Recently I published an argument wherein I voiced my opinion that in fact 16USC459 section 4 (SEC 4) or otherwise known as “the enabling legislation” (EL) is not a dual mandate as it has been described for years.
After publishing my argument, I also took the opportunity to forward it to several people who have been actively involved in our war for beach access here at Cape Hatteras National Seashore Recreational Area. Many of those who read my writings agreed with my assessment, some never replied and a couple of folks didn’t see it the way I do. Bob Davis, who has often been a sounding board for my thoughts, was one of those who was not quite convinced and asked me to refine my position. This one’s for you Bob and I hope you’ll give it a read.
THE ARGUMENT
The dual mandate (dm) theory holds that within the legislation or EL, the Congress directs the National Park Service (NPS) to manage the Seashore with two principal missions. One mission is recreation and the other being the preservation of “primitive wilderness”.
SEC 4 has been described as vague, conflicting, and is interpreted in two different ways depending upon which side of this argument you fall on. Those who are “pro-access” see recreation as the primary mission at the Seashore where certain environmental groups and apparently the NPS see it as preservation.
As it is presented in writing and oral description, SEC 4 is most usually described as having two “sections” with each of these concerning a different mission for NPS to follow in the management of the Seashore. It is the author’s contention that this intentional or even subconscious division of the EL is what leads many to believe in the dm theory. In fact, described to me as a dual mandate years ago, even before I read the EL the first time, and since, it became instinctive to read, write about, and discuss SEC 4 as a dm.
The division of SEC 4 almost universally occurs thusly:
Section 1st) “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,”.
It this section that pro-access individuals see as the mandate and primary mission of recreational use of the Seashore as it describes.
Section 2nd) “ the said area shall be permanently reserved as a primitive wilderness and no development of the project or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing in this area:”
It is this section that the environmental groups and NPS claim as the primary mandate at the Seashore and most particularly the phrase “and no development of the project or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing in this area:”
It is because of the intentional or subconscious division of the EL that it is viewed as conflicting and vague. The vague nature of SEC 4 comes from the somewhat correct observation that the Congress never specified where the “recreational area” was supposed to be relative to the “primitive wilderness area”.
The described conflict comes from the seemingly contradictory instructions provided by congress which on the one hand require the NPS to “developed for such uses as needed,” while at the same time stating that “no development of the project or plan for the convenience of visitors shall be undertaken”.
Taken at face value and under the auspices of the dm theory these two statements are in direct conflict with each other. As such, it’s easily understood, at least under the dm theory, how this short statement by the Congress could be, and has been, so divisive. Also, it begs the question as to why, within such a short collection of phrases, would the legislators provide such stark contradiction?
Currently it appears that NPS supports the environmentalist contention that preservation of “primitive wilderness” under the “no development” clause is the primary mission of the Seashore; at least when it comes to the collusion that resulted in the Consent Decree, as well as the NPS preferred DEIS alternative F. Or do they?
Were it true that section 2nd was the primary mandate for NPS to follow in Seashore management, previous management policy, and development that has occurred here, within the bounds of the Seashore was done so illegally. This is true since at the inception of the Seashore, virtually all of the area contained within CHNSRA was effectively what could be described by the term “primitive wilderness” as such an area can be described as a place without the presence of man or his works.
However, by the year 2000, an arbitrary moment in time, many an alteration requiring development had occurred at the Seashore and affected by the NPS. These would include several campgrounds, parking lots, pump out stations, bathroom facilities, walkovers, interdunal roads on both ocean and sound side, foot trails and of course beach access ramps and roads. Virtually every single incident of development mentioned above required the destruction of “primitive wilderness” at some level or another.
How could this be accomplished and be in compliance with “no development of the project or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing in this area:”?
Since the arrival of Mike Murray, now superintendent of the Seashore, additional alteration and even the destruction of at least native flora was undertaken as he caused the development of not only the “pass through” at the “narrows” north of Cape Point, but also the “spur road” at Hatteras Inlet.
Also of note was the destruction of approximately 90 acres of vegetation around the dredge pond near Cape Point which eradicated a portion of the seaward extension of Jennette Sedge in 2002 which had been untouched for years and was consequently, wildlife habitat.
NPS has also proposed within the DEIS that a parking lot for pedestrian access be constructed near Hatteras Inlet and will next month be requesting public comment for a two slip boat ramp, including dredging the sound to the ferry channel to allow access for vessels drawing up to five feet of water and an additional parking area with over 60 slots to handle trucks and their boat trailers. Both of these proposals will again require the destruction of “primitive wilderness” and quite a bit of it, especially the truck/trailer parking lot.
In accordance with the assumed priority of the “second section” of the EL, this should be illegal. Except it’s not; by virtue of the especially semantic verbiage contained within SEC 4, aka, the “enabling legislation”.
THE CONTENTION
As I have stated in previous writings, it is my contention that 16USC459 SEC 4 is neither vague or in conflict with itself, nor is it a dual mandate.
Within this portion of the “Organic Act”, the Congress clearly defines the mission at the Seashore and management priority to the NPS in a way not in conflict of any sort. As such, they did not need to specifically identify what portion of the area was to be set aside for recreation as opposed to “primitive wilderness” and so is not vague.
I also contend that there aren’t two “sections” of the EL and will put forth the proposition that, rather, this is one congruent thought inexorably knitting the entire Seashore together with one purpose and it’s not the preservation of “primitive wilderness”. I will, however, continue from time to time, with referring to “sections” for ease of understanding.
THE PROOF
At the beginning of SEC 4, the Congress sets forth a policy of recreational development for NPS without specifying where this was to be. They did provide some suggestions for said activity, but not limitations, when they wrote “particularly swimming, boating, sailing, fishing, and other recreational activities of similar nature”. But remember, hunting is also allowed within the Seashore which opens a rather broad range of legal recreational use.
What’s interesting about SEC 4 is that it effectively establishes a three part test for NPS to follow as they proceed to develop CHNSRA.
Section 1st) “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,”.
What does this say? The version without the suggestion of various recreational activities simplifies the legislation and illustrates this “test”.
“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,”.
Essentially, what the Congress says here is, that if the area is needed, it’s for recreational use, and it’s especially adaptable for that purpose, it “shall be developed for such uses”. That is the summation of the “test” for development NPS must consider prior to manipulating the resource for recreational purpose. This is why the legislation never segregated the “recreational area” from “primitive wilderness”.
Providing that the “test” had been passed, and according to the law which states “shall be developed”, NPS has no option within SEC 4 other than to accommodate the need of visitors.
What allows this development to continue through the years and even within the NPS DEIS proposal and the proposal for the boat ramps adjacent to the Coast Guard Station, is the fact that the Congress told NPS to do specifically that, providing it was needed, it was for recreation, and it was adaptable. This is why the legislation never segregated the “recreational area” from “primitive wilderness” which I argue repeatedly only for the sake of emphasis.
How the Congress facilitated the pseudo division between the areas was by use of the term “reserved” when they wrote, “the said area shall be permanently reserved as a primitive wilderness”. Had the word “preserved” been used, there would in fact be a dual mandate. But as mentioned before, that particular mandate would have been in conflict with the first part of SEC 4.
The use of the word “reserved”, does on the other hand, provide NPS with the ability to satisfy the three part test which when accomplished, requires adaptive recreational development as needed and specified within the EL and negates the conflict with the latter within same.
This is true because any remaining portion of the Seashore that cannot pass the “three part test” is to remain unaltered as it remains in “reserve” until conditions for development can be satisfied and justifiably met. All of the language following the word “reserved” within the EL pertains specifically to the area in “reserve” but not that which was or "shall be" developed for recreational use as needed
CONCLUSION
Congress put no limit on the size or scope of the “recreational area” at the Seashore other than its legal geographical boundaries and the ability to satisfy the requirements for recreational development. Only a single mandate was provided by the Congress to NPS and it is a directive which reads “shall be developed for such uses as needed,”
The area held in “reserve” only remains in that status until it is needed for development and is adaptable for recreational use and was never intended to be permanently preserved as “primitive wilderness” else congress would have specified the respective boundaries and used the term “preserved” as opposed to “reserved”.
Instead they allowed for flexible management of the Seashore which still does allow for adaptive policy. Perhaps this is because of the time frame allowed NPS to get the Seashore into official status and the unpredictability in ultimately determining what sort of visitor demand would ensue at CHNSRA. Either way, NPS was told to develop this area as needed for recreational pursuit.
6/13/10
Tight Lines,
Wheat