The NPS is quoted as anticipating no effect on ORV access by the F&WS designation. This is incredibly naive and misleading. The
recent history of the consent decree is the best predictor of the future. As soon as the designation becomes effective there will be a
lawsuit from an environmental group for year around ORV closure of those areas. The NPS will not defend the suit and the six areas
will be closed to all public access thus creating bird sanctuaries out of the heart of the recreational beaches. This will then need to
be challenged in the court by advocates for the American public who are clearly not being represented by the NPS.
All of this country's national parks contain one or more special points of spiritual or scenic interest for visitors. The NPS provides or
assures access to those attractive points within each park. In most parks those points are the primary reason for those units to exist.
In CAHA the most scenic natural points are at the inlet spits and at Cape Point. Because of the remoteness of these areas, public
access has historically been provided by ORV travel. To construct bird sanctuaries that exclude the public from the scenic points
and spits would violate the purpose of NPS. This reason alone should be adequate reason for F&WS to exclude CAHA from the
designation of critical habitat. At the very least a human recreation zone must be established between the bird sanctuaries and the
water line in those designated areas.
Unlike other parks and seashores recreation was not an added or co-feature in CAHA to be cast aside or retracted for any other
purpose. Public recreation on the beaches was the primary purpose for which CAHA was established by the Congress and given to
the NPS to preserve and protect for future generations. Bird protection under the ESA and MBA can be imprinted upon the beaches
of CAHA, but only with care to maintain public access to the water line. USC459a and the ESA are not either/or, but must be
separately enforced.
There is a fundamental flaw in F&WS thinking shared by many environmental advocates (including some CAHA and DOI staff) with
regard to CAHA. They all view the CAHA beaches purely as bird habitat to be protected against the intrusion of humans at all costs.
The present consent decree and its compliance is an example of this attitude. This decree will last until the NPS can publish a new
ORV plan or until the American public can mount a reversal through the courts or Congress. Adoption of the proposed F&WS
designation will initiate another legal assault by the environmental groups.
The flaw runs counter to the congressional mandate given to NPS to operate these beaches for the recreational needs of the
American public. Under that mandate (USC459a) there must be public access to the shorelines for active recreation; e.g., fishing,
swimming, boating, sailing, and others. The mandate did not provide for wildlife protection on the beaches. Wildlife was specifically
protected on the interior of the islands and at the Pea Island Refuge. Since the founding period of CAHA (1937-1953) the ESA was
passed which protects the piping plover and requires a sufficient habitat be provided to prevent loss of the species. The few piping
plovers that nest on CAHA beaches do not affect their species survival. The ESA does not require the massive buffers practiced at
CAHA.
Buffers are but one of several resource management tools. Buffers are preferred by CAHA staff since they are cheap in cost and
man power. They are also preferred by some environmental groups whose goal is to remove ORVs from all NPS lands.
Unfortunately buffers that reach to the water line interfere with the public access mandate and must be restricted to provide that
access.
Human recreational activity cannot be removed for the convenience of cheap management. In fact, the resource management
techniques at CAHA usually relied upon people management, rather than actual management of wildlife species. One exception to
this technique has been the predator control program. Under this program mammals have been trapped and killed to improve the
fledgling output of the few plovers that nest in CAHA. These same predators being killed were provided protection by the CAHA
enabling legislation which would imply that the control program is unlawful.
In the F&WS assessment of primary essential constituents of a plover habitat consideration must be given to the biological element
of human pressure, as well as the human artifacts such as bridges, roads, and parking lots. Human presence results from the
congressional mandate for public recreation. Most bird species have adapted and thrive in the presence of humanity. If plovers are
not capable of such adaptation sufficient for survival, these beaches should be considered as lacking enough primary constituents.
In such case the CAHA beaches must be eligible for an exclusion to the designation as critical habitat.
After recent peer review of the Vogelsong visitor use study the NPS has been forced to reject that study. All references and use of
Vogelsong in the EA must be eliminated and resultant projections revised accordingly. CAHA has installed vehicle counters on their
access ramps. As this data collects a better basis for assessment can be developed. The use of bad science (Vogelsong) is much
worse than using no science for an EA.
Both NPS and F&WS need to conduct new visitor use studies. Tracking the economic effects of the consent decree should provide
some understanding of the potential influence of the plover designation upon the well being of the villages.
The use of land areas (acreage) to forecast economic effects of the designation is dead wrong! ORV access is based on length of
open shoreline. Except for access ramps and trails, ORVs are allowed only on the sand beaches and not the island interior acreage
which was set aside as wilderness. If acreage is to be used, it must be calculated from the beach width data of those beaches open
to ORV access.
Just as F&WS uses essential elements to define areas as critical bird habitat, there are similar essential areas for the recreational
use of CAHA beaches. Not all beaches are of equal value. The same points and spits sought by F&WS are the most essential
beach portions for active public recreation. To invite visitations to CAHA while denying access to these points and spits would be
like asking people to visit Philadelphia, Pennsylvania, but excluding the museums, Independence Mall, Zoo, Aquarium, and Franklin
Institute from the tour. Area quantity alone is not adequate to form an economic analysis. Area quality is much more important.
The error of developing an economic analysis based on total land area was pointed out by many commentators on the 2007 F&WS
submission. This may have been excused by the lack of knowledge of the EA consultants as to the actual ORV operations in CAHA.
For the F&WS to proceed with their logic again in 2008 can no longer be dismissed as ignorance, but must be considered as a
willful fraudulent attempt to wrongfully justify the critical habitat designation. Such lies and deceit should be cause for the dismissal of
the signatory of this act.
When the CAHA was founded, the villages were encouraged by NPS to develop a tourist-based economy. Over the past 50 years
this enterprise has proven successful to sustain the tenuous society of the islands. The points and spits are the major attractions for
shoreline recreation of swimming, boating, sailing, and fishing. These same areas also contain the safest ocean side bathing pools
for mothers with small children. Since these areas are accessible only by ORVs, the local economy is driven to a large extent by
ORV access. This base is threatened by F&WS designation.
During periods of economic depression the employees who are low income and minority are frequently the first jobs to be cut. This
will happen in the Hatteras Island villages. F&WS is required by law to consider the effect of this rule making on how income and
minority people. This agency has not met this requirement.
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