Mike Berry's commentary from Island Free Press

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Post  hatteras on June 9th 2008, 4:29 pm

How do we go about this? Where do we start?


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Not true

Post  Le on May 28th 2008, 9:40 pm

No you don't really have to live with the consent decree, you need to voice your opinion as the ORV plan is decided, you also have other recourse, namely, you can sue that NPS is violating other laws, like the enabling legislation. Too bad this couldn't have all been worked on out of court, but this is what is left.


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I don't get what you are saying

Post  hatteras on May 24th 2008, 9:49 am

so... you are saying we have to follow the settlement for the next 3 years and we don't get a say and that is totally legal? When it effects our lives? How is that fair? And the settlement sounds like rules and regulations! if we don't follow them we pay the price; more beach taken away! and how is it fair we pay all the legal fees? what do we as residents and visitors have to do to be heard! we can't wait until 2010 for this to continue on like this. we are already struggling here due to gas prices and a horrible economy. Now we are loosing more revenue by all this beach closures! So the courts are pretty much saying "tough sh**" ! You get no bridge; you can't go to the most popular places on your beaches even though the tide will more than likely take what is being claimed to be being saved. and why, why can't they move the eggs by the water and raise them and then release them when they are old enough to fend for themselves. That is what they do in other coastal areas. I am going off the subject at hand but I am just so frustrated with this all! We have one of the safest communities in America; our schools on HI are one of the best in the state providing a grade A education and the communities here still live by the American Dream. We care; we don't just exist. We love one another and provide a wonderful place for children to grow up! But if this all continues, jobs will be lost, homes will be foreclosed, business owners will loose their businesses and families will be forced to move. I think this is what the special interest groups are hoping for but why? Why are birds so much more important when they can be moved and saved! We on the other hand, just need to get over it; move on; and watch our way of life and dreams go down the drain! Why? why can't we be heard? why do we have to be looked at as "rednecks", "lazy and fat", and uncaring citizens? we love our island; we love the people on it; we love the animals on it; we love the birds, the turtles, the fish, the foxes, the fishing, the surfing, the swimming, the beauty... we do not want to see animals hurt or run out of here! We clean our beaches and our highways. I have never seen trash on the beach except after a storm. And that is not because of orv's! In all actuality, I have read where people commented there is more trash from people who walk onto the beach. I think this is true. One of the joys of driving your orv onto the beach is the convience. You can load up your orv with all that you need; go to the beach; only take out what you need; and easily put it back in your orv; including trash! It is much harder to gather it all up when you are walking and a lot of the trash gets blown away because you don't have somewhere to immediately put it. I don't think it is because the "walkers" want to litter the beach anymore than the "drivers". It is as anyone would know who lives or visits here because of the continuous wind we have here. Sorry to go on and on but I am just so upset and worry I am going to loose the beaches I love so much to overcrowding and politics and am going to go bankrupt because of the lack of desire for people to want to come here. And I feel powerless to stop it!


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Won't work

Post  Legal Up on May 22nd 2008, 10:01 am

I keep losing the link when I post. If you google ORV cape hatteras and look for nationalparktraveler.com article about ORVs, that link should get you where I was talking about.

Legal Up

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Post  Legal Up on May 22nd 2008, 9:58 am

Not sure what happened to the link, I'll try again...

Legal Up

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Link to court filing

Post  Legal Up on May 22nd 2008, 9:57 am

I found a link to the actual grievance filed in court. It is a little confusing if you don't read a lot of legal documents, but a layperson should be able to get the general idea. Not sure if this has been posted elsewhere here.

Go to the second paragraph and click on "bring the lawsuit" and that will get you a PDF of the court document.

Legal Up

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Post  Legal Up on May 22nd 2008, 9:49 am

Mr. Berry is wrong about his main premise in the article. The consent decree is not a regulation or rulemaking and is therefore not subject to public comment. The consent decree is an agreement reached by the courts, part of the judicial branch of government. Rules and regulations are passed by the executive branch and ARE subject to public comment. The only comment for the consent decree allowed by the courts would be briefs, documents, testimony, etc. given in court by the parties involved or by third party friend of the court. In this case, those parties would be US Government, the defendant; and DOW, the plaintiff. If it were a rule or regulation, it would have to be published in the Federal Register and subject to the public comment period Mr. Berry speaks of. DOW and NAS filed their grievance in court claiming that NPS was in violation of the Executive Order 11644 as well as several other federal laws in their management of the seashore. EO 11644 requires all NPS units to have an ORV management plan before allowing ORV to operate in the park. I would say that it is pretty obvious that the NPS has failed to meet the requirements of this Executive Order, since it has been over 30 years since it was issued and Cape Hatteras still has no plan (but one is expected in 2010).

Rules and regulations subject to public comment would be, for example, the NPS ORV management plan (or lack thereof), US Fish and Wildlife's designation of critical habitat for piping plover or their species recovery plan, etc.

Just like NAS and DOW have the right to sue, so can ORV groups. They could, for instance, sue by stating that the enabling legislation for CHNS required public access to the beaches. I will not comment on whether they would be successful and I really don't know, but that is an example.

I hope this clarifies.

Legal Up

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Re: Mike Berry's commentary from Island Free Press

Post  Angel70 on May 20th 2008, 1:51 pm

Mr. Berry seems invaluable in the fight to keep the beaches open. He has more than enough credentials and appears to know exactly what he's talking about. I hope that he continues to stay involved with the issue. Thanks for passing his article along, it actually gave me "hope" reading it.


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Post  HYDRAFISH2 on May 19th 2008, 8:16 pm



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Mike Berry's commentary from Island Free Press

Post  hatteras on May 19th 2008, 11:46 am

This article came from under letters and commentary. It really says it all. Mr Berry's credentials should be enough for any educated person no matter what side they are on, if they were to be honest, would see what is going on is wrong. If they say it doesn't, they are only lying to themselves! I really feel we should see if this gentleman would be willing to help us in court. He presents the issues with factual information and not biased. He is what you would call an expert witness!

Guest Column….ORV rulemaking was out of public sight,
but the settlement is very visible


I want to thank the Island Free Press for keeping this ORV regulation and beach closure issue in full public view. I also want to thank those citizens, attorneys, county officials, and civic leaders who worked tirelessly these many weeks to preserve public access to the shores of the Cape Hatteras National Seashore by way of motor vehicle. No one ever said the law is fair, but all citizens have the right to equal treatment and respect under the law and to the right of public participation.

I have never seen anything like this in my 40-year career as a public health environmental scientist, manager, and educator. I have read the pending consent decree, which still must be approved by the federal judge overseeing the case, three times and still cannot believe that a federal court would consider such an order without public comment.

This settlement is an environmental regulation ordered by the court without public review and comment, with no consideration of economic impact and with no hard look at the scientific basis for numerous technically related requirements found in the document. Yet, this agreement will significantly change our way of life and access to the seashore.

From my point of view, this is a classic example of how citizens in an open, free society lose their rights to participate in the business of their government. This is certainly not what I and others fought for in Vietnam 40 years ago. In fact, it does not get much more totalitarian than when a single federal court gives exclusive decision-making rights to a small number of well-financed environmental activists and special-interest lawyers to dictate how the general public and local community will access public land, in this case Cape Hatteras National Seashore, which has a tradition of usage rights, including the right to access the beach with a motor vehicle.

The environmental activists’ lawyers do have privileges that most citizens do not enjoy. They have a license to practice law, participate, and be heard in court. As officers of the court they have a special privilege of talking directly to a very powerful federal judge who can cause significant events to occur, like a beach closure that affects us all.

This litigation is less about species protection and more about ORV restriction.

There has been no opportunity for public participation, comment, and input with regard to this new ORV regulation. For any environmental regulation issued by the federal government, citizens have the right of public review and comment as provided by the Federal Administrative Procedures Act. Under the Federal Advisory Committee Act, citizens also have a right to know about and attend federal government meetings, especially when those meeting involve special-interest organizations trying to influence the government. Under the Freedom of Information Act, citizens have a right to obtain all unclassified information, such as scientific information and correspondence with special-interest parties, that is held by the federal government

There has been no public discussion and review of economic impact with regard to this settlement. The widely referenced 2003 Vogelsong Study (Cape Hatteras National Seashore Visitor Use Study, August 2003) has been used as the primary source of economic analysis for ORV regulation these past few years. Only in recent months has the federal government submitted that unpublished study for peer review. The findings of that peer review have not been disclosed in advance of this consent decree. Several months ago, the professional economist James C. Luizer clearly and rigorously demonstrated in open public comment that the study was greatly flawed in terms of its analytical methods, and biased in its survey questions and ORV counts. His comments, and those of many others, have been ignored by the federal government.

Last year, the U.S. Fish and Wildlife Service submitted for public review a draft economic analysis that relied heavily on the to 2003 Vogelsong study, along with out-of-date census information and incomplete Small Business Administration data. That analysis was little more than an insulting “paper study.” The authors of that study, who reside in Cambridge, Mass., demonstrated no first-hand knowledge of the economic structure of the region they were hired to assess. There was no economic data collection field work. The study failed to recognize that virtually all businesses in the villages on Hatteras and Ocracoke islands are "small businesses," which are affected to some degree by reduced visits and park usage.

The federal courts have time and again ruled that before environmental regulations are promulgated by the government, there must be a hard look at the scientific basis for those rules. This is called the Hard Look Doctrine and is known to all students of environmental law. The science is called "environmental criteria."

For the federal government to justify the need for the rulemaking such as that found in the consent decree, there must be a basis in recognized and published science. In this consent decree, there is a clear and gross absence of scientific information underpinning all technical aspects of the rule.

Particularly, there is no peer-reviewed science to support the claims of species loss as the result of ORV traffic. That claim has not been verified. Environmental activists have claimed the loss of species due to ORV traffic on the beach through press releases. That is not the way credible science is presented or reviewed.

Given the significant economic consequences and beach access loss to the public prior to regulation, our federal government owes the public an answer to the following questions about the factual and scientific basis:
• What in totality are the criteria—studies, science and protocols used as the basis for the regulation and its technical content?
• Who are the specific authors of those science-based materials and who do they work for and represent -- government, universities, environmental activists groups, etc.?
• What is the area of expertise and what are their qualifications as researchers?
• Where can the public acquire the raw or original data used to create the criteria or science base?
• Were the studies on which the criteria based peer reviewed or published?
• Who were the independent peer reviewers?
• What protocols were used to collect the data and were they ever peer reviewed?
• Where, when, and how were the data collected?
• What quality control system and statistical analysis process was used in data collection and presentation?
Questions like these are always asked in open public science review before an environmental regulation as significant as this one is presented to the public.

Finally on top of all the insult delivered to the public by being sidelined and ignored by our government, there is the matter regarding legal fees. We, the hardworking, over-taxed citizens of this nation now have the pleasure of paying otherwise well-financed environmentalist lawyers our tax dollars for suing us. Their organizations are tax exempt. Oh, how great does it get!

This old citizen soldier will have a lot more to say about this in the days to come.

(Dr. Michael A. Berry served as any Army officer in Vietnam in the 1960s. After returning to civilian life he earned a Doctorate in Public Health and worked in the U.S. Environmental Protection Agency, where as a senior manager and scientist, he served as the Deputy Director of National Center for Environmental Assessment at Research Triangle Park, N.C. During his 28-year career with EPA, he had extensive interactions with environmental organizations, local governments, the federal courts, U.S. Congress, universities world-wide, and institutions, such as the National Academy of Sciences, the World Health Organization, and the North Atlantic Treaty Organization. For more than 20 years, Berry taught public health, environmental science, and business and environment courses at the University of North Carolina. He is currently a writer and part-time consultant, specializing in the evaluation of environmental quality and human health effects, environmental management strategies, and policy.)


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