington, D.C., on July 30 that the
Department of Interior does not support a bill to overturn a consent
decree and reinstate the interim strategy for ORV use on the Cape
Hatteras National Seashore.
Daniel L. Wenk, deputy director for operations for the National Park
Service, told the Senate Energy and Natural Resources Subcommittee on
National Parks that the department must balance protecting park
resources and providing for recreation for the public.
“We believe,” he said, “that the consent decree will achieve this better than the interim plan.”
supposition was that they would testify against the legislation,”
said Judge, who also testified at the hearing.
Although Judge says the opposition was not unexpected, he was still
“astounded” the department “does not stick up
for” its people.
“I’m extremely disappointed in them,” he added.
“But this is the same Department of Interior that threw in the
towel and led us down the path to this consent decree. The Southern
Environmental Law Center, the Defenders of Wildlife, and the National
Audubon Society are running the park and soon will be running the
Department of the Interior.”
The subcommittee scheduled the hearing to take testimony on about a
dozen different National Park Service bills, including S 3113,
introduced in June by Sens. Elizabeth Dole and Richard Burr, both
Republicans from North Carolina. A companion bill, HR 6233, was
introduced in the House of Representatives by U.S. Rep. Walter Jones,
Jr., also a Republican. The bills would nullify a consent decree and
return the park to its interim management strategy until a negotiating
committee formulates a long-range plan.
The consent decree was signed on April 30 by U.S. District Court Judge
Terrence Boyle. It settled a lawsuit filed last fall by
environmental groups, which charged that the park’s interim
strategy did not go far enough to protect birds and turtles on the
seashore. The plaintiffs were the Defenders of Wildlife and National
Audubon Society, which were represented by the Southern Environmental
Law Center. Defendants included the National Park Service and
other federal entities. Dare and Hyde counties and the Cape
Hatteras Access Preservation Alliance were allowed by the judge to be
defendant/intervenors in the legal action.
Judge said that Sen. Daniel Akaka, D-Hawaii, chairman of the
subcommittee, was “welcoming” and “conducted a good
“Sens. Dole and Burr were champions,” Judge added. “They understand the people.”
“I thought it was a very productive day that ended well,”
said county commission vice-chairman Allen Burrus of Hatteras village,
who attended the hearing.
However, Burrus added that he was surprised that the National Park Service would not support the legislation.
“Everything we’ve heard on the local level (of the Park
Service) has been about how bad the consent decree is,” he said.
“My initial reaction was surprise,” said Larry Hardham,
president of the Cape Hatteras Anglers Club, a member of the board of
the Outer Banks Preservation, and a member of the negotiated rulemaking
committee. “But in retrospect it doesn’t surprise
The federal government, he said, did not vigorously defend the lawsuit and “threw us under the bus.”
However, Hardham noted that the National Park Service and the
U.S. Fish and Wildlife Service developed the interim plan and
“that you would think they would stand behind their people.”
Couch, president of the Outer Banks Preservation Association and an
alternate on the negotiated rulemaking committee, pointed to the fact
that the National Park Service has failed to formalize a long-range ORV
plan for the seashore for the past 35 years.
“They didn’t want to defend their inaction and ineptness in
the lawsuit, so what makes us think that they would support the
bill?” he asked.
Frank Folb, Sr. of Frank and Fran’s tackle shop in Avon had less
kind words on his message board the morning after the hearing.
“You should be drawn and quartered,” Folb wrote of NPS’s Wenk.
Folb is not known for mincing words, and he had other zingers for folks who testified on his board.
For Derb Carter, attorney of the Southern Environmental Law Center, who also testified:
“You special interest groups have peeled the orange and taken the
first slice out, but I now know you plan to eat the whole orange and
leave us nothing.”
Folb also talked about an ‘overworked, overburdened, and
underfunded” local park staff that has to enforce the many
requirements of the consent decree, and he added that the negotiated
rulemaking process is also seriously underfunded.
Folb praised seashore Superintendent Mike Murray for “standing
his ground” and doing a “creditable job with the massive
burden that has been placed on him and his staff.”
Jim Keene, president of the North Carolina Beach Buggy Association,
noted that Warren Judge “presented a factual report.” But,
he added, “Derb Carter ran a typical numbers gambit to make his
clients look like the saviors of our seashore. Were it not for the
expense involved, I felt like I should have flushed my laptop upon
conclusion (of the hearing).”
Folks who posted on message boards today and readers who wrote letters
to The Island Free Press also expressed their unhappiness about the
Department of Interior’s lack of support for the legislation.
on the National Park Service,” Pam Thomas of Alexandria, Va.,
wrote to the Free Press. “This is just another example of the
crazed special interest groups having more power than the citizens who
live, work, and try to survive in what is a special area of our
“The NPS/DOI bites itself in the leg to the favor of SELC, which
continues to spin lies and deceit through its mouthpiece, Derb
Carter,” wrote Hawk Hawkins of Mechanicsville, Va. “Please,
Lord, don't allow our Congress to fall for this blatant trickery!”
Jason Rylander, attorney for Defenders of Wildlife and a member of the
negotiated rulemaking committee had another view of the reaction to the
hearing. He reiterated that the National Park Service has been breaking
for law for more than three decades and has little room to defend
Rylander said that the defendants in the lawsuit find the increase in
breeding pairs of plovers and other birds on the beach
“You can tell little from one season,” he said, “but
we are encouraged….We’ve seen improvement this first year
(under the consent decree), and we hope they will continue.”
Rylander also commented on Warren Judge’s testimony yesterday, in
answer to a question from the subcommittee chairman Akaka about why
Dare County had signed the consent decree and was now trying to
“We were not a player at the table,” Judge said of the
settlement talks, “until an April 4 hearing. Only after
that, were we invited to the table…”
“Mr. Judge’s answer was surprising,” said Rylander,
“because it grossly misrepresents what took place in the
Now that the hearing is over, beach access advocates and others
involved in the issue are turning to the chances that Congress will
pass legislation to overturn the decree.
To become law, the bills must be reported out of committees in both
houses of Congress, be scheduled on the floor of each house for a vote,
win that floor vote, and go to a conference committee if there are any
differences in the bills.
So far, the companion bill introduced by Walter Jones has not been scheduled for a hearing in the House.
In the Senate, the bill must be reported out of the Subcommittee on
National Parks, as will as the Committee on Energy and Natural
Resources. Then it must be scheduled for a floor vote in the Senate.
Judge said that he thought the staffs of Sens. Dole and Burr felt that the bill might get reported out of committee next month.
That is only one step in a long journey to becoming law, and Rylander
recalled the first words of the subcommittee chairman at the hearing.
Akaka noted that it was not “normal practice” for Congress
to overturn consent decrees from the courts.
The legislation must get hurdle two formidable roadblocks. One is time, and the other is politics.
On the issue of time, Congress is now in a summer recess until after
Labor Day. The lawmakers will reconvene in September, but many
expect that they will recess again at the end of September, perhaps for
the rest of the year, to hit the campaign trail.
The looming election is also a problem for a bill introduced by three
Republicans that needs to be scheduled for floor votes by Democratic
leaders in both the House and the Senate.
In the Senate, Democrats are hoping to win enough seats to achieve the veto-proof majority of 60 votes.
Sen. Dole’s seat in North Carolina, once considered a sure bet
for the Republicans, is now seriously in play with a challenge from
Democrat Kay Hagan. Senate Democratic leaders may well be less likely
to bring forward a bill that could help her win votes for some
In a phone interview last week, Patricia Doerr, director of ocean
resources for the American Sportfishing Association, acknowledged the
difficulties the legislation faces. ASA is lobbying for beach access
causes on Capitol Hill, and Doerr is an alternate on the negotiated
rulemaking committee formulating the long-term ORV plan.
“It’s going to be very tough,” Doerr said, to get the
bill passed in this session of Congress. “It’s going to
require a lot of effort from the citizens of North Carolina, contacting
their congressmen and senators.”
Even if the legislation does not pass this year, Doerr says it’s good that there was a hearing.
“It will build a foundation for the next Congress,” she said.
FOR MORE INFORMATION
An article with more details on the hearing was published on The Island Free Press on July 30. Click here to read that article.
Also, you can visit The Senate Committee for Energy and National
Resources Web site to watch the archived webcast of the subcommittee
hearing and read testimony from the witnesses.