Wednesday, June 2, 2010

Whats In A Word?

I’m not really sure who it was that first sent me a copy of the “enabling legislation” that in the process of creating Cape Hatteras National Seashore Recreational Area, provided the Park Service with a framework with which to manage the Seashore.


What I do know is that before I read it the first time those many years ago, I was told that it was a “dual mandate” that gave NPS two missions to accomplish. One, the creation of a recreational area, and two, preserve the remaining area as primitive wilderness, which still comprises the vast majority of the Seashore as a whole.

It is upon the “dual mandate” premise that NPS has managed the area and many a debate has been centered. Often during that debate, whether coming from the NPS, environmental groups or certain individuals who argue this issue on various websites, we hear that the legislation is vague in that it doesn’t delineate where the recreational area is supposed to be as opposed to the primitive wilderness area. Presumably, it is that argument, that the law is vague, which led Sandy Hamilton, a Colorado based NPS employee, to proclaim during the negotiated rulemaking process that “as long as we leave a small area open for recreational access, we have fulfilled the recreational mission… ‘

Early morning last Thursday I was busy with my chores when suddenly I was struck by thought so powerful that it did what my coffee had yet been able to do; it woke me right up. Forgetting the chores, I pondered for a while then sat down here to look again at what the Congress wrote and passed.

The “enabling legislation” is not a “dual mandate”.

Within the Draft Environmental Impact Statement, NPS outlines its preferred alternative (F) which includes the construction of additional ramps, parking areas, walkovers, inter-dunal roads, and a parking lot at Hatteras Spit, all of which would potentially destroy “wilderness” area and or the “unique flora and fauna now contained within”.

If the primary mission is to preserve these portions of the Seashore as opposed to recreation, how can NPS tear up these areas and develop them for recreational use? It’s because the Congress told them to do exactly that when they stated “which shall be developed for such uses as needed”.

In fact, read like its written, and you’ll see that Congress assumes that the entire Seashore can be developed by NPS for recreational use if it’s needed.

Congress used the term “reserved” when they spoke of primitive wilderness, not “preserved”. Had they said “preserved”, there would in fact be a dual mandate. The use of the word “reserved” tells NPS nothing more than that they are to preserve the flora and fauna until it’s needed for recreational use at which point it is to be developed for such purpose.

That’s not a dual mandate.

In my own experience, I have been in many a neighborhood that was being developed where the developer in question wasn’t allowed to cut out the trees on a given lot until the owner was actually ready to build a house. Consequently, at least for a while, many of the lots remained as they were for an extended period and were only “developed for such uses as needed”.

That’s what the Congress told NPS, and that’s all they told them. Develop the area for recreational use, reserve the rest until you need it and don’t mess with it while it’s in reserve.

That’s why congress never bothered to specify exactly where one area is as opposed to the other. Because they had already said it was all “fair game” for development for recreational use and in fact implored NPS to develop it for that purpose whenever necessary and in that respect is not vague at all.

As you read the legislation, which I will post below, try and read it without the bias of a “dual mandate” and carefully read it as the one long congruent thought it is.

SEC. 4. “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, 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:”

Chew on that for a while…

Tight Lines,

Wheat

8 comments:

  1. I have always thought the primary purpose was for recreation (but hadn't really thought about the "as needed" part until you pointed that out) and that the wilderness part was a secondary use of the land because it says "EXCEPT FOR...the areas used for recreation" (so that the leftover areas will be used as a primitive wilderness)- meaning the recreational use comes first. The environmentalists/anti-access people turn it around and say it means the primitive wilderness use is the primary use and as an aside, or for a secondary purpose, use it for recreation but not to the detriment of the environment which anything recreational damages the environment (in their minds) so nothing recreational should be allowed (which of course is backwards but suits their purposes). So it did sound like a dual mandate (either way you took it), until I read this and you pointed out the "as needed" words which I (and probably others) had glossed over. As always, you're on the ball, Jeff! I love reading this blog as I learn so much. Thanks for doing this.

    ReplyDelete
  2. Great observations, Wheat! You shoulda gone to Law Skoo, I’m telling ya….


    Sec. 4 has always made my head hurt. In my mind, the entire statement seems ambiguous and contradictive, but then most legal-ease does to this guy who’s used to dealing with logic and reason on a daily basis.

    Playing Devil’s Advocate here, I think I see where both sides seem to have a valid point in this.

    Your interpretation of the first section is spot on: (Portions redacted for clarity)

    SEC. 4. “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,…”

    Pretty straight forward. One must assume that “The Area” refers to the entire seashore, but therein may lay the wording the enviro’s are clinging to. The next portion is where it gets tricksy:


    “…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…”

    “Said Area”, IE The Seashore, shall be “reserved”, (Not Pre-served, good eye…), and no development of the “project or plan”, (What project or plan?!?! Can you shed any light on what those are/were?!?!), “for the convenience of visitors shall be undertaken…”

    That sounds to me like no parking lots, ramps, walkways, etc. will be built as a “convenience” for visitors, which are already in place, and more coming in Alt F. (Am I reading this right?) Which leads us to the concluding wording, which seems even more contradictory in relation to the preamble.


    “…which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing in this area:”

    There’s the word “preservation”, and this portion seems to dictate that ramps or even footpaths would not be compatible with the “physiographic conditions”, IE the dune line/shoreline pre-CCC, much less the unique F&F.


    Wheat, you’ve helped me to understand similar ambiguities regarding our current situation in times past, can you help a brother out one more time? If I’m wrong, and I sure hope I am, please tell me.

    Thanks in advance!


    dap

    ReplyDelete
  3. I think project or plan refers to the development of the Seashore as a whole.

    Reguardless of the verbage about f&F, as the "remaning Portion" is placed in "reserve", all of the applicable area is subject to eventual development IF it is being done to accomidate recreational need.

    Preservation of f&f is done for areas that enjoy reserve status however, based upon the language proceeding that comment, if the need arose, NPS could build a football field smack dab in the middle of the sedge.

    I think its simple Dap, develop as needed, reserve the rest till its needed while preserving the f&f. But once the need is shown, fire up the bulldozer baby!

    ReplyDelete
  4. Thanks for pointing out the "reserve". I had always thought and said "preserve". Some difference! It is understandable that if one considers the flora and fauna as one aspect of recreational enjoyment, it should be maintained as much as possible and not removed for convenience.

    I always interpreted the development part to refer to the fact that development for providing food and lodging was to be done by the residents in the villages.

    ReplyDelete
  5. good thought on the development Barbara, it makes sense..now I'll have to go read it again for the (?)th time.

    ReplyDelete
  6. Back before Wheat was old enough to wet diapers, words meant things. They weren't shortened by text shorthand convenience or wasted just to occupy space. Each and every letter of every word was done by hand, or hand to machine; a labor. Nothing was wasted as it was laborious to do.

    Back then the order and arrangement of words set their importance. The closer to the beginning, the more important the word. My how far we have come; wnt me to txt u bout it?

    ReplyDelete
  7. Best explanation I've heard yet! Thanks for untangling my mind for me.

    Great blog, Wheat, keep up the stellar work!


    dap

    ReplyDelete
  8. Dead on Wheat. I've often thought along those lines.

    I also think it might be time to go research the personal papers of Lindsey Warren, Herbert Bonner and Sam Ervin. Those of Warren and Bonner in particular should include personal correspondence about the legislation and what their intend was/is as they were choosing the wording. These papers could conclusively prove that the intent was recreation. They are housed at the Manuscripts Department Library of the University of North Carolina at Chapel Hill "SOUTHERN HISTORICAL COLLECTION". I have the complete archive listings if anyone is able to look at them. It's kind of out of my way.

    Good job Wheat.

    ReplyDelete