An erosion of democracy

ALEXANDRIA, VA. -- Members of Congress from North Carolina have been criticized for intervening in the fight for public beach access on the Outer Banks. But Congress is exactly the place for this issue, because its role is to assure fundamental fairness and democracy.

U.S. Sens. Richard Burr and Elizabeth Dole and Rep. Walter Jones should be applauded for standing up for constituents who are being victimized by the National Park Service, the environmental community and the judicial system.

For years, the Park Service has failed to comply with federal law by not drafting and implementing an off-road vehicle (ORV) plan for the Cape Hatteras National Seashore Recreational Area. Last year, under federal direction, all concerned parties, including the National Audubon Society and Defenders of Wildlife, agreed that the best course of action was to engage in a negotiated rule-making process to develop a long-term ORV plan, and to determine the appropriate balance between protection of federally listed and non-listed species and access to the Seashore.

To ensure that the shorebirds in question were protected while the long-term plan was being developed, the Park Service developed an Interim Protected Species Management Strategy (known as the interim strategy) to govern the use of ORVs.

This was developed through an open process that allowed for public participation and comment. Despite the implementation of the interim strategy, which included further restricted access to the beaches, Defenders of Wildlife and the National Audubon Society filed suit in U.S. District Court to force their solution on all the parties. They then sought and got an injunction that resulted in a consent decree that is much more restrictive than the interim strategy.

What Burr, Dole and Jones are doing is simply restoring the original agreement, in which all parties will participate in a discussion that will ultimately create both long-term protection for threatened piping plovers and other shorebirds, and reasonable beach access. The key point about the negotiated process is that it assures all parties have a voice in the decision-making process.

Protection of both shorebird resources and beach access by vehicles is possible. Reasonable people should be able to sit around a table in a facilitated process, come to an agreement and move forward -- keeping the best interests of the resources and the local economy paramount.

The environmental community circumvented the negotiated rule-making process, and our democratic process, which resulted in a court ruling that closed miles of beach to the best surf fishing in the Eastern United States. This was done without input from the public and invested stakeholders.

The entire economy of this historic beach community, which depends on tourism and ORV access, is now in danger of collapse. The irony of all this is that the communities impacted, anglers and others using the beach had agreed to reasonable closures to protect birds and turtles because they value these resources.

In addition, Cape Hatteras is at the southernmost point of the breeding range of the piping plover, the species at the center of this controversy. It never has been and never will be abundant in the area now closed on its behalf. Other birds such as American oystercatchers and least terns that nest on the beach and are not threatened or endangered under the law would have had protections under the interim strategy as well.

Therefore, the bill now in Congress would provide all the necessary protections for all species in Cape Hatteras requiring special management measures.

A community that had virtually no say in the consent decree under which it is living is being devastated by its outcome. And though local governments and beach users accepted the consent decree, given the choice between restrictive, punitive closures or a complete closure, that was the only choice the federal court offered them.

Congress is exactly where an issue such as this belongs. If there were ever a case in which Congress needed to intervene when the public has lost its common voice, its ability to engage in participatory government, exercise common sense and take control of its own destiny, it's at Cape Hatteras National Seashore Recreation Area. We strongly support the legislation introduced by Burr, Dole and Jones. We hope Congress restores a reasonable interim strategy that protects the resources and allows for reasonable beach access while the greatest resource of all -- democracy -- is preserved in the negotiated rule-making process.

(Gordon C. Robertson is vice president of the American Sportfishing Association.)