Can you or can you not wade out to Cape Point in the water if the Point is open but the beach between the Point and the nearest ramp is closed for resource protection?
It?s a question that has come up every year since 2008 when a consent decree settled a lawsuit by environmental groups against the National Park Service over the agency?s lack of an off-road vehicle plan for the Cape Hatteras National Seashore.
This year, we added a new question. Can you or can you not wade out to Cape Point to fish or shell if you stay in the water all the way out and when you are fishing and do not set foot on the dry sand?
The quick answer is ?yes? to both questions. If you stay in the water below the mean low tide mark, the Park Service cannot legally issue a citation.
But the issue is not quite that clear-cut.
This is the fourth summer that the seashore has been managed under the terms of the consent decree, which requires larger beach closures than ever before to protect nesting birds and turtles.
What has happened each year is that some popular areas are actually not closed, but the beach that you would normally use to get to them is closed down to protect birds.
And Cape Point has been one of those questionable areas each of the four summers under the consent decree.
This year, the issue of getting to the Point has been more contentious than ever ? for several reasons.
First is the fact that the Point was closed to ORVs on March 18, the earliest date ever.
There has been some of the better spring surf fishing in recent years off the Point. Anglers who were wading out to the Point were catching, big drum, bluefish, and their limit of flounder.
Also, when the Point was closed in March, the Park Service allowed pedestrians to walk out there in the intertidal zone ? at the least in the beginning.
So there were plenty of anglers wading out there to fish. Naturally, visitors, seeing all the folks walking out there, did the same.
The problems started when the walkers did not stay out of the protected areas. Those who were not familiar with the rules started walking out and ended up wandering through closed area to look at shells or crossed through the areas closed at the interior of the Point to get to the ?hook? to catch flounder.
So about April 20, the park closed the Point to all access. Stepping on dry land at Cape Point is no longer allowed.
However, some die-hard fishermen continued to wade to the Point, especially for the drum fishing.
In the beginning, the closed area was about a half mile, and the walk wasn?t extremely tough.
However, these anglers had to stay in the water and could not so much as set a tackle box on the dry sand at the Point. They were somewhat aided by the fact that there is an ?island? off the Point during some tides this spring. Most were wading out in the evening and fishing into the night, sometimes for hours.
These are really tough and dedicated fishermen.
Then on May 7, a park service law enforcement ranger picked up two people who had followed the rules and were fishing in the water off the Point and escorted them ? quite courteously ? back to their vehicle near Ramp 44.
The anglers were customers of Frank and Fran?s tackle shop in Avon, and that was just about the last straw for owner Frank Folb.
He sent a letter last week to U.S.Sens. Kay Hagan and Richard Burr and U.S. Rep. Walter Jones.
He called the almost two months of ?Yes, you can wade? and ?No, now you can?t wade? akin to a ?Saturday Night Live? skit or an April Fool?s joke. Having his customers picked up for their legal activity, Folb said, was an ?injustice? that made him want to ?march on the steps? of the U.S. Capitol.
Folb said in the letter that he called a law enforcement ranger about the May 7 incident. He wrote:
?When I ask about walking in the state waters, he does not disagree that we can do that, but then states that if we do, NPS will have no option but to increase the closure to the north. After a few seconds to let the stun wear off I state, ?You are telling me that if we continue to walk in state waters, you will extend the closure north to close the open beaches at Ramp 44, possibly 43 and ramp 45?? I ask, ?Isn?t that a threat?? No, Frank, it is not a threat, but a reality per what the consent decree provides!? I thank the supervisor and convey the news to those wanting to wade out and catch a drum like those caught the night before.?
In an interview late last week, Paul Stevens, chief enforcement ranger on the seashore, confirmed that legally, if you stay in the water, the Park Service can?t stop you.
He said the May 7 incident was a ?miscommunication.?
And he referred to an e-mail sent to him by Hatteras Island District Ranger David Carter, who was relating his discussion with a caller who asked, “Can I walk out if I stay in the water?? Stevens thought Carter pretty well summed up the situation.
?My reply (was) ?Legally, if you stay completely in the water and (do) not come onto the sand leaving footprints as you walk, you can walk out,?? Carter wrote.
“However,? he added, ?we are asking that people not do it for safety reasons and that if the birds are disturbed, it is possible that larger closure areas would be implemented. Also, the more the birds are disturbed away from their nests, then the longer the nesting season may last.”
?We don?t want to close any more beach,? Stevens said. But he added that if the birds start being disturbed by folks wading to the Point and park biologists become concerned, ?We will have to close more beach.?
By that, he means large enough closures that nobody could wade in the water far enough or long enough to get to the Cape Point shoals.
?The better weather we have and the less disturbance,? he said, ?the faster (the birds) will nest and be gone.?
The situation only got worse when on Sunday, May 15, the first piping plover nest hatched east of Cape Point ? between the Point and Ramp 44. The 1,000 meter buffer required by the consent decree to protect piping plover chicks kicked in, and the Park Service closed down Ramp 44 to ORVs and pedestrians.
A small area of beach is still open to ORVs and pedestrians at Ramp 43.
But you must now wade in the water for more than a mile to fish on the shoals off Cape Point.
Folb is still steamed.
He has no problem with the law enforcement rangers, who are doing their job and apparently doing it politely.
He does have a problem with the rest of the mess. He wrote in his letter:
?NPS resource employees have embraced their power this year and are closing and reporting the slightest movement of birds to show their power over the enforcement by the backing of the environmental extremists that have their hold on this park and the rest of our nation as well. The leaders of this park and the Department of Interior have shown no will or want to deny these special interest environmental groups from suing and having their agenda furthered in the USA today.?
It is a sad fact of life on Hatteras and Ocracoke today that the management of our beaches is being driven by environmental activists, the court, and lawyers. Park officials, it seems, can do little about that, whether they agree or not. Or, as Folb says, lack the political will to do anything about it.
The best advice to anyone who is considering wading to Cape Point is ?Don?t do it.?
There are apparently some anglers, young enough and strong enough, who will continue to wade for than a mile in the surf for the chance to catch and release a big drum.
This is not safe for the average person or for visitors who are not familiar with the access rules or the strong current on the north side of the Point.
And if someone makes a mistake, steps on a beach, and scares a bird off a nest, we will be punished with larger, more restrictive closures.
Right now, almost all of the Buxton beach is shut down to ORVs. There is a cul-de-sac at both Ramps 43 and 45. And much of the beach is closed even to pedestrians.
This is enough of a challenge to our lives, our visitors, and our businesses.
Don?t make it worse by taking a chance and wading out to Cape Point shoals.
