Beach Access Issues
August 1, 2008

Looking at reaction to Senate hearing and assessing chances for legislation to pass


Warren 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.”

“Our 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 hearing.”

“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 me.”

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.”

John 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.

“Shame 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 country.”

“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 itself.

Rylander said that the defendants in the lawsuit find the increase in breeding pairs of plovers and other birds on the beach “significant.”

“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 overturn it.

“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 negotiations.”

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 constituents.

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.


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.

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