Wednesday, July 25, 2012


As a child I remember my mother telling me on more than one occasion, "you started it, now finish it." So I laugh these days as I become weary of the fight for access to the beaches of Cape Hatteras National Seashore Recreational Area. Mayhaps it's not the fight but the fighting that has worn me out.

I know I'm tired of hearing about how things should be done here from folks that have no clue as to what is happening on these islands. In many cases, this comes from folks that couldn't find Hatteras or Ocracoke on a map if it was right in front of their face; have no intention of visiting here, and could care less about those that do. Nor do they care about the fine people that populate this place.

I'm tired of hearing the outright lies and collection of misinformation spewed forth by Audubon, DOW, and SELC. I would be remiss if I failed to mention the National Park Service as well. The spin they toss out is just as bad, and smells worse than that put forth by the "darkside".

I'm tired of seeing miles of closures just as I'm tired of seeing dozens of vehicles parked along our highway that create a traffic hazard.

And though I may lose more friends because I say this, I'm tired of hearing people complain about access that aren't willing to lift a finger to help get it back.

So here's my message. I and many others care about access to these beaches as much as you do. Some of us have been working for years to set things right. It's not just about the economy, it's about your freedom to enjoy these beaches the way that was intended and promised by our federal government.

The reality is, we're working hard to put things right and we've come further than we ever have before. Now is not the time to condemn our actions but to support them.

Learn the facts, get involved.

So ends my rant.

On a positive note,  Senator Joe Manchin (D) WV is now a cosponsor of S. 2372 which if enacted, will restore reasonable access to the Seashore and do away with the consent decree and "final rule" established by NPS; The success of this legislation, of course depends on your participation in this process, This is the last step before it hits the floor of the Senate for a vote. So it's up to you.

If you need some things to fill your communication, as always I will recommend as Irene has done a wonderful job of keeping us informed. You may use my rants as well.

I do want to point out an excellent letter by the esteemed Dr. Mike Berry who in conversation feels much the same way as do I about the subject of access. This is, as far as I'm concerned, a "must read" relative to our issues. So with permission, I copy one of his "Meus Visum" blog entries.

Response to Senate Hearing Testimony Given by SELC and NPS on June 27, 2012

This responds to scientifically unfounded claims that were raised at the Hearing before the Senate Subcommittee on National Parks on June 27, 2012 with regard to the passage of S. 2372, which would reinstate the Interim Management Plan for the Cape Hatteras National Seashore Recreational Area (CHNSRA).
On June 27, 2012 the National Park Service (NPS) and the Southern Environmental Law Center testified in Senate Hearing that the “Consent Decree” that restricts public access to the Cape Hatteras National Seashore Recreational Area is an environmental management success that has produced extraordinary numbers of birds and turtles since April 2008. That claim, constantly touted by NPS and SELC, has no basis in scientific method or evaluation or standard environmental management practice.
Following are nine (9) items to consider when evaluating resource management and related science in the Cape Hatteras National Seashore Recreational Area in relation to the well crafted “Interim Plan” promulgated in 2007 but set aside without any public comment or review in 2008 by the poorly crafted “Consent Decree”.
(1) The Interim Management Plan fully titled Interim Protected Species Management Strategy/Environmental Assessment was publically discussed at great length and reviewed under the NEPA provisions in 2006. It was signed into effect in July 2007 and published in the Federal Register.
As indicated at page 30 in the Finding of No Significant Impact Interim Management Strategy (See Attached) “There are no significant adverse impacts on public health, public safety, threatened or endangered species, sites or districts listed in or eligible for listing in the National Register of Historic Places, or other unique characteristics of the region. In addition, no highly uncertain or highly controversial impacts, unique or unknown risks, significant cumulative effects, or elements of precedence have been identified and implementing the selected alternative (modified preferred alternative – Alternative D (Access/Research Component Focus) with Elements of Alternative A) will not violate any federal, state, or local environmental protection law. There will be no impairment of park resources or values resulting from implementation of the selected alternative.”
The USFWS reviewed and concurred with the Interim Strategy and the Finding of No Significant Impact. In the Biological Opinion submitted to the NPS, August 14, 2006, USFWS states with regard to the Interim Plan,
“After reviewing the current status of the breeding population of the Atlantic Coast population of the piping plover, wintering population of the Atlantic Coast population of the piping plover, the wintering population of the Great Lakes population of the piping plover, the wintering population of the Great Plains population of the piping plover, seabeach amaranth, and loggerhead, green, leatherback, hawksbill, and kemp’s ridley sea turtles, the environmental baseline for the action area, the effects of the proposed action and the cumulative effects, it is the USFWS’s biological opinion that implementation of the Strategy, as proposed, is not likely to jeopardize the continued existence of these species.” (See “Conclusion” at page 75 of USFWS Opinion)
The NPS rational for the management provisions of Interim Plan is indicated at page four in the Finding of No Significant Impact.
Based on the analysis presented in the strategy/EA, the NPS identified Alternative D – Access/Research Component Focus as the preferred alternative for implementation. The preferred alternative is described on pages 59–63 and in tables 1, 2, and 3 of the strategy/EA. However, after considering public comment on the strategy/EA; park field experience during the 2006 breeding season; the USFWS Amended Biological Opinion (2007) (attachment 1 to this FONSI); new research (“Effects of human recreation on the incubation behavior of American Oystercatchers” by McGowan C.P. and T.R. Simons, Wilson Journal of Ornithology 118(4): 485-293, 2006); and professional judgment, NPS has decided to implement a combination of Alternative D – Access/Research Component Focus and some elements of Alternative A– Continuation of 2004 Management that pertain to managing sensitive species that are not listed under the ESA (see tables 1, 2, and 3 of this document). The basic rationale for this choice is that alternative D, as modified by elements of alternative A, best provides for both protection of federally and non-federally listed species and for continued recreational use and access consistent with required management of protected species during the interim period, until a long-term ORV management plan/EIS/regulation is developed, approved, and implemented. The modified preferred alternative – Alternative D (Access/Research Component Focus) with Elements of Alternative A is incorporated into the strategy/EA by Errata (attachment 2 to this FONSI). All elements of the modified preferred alternative were fully assessed in the strategy/EA under alternative A or alternative D.”
As indicated in the Finding of No Significant Impact, the selected alternative proved for both public access to the seashore and resource protection based on professional judgment of NPS managers, and consistent with management suggestions of USGS.
The Interim Plan established “best professional judgment” closure areas that did not previously exist. (See Pages 34-40 Finding of No Significant Impact.)
(2) Prior to the implementation of the Interim Plan, there was concern voiced mainly by environmental activist organizations that species decline was occurring on the national seashore as the result of increased public access, mainly off road vehicles. For five consecutive years (2001-2006), published resource numbers were low compared to previous years and were often touted to indicate that species populations, particularly birds, were in decline due to anthropogenic causes. However, it is often not mentioned that during this same time period the Cape Hatteras National Seashore Recreational Area experienced back-to-back storms that produced a significant distorting and transforming effect on the seashore ecosystem.
Due to the fact that the National Park Service, resource managers, and researchers had limited habitat specific research and monitoring data, the actual numbers of species, species behavior, and size of species populations at Cape Hatteras National Seashore Recreational Area were unknown and often simply speculated in the form of “professional judgment”. It is important to recognize that “judgments” and “opinions” in the absence of data are not science.
USGS, the research arm of the Department of Interior, in the introduction to the document titled Synthesis of Management, Monitoring, and Protection Protocols for Threatened for Endangered Species and Species of Special Concern at Cape Hatteras National Seashore, North Carolina made the following observation giving credence to the fact that the low bird counts published for a few years prior to 2007 were most likely not indicative of the actual condition of species.
“Over the past decade, management of these natural resources has been inconsistent at CAHA, partially due to the lack of effective and consistent monitoring of the location, reproductive activity, mortality factors, and winter habitat use of these species.”
Recognizing the lack of effective and consistent monitoring that existed prior to 2007, the Interim Plan established an enhanced and intensive resources monitoring program for birds and turtles that had not previously existed. Starting in 2007, NPS began seeking out, observing, and reporting birds at more heightened level than ever before. Since instituting the enhanced monitoring program in 2007, bird numbers have increased. (See Pages 34-40 in Finding of No Significant Impact.)
(3) In April 2008, environmental activists organizations sued to overturn the Interim Plan, claiming that the plan was not based on sound science and closure boundary distances prescribe by USGS. The Southern Environmental Law Center, the Audubon Society, and Defenders of Wildlife, sued the National Park Service and convinced a federal judge without any oral argument or expert testimony to issue a consent decree to convert the most popular and frequented sections of the Cape Hatteras National Seashore Recreational Area into mile after mile of “Bird Use Area” for a large part of the visitor season.
The public was given no opportunity to review or comment on the poorly crafted environmental management provisions of the consent decree. The provisions were slapped together in a period of about three weeks in April of 2008, behind closed doors, with no independent technical input and discussion.
Closure boundaries for four bird species (Piping Plover, Least Tern, Colonial Water Birds, American Oystercatcher), none of which are endangered, have prevented thousands of hard working, tax paying citizens and visitors from around the world from entering into large areas of the seashore. Thousands of visitors are channeled into now much overcrowded sections of the seashore, threatening to overrun the carrying capacity of those ecosystems.
The consequence of this non-public involved environmental decision is disastrous. As indicated in testimony this has had a devastating effect on the economy of Hatteras Island.
The access denying provisions of the consent decree provisions, which are unnecessarily restrictive and not based on objective science assessment, have been incorporated with additions into the final ORV management plan that the proposed legislation S. 2372 is designed to overturn.
(4) Environmental activists often referred to National Park Service annual resource reports in their self-promoting press releases, public testimony, and periodic presentations to the federal judge overseeing the consent decree. They use the reports to make claims that the public access restrictive resource closures of the consent decree, which they crafted and imposed without public review, are resulting in “highest ever” bird and turtle observations.
The annual resource reports have never been independently reviewed or verified for accuracy.
The National Park Service and the environmental activists groups are comparing numbers in these recent annual resource reports to questionable low bird count numbers published prior to 2007 that were not observed using the current level of intense and enhanced monitoring and measurement that has been in place since 2007. Such an “apples and oranges” comparison is in no way valid or useful in indicating statistical change.
In the absence of an enhanced monitoring program prior to 2007, it is plausible that various bird counts were not as depleted and low as claimed by environmental activists but that they were simply not being observed, counted, and reported as at the current intense monitoring level.
It is also plausible that any noted increase in bird counts since 2007 are due to a new enhanced program for seeking out, observing, and reporting birds rather than the creation of public access restrictive closures.
At no time in the past four years has any federal official demonstrated through independent audit or review, the validity of these reports or taken a hard look at environmental activists claims. None of the annual reports related to the consent decree for 2008, 2009, 2010, and 2011 were ever peer reviewed or validated by competent independent science advisors in open public forum or openly discussed by interested parties.
The bird and turtle numbers that environmental activists lawyers refer to come from annual National Park Service reports that are not consistent with the Presidential Directive for Science Integrity, and Department of Interior and National Park Service policies for scientific transparency and review. The reports do not indicate an author or a federal scientist who takes responsibility for the validity of the data. The public does not know who – by name, affiliation, and technical qualifications – made the observations and recorded the data. The public has no knowledge of chain of custody or quality assurance of the data. The public does not know who specifically wrote the reports. The public cannot get at the facts and verify claims.
Resource documents indicate that previously in 2007, annual bird reports commissioned by the National Park Service were co-authored by Audubon Society members.
(5) There is no statistically significant environmental benefit indicated because of the restrictive access provisions of the Consent Decree or the Final ORV Plan.
Nowhere in any annual resource report of the past four years does National Park Service demonstrate or claim a cause and effect relationship between overly restrictive closures provided by the consent decree and bird and turtle production.
Environmental activists and the National Park Service cannot demonstrate or prove that wildlife production of birds and turtles was improved under the overly restrictive provisions of the consent decree any more than would have occurred had the provisions of the publically reviewed Interim ORV Plan been allowed to move forward for four years.
In recent court testimony, without qualification, the Seashore Superintendent said about birds and turtles, “the trend is up”. The statement is something the judge that issued a consent decree that has denied extensive public access to the national seashore wants to hear even though at each of the Status Conferences before the judge, the Seashore Superintendent has explained to the Court that it is in fact too early to ascribe a cause/effect relationship.
For turtles, production and sightings during the years of the consent decree are up all along the Atlantic Coast, not just the region governed by the consent decree. For birds, natural processes and variability alone can produce such a statistically insignificant one or two year “uptrend” for a very small number of birds in previous years. The production and survival trend for two bird species in the current 2012 breeding season appears to be down for this point in the season when compared to the past two years.
(6) Data collected and published by NPS in recent years in no way supports the claim by environmentalists that ORVs reduce the productivity of birds. In fact, the data suggests that the Interim Management Plan, prepared with public input and review in 2005 and published in the federal register, was showing every sign of being effective at protecting birds and natural resources.
Had best professional judgment been allowed, along with reasonable public access, for the last four years under the consent decree we would reasonably expect the same result in bird and turtle production we see today, if not better.
The Interim Management Plan was set aside by the court and replaced by the consent decree that mandated extensive closures. The closures of recent years have been of exorbitantly high cost to the public, but have not contributed to an improvement in species production or safety. The consent decree has produced no natural resource benefit over and above the Interim Plan. In fact, in the same year the consent was issued, the fledge counts were higher under the Interim Plan than under the consent decree. In a matter of weeks after the issuance of the consent decree, the NPS in Washington and environmental activists in Senate testimony disingenuously credited the restrictions of consent decree, which had hardly been implemented, for improved bird counts that were most probably the consequence of the Interim Plan and enhanced monitoring implementation.
Using the same data to which environmental activists and NPS often refer, 7 piping plovers fledged in 2008 under the Interim Plan, 6 in 2009 under the highly restrictive consent decree. 17 American oystercatchers fledged in 2008 under the Interim Plan and 13 in 2009 under the highly access restrictive consent decree, the same management structure now found in final ORV management plan.
(7) From a scientific viewpoint, “best professional judgment” closures are more effective and technically sound than closures imposed by the Consent Decree and Final ORV Regulation. Smaller closures limit the free movement of predators. They do not promote the food chain manipulation and transformation in the ecosystem to the same extent as the larger consent decree closures.
The huge closure distances in the consent decree and final plan restrictions keep pedestrians and ORVs off the seashore while birds are nesting. At the same time, the extensive closures also provide for the proliferation and increased free movement of predators. In effect, the extensive closures create an ecological trap for birds in that large closure areas enhance predation.
Data at page 10 of 2011 American Oystercatchers Report indicates that in 2008 under the Interim Plan, 22% of chicks were lost to predation. Under the consent decree boundary restrictions 58% were lost in 2009; 35% lost in 2010; and 42% lost in 2011. Since the extraordinarily large consent decree boundaries have come into play, the predation trend is “up”.
Food chain manipulation is one way to promote unnatural bird production. The technical provisions of the consent decree have been the basis for the selective trapping and killing of bird predators. Aggressive predator control during the years of the consent decree is altering the ecosystem significantly for the sole benefit of selected bird species.
(8) Over the past 40 years, federal agencies have adopted formal peer review policies to ensure they comply with the “Hard Look Doctrine”. Federal Courts expect agencies to take a “Hard Look” at the science and not be informal or sloppy in their treatment of fact. The National Park Service has failed to ensure a valid science basis to a regulation that restricts public access to the national seashore. An independent review to determine the validity of the so-called “scientific fact” never occurred during the consent decree proceedings of the past four years. As a result, the public lost access to the beaches of its national seashore. Such government inaction in responding to and collaborating with politically powerful special interests will only further public outrage and distrust of government.
Many of the references used to justify the final ORV management plan are those of individuals and activists organizations who have supported litigation that denies public access. The major science references are authored by environmental activist organizations and individuals trying to shut down ORV access to the national seashore: Audubon, Blue Water, Hatteras Island Bird Club, etc. Many of the references are outdated, biased, contain incomplete and misleading information, and few have ever been reviewed in open forum. The main science references are unsuitable and inappropriate as the basis for a government regulation that restricts public access to the national seashore and have significant negative impacts on the Outer Banks economy.
The so-called “USGS Protocols” continue to be touted as “best available science” in the development of the final ORV management plan for the Cape Hatteras Seashore Recreational Area.
The USGS Protocols were cited as being “in press” 5 years after they first appeared on the Park Service website. There was no date on the document, no responsible federal official identified, no government document number. The final publication was not accessible, publically reviewed, or fully explained by government authority at the time the DEIS was submitted to the public for comment.
In an introduction to the final release of the Protocols in March 2010, USGS states,
“Although no new original research or experimental work was conducted, this synthesis of the existing information was peer reviewed by over 15 experts with familiarity with these species. 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 indicated by USGS, the “Protocols” are really not hard and fast science based protocols but suggested considerations rendered by an ad hoc group. Such ad hoc suggestions can in no way be characterized as “best available science”.
The literature reviews found in the “USGS Protocols” as published in final are significantly out of date. Many citations are over 20 years old and most are not related to the Cape Hatteras National Seashore Recreational Area. The public does not have access to the literature reviewed in this essential report and most of the citations are so insignificant they cannot even be found in major university libraries that have extensive environmental and natural resource publications such as the University of North Carolina at Chapel Hill.
The following speaks volumes as to the lack of formality and serious purpose of the “USGS Protocols” currently used as the excuse for beach closures.
  • There is no public file, docket, or documentation of peer review questions, comments, or author response.
  • There is no indication that the protocols were ever published in a peer reviewed journal or publication or ever referred to as what they are, management guidelines and opinions as opposed to in-depth science assessment.
  • Scientists having any kind of conflict of interest association, whether through membership, collegial associations, funding, or grants must disclose the relationship. Some authors and reviewers of the protocols were members and associates of organizations now using the protocols to restrict public access to the beaches of the national park, a fact never disclosed openly and not in compliance with USGS peer review policy.
As has been stated many times in public comment to the National Park Service, the best course of action to resolve the matter of valid science is to turn the science review and update over to the National Academy of Sciences or some other neutral party, to objectively, critically, and comprehensively review all relevant science, disclose the facts and restore some public trust in the scientific process used as the basis for environmental management decisions at Cape Hatteras National Seashore Recreational Area.
Most importantly, for the restrictive provisions of the final ORV management plan, there is no indication that NPS ever plans to revisit the USGS Protocols and the science basis for closure boundaries.
The NPS fails to take hard look at the science that might contradict its current justification for denial of public access to the Cape Hatteras National Seashore Recreational Area.
Note: The USGS boundary distances and written submission to NPS as so called “Protocols” does meet the standard of scientific evidence as determine by the “Daubert Standard”, often used by federal courts to determine the validity of science.
(9) Nowhere is a specific science basis, study or data, ever presented, or published for a given bird management option, established solely for the Cape Hatteras National Seashore Recreational Area.
Closure boundaries are overly restrictive at CHNSRA and are not used at other NPS properties. There has been no administrative or science based explanation given to the public for these uniquely restrictive closures that limit public access to the seashore, other than they are somehow in the primary interest of resource protection and “come down on the side of birds and turtles”.
No deaths of Piping Plover chicks or destruction of eggs by humans are documented at the Cape Hatteras National Seashore Recreational Area. More specifically, no Piping Plovers have been verified as lost to ORVs accessing the national seashore as is often claimed by environmental activists. The majority of nests and hatched birds the past four closure seasons, and before, were lost to predation and storms, one at the hands of a university researcher trying to band a bird.
In the face of no documented Piping Plover loss due to human activity, NPS, USGS and the contributing scientists have failed to explain specifically why, by way of science justification, 1000-meter boundaries, that prohibit public entry into an area up to 770 acres, must be established every time a Plover chick is observed. The literature indicates that on average Plover chick movement is less than 200 meters. The NPS claim in response to public comments that plover chicks run further distances on Hatteras is a ridiculous excuse for sound science. The public access denial consequences of such a subjective management policy for a national seashore, which is set aside for public access, is excessive, does not indicate a balance of responsible usage, and fails to reflect reasonable or professional resource management.

The link to this is as follows:

Dr. Berry speaks for all of us but cannot speak alone. Let your voice be heard and quickly

Tight Lines,



  1. Kinda moot now that the lawsuit is in Boyle's court. Only thin hope is legislative.

  2. It's not in Boyles court yet.