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September 11, 2008
House subcommittee hears testimony on legislation, but Senate nixes action
By IRENE NOLAN  The U.S. House of Representatives National Parks, Forests, and Public Lands Subcommittee heard testimony today on a bill that would set aside a consent decree and return management of the Cape Hatteras National Seashore to the National Park Service’s interim plan. Even as the witnesses were testifying in the House, the Senate Committee on Energy and Natural Resources dealt the legislation what may be a fatal blow. The Senate committee voted 12-11 not to report the bill, S3113, out of committee. The vote split along party lines, with Republicans, including North Carolina’s Sen. Richard Burr, voting to report the bill out of committee and Democrats voting against it. Since this Congress will probably recess at the end of the month for the year, it seems increasingly unlikely that the legislation to set aside the consent decree will be passed. 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. Two companion bills were introduced into Congress in June to nullify the consent decree, which has resulted in unprecedented closures of popular seashore beaches this summer. The Senate bill was introduced by U.S. 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. A Senate subcommittee had a hearing on the bill on July 30, and today’s House subcommittee hearing produced no surprises. The witnesses who testified were mostly the same as in the Senate hearing, and their testimony didn’t vary much from what they said last July. Jones was on the first panel to testify. “The court’s imposition of the consent decree – without input from the public – has unnecessarily restricted public access and significantly damaged the people and economy of Dare County,” Jones said. “The tragedy is that the toll in human suffering is totally unnecessary to protect the wildlife,” he added. “Prior to the consent decree, the Park Service went through a public process and instituted the Interim Species Management Strategy. The strategy was backed by a Park Service scientific study which found that it would not negatively impact wildlife in the Seashore. The access restrictions in that strategy were significant, but reasonable.” On the next panel was Daniel N. Wenk, deputy director of the National Park Service, who basically repeated his testimony from the July Senate hearing. Even though the National Park Service had officially adopted the interim strategy in July, 2007, just months before the environmental groups filed suit against the government, Wenk said that the Department of the Interior now supports the consent decree. He said, as he did in July, that the department believes the consent decree will accomplish its objectives of allowing for public use and protecting the wildlife better than the interim strategy. And he said the department did not support HR 6233. “The consent decree provides for increased resource protection during the breeding season,” Wenk said in his prepared testimony, “while allowing for continued ORV access to the six key sites during the non-breeding season. It addresses individual species concerns and specifies buffer sizes and types, timing restrictions, and monitoring efforts to protect beach-nesting bird species, including piping plover, American oystercatcher, and four species of colonial waterbirds; and three species of federally protected sea turtles. It settles all claims raised in the lawsuit and does not set a precedent for the long-term ORV management plan or the regulation.” The National Park Service is now in the process of formulating a long-term ORV management rule through negotiated rulemaking with a committee of 29 stakeholder groups. Warren Judge, chairman of the Dare County Board of Commissioners, spoke in favor the legislation, he said, on behalf of the 33,000 Dare County residents and the six million visitors each year. He talked again about how Conrad Wirth, the then Park Service director, promised the people of Dare County in 1952 that they would always have access to the beaches. “For decades,” he 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.” That ended, he said, with the April consent decree. And Judge again addressed why Dare County agreed to the settlement. “Dare County was an intervener in the lawsuit that resulted in the consent decree -- and you may wonder why we agreed,” he said. “The truth is, our hands were tied – the height of the tourist season was quickly approaching and we were allowed little involvement in any negotiations. With the threat of an injunction that would result in even more beach closures, the consent decree was signed. We chose the lesser of two evils.” Judge talked about the economic impacts of beach closures. Some businesses, he said, were down 50 percent this summer, and he added that in July decreases for lodging were down “up to 23 percent.” Derb Carter, attorney for the Southern Environmental Law Center, spoke against the legislation and again noted that Dare County and the other intervenors participated in the process and signed the agreement. The interim plan, he said, “simply failed to protect” nesting birds and sea turtles. Though he said that it’s too early to tell if the terms of the consent decree have been “fully effective” in protecting the park’s resources, he noted that the results of this year’s nesting season show that it “appears to have been beneficial.” In his remarks, Warren Judge noted that the seashore superintendent Mike Murray has said that it is too early to tell if increased numbers of nesting birds and turtles are a result of the consent decree or more favorable weather and increased monitoring by Park Service biologists. Later in the day, Judge said in a telephone interview, that he and other county officials were “disappointed” with the Senate committee vote. It is unlikely, though not impossible, that the legislation will advance in this Congress. However, Judge added that “If there is anything I’ve learned it’s not to make predictions.” Both Jones’ and Burr’s office spokesmen reiterated that the legislators were willing to do whatever was necessary to pass the legislation. “There are always ways to come back from the dead,” said Jason Rylander, attorney for Defenders of Wildlife, “but it’s unlikely.” He said he thought it was fair to call the legislation “dead” for this year. “Today’s Senate action,” he said, “shows there will be no legislative fix, so it is incumbent on the negotiated rulemaking committee to formulate a legally defensible ORV plan.” FOR MORE INFORMATION The complete testimony of U.S. Rep. Walter Jones, who introduced HB 6233; Daniel Wenk, deputy director of the National Park Service; Warren Judge, chairman of the Dare County Board of Commissioners, and Derb Carter, attorney for the Southern Environmental Law Center is available by click on these links: Testimony of U.S. Rep. Walter Jones Testimony of Daniel Wenk of the National Park Service Testimony of Dare County Board of Commissioners Chairman Warren Judge Testimony of Derb Carter, SELC attorney |
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