Cape Hatteras National Seashore (Recreational Area)
1401 National Park Drive
Manteo, North Carolina
Re: National Park Service Proposed Rule (RIN 1024-AD85)
I write to you this day and submit my public comment relative to the new proposed "rule" intended to govern the use by the public of Cape Hatteras National Seashore Recreational Area authorized by Congress in the year 1937 and finally established by the National Park Service (NPS or the "service") in 1953 after some, but not all of the lands currently constituting the "Seashore" were acquired by the Department of the Interior in order to satisfy the requirements established primarily within 16 USC 459 sec.3.
As the proposed rule stands, it blatantly violates the "Enabling Legislation" 16 USC 459 sec. 3, (1937) authorizing the establishment of the "Seashore" (hereafter referred to as the Seashore or CHNSRA) as well as the "Redwoods Amendment" 16 USC 459 sec. 1a-1 of 1978.
I therefore reject and vehemently oppose most all of the provisions set forth in this proposed "rule" for the reasons outlined below as most are based upon either flawed science, a lack of science, studies conducted with a predetermined outcome, and in many cases, studies that are out of date or have been peer reviewed by the authors of same which violates peer review protocol and in many cases, federal law.
It is apparent that NPS doesn't quite understand, at least in this instance, that it is the right of the congress to dispose of public property, not the Park Service. In fact, that privilege does not even extend to the President of the United States as per our Constitution. Though congress has given NPS the ability to establish needful rules and regulations, at no time has the law provided NPS with the ability to lawfully execute this sort of action in an instance where such an action would be in violation of federal law extant. Nor does law exist that gives the ability to NPS to ignore regulation enacted by congress and signed into law by the President. However, relative to CHNSRA, that is precisely what NPS intends to do if RIN 1024-AD85 is put into place.
Case and point is 16 USC 459 sec.3 which declares quite succinctly that the Seashore is to be developed "as needed" for recreational use. And that the "service" hold the remaining portion of the area in "reserve" until it is needed for it's intended purpose, that of a recreational area; providing that is adaptable and needed for recreation. Congress set no limit on the areas that can be developed for recreational use within the seashore, nor did they limit what form of recreational use could take place. Except to say "swimming, sailing, fishing, boating and other recreational activities of a similar nature, which shall be developed for such uses as needed". Unfortunately for the American public, NPS seeks to change the meaning of this legislative passage by interpreting the verbiage in the sentence following as though it said that the remaining portion of the area is to be permanently preserved when it does in fact state "permanently reserved" instead. The understanding of the use of the word "reserved" in this instance is the key to realizing the intent of congress and the enabling legislation as a whole. It is, after all, the use of the word "reserved" that enables the development of the Seashore for recreational use as needed and clearly establishes recreational use to be the primary purpose of this area, not preservation of wildlife or primitive wilderness as NPS would have the public believe. Though the last portion of the single paragraph that comprises 16 USC 459 sec.3 does contain the words "and no development or undertaking for the convenience of visitors may take place that would be incompatible with the preservation of the unique flora, fauna and physiographic conditions now prevailing in this area"; this clearly applies only to such areas held in "reserve" until they are needed for recreational development and use as stipulated by congress.
Another blatant example of the disregard that NPS has for congressional law deals with the obvious intent of the "service" to violate provisions set forth by congress within 16 USC 459 sec. 1a-1 otherwise known as the Redwoods Amendment. Here the congress clearly informs NPS that they are not to conduct any activity that would result in significant derogation of the mission established by congress for this area unless and until the "service" has "direct and specific authorization by congress" to do so. The proposed new rule as proffered by NPS will in fact dramatically alter previous management policy (pre- 2008 Consent Decree for the Seashore) and will in fact limit recreational opportunity severely, resulting in derogation of the mission established for this area. Contained within the 2010 Final Environmental Impact Statement (FEIS) as published by NPS, is a statement by the "service" which explains that the Redwoods Amendment was intended to enhance section 1 of the "Organic Act" but not intended to institute separate management policies. Though both of these statements are true, NPS willfully ignores the fact that it is the individual "enabling legislations" that dictate how various areas are to be managed and developed, and that without the aforementioned "direct and specific" authorization from congress to do so, the "service has no legal authority to implement the proposed new "rule".
Furthermore, at no time in our nation’s history has the Congress given the NPS the ability or legal authority to regulate commerce outside of the bounds of the areas for which it is responsible. The implementation of RIN 1024 AD85 aka the "rule", will have that effect much the same way the Consent Decree of 2008 has done. That same decree has been an enormous factor in the downturn of the economies of both Hatteras and Ocracoke Islands. Some sixty businesses have failed since the inception of the decree and its immense beach closures. And also, some 400 homes (and counting) are now in foreclosure on the islands. The proposed new "rule" will exacerbate this problem further by denying the American public access to beaches by Off Road Vehicle (ORV) use for a significant and fiscally important portion of the year, upon which our economy is largely based. The proposed closures outlined within the "rule" will serve, and have with the Consent Decree alone, already served, to drive the visitors upon which our economy is based, to seek recreational opportunity elsewhere. Proof of this may be found across the internet at various sites which deal with visitation to the Seashore and perusal of same will repeatedly reveal former visitors stating that they have no intention of returning to the area if NPS implements this "rule" as intended. As such, NPS unlawfully limits commerce on the islands by depriving visitors, the majority of which operate ORVs on our beaches, from access to the Seashore in areas which have been traditionally and lawfully accessed before, and since, the Seashore was established in 1953. In addition, NPS will deprive local commercial fishermen their congressional guarantee of right of access to our beaches, upon which their livelihood depends. This further demonstrates an attempt at regulation of commerce by the "service". This regulation comes in many forms but all points to the same agenda which is to limit access.
For someone that lives on Hatteras Island and has experienced the effects of the Consent Decree, I have extraordinary difficulty understanding where the NPS purported two million odd visitors have been every year since 2008. I have never seen our beaches so empty in all the years before, and after, I moved to Hatteras Island. Nor have I seen the beaches so thoroughly inaccessible due to various resource closures. Just where are all of these people Mr. Murray? If NPS is relying upon the traffic counter at Whalebone Junction to accumulate this data, the number might make sense. But then every delivery vehicle, law enforcement, or emergency vehicle, every resident’s car or truck that goes off island to shop is counted at least twice. As an example, there are two companies that provide bagged and block ice to the islands virtually every day beginning in the spring and running through the fall fishing season. There are routinely at least three UPS trucks on Hatteras Island every day which alone would count for six visitors based upon the technology utilized by the "service" It doesn't take much thought to understand how quickly those numbers will add up, and that fails to include the other delivery, service, transit, local, and assorted other vehicles including those that belong to NPS that pass that point every day. A classic example of how NPS has skewed visitation numbers to present figures that would lean toward the "agenda" is when the "service" sponsored economic impact study went to consider visitation in the summer. Beach access ramp 43 was chosen over the considerably more oft utilized beach access ramp 44, only a couple of hundred yards away. That alone serves as a prime example of NPS again violating federal law and even executive order by not presenting to the public sound science; nor was this supposed data available for public comment in a timely manner as required by the National Environmental Policy Act. (NEPA).
NPS has proposed the creation of "Vehicle Free Areas" (VFA's) which are in conflict with both executive orders 11644 (Nixon 1972) and also 11989 (Carter 1977). Within both E.O.'s NPS was given six months to determine which areas of (in this case the Seashore) would remain open and which areas would be closed to ORV traffic. In both cases, NPS determined that the entire Seashore should remain open to vehicular access. This determination was made again in 1978 when an Interim Management Strategy (IMS) for management of the Seashore was promulgated with NPS and local input. This same IMS was used and implemented by former superintendent Belli, with the exception of fee or permit based access and served as "service" policy until the promulgation of the 2007 IMS under current superintendent Murray which recognized the use of virtually all of the Seashores beaches that were considered safely accessible; excepting seasonal closures which occurred in front of the villages for reasons of pedestrian safety during the busy summer months. (The superintendent again did not institute a fee or permit policy.) As such, by default, NPS recognized that the traditional routes of egress and transport were acceptable and not detrimental to the resource, and allowed same for almost 40 years, which does not include the many years of public vehicular use prior to the authorization and ultimately the establishment of CHNSRA in 1953. This was also substantiated by the Unites States Fish and Wildlife Service (USFWS) when they issued a Finding Of No Significant Impact (FONSI) prior to the 2007 IMS being issued and recorded in the Federal Register.
It is also true that contained within E.O. 11989 (Carter 1977) is a caveat wherein the Superintendent must show , prior to closing an ORV route or "trail", that use of said route either is causing or will cause significant adverse impact to the resource, which no superintendent of this Seashore has ever been capable of doing. Therefore, the proposed VFA's and permanent year round closures of Bodie Island Spit, the South end of Hatteras, aka "False Point", the Northeast end of Ocracoke Island, and the area known as South Point, also on Ocracoke, are both arbitrary and capricious and in violation of E.O. 11989. If NPS is so vehement about obeying the respective E.O.'s as they state they are, then they must obey all of the established requirements, not just those that seek to limit access to our Public Lands. It should also be pointed out that in accordance with 16 USC 459, the land overlaid by the as of yet congressionally approved wildlife refuge known as PEA Island National Wildlife Refuge, is by law, very much a part of CHNSRA and contains near 13 miles of previously established VFA which visitors to that area may, and do, already enjoy; and remains uncontested in that no attempt at restoring ORV access to this area has been mounted.. Until the congress deems this as a separate entity apart from CHNSRA, it remains part of the Seashore and as described within the law extant, and by law, is the responsibility of NPS to maintain and must be so recognized to include species nesting numbers.
Though NPS maintains that this area is not within their realm of management (which by law is untrue), and until the "service" can prove that nesting, regardless of species, is determined not by an ecosystem as a whole, but by imaginary man made geographical boundaries, the species that choose to nest on Pea Island need counted as part of the Seashores overall populations. The same would hold true for Cora June Island which is located just a few hundred yards from Hatteras Island, by the Ferry Channel.
Other issues with the proposed VFA designation include the following. As written, mobility impaired individuals such as myself will lose access to significant portions of the Seashore as without transport, I, and others, will have no means to transit the dune line with our equipment in order to enjoy our beaches. This would be in violation of the Americans with Disabilities Act (ADA) and it is discriminatory. Vehicular egress to the beaches in the proposed VFA's will require that mobility impaired persons will only be allowed access in front of the villages and not in other VFA areas away from same. Requiring a vehicle operator to drop off a mobility impaired individual and return to an ORV access point poses a safety hazard in the event of injury, storms or even something as simple as the need to use restroom facilities. NPS also operates under the assumption that someone who drops off a mobility impaired individual will have access to parking and able to access their vehicle in a safe and timely manner in order to assist the needs of the disabled individual. NPS also assumes that the person who "drops off: a mobility impaired individual are themselves capable of making the long trek back to the point where said individual was left. This will preclude many elderly persons from access to the proposed VFA. As someone who is 45% permanently disabled, and with no "chauffeur", I am therefore automatically disallowed from accessing many miles of beach that I and thousands of others have used for the traditional recreational activities outlined in the enabling legislation (16 USC 459 sec. 3), without harm or impairment to this treasured resource. Attention must also be drawn to the fact that the current, albeit undesignated VFA's within the bounds of the Seashore are the most underutilized areas of this beach system. One needs look no farther than the area beginning just north of beach access ramp 43 and extending to the old lighthouse location which, day in and day out remains unused; as photographic documentation has proven over this last year. This same phenomenon can be discovered in most of the ocean area between the villages of Frisco and Hatteras as well as the vast majority of the beaches found on Ocracoke Island, throughout the year.
VFA's should only be imposed if it is found by the superintendant that they are necessary to protect the pedestrian visitor and the proposed rule should allow this flexibility. The area just north of beach access ramp 43, as described above, which has gone almost entirely unused by pedestrian visitors should have, and could have, been open to ORV use for the entire year.
In sum, the VFA proposal is in conflict with both E.O. 11644 and 11989, the ADA, ignores the 13 miles of VFA on Pea Island, and will serve no other purpose other than to limit visitor access to our public beaches in conflict with 16 USC 459 sec.3 and the Redwoods Amendment. (16 USC 459 sec 1a-1)
It should also be pointed out that as the congress amended the enabling legislation in 1940 and formally changed the name of the Seashore to Cape Hatteras National Seashore Recreational Area, it was stated that this area was set aside for the enjoyment and benefit of the American people; not "some" or "a few" but all.
The proposed VFA's will also serve to inspire user conflict and create resentment among user groups. Many individuals that visit the Seashore via ORV will, and already have become angry as they discover that the proposed access fee for ORV use is being used to pay for the infrastructure to support these VFA's while at the same time denying them access to those same areas. NPS policy dictates that the service is to minimize user conflict, not inspire it; which is in fact, beginning already.
Within the proposed rule, NPS claims that it seeks to mitigate fiscal impact upon the economy of the islands by the proposed VFA's, and seeks to construct additional parking areas. Alternative F of the FEIS upon which this rule is based, informs that the public that 130 odd new parking spots will be constructed along the ocean side of the Seashore in order to facilitate visitor access along with sundry supportive infrastructure. Assuming that NPS figures of two million odd visitors to the Seashore is even remotely close to being accurate, how is it that 136 new parking spots can possibly handle this volume of visitors? Especially since the majority of these new parking spots are to be located on Ocracoke Island and not on Hatteras Island where the majority of visitation occurs? This is nothing more than a thinly and poorly veiled effort by NPS to severely limit access to the Seashore. It is the words of Sandy Hamilton, an NPS employee who was involved in the failed Negotiated Rulemaking process that echo in my mind. Her statement (referring to NPS) "that as long as we leave a small area open for access, we have fulfilled the recreational mission of the Seashore" apparently sets the tone for the current and proposed actions by the "service". Apparently she never read, and is incapable of understanding the enabling legislation.
The fee based ORV access system proposed by NPS is discriminatory as it requires one user group to fund the infrastructure used by another. NPS proposes this system in a purported effort to recover the costs of yet to be constructed beach access ramps, parking areas, walkovers, and restroom facilities for pedestrian visitors within VFA's, but currently has no idea as to what the cost for this infrastructure will be, or the costs of the permits necessary to do so. Currently, NPS has no funding to construct any of its proposed "improvements" and no idea of how long these so called improvements will take to construct. NPS has repeatedly demonstrated through the years that proper maintenance of the resources found within the Seashore is not something that the "service" is competent performing. Examples of this incompetence and fiscal mismanagement can be found in various areas of the Seashore. For example, the septic system at the Cape Point Campground which NPS has known for years needs upgraded, Bodie Island lighthouse which now stands as a dysfunctional eyesore, the mess that NPS created during the improvement of beach access ramp 44, the closure of the interdunal road extending from ramp 45 to ramp 49 in Frisco, the poor condition of the access road leading to ramp 49, and many others. A glaring example of these poor practices existed for many years in the form of a pothole at the entrance to ramp 44 which caused drivers to have to swerve into oncoming traffic exiting the beach from that ramp, in order to avoid damaging their tires and suspension.
Further objection to this proposed permit and user fee system deals with the fact that the American taxpayer already funds the NPS and will require that a segment of the population be taxed yet again for something they have been taxed for previously. Though I'm certain that his comment will fall on deaf ears, I insist that this fee based permit system as proposed by NPS be inexpensive or free of charge, as to not further burden the economy of the islands and harm the residents of same. An expensive fee based system will have the effect of driving visitors away from the Seashore and to other destinations. It is also true that establishing load capacity requirements will have the same effect as it is likely that any visitor who comes to the Seashore will find themselves unable to access the beaches that he or she just paid to visit and will never return again. NPS should not establish a system that is dependent upon sheer luck and timing to allow a visitor access to our beaches. And before the "service" begins to collect fees for ORV access, all of the proposed beach access ramps and interdunal roads should have already been constructed so that a meaningful figure for said permits can be established else said fees will be tantamount to outright theft.
NPS also sets forth a requirement that visitors attend a class about ORV use prior to the issuance of the proposed permit as well as setting forth requirements for equipment needed to access our beaches. I find this objectionable on several fronts. First of all, having driven on these beaches for thirty odd years without ever having been stuck, I don't need a class to tell me how to traverse these sands. I would submit that this is true for the majority of residents of the islands, of which I am one, as well as a significant number of visitors. In fact, on a per capita basis, I have personally spent more time digging out stuck NPS vehicles than I ever have visitors. I have also discovered that by in large, NPS vehicles do not carry the basic equipment that the "service" will require a visitor to carry. This raises an obvious question. How are a group of people, NPS employees, who are notorious for getting stuck in the often soft sands of our beaches, qualified to instruct other drivers how to negotiate the beach? In addition, the requirement for a jack and jack stand as set forth in the proposed rule, will not help anyone who happens to be stuck; particularly in wet or soft sands, and will pose yet another unreasonable financial burden upon the visiting public as well as residents of the islands; likely resulting in many visitors making the choice to never return. A considerably more cost effective alternative which would facilitate continued visitation without burden, would be to make the proposed permits free of charge and available online as well as in the various tackle shops and realty offices, much the same way the current Consent Decree required night driving permits are handled. In addition, more effective signage at the various access ramps would go a long way to provide important information to the visiting public. This would also eliminate the need for additional NPS staff, the need for physical structures to station staff to check permits, and in turn reduce the fiscal liability of the "service" and financial demand upon the American taxpayer.
As I mentioned earlier, the proposed rule will also have an impact upon local commercial fishermen as they ply their trade from the beaches of the Seashore. Though NPS does allow traditional access for these hardworking individuals within the proposed VFA's, there is no mention of access to the inlets and spits upon which these individuals depend to ply their trade and feed their families. This access should be allowed as was mandated by congress within 16 USC 459. In addition, the requirement that these fishermen be able to provide a copy of a receipt to a local "fish house", not older than thirty days, ignores the reality that commercial fishing is a seasonal trade. A prime example of this is those licensed fishermen who practice their trade during the fall months during the mullet run. They cannot possibly cast for mullet until the run begins which is determined not by the calendar, but by the mullet. To deny them the right to fish simply because they have no recent receipt, is to deny them the right to fish altogether. This portion of the proposed rule should be discarded as it poses an unfair burden upon these individuals and violates the tenants set forth within the lawfully enacted legislation authorizing the creation of the Seashore. Any local resident, with a valid commercial license, should be allowed to fish, whether it is their first day, or their last of the season, and without prior receipt. NPS also fails to define the term "fish house". Many of the licensed fall netters do not sell to a "fish house" as their catch is intended to be used as bait for licensed recreational fishermen and charter vessels and is subsequently sold to tackle shops instead of a "fish house", who also carry license to deal in legally procured fish stocks.
I also object to the proposed ban on night driving on our beaches for the majority of the year. This ban is based upon supposition rather than sound science as is required by NEPA. Were the Seashore located in Florida where sea turtle nests average some 600 nests per mile, it might make sense. However, here at CHNSRA, NPS statistics show that on average, there are just over 1.3 nests per mile, and an average of one nest and one false crawl per night. Therefore the likely hood of an ORV encounter with a sea turtle is slim at best considering the roughly 73 miles of beach comprising these islands. Though it is true that a sea turtle was run over on Ocracoke Island in 2011, this tragedy occurred at a time when night driving was already prohibited as per the Consent decree.NPS shoves the blame for this unfortunate accident upon the shoulders of visitors to the Seashore claiming that no patrols were active that night. However, the "service" fails to acknowledge that the Consent Decree also requires that bird monitors be in position to observe piping plover behavior from sunrise to sundown and it is therefore likely that it was an NPS employee that caused the demise of this animal. If and when NPS can come up with sound, reasonable, lawfully peer reviewed science that shows definitively that a night driving ban is necessary, I will accept it. Until then, I vehemently object to this action. This again is addressed in E.O. 11989 wherein the superintendant must show considerable adverse effects before closing an ORV route to public access.
Additional objection to the proposed final rule including ALT F as described within the NPS published FEIS comes relative to the proposed size of buffers surrounding wildlife. In particular, the Piping Plover, charadrius melodus. These buffer recommendations stem from the Pawtuxet Protocols which have no scientific basis and, in addition, were largely peer reviewed by the authors in direct violation of United States Geological Service (USGS) peer review protocols rendering them unlawful. In addition, the buffers purported by NPS for non endangered or threatened species, are also excessive. Though species such as Least Terns, American Oystercatchers and the like are listed as "species of concern" by the state of North Carolina, within which the Seashore exists, Gordon Meyers, Chairman of the North Carolina Wildlife Resource Commission, stated openly in his public comment to the NPS published Draft Environmental Impact statement (DEIS), that these birds did not need the level of protection proposed by NPS. In spite of which, NPS imposes them anyway, which serves no purpose other than to limit access to the Seashore and has resulted in tremendous economic harm to the islands communities.
NPS has also refused to consider this Seashore as a Traditional Cultural property in spite of the fact that it far exceeds the requirements set forth in the NEPA. Within which NPS is specifically instructed that TCP's do not only apply to Native American populations. Hence contacting the Tuscarora Nation to determine cultural significance of the area now considered the Seashore, once again NPS ignores the law and plays lip service to my community as well as the American public at large, in a clear effort to advance an agenda, limit access to our Seashore, and effectively destroy a traditional way of life and the communities which have served the public as well as the "service".
In closing, I am ashamed as an American citizen that NPS chooses to pursue such an action in defiance of the intent of congress and with such blatant violation of law extant. I am ashamed that I ever trusted Mike Murray, superintendant of this Seashore that I and a few thousand others call home. I am embarrassed that I took such pains to defend him against those who stated he would do greater harm to these islands than he did in Cape Cod. I am angry that my tax dollars are funding the destruction of a unique people and way of life that can only be experienced on these islands. I fear for my future and those people that constitute my island "family". It is a crime that through no fault of our own, a people that have cared for this resource since before the creation of the National Park Service and before the founding of this nation, should be so thoroughly tossed aside with such wanton disregard to their futures, their past, and the lives and futures of their children as well.
It is no small irony that the islands having just experienced the wrath of Hurricane Irene are now faced with the actions proposed by NPS which will have a far greater devastating effect for a much longer time than the storm could ever have done. At least we can rebuild after a hurricane. In time that storm becomes only a memory, albeit painful to many. What NPS intends will alter our lives forever.
Buxton, North Carolina
(Remaining personal information withheld for online submission)
Senator Richard Burr
Senator Kay Hagan
Congressman Walter B. Jones
NPS Director Jonathan Jarvis
NPS S.E. Regional Director David Vela
Brandon Middleton, Damien Schiff, Pacific Legal Foundation.
The Outer Banks preservation Assn.
North Carolina Beach Buggy Assn.
And assorted BCC.