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May 11, 2010 05:31 PM Mountain Time
Michael B. Murray, Superintendant:
Cape Hatteras National Seashore Recreational Area
May 2, 2010
Dear Mr. Murray,
I am writing to express my disappointment and rejection of the various provisions set forth within the Draft Environmental Impact Statement (DEIS) that was prepared by your agency, The National Park Service (NPS or the Service) in an effort to promulgate a rule for Off Road Vehicle (ORV) access to the Recreational Area here at Cape Hatteras as required by Executive Order 11644 (Nixon 1972).
Having reviewed the contents of the DEIS, I find that the Service has ignored the traditional uses and values associated with the Seashore in direct conflict with NPS policy and congressional mandate.
I find that the proposals for wildlife management and protection are excessive and have been proposed with the use of little sound, peer reviewed science as is required by the National Environmental Policy Act (NEPA).
The Service has failed to provide a properly studied and vetted Economic Impact Statement also required by NEPA.
The Service has failed to account for diminished visitor experience that will occur if any of these provisions are enacted, particularly alternatives D and F. I find that all of the proposed alternatives include provisions that will produce negative visitor experience.
I also find that most of the proposals contained within the DEIS are in direct conflict with existing Congressional legislation mandating policy and practice to be followed by NPS specifically at Cape Hatteras National Seashore Recreational Area, in addition to being in direct conflict with various published management policies of the Service itself.
As the Service has announced that proposed Alternative F of the DEIS is the policy that NPS would prefer to enact, my focus will, of course, follow this proposal as even sixty days is not enough time to prepare meaningful and informative comment on the remaining five alternatives presented by the Service.
Before I begin my discourse about NPS preferred Alternative F, I would like to address the lack of a suitable public comment period.
The National Park Service took approximately 38 years from the issuance of the aforementioned E.O. 11644 to draft a proposal for a final ORV management plan. At 810 pages in length, this often contradictory document is, and has been, difficult for even the most knowledgeable members of the public to understand and formulate comment. For those members of the public without comprehensive understanding of the various and sundry issues related to access, wildlife management, and the future of the Seashore, a sixty day comment period is simply not enough time. This is especially true since at no point has the Service made any attempt at educating the public about the contents and ramifications of the proposed alternatives. By virtue of the fact that the as of yet incomplete economic impact study has not been proffered for public scrutiny, I believe that public comment should be extended until at least sixty days after the DEIS has been completed. Proposed extension has been requested numerous times by elected federal and state representatives, our community leaders and the public at large. If the Service is genuine in its appeal for comment as is required within a NEPA process, then NPS needs to respect the request for additional time and provide for such.
It is with great dismay that I notice the title of the DEIS utilizes the term Cape
Hatteras National Seashore. I would be remiss were I not to remind the Service that
the true and proper name of this area is Cape Hatteras National Seashore
Recreational Area as mandated by Congress within 16USC459 which states: (in
part) “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.”
Though the Service chose to drop the full name during the 1970’s as it was
considered cumbersome, all but the most mundane of documents are still supposed
to carry the full title.
When Congress began to formulate the legislation that created the nation’s first National Seashore, and as these bills were signed into law, nowhere was included anything that resembles NPS preferred Alternative (F).( Hereafter referred to as Alt. (F).) This proposal by the Service will have the effect of changing the stated mission of the Seashore and severely impact the economy of the Islands that comprise the bulk of this area and Dare and Hyde Counties as a whole.
It was the stated goal of Congress to establish an area for the people to come where they would be able to pursue recreational activities on these beaches and away from developed areas as debate began about the creation of this Seashore. When their eyes fell upon this area, they found a place steeped deep in history, tradition, and miles of pristine beach that had remained relatively free of development as it is so remote. Though Congress provided a dual mandate to NPS at the Seashore, it is recreation, not the protection of flora and fauna that is consistently mentioned within the relevant portions of the Organic Act (16USC459), although this too, is an important function of the Service.
What’s clear is that at Cape Hatteras National Seashore Recreational Area, Congress established an area wherein recreation was to be the dominant activity. This same legislative body determined that the Service was to develop this area for such uses as needed by the public.
16USC459 Sec.4 states: (in part)
“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” (emphasis added). This is in direct conflict with proposed and preferred Alt. (F) as introduced by NPS which will effectively un-develop important areas of the Seashore. Here 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, it’s not asking NPS to consider making the area accessible. No, it states quite plainly "which shall be developed for such uses as needed"
Had Congress intended that the area become a wildlife refuge, the provision included within the enabling legislation discussing any “lands and waters now or hereafter included in any migratory-bird refuge” found in 16USC459 Sec.5 would not have been included as part of this legislation. The NPS preferred Alt. (F), by permanently shutting down vast areas of the seashore under the auspices of protecting wildlife, will effectively transform the Seashore into a “preserve” status without actually calling it so. And as such, violates the intent of Congress and its legal dictates relevant to this area, and published NPS management policy.
Further evidence of the intent of Congress to develop an area for recreational purpose can be discovered within 16USC459 Sec.3. Here Congress guarantees the right of the legal residents of the Islands the right to make a living by fishing “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." (emphasis added).
This provision resulted in the creation of an area of the Seashore that was set aside specifically for the “protection and enhancement of recreational sports-fishing”. 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.” Of note is that with the Beach Access Ramp number re-designation that has occurred since this statute was enacted, the aforementioned Ramp 30 is now designated as Beach Access Ramp No. 45.
Enacting NPS preferred Alt. (F) will result in the closure of the majority of the above mentioned area without scientific justification or the ability to show that ORV and pedestrian use of the Seashore has caused harm sufficient to warrant the drastic measures outlined within the preferred proposal.
As I have mentioned numerous times before, it is not just federal law that conflicts with preferred Alt. (F) but a collection of Service policy indicates that NPS is attempting to stray from its mission as a division of the Department of the Interior.
In example, the following is extracted from NPS policy.
NATIONAL PARK SERVICE
for the Recreation Areas of the National Park System
FEDERAL EXECUTIVE BRANCH POLICY GOVERNING THE SELECTION,
ESTABLISHMENT, AND ADMINISTRATION OF NATIONAL RECREATION
AREAS BY THE RECREATION ADVISORY COUNCIL
Circular No. 1, March 26, 1963
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;”
PRIMARY CRITERIA FOR SELECTION OF NATIONAL RECREATION AREAS
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.” (emphasis added)
SECONDARY CRITERIA FOR SELECTION OF NATIONAL RECREATION AREAS
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.” (emphasis added)
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.”
Furthermore, considering that the intent of Congress was to create an area within which the public could pursue ventures, “particularly swimming, boating, sailing, fishing, and other recreational activities of similar nature” (16USC459 Sec.4), the following NPS published policy must also be considered when management considerations are being developed for application within the bounds of the Seashore.
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.”(emphasis added)
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)”(emphasis added)
Clearly, even at this point, those that read this letter must agree that proposed Alt. (F) is in direct conflict with the above mentioned statutes and published policy. The derogation of the above described intended mission of the Seashore suggested within Alt. (F) infringes upon the guaranteed right of the legal residents of Hatteras and Ocracoke Islands to make a living by fishing. 16USC459 Sec.3 clearly 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."
Neglected within Alt. (F) are measures to insure that this right, bestowed by Congress, is respected. The law does not indicate that this is a privilege that can be arbitrarily waived by NPS; but must be treated as what it truly is, a right guaranteed by Congress that is as important and legally defensible as is the freedom of speech asserted by Congress within the Bill Of Rights.
In order for a fisherman to make a living by fishing, his nets must be set where the fish are likely to be found. As the structure of the beaches at Cape Hatteras National Seashore Recreational Area change daily, so do the locations of the targeted fish. The closures proposed by NPS preferred Alt. (F) will prevent the exercise of this right as provided by Congress and is, as such, a violation of federal law.
I would choose to close this section of my comment with yet one more reminder to the Service of their responsibilities as directed by Congress, the only body of our government with the authority to write law and dispose of public property as provided by the Constitution Of the United States.
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.” (emphasis added)
I submit that the Service has no authority to alter the mission of this Seashore from a recreational area as provided within 16USC459 CHNSRA (in part) “.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..”, (emphasis added) as NPS has no Congressional authorization to do so and as such, NPS preferred Alt. (F) carries the potential to be, and will be if enacted, in violation of federal law.
Remember, Congress clearly stated that the mission of this Seashore was for recreational purpose and specifically stated that it was to be developed for such use as needed.
In examining Alt. (F), I am struck with the similarities proposed by NPS with the conditions set forth within the current “consent decree”. It appears that ALT. (F) is no more than thinly veiled attempt at making a much more restrictive version of the consent decree become codified federal regulation.
As a service, NPS must balance between the traditional and historic uses of the seashore, the rights of the public, and sound resource management. The public has been imbued with law enacted by Congress, the promises made by the government through NPS Director Conrad Wirth to the people of the Outer Banks, and deep tradition and traditional cultural use patterns that NPS is required to respect and protect. NPS preferred Alt. (F) as proposed, fails to do this. National environmental policy dictates that NPS must make sound, science based management choice while ensuring that the pendulum does not sway too far to one side when attempting to strike a balance between access and resource management.
Currently, the members of the public including the residents of Hatteras and Ocracoke Islands, as well as the citizenry of both Dare and Hyde Counties are experiencing the economic effect of the pendulum swinging well to far to the protection side as a result of the consent decree. No where within the DEIS is a substantive study detailing the effects of this decree upon the economies that are dependent upon beach access to survive. Considering that NPS preferred ALT. (F) is considerably more restrictive than the current court sanctioned NPS management policy, the devastation to the local economy at present will pale in comparison to what will occur if proposed Alt. (F) is enacted. Already, the economic impact of the consent decree far outweighs the projected impact of Alt.(F) as stated within the DEIS. And within the DEIS, the Service admits that the Economic Impact Study is incomplete and as such calls into question the legitimacy and legal defensibility of this document as a whole.
The NPS preferred Alt. (F) buffer distances are largely based upon USGS protocols which have to have been properly peer reviewed even by USGS standards. In some cases the cited studies were in fact “peer reviewed” by the authors themselves in direct conflict with USGS peer review regulation. In many cases these so called studies had nothing to do with the Seashore at all. When examining these documents, the names Walker Golder and J.B. Cohen arise, and yet both of these individuals have actively participated in efforts within the Negotiated Rulemaking process and in the case of Golder, the lawsuit that promulgated the consent decree, to close the seashore for recreational use.
These protocols have yet to be shown as emanating from specific scientific, peer reviewed study and in fact by the governments own admission, “This report does not establish NPS management protocols but does highlight scientific information on the biology of these species to be considered by NPS managers who make resource management decisions at CAHA." As such, NPS preferred Alt. (F) is considerably flawed.
Of particular note and dismay, are the buffer distances and duration of closures as stipulated within Alt. (F) as they are excessive and not based upon sound peer reviewed science. The Service seeks, within Alt. (F), to provide a mechanism wherein species listed in the State of North Carolina as “species of concern” are given protections normally only directed at federally listed endangered or threatened species. Recently, the North Carolina Wildlife Resource Commission objected to this proposal contained within Alt. (F). Gordon Myers, executive director of the commission stated “State-listed "species of concern," - such as the American oystercatcher - do not require the extensive buffers and beach closures mandated for federally listed species such as the piping plover.” And, “To treat it as synonymous with threatened and endangered is not congruent”.
The proposed closures in respect to Piping Plovers are excessive. Nowhere does sound peer reviewed science exist that suggests that a 1000 meter closure around a plover chick is warranted. These proposed buffers have been effectively field tested during the last two nesting seasons here at the Seashore and yet plover numbers have declined. Never in the history of the Seashore can a plover death be attributed to either an ORV or pedestrian.
The restriction on pets within the Seashore as proposed by Alt. (F) is well beyond excessive and not only will it induce negative visitor experience it will result in further economic loss to this community. Again, there is no sound peer reviewed science that will support the theory that even if a dog is on an NPS mandated six foot leash, it will disturb a piping plover or American Oystercatcher nesting a mile away. As such, this portion of the rule should be discarded as junk science.
Furthermore, NPS, in calculating both wildlife counts and pedestrian only access at the Seashore, needs include bird, turtle, and available pedestrian only access in the area known as Pea Island National Wildlife Refuge. (PINWR) This refuge was created by Executive Order a year after the enabling legislation that created the Seashore was passed into law. 16USC459 Sec. 5 states: (in part)
“Not withstanding 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.”
Even within the 2006 Interim Management Strategy for PINWR as filed into the federal register, USFWS admits that PINWR is only an “overlay” of the Seashore. NPS has refused to recognize this in spite of clear and concise federal mandate.
Turtle management as proposed within Alt. (F) will, in all likelihood, result in a documented and stable, nearly 40% loss in viable nests. It is ironic that within PINWR, though still within the Seashore, an entirely different set of protocols are observed with a much higher nest success rate. Turtle management at CHNSRA needs be proactive. Our beaches change daily, though in some cases are seasonally predictable in form. When turtles nest in high risk areas, we as a community attempt to inform NPS that a given nest needs relocating. We have usually been ignored only to see the Service plow the nest into the sea because it was collectively deceased. The Service has a long history of ignoring local knowledge which is in conflict with its own policy. In spite of this rejection of local knowledge and in spite of years of night driving on the beaches of CHNSRA, the Seashore still presents a better false crawl ratio than that USFWS expects from a totally undisturbed beach.
It is imperative that NPS consider all of the factors that make up what Cape Hatteras National Seashore is to the visitor as well as the residents of the islands that comprise the bulk of the Seashore. Impact to the economy as well as visitor experience are as much, if not more, a part of the NPS mission as directed by Congress. It is imperative that NPS recognizes the traditional cultural aspects and values that the results of any decision made by the Service might inflict upon residents and visitors alike. Of no small consequence is the rule of law as established by the Congress; which NPS seems wont to ignore.
With all of the above considered in detail, and with a sufficient review on NPS preferred Alt. (F), and the remaining portions of the DEIS, I find the entire document to be flawed and in all likelihood, illegal in nature.
The most sensible approach to Seashore management will incorporate a balance between nature and access. NPS preferred Alt. (F) fails to do this.
The most sensible approach to date has been proffered by the Coalition for Beach Access within the position statement published at:
I strongly agree that this is the most practicable approach to satisfying the consistent recreational mandates directed by Congress to NPS while at the same time ensuring adequate protection of wildlife and providing access to these beaches, “which shall be developed for such uses as needed”, by the public as directed by federal law.
Furthermore, I recommend that NPS turtle management policy be amended to reflect local knowledge and experience. This requirement can easily be met at the Seashore by adopting the proposed policies recommended by Larry Hardham and Robert Davis as these individuals have more collective knowledge of sea turtle nesting at CHNSRA than probably any employee of the Service or NCWRC.
Their approach is adaptive and sound. Similar approach has been shown to be highly successful. It must be remembered, its not the number of nests that ultimately count but the number of hatchlings that make it to the sea. Their work can be found at: http://www.obpa-nc.org/turtles/TurtleMgmtProgram.pdf
I hope that the service will come to its senses and recognize the law relevant to the Seashore, the traditional cultural values, traditional uses, and will recognize the extraordinarily devastating impact that proposed Alt. (F) will have on the already fragile economy that suffers immeasurably as a result of just the consent decree.
Cape Hatteras National Seashore Recreational Area,