Beach Access

July 30, 2008

National Park Service does not support a return to interim plan

By IRENE NOLAN

A deputy director of the National Park Service told a U.S. Senate subcommittee on Monday, July 30, that the Department of the Interior does not support a bill to overturn a consent decree and reinstate the interim strategy for ORV use on the Cape Hatteras National Seashore.

Daniel L. Wenk, deputy director for operations for the National Park Service, told the panel that the Department of the Interior must balance protecting park resources and providing for recreation for the public.

“We believe,” he said, “that the consent decree will achieve this better than the interim plan.”

“A return to managing the Seashore under the Interim Management Strategy,” Wenk said in his written comments, “would result in a reduction in the size, frequency, and timing of the buffers protecting federally and state-listed species, and a likely reduction in the increase in nesting activity observed in 2008.”

The Subcommittee on National Parks of the Senate Committee on Energy and Natural Resources scheduled the hearing to take testimony on about a dozen different National Park Service bills.

One of them is S 3113, introduced on June 11 by Sens. Elizabeth Dole and Richard Burr, both Republicans from North Carolina. A companion bill, HR 6233, was introduced in the House of Representatives by U.S. Rep. Walter Jones, Jr., also a Republican.

The consent decree was signed on April 30 by U.S. District Court Judge Terrence Boyle. It settled a lawsuit filed last fall by environmental groups, which charged that the park’s interim strategy did not go far enough to protect birds and turtles on the seashore. The plaintiffs were the Defenders of Wildlife and National Audubon Society, which were represented by the Southern Environmental Law Center. Defendants included the National Park Service and other federal entities. Dare and Hyde counties and the Cape Hatteras Access Preservation Alliance were allowed by the judge to be defendant/intervenors in the legal action.

The consent decree, signed by all parties to the lawsuit, is to regulate ORV use on seashore beaches until a long-term plan is completed through a negotiated rulemaking process by a committee of 30 stakeholders. The committee, appointed by the Secretary of the Department of the Interior, has been meeting formally since January. Under the consent decree, it must finish its work by Dec. 31, 2010.

The effect of the consent decree has been to close down larger sections of the beach than ever before during the spring and summer pre-nesting and nesting seasons, especially at four popular recreational areas, Bodie Island spit, Cape Point and South Beach, Hatteras Inlet, and South Point on Ocracoke.

‘While we continue to implement the consent decree,” Wenk’s written statement continued, “we are actively working with all interested stakeholders in the development of the regulation and plan, and we look forward to continuing to work with the subcommittee, the local communities, and the involved stakeholders as these processes move forward.”

The hearing was conducted by Sen. Daniel K. Akaka, D-Hawaii. North Carolina’s Burr is the ranking minority member of the subcommittee.

Dole testified as a witness at the hearing, and Burr made comments before the testimony started. Also, Warren Judge, chairman of the Dare County Board of Commissioners, and Derb Carter, attorney for the Southern Environmental Law Center, testified.

Burr said that the Park Service was “remiss” in not having had a long-term ORV regulation, as it has been required to do since at least 1972. However, he noted the work of the negotiated rulemaking committee on a long-range plan.

The interim plan, Burr noted, was supported by the National Park Service and a biological opinion by the U.S. Fish and Wildlife Service.

“We’ve not been thrown a usual curve ball here,” Burr said of the consent decree. “We’ve been thrown a curve ball that didn’t exist before now.”

The federal court, he said, got involved where it should not have gone.

Dole testified in support of reinstatement of the interim plan to “allow the time and opportunity for all parties to work together to find a long-term practical approach to off-road vehicle use” at the seashore.

“I have heard from local officials and hundred of concern constituents,” she said, “that the economic damage to the area as a result of the consent decree issued last April would be devastating.”

She added that high gas prices and the general state of the economy have added to “hard times” for the North Carolina tourist industry.

And Dole agreed with Burr that “managing the seashore through the courts without allowing for public input, is the wrong way to come to a resolution on this issue.”

Dare County’s Warren Judge began his testimony with a reference to a letter from Conrad Wirth to the people of Dare County in 1952 when he was director of the National Park Service.

Wirth said in his letter that “there will always be access to the beach for people, whether they are local residents or visitors.”

“For decades,” Judge said, “the National Park Service has balanced the rights of all Americans to access the seashore with the need to protect the park’s resources. In April of this year, environmental groups put an end to the National Park Service’s successful and accepted management practices.”

Judge said the environmental groups were “special interest groups” that have been “relentless in their pressure on the Park and the management in their efforts to close the seashore.”

He said Hatteras Island business owners have seen declines of “as much as 50 percent” since April.

“Senators,” he said, “there are no factories in Dare County; there are no corporate headquarters. However, we are as American as you can be. We are hundreds of small business men and women, from charter boat captains to commercial fishermen; from fishing tackle stores to gift shops; from motels and cottages to rental homes; from variety stores to eco-sports outlets. We go to work everyday to provide for ourselves and to serve as hosts to millions of excited vacationing visitors….Many eke out a living and are content to do that for the opportunity to enjoy the outdoors that Hatteras Island provides. Government should not take that away. Government should do all that it can to preserve this way of life.”

The interim management plan, Judge said, did its job, and he said that the natural resource closures it required were “understood and accepted” by the people on the island.

“We, too, want to protect these resources,” he said, “but do not believe it should be done without thought of the human impact.”

He concluded with a plea to pass the bill to preserve “our culture, our history, our way of life.”

Judge was followed by the SELC’s Carter.

In an SELC press release and in testimony, Carter said that SB 3113 would “return Cape Hatteras to an inadequate management strategy and undo the scientifically based and legally binding agreement that is already seeing an increase in the number of birds and sea turtles at the seashore this season.

He noted that fewer than three months after the consent decree was signed nesting birds show “preliminary signs of recovery.”

Carter said that NPS statistics show that 27 miles of the beaches are now open to ORVs and that no vehicles were denied access to beaches this summer because of the closures – though people might not have been able to get to their favorite beaches.

“There’s a lot of beach,” he said, “open for all users.”

He also talked about a rebound in bird and turtle nesting.

(This year 11 pairs of piping plovers fledged seven chicks for a success rate of .64 chicks per breeding pair. Last year, six pairs fledged four chicks for a slightly higher nesting success of .67 chicks per nesting pair. The average rate of fledged chicks per breeding pair over the last 15 years on the seashore is .66. One nest this season and a number of chicks were lost to predation, as has been the case in the past.)

Carter also mentioned that there were currently 99 sea turtle nests so far on the seashore, as opposed to a total of 82 last year.

(Whether that is related to the consent decree remains to be seen. Sea turtles have been nesting earlier and seemingly in large numbers on the entire North Carolina Coast, including Pea Island National Wildlife Refuge, where there has been no beach driving for decades.)

Carter testified that in the 30 years he has been visiting and driving the beaches of the Cape Hatteras National Seashore, he has seen an increase in visitors and ORVs and a decrease in wildlife.

He also noted that all parties signed off on the consent decree and that “the Senate should honor this agreement and settlement."

The subcommittee chairman, Akaka, questioned Warren Judge after the testimony about why the county agreed to the consent decree and now supports having it overturned by legislation.

“We were not a player at the table,” Judge said of the settlement talks, “until an April 4 hearing. Only after that, were we invited to the table….We were not invited to negotiate but for them to tell us.”

Judge says the intervenors were told to agree or all the beaches in question would be closed down year round.

“Yes,” he said, “we signed but under great duress. We were not happy with it, but we felt it was the lesser of two evils.”

FOR MORE INFORMATION

You can visit The Senate Committee for Energy and National Resources and see the webcast of the subcommittee hearing and read testimony from the witnesses.

http://energy.senate.gov/public/index.cfm?Fuseaction=Hearings.Hearing&Hearing_ID=326e7534-974b-95f1-3dc0-fcc5a32223c1