Sunday, May 9, 2010

Of The Law And NPS

Ah, its almost 2am and once again I'm up scouring over research, various and sundry laws, comments sent to me for review by some friends, and this God awful Draft Environmental Impact Statement aka, the consent decree on crack. Speaking today with Jim Keene, president of the North Carolina Beach Buggy Association, I found that I wasn't the only one with this issue. Perhaps we should start a support group.

Ever since this latest round of argument related to this Seashore began which was heralded by the arrival of our first permanent superintendent since Lawrence Belli, I began to question the disparity between NPS management policy here and the laws enacted by congress that indicate to NPS how this place is to be run and its purpose.

As I examine the DEIS and the NPS preferred alternative (F), I find that what congress intended and directed that this area should be and what NPS is proposing are polar opposites.

So I'm asking for your assistance.

Apparently I somehow, somewhere, missed the legislation or executive order that says that NPS has authority over the United States Congress and can arbitrarily ignore the rule of law in order to further an agenda.

If you find a link to this information, please send it my way. Thank You!

In the interim, I must continue to operate under the assumption that when the Congress writes a bill and its signed by the President, it becomes law. And when said law is directed at a specific governmental agency such as NPS for example, said agency is required to follow that law whether it fits their employees personal agendas or not.

I also work under the assumption that the US Constitution is still a valid document and that as provided within, only Congress has the authority to write federal law and that only Congress has the authority to dispose of public property.

The Seashore was created in 1937 within amendment to "The Organic Act of 1916" which among other things, created the National Park Service. Specifically, Title 16 United States Code 459 or as it appears in "lawyerese", 16USC459.

The first part of the section that deals with how the Seashore is to be managed and the intent of Congress reads:

"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"

This is where congress tells NPS that as the people come to the Seashore to recreate, NPS is to develop the area to accommodate the recreational needs of the visitor. This is not a hint, its not asking NPS to consider making the area accessible. No, it states quite plainly "which shall be developed for such uses as needed"

Mike Murray needs reminded of this LAW.

Section 3 of the same Act of Congress provides (in part):

"That the legal residents of the villages referred to in section 1 of this Act shall have the right to earn a livelihood by fishing within the boundaries to be designated by the Secretary of the Interior, subject to such rules and regulations as the said Secretary may deem necessary in order to protect the area for recreational use as provided for in this Act."

This one is rather self explanatory. Of note is that Congress provides guarantee that the legal residents of the Islands have the right to make a living by fishing these beaches. This is a right, not a privilege that can arbitrarily be waved by NPS. You cannot make a living if you cant get to the fish because of closed beaches.

The fact that Congress mentions concern about protecting the area for recreational uses further affirms that the Seashore was created for recreational purpose and that this was the primary use for this area.

Mike Murray needs reminded of this LAW.

36CFR7.58.21.b. (6) (in part) – Specifically identifies boundaries “A zone is established for the protection and enhancement of recreational sport-fishing commencing at Beach Access Ramp No. 22 and continuing south and west along the ocean shore, including Cape Point (Cape Hatteras), to Beach Access Ramp No. 30. Within this zone commercial fishing, as specified in the Act of August 17, 1937 (50 Stat. 669), is permitted..”

This piece of codified federal regulation (CFR) was established for the protection and enhancement of recreational sports fishing. Many say that this was to protect rec fishing from the commercial fisherman. Hogwash I say! Read the last sentence. and we're just days away from seeing most of the area closed. Apparently NPS doesn't understand "protection and enhancement of recreational sport-fishing"

Mike Murray needs reminded of this LAW.

And straight from the horses mouth comes:

for the Recreation Areas of the National Park System

Circular No. 1, March 26, 1963
(in part)

The system of National Recreation Areas should:

1. Provide for Federal investment in outdoor recreation that is more clearly responsive to recreation demand than other investments that are based primarily upon considerations of preserving unique natural or historical resources, the need to develop and conserve public lands and forests, or the requirements of major water resource development undertakings;


6. Within National Recreation Areas, outdoor recreation shall be recognized as the dominant or primary resource management purpose. If additional natural resource utilization is carried on, such additional use shall be compatible with fulfilling the recreation mission, and none will be carried on that is significantly detrimental to it.


3. National Recreation Areas may include within their boundaries scenic, historic, scientific, scarce or disappearing resources, provided the objectives of their preservation and enjoyment can be achieved on a basis compatible with the recreation mission.

5. Whenever possible, National Recreation Areas should be selected, developed, and managed to provide maximum compatibility with the recreation potential of adjacent rural areas in private ownership.

Mr Murray need reminded that this is NPS administrative policy.

16USC459 CHNSRA Enabling Legislation (In Part) – Specifically mandates that “.said area shall be, and is, established, dedicated, and set apart as a national seashore recreational area for the benefit and enjoyment of the people and shall be known as the Cape Hatteras National Seashore Recreational Area..”

Benefit of the people and enjoyment of the people is what this law says. It also sets the name of the Seashore in stone which NPS is now refusing to acknowledge. NPS policy says all but the most mundane documents related to the Seashore must bear the full name. Its not on the DEIS and that's horse poop.

Remind Mr Murray that this is a Recreational Area, with a real name that he's required to use, that Congress said was for the benefit and enjoyment of the people, not a wildlife refuge and that this too, is law.

NPS also needs reminded that in spite of the designation of Pea Island National Wildlife Refuge, the area contained within is still part of  CHNSRA by law. To wit:

16USC459 “SEC. 5. Notwithstanding any other provisions of this act, lands and waters now or hereafter included in any migratory-bird refuge under the Jurisdiction of the Secretary of Agriculture, within the boundaries of the national seashore, as designated by the Secretary of the Interior under section 1 hereof, shall continue as such refuge under the jurisdiction of the Secretary of Agriculture for the protection of migratory birds, but such lands and waters shall be a part of the aforesaid national seashore and shall be administered by the National Park Service for recreational uses not inconsistent with the purposes of such refuge and under such rules and regulations as the Secretaries of the Interior and Agriculture may jointly approve.

As such the 13 miles of pedestrian only access in this are must be considered by NPS in their calculations and that all nesting birds and turtles must be counted as part of the Seashore's breeding populations as well.

More directly from NPS:

NPS Management Policies 2006 handbook, Introduction; “Hierarchy of Authorities” (in part) - “It is especially important that superintendents and other park staff review their park’s enabling legislation to determine whether it contains explicit guidance that would prevail over Service-wide policy.”

NPS Management Policies 2006 handbook, Para 1.4.4 (in part) - The impairment of park resources and values may not be allowed by the Service unless directly and specifically provided for by legislation or by the proclamation establishing the park. The relevant legislation or proclamation must provide explicitly (not by implication or inference) for the activity, in terms that keep the Service from having the authority to manage the activity so as to avoid the impairment.

NPS Management Policies 2006 handbook, Para 8.1 (in part) - The 1970 National Park System General Authorities Act, as amended in 1978, prohibits the Service from allowing any activities that would cause derogation of the values and purposes for which the parks have been established (except as directly and specifically provided by Congress)

I don't think this needs any further explanation.

And then there's the Redwoods Amendment:

16USC459 1a-1 (in part)Congress further reaffirms, declares, and directs that the promotion and regulation of the various areas of the National Park System . . . shall be consistent with and founded in the purpose established by section 1 of this title to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection,management, and administration of these areas shall be conducted in 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.

Ok Mr Murray, wheres your direct and specific permission from congress to change the mission of the Seashore? You don't have the authority by law to do this. You cant legally rape our economy and turn away the American People from the Seashore which is theirs to enjoy. Congress told you that you must develop these areas as they were needed for recreational use. Not un-develop them for the purpose of protecting wildlife especially since you cant show that we, as users of this resource, cause harm to these animals and plants. Even then you still need congressional authorization to do so and you don't have it Mr. Murray!

Take that damn DEIS back to Colorado and re-write it. Come back when you get the name right and comply with federal law and the above mentioned NPS policy. Then, we'll talk.

Tight Lines Everybody,


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