# More BAD NEWS...



## Drumdum (Jan 6, 2003)

http://islandfreepress.org/2008Archives/04.18.2008-JudgeBoyleWeighsIn.html

This ain't good is it Flipper???


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## saltandsand (Nov 29, 2007)

Why is that bad news? He's telling the NPS to do its darn job and given them a deadline to do it. Unless I'm reading it the wrong way.


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## Dr. Bubba (Nov 9, 1999)

with all due respect, saltandsand, you have a lot of catchin up to do. You've commented in some of these threads before, start taking a look deeper into some of the sources that have been posted.


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## skunk king (Mar 25, 2008)

He's telling them how to do their job and prescribing how he wants the ORV plan to look. Big difference and a huge power grab by him.


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## saltandsand (Nov 29, 2007)

Dr. Bubba said:


> with all due respect, saltandsand, you have a lot of catchin up to do. You've commented in some of these threads before, start taking a look deeper into some of the sources that have been posted.





skunk king said:


> He's telling them how to do their job and prescribing how he wants the ORV plan to look. Big difference and a huge power grab by him.



With equal respect, I find it condensending when someone defers without specifying. Is that what you would have preferred the Judge Boyle do? Or would you rather see him grant the plaintiffs complete relief. 

Again, with all due respect, if he does not do his job and avoids structuring a resolution, do you really think that fully litigating the matter is going to be beneficial for recreational sports people?

His opinion with regard to the injunction said it all. He was quite clear. Now NPS sits in defiance and once again wants to defer, without specifying in a manner that is pro tanto acceptable or at least quasi-satisfactory to full rule making. He wanted the three island addressed in manners applicable to each, he wanted to know what the NPS was going to do with access points, he wanted assurance that there would be safety. 

I suppose it would be better if he just avoided the entire matter and let it require his FINAL decision. 

Please respond with respectful discourse.


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## saltandsand (Nov 29, 2007)

I'm not trying to appear to present anything at all except a simple question: Is there an amicus brief anywhere that has been prepared by organizations that represent sports people? If so, could someon kindly provide a link. I mean, maybe such a brief could have addressed some of these issues...maybe that would have benefited sports fishing, to have clarified these issues. Maybe...

I'm not one who thinks that this is going to be a slam dunk for either side. But I do think that sports fishing is going to take a big hit if the NPS continues to avoid doing its job.

And not to raise one of the silly little legal things, but I've not seen any questions raised about standing of the plaintiffs. Maybe I'm not looking in the right place.


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## Cdog (Mar 18, 2002)

saltandsand said:


> His opinion with regard to the injunction said it all. He was quite clear.
> 
> Please respond with respectful discourse.


Bingo! He already made his mind up about the injunction with out hearing any evidence.

Now he wants to hear what the NPS is doing about "his concerns". If they dont satisfy him he will restrict access even more.

I almost hope he goes ahead and closes the beaches all together, that way it can hopefully be appealed. As it is now we are only a short while from the beaches being closed with out them being "officially" closed anyway.


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## skunk king (Mar 25, 2008)

saltandsand said:


> Again, with all due respect, if he does not do his job and avoids structuring a resolution, do you really think that fully litigating the matter is going to be beneficial for recreational sports people?


I'm not sure what you're getting at. He's not structuring a resolution, he's creating the one he wants without regard to scientific evidence, expert testimony, or local input. He's inventing a new ORV plan from the bench and is turning himself into a wildlife management expert in the process. 

Formulation of a plan is the job of wildlife management experts, not the judge. I'll pick my favorite example in his list of concerns, vehicle size. He seems to be the only party concerned with this issue. It's not his job to determine if a wildlife plan should include size restrictions, it's his job to ensure the law is followed. And in this case, having a plan constructed by experts with input from the local community and scientific evidence is how the law subscribes handling such issues. Opps, he doesn't seem to be doing that, that would be the reg/neg process. Instead he's elevated himself to expert status and is building a plan in secret with park services and environmental wackos. So much for him actually doing his job. 

Do you think the judge injecting policies which limit vehicle size just because he thinks it's a good idea is the proper role of a judge? He's judging the plan itself which he isn't qualified to do, he's supposed to just judge the application of the law in crafting the plan.

If he were honest or competent, he would rule the interim plan is sufficient until reg/neg is complete and tell the bird watchers to take a hike.


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## skunk king (Mar 25, 2008)

Cdog said:


> I almost hope he goes ahead and closes the beaches all together, that way it can hopefully be appealed. As it is now we are only a short while from the beaches being closed with out them being "officially" closed anyway.


Ditto. I don't see how this stuff could stand an appeal, the judge is way out of line in how he's handling this.


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## Capt Kurt (Jan 5, 2008)

It looks like he's also concerned that "beach drivers" be qualified ......where and why would we get qualified if we're not allowed to drive on the beach .....will DOW and the A S be required to have "Qualified Beach Drivers" between 9/16 and 11/15 for their "educational" beach driving ? ....well, as you're walking to your favorite fishing area and you come across a Land Rover stuck in the sand and a little gray haired lady in khaki's with binoculars around her neck upset and in need of help.....be sure to give her a hand.....or if youre not in the mood to give that much ......just give her a finger .....


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## Drumdum (Jan 6, 2003)

Well,S&S,skunking answered much of what you were asking,imho... 
I'll add one more thing.. When the "under the table" deal was being done by Audobon, SELC, DOW ,and NPS before the second hearing in which the judge gave a continuence,he said "You weren't able to come up with a plan in 30 plus years,what makes you think you can do that now??".. To me that speaks volumns.. During the first hearing he was interjecting his "issues",which *obviously weren't those of NPS,nor SELC,DOW,or Audobon,because they didn't deem it as important,as issues at hand.. That really is what the "REG-NEG" process is about...* How then,with all the "expert data and testimony" in which he was given by those that filed the injuction and all have much experience in this field,actually going by the law?? 

All of the issues that the plantiffs brought up for the injuction,and thier concerns about the wildlife were adressed in the agreement. The envioromental goups agreed and stated it was what they were looking for was a fair and even interim plan... It was done with all concerns about the birds,vegetation, and turtles,which was (IN THE BEGINNING) what the injuction was about....

Imo,this judge is making sure that no compromise plan can be reached.. There is no way to do a reg-neg from the bench in a week and he knows this.. I guess he really is going to shut us down,and seems to want to do it.......

I'm with skunking on most of what he said,maybe Flipper will join in and tell us that you are right.. Who knows,with the way things are going down..I don't doubt it a bit being totally legal,because it looks as though this country is governed much different than what I learned in school... In other words,your rights stop where the other guys begin..........


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## surf rat (Jun 30, 2004)

*The beach*

I am going to buy a boat..as much as I love Hatteras I can not deal with all this mess. I will fish there some in the fall but that will be about it. The sad thing is that most of the people who spend thousands if not tens of thousands of dollars there each year will likely do the same. I just hope things don't get worse. With few places to fish and get away from the crowds there is really no reason for me to spend my hard earned money and get frustrated trying to fish within the lines. I am afraid that the Hatteras we know and love is forever gone. I said from the start that common ground must be found..There is no way that a few fisherman can stand up against and crush the man...The outcome is allways the same...I think that it would be smart to buy your yearly pier pass now before the price increase.


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## Flipper (May 6, 2006)

Drumdum said:


> http://islandfreepress.org/2008Archives/04.18.2008-JudgeBoyleWeighsIn.html
> 
> This ain't good is it Flipper???


It's what I expected.



Cdog said:


> Bingo! He already made his mind up about the injunction with out hearing any evidence.


The parties filed their briefs.


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## saltandsand (Nov 29, 2007)

Okay...I'll try again.

Here's the synopsis in the IslandFreePress (which is close to the actual order, not exactly, but close.) And my opinion about each inquiry shown in brackets.

"Whether the consent decree established any control over access to beach driving at existing seashore ramps.

• The description and location of the ramps from Highway 12 to the beach as they now exist on the seashore. [Intended to review whether access is around the areas the plaintiffs identify as critical.]

• Whether there will be under the consent decree a numerical count of the number of vehicles that enter or have access to the beach. [Intended to evaluate feasibility of controlling beach traffic, whether staffing and other aspects are consistent.]

• Restrictions or limitations on the type, size, weight, and characteristics of vehicles that will have access to the beach under the consent decree. [Focuses on whether access is limited to reasonable recreational use. Do we need 4x4 buses on the beach?]

• Whether the consent decree requires separate permitting and qualification of a driver and vehicle, including a processing fee before either driver or vehicle are eligible for beach driving. [Aims to ensure that wingnutts are precluded, so that those on the beach know how to operate a 4x4 properly. Processing fees need to be evaluated in terms of the NPS budget for the activities it plans.]

• Whether the consent decree requires safety screening or qualification of beach drivers. [To ensure safety of all those on the beach, including other ORV fishermen.]

• Whether the consent decree takes into account the safety of bathers and pedestrians. [Focuses on safety for "other recreational purposes" beyond fishing."]"

He wants to know whether any plan that the NPS puts forth is reasonable, can be implemented consistently, addresses the needs put forth by the plaintiffs and intervenors, etc. Moreover, question number one, is one of the more notable ones that is not fully summarized. The question inquires into distinctions between the three islands, so that the plan meets the separate needs of each. 

Also, this order is not a writ of mandamus. This is a prerogative writ in the common law, and is issued by a court to compel a government officer or entity to perform mandatory or purely ministerial duties correctly. Although the plaintiffs did not seek a mandamus, I wonder why the intervenors did not. Rather than being an intervenor-defendant, they could have rose to second plaintiff status and acquired a stronger position with the litigation. This could have been argued in the alternative, so that the intervenors could still maintain that the existing process was tantamount to a final reg (which we all should know it is not.)

With all respect, if the judge does not ensure adequate airing of facts to ensure a fair and equitable plan, whether by reg-neg, arbitration, litigation or otherwise, and such ORV plan is clearly erroneous, would it really be worth the paper it is written on? If the facts that he is inquiring about are not relevant, can someone show me why.

(BTW: I'm not saying this is going to work out fair and equitable. This, after all, is not about the birds. It's about a land grab where some want to take control of land for their benefit, without allowing for democratic use that acknowledges open and reasonable public use by the majority.)


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## Shooter (Nov 14, 2004)

My big question is Why is the judge keeping everything so closed door?

"Boyle’s order notes the court will make a record of the proceeding, but that record will not be made public or provided to counsel."

Is there something falling under National Security?

Maybe it's time the judge has the lights turned on him so he can't hide his dirty little secrets in the dark. My parents always told me "If you have to hide to do what your doing, mabey you shouldn't be doing it."


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## saltandsand (Nov 29, 2007)

Shooter said:


> My big question is Why is the judge keeping everything so closed door?
> 
> "Boyle’s order notes the court will make a record of the proceeding, but that record will not be made public or provided to counsel."
> 
> ...


Just putting forth the facts... (Not supporting Judge Boyle as some may interprete this to be.)

Not even the Navy prevailed. In an averred interest of National Security the Navy lost with a proposed outlying landing field in the general area now being disputed. The Navy was permanently injuncted for failure to properly consider NEPA. Here's the scoop: http://www.noolf.com/index.cfm/sid.370/oid.1151

If NPS fails to get their job done, I hasten to think what he'll do. I guess what I'm saying is the focus needs to be on getting a workable plan and NPS needs to provide the necessary details. Without doubt the choices are a reasoned ORV plan or no access at all. IMO it's failed logic to think that there won't be some limitation, or to think that defiance will prevail, or to usher in deferral or avoidance.

But let's not forget that this really is a land grab...plain and simple. Not that the real underlying issue changes the matter as it stands.

But to address your inquiry, and I'm no expert, it stands to reason that the plover, turtles, fish and dunes will be toast should the areas be activated during an invasion. I'm sure the Navy will keep any invader miles out to sea so this is rather moot.


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## Drumdum (Jan 6, 2003)

Like I said in the first post to ya,what he is doing probably is totally above board,though if constitutional it should'nt be.. It just goes against everything I was taught about what this country stood for..
What I was trying to say in the first post to you was that there is no way this kind of plan could be agreed upon and thrown before the judge in 7 days,and he knows this. Imho,all parties involved know this also... That is what chaps my onion,(that's what Plug says anyway)



> Rather than being an intervenor-defendant, they could have rose to second plaintiff status and acquired a stronger position with the litigation. This could have been argued in the alternative, so that the intervenors could still maintain that the existing process was tantamount to a final reg (which we all should know it is not.)


 Now that is some creative thinking there... No doubt Liebsman thought of this,but for some reason didn't attempt it...

It's all law and greek to me,all I know is my island is about to go down in flames if this judge does what I think he's going to do.........


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## AbuMike (Sep 3, 2007)

Anyone know where I can find some of those Save the Bridge stickers?


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## surf rat (Jun 30, 2004)

*Bridge*

Don't be suprised when they close the bridge for safety reasons and tear it down. That will be even better for the birds and turtles. Most likely they will replace it with a ferry that you have to pay to ride. Watch and see.


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## Flipper (May 6, 2006)

saltandsand said:


> Rather than being an intervenor-defendant, they could have rose to second plaintiff status and acquired a stronger position with the litigation. This could have been argued in the alternative, so that the intervenors could still maintain that the existing process was tantamount to a final reg (which we all should know it is not.)





Drumdum said:


> Now that is some creative thinking there... No doubt Liebsman thought of this,but for some reason didn't attempt it...


Because it's BS. He doesn't know what he's talking about.


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## Drumdum (Jan 6, 2003)

Flipper said:


> Because it's BS. He doesn't know what he's talking about.


 That makes more sense,falls in line with every other "ray of hope" that is a covered base by the justice system..


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## surffshr (Dec 8, 2003)

Drumdum said:


> Like I said in the first post to ya,what he is doing probably is totally above board,though if constitutional it should'nt be.. It just goes against everything I was taught about what this country stood for..
> What I was trying to say in the first post to you was that there is no way this kind of plan could be agreed upon and thrown before the judge in 7 days,and he knows this. Imho,all parties involved know this also... That is what chaps my onion,(that's what Plug says anyway)
> 
> 
> ...


The Man's a Prick, with way too much power.


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## saltandsand (Nov 29, 2007)

*Be Informed!*



Flipper said:


> Because it's BS. He doesn't know what he's talking about.


Here’s the support. First there is Rule 20, here’s the full rule, but there are considerable notes and additional material that accompany the rule, see http://www.law.cornell.edu/rules/frcp/Rule20.htm The pertinent part states:

_Rule 20. *Permissive Joinder *of Parties 
(a) Persons Who *May Join *or Be Joined.
(1) Plaintiffs. 
Persons may join in one action as plaintiffs if: 
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and 
(B) any question of law or fact common to all plaintiffs will arise in the action. _

http://www.law.cornell.edu/rules/frcp/Rule22.htm Interpleader via cross claim or counter claim by defendant, giving rise to status as plaintiff. This requires a little more insight and analysis to apply so I’ll skip it.

http://www.law.cornell.edu/rules/frcp/Rule24.htm Intervention of Right, which is how the intervenors came into the litigation. Timely filing of notice and service and Rule 20 can apply, but better to go with Rule 20 initially if that is the intent of representation.

http://www.law.cornell.edu/rules/frcp/Rule13.htm Joining additional parties and separate trials. Now there’s always the possibility of separate actions but this needs to be wary of collateral estoppel and res judicata, which are too complicated for this discussion, but here’s some links if you’d like to get an idea: collateral estoppel, defined, http://www.lectlaw.com/def/c171.htm; res judicata, defined, http://education.yahoo.com/reference/dictionary/entry/res judicata;Compares the two concepts: http://www.caught.net/prose/collat.htm. Merger of similar issues under litigation through separate actions is beyond the scope of this discussion.

http://www.law.cornell.edu/rules/frcp/Rule19.htm Required parties and provides some additional support for Rule 20.

http://www.law.cornell.edu/rules/frcp/Rule21.htm Misjoinder is not a basis for dismissal…let’s not go here. Point is dismissal is not happening, see the court reporter’s transcript for the hearing over the prelim injunction, it’s all spelled out.

http://www.law.cornell.edu/rules/frcp/Rule17.htm Joinder by real party in interest. Not truly essential but could be required where someone may want to assert that the is no interest in the litigation sub judice. BTW: My choice of saying “sub judice” is not to be confused with the “sub judice rule” although you may want to look at that too.

****
Let's be clear that this is permissive joinder as party-plaintiff and not entering as such as a matter of right. There is another line of legal logic that can be used to assert a matter of right. The matter of right is mooted as I've provided additional analysis showing that a separate cause of action is another alternative. Of course each option has pros and cons which is far and above this discussion and you're probably already bored.


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## saltandsand (Nov 29, 2007)

Can we leave all the finer points to the lawyers and focus on the seven questions? I'd like to know why these questions are "over the top" because I don't view them that way. I suppose if you view justice as one side winning at the total expense of the other and in a manner that is inconsistent with decency then maybe the whole case should just be dismissed...but be careful with adopting this idea because next time it may be your case that is dismissed without cause or justification.


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## Dyhard (Oct 24, 2002)

It sounds like the begining of the end.
I'll have a least one 4x4 for sale and several heavers.
If they limit the numbers on the beach i.e. one off, one on, that'l be it for me.
And no more multi-thousand dollar per week rentals for us. It'l no longer be worth it!


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## saltandsand (Nov 29, 2007)

Dyhard said:


> It sounds like the begining of the end.
> I'll have a least one 4x4 for sale and several heavers.
> If they limit the numbers on the beach i.e. one off, one on, that'l be it for me.


Have hope, for good reason. For sure there will be certain limitations but it's not going to be the end. I'm doubtful there will be a complete ban, but that could occur for a period of time if NPS refuses to cooperate and no other party picks up the ball. The best thing is that Judge Boyle has the foresight to treat each of the islands individually. 

But then again...what heavers do you have that you're looking to sell?


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## Flipper (May 6, 2006)

saltandsand said:


> Here’s the support. First there is Rule 20, here’s the full rule, but there are considerable notes and additional material that accompany the rule, see http://www.law.cornell.edu/rules/frcp/Rule20.htm The pertinent part states:
> 
> _Rule 20. *Permissive Joinder *of Parties
> (a) Persons Who *May Join *or Be Joined.
> ...


Wow.


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## saltandsand (Nov 29, 2007)

Flipper said:


> Wow.


It's raining so not to thrilled to go fishing and I'm currently avoiding home improvement projects. 

I'd head down to the local river for some trout but some numbskull contractor opened a mainline up river and spilled sewage. County officials said no issue... but they've yet to explain what the brown floaters are... 

Maybe I'll head to BPS and get something important done! Then again I could watch Versus for awhile.


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## Flipper (May 6, 2006)

saltandsand said:


> It's raining so not to thrilled to go fishing and I'm currently avoiding home improvement projects.
> 
> I'd head down to the local river for some trout but some numbskull contractor opened a mainline up river and spilled sewage. County officials said no issue... but they've yet to explain what the brown floaters are...
> 
> Maybe I'll head to BPS and get something important done! Then again I could watch Versus for awhile.


Great, do something, anything, other than trying to school me on the law.


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## saltandsand (Nov 29, 2007)

Guess I'll sit and watch. I'm looking forward to reading more about it. opcorn:


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## Flipper (May 6, 2006)

saltandsand said:


> Guess I'll let the speaking be done by those who know about this topic and skip the legal aspects (after all this is purely a fishing issue, isn't it?).
> 
> I'm looking forward to reading more about it. opcorn:


Nothing wrong with speaking; that's the point of having a forum, after all. But why make what appear to be authoritative statements about a topic that you clearly do not understand? I've noticed that you seem to be quite the expert on most any topic.


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## Drumdum (Jan 6, 2003)

Flipper said:


> Nothing wrong with speaking; that's the point of having a forum, after all. But why make what appear to be authoritative statements about a topic that you clearly do not understand? I've noticed that you seem to be quite the expert on most any topic.



One thing he is not an expert on is the $ required by park service,nor the manpower,which is not available.. That may be why many see the judge's request as unreasonable...... The judge already knows this,he's made his possition clear,he wants to file the injuction and close the beaches...

You say "closed for a period",yeap a period of 2 to 3 yrs... Hmmm,wonder what the economic empact on Hat island will be?? No doubt the .005% that Dow and Audobon came up with on thier other "factfindingmission" when giving an economic impact study for wintering habitat closures... Must have been the same science they used in this injuction........:--|


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## Fishbreath (Nov 11, 2004)

Drumdum said:


> One thing he is not an expert on is the $ required by park service,nor the manpower,which is not available.. That may be why many see the judge's request as unreasonable...... The judge already knows this,he's made his possition clear,he wants to file the injuction and close the beaches...
> 
> You say "closed for a period",yeap a period of 2 to 3 yrs... Hmmm,wonder what the economic empact on Hat island will be?? No doubt the .005% that Dow and Audobon came up with on thier other "factfindingmission" when giving an economic impact study for wintering habitat closures... Must have been the same science they used in this injuction........:--|


Hey DD,

Just wondering, after having written a few letters and sent a more than a few emails, have our associations and groups enlisted the aid of outside special interest groups such as Unionsportsmen.org and the like? Maybe we can get some funding and an ally there....just a thought.


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## surfchunker (Apr 10, 2006)

*even this one sucks*

Whether the consent decree requires separate permitting and qualification of a driver and vehicle, including a processing fee before either driver or vehicle are eligible for beach driving.


so what after driving 500 miles to get there I have to go to a beach driving school and pass a driving test ... and where is this class going to be located at and how long will the wait be to get in ........ just another way to to make it too hard or not worth the trouble and keep more people off the beach ....... GGGGRRRRRRR


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## Drumdum (Jan 6, 2003)

Fishbreath said:


> Hey DD,
> 
> Just wondering, after having written a few letters and sent a more than a few emails, have our associations and groups enlisted the aid of outside special interest groups such as Unionsportsmen.org and the like? Maybe we can get some funding and an ally there....just a thought.


 That I'm sure it is coming...

This is something I have wanted to happen for years now,but so far just asa is with us... There are things in the works.. Imho,legeslation is what we need most,as the judicial system has turned it's back,and is in bed with special intrest...

Fishermen and hunters need to stand as one to fight these groups now,or we will all face this eventually...


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## fish4kings2 (Jan 25, 2007)

*I say*

We need to start a WEB SHOW from the OBX and get this out.do interviews,get the residents involved and go after their legal council and blow the thing wide open.You can bet your sweeta$$ as soon as i can fine work around the area i would be willing to kick it off and go after the scum that are trying to close the beaches.


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## snook043 (Mar 21, 2008)

*hatteras fishing*

i hope 2 be going to hatteras on 27 and 28 of april like 2 know where 2 go


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## Drumdum (Jan 6, 2003)

Flipper,I realize this is of no legal importance,but it shows the feelings of fishermen and hunters that use public lands as US citizens...... This is an article from Island Free Press...

By MIKE BERRY




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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## DrumintheSuds (Nov 19, 2007)

This entire mess clearly shows that the courts run this great country of ours. Anybody and anybody includes ******** on up to almighty judges that can't see through this BS is just plain blind. There has ALWAYS been an agenda here and it appears as if all the pieces came together at the right time for the folks that just don't give a Sh*t about people's rights. Mr. Berry said it best....The common man just doesn't have a voice in this country anymore. You work your tail off all your life, obey the law, treat your neighbor good, respect nature and all that it implies and this is your reward. Special interest now controls something many of us have held near and dear to our hearts for generations and your voice and my voice means absolutely NOTHING. Never in my life as an American have I ever been more ashamed or felt so small as I do now.

For every piece of trash that you picked up over the years. For every bird and turtle closure that you respected. For every fish you released unharmed and for every time you stopped to teach your son or daughter to respect nature.

This is your reward........


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## Flipper (May 6, 2006)

Drumdum said:


> Flipper,I realize this is of no legal importance,but it shows the feelings of fishermen and hunters that use public lands as US citizens...... This is an article from Island Free Press...


Yes, I read it when it was first posted elsewhere. No doubt, he's a respected scientist.


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## saltandsand (Nov 29, 2007)

Flipper said:


> Yes, I read it when it was first posted elsewhere. No doubt, he's a respected scientist.



With all due respect, that's not relevant. 

And, the reason why its not relevant is per Appendix II of NEPA (readily available at 49 FR 49765, FR volume 49, number 247), the Department of the Interior/National Park Service is shown as a recognized expert on the effects of land use and endangered species in the designated coastal barriers. Thus NPS is to be consulted with these matters, also see 16 USC 3501. For matters somewhat beyond scope see APA advisory guidelines see 48 FR 45664.

He may be highly respected and that could become notable in the process but more likely not to be of much merit, even if listed as a expert witness, and this is due to intervenor-defendant status rather than party-plaintiff status.


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## Flipper (May 6, 2006)

saltandsand said:


> With all due respect, that's not relevant.
> 
> And, the reason why its not relevant is per Appendix II of NEPA (readily available at 49 FR 49765, FR volume 49, number 247), the DOI, NPS is shown as a recognized expert on the effects of land use and endangered species in the designated coastal barriers. Thus NPS is to be consulted with these matters, also see 16 USC 3501 and advisory guidelines at 48 FR 45664.


Sorry to have hurt your feelings, S&S. You obviously possess a formidable legal mind. I'll let it go at that.


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## Flipper (May 6, 2006)

Well, one more reply:



saltandsand said:


> He may be highly respected and that could become notable in the process but more likely not to be of much merit, even if listed as a expert witness, and this is due to intervenor-defendant status rather than party-plaintiff status.


Wrong again. And I know that you don't understand why, but that's okay. I don't expect you to understand. 

Now I'll retire from this thread before it gets out of hand.


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## saltandsand (Nov 29, 2007)

Flipper said:


> Sorry to have hurt your feelings, S&S. You obviously possess a formidable legal mind. I'll let it go at that.





Flipper said:


> Well, one more reply:
> 
> 
> Wrong again. And I know that you don't understand why, but that's okay. I don't expect you to understand.
> ...



Inferring someone has hurt feelings is like pouring salt in a wound. Can skip this "touchy-feely" stuff for some other time...like we'll put it on the agenda for 2109 or something... IMO ninny stuff is a waste of time.

I'm a bit put back because this is something of pivotal importance yet there is lack of unity. Seems as if there is a loss of fighting instinct. Arguably the fight isn't even being levied. 

I really don't give two hoots about who struck first, it's not important anymore whether the plaintiffs stepped outside of the "noble" settlement process. The only thing relevant is that this is now a legal matter and now the best fight needs to be fought. IMO that is not happening.

I'm not saying anything negative, I'm recognizing the critical importance of the legal matter. I'd really prefer not to banter about small matters. Not to quote a pun but "There are bigger fish to fry."

I'd like to continue with this "extremely important matter." I thought to "sit and watch" but I'm too much of a fighter to be able to do that. Let's fight the good fight together!!


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## saltandsand (Nov 29, 2007)

Here's a link to the info about why the coastal barriers are being handled the way they are. We don't need to like it but until the law changes we've got little choice.

http://www.thecre.com/fedlaw/legal14coast/coasbar.htm
http://www.thecre.com/fedlaw/legal14coast/coastal_barrier_resources_act_lm.htm

The above link shows why it is so vital to protect the access that now exists. It also shows why Judge Boyle wants information specific to the three islands. Each of these three islands are not only distinguished by what they are but by the where the sit with various laws. 

As an aside, if you're ever offered barrier island property at a huge discount, a short review of the above law may let you know why.


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