JCAA

      

Testimony by Bob DeLeonard, NJBBA President, on HR896

For The SubCommitee on Fisheries Conservation, Wildlife and Oceans U.S. House of Representatives

(from Jersey Coast Anglers Association July 2001 Newsletter)

JUNE 7,2001

Mr. Chairman:   My name is Bob DeLeonard and I am appearing today as President of the New Jersey Beach Buggy Association (NJBBA).  We greatly appreciate the opportunity to testify before the Subcommittee and register our strong support for H.R. 896.  On behalf of the Association we thank you for promptly scheduling a hearing on this important bill.   We also commend Rep. Saxton for his leadership and continued support on behalf of wildlife dependent recreation within units of the National Wildlife Refuge System.

The New Jersey Beach Buggy Association, founded at Island Beach State Park, is a non-profit organization incorporated in 1954.  The NJBBA is not a fishing club. It is an association of people who all want the same thing.   That is to be able to use a mobile sport fishing vehicle while in pursuit of their favorite hobby, mainly surf fishing.  The majority of the members do belong to fishing clubs, but they still realize that one group is needed to lead the way in the fight for our right of continued and reasonable beaches access.

Please do not confuse our beach buggies with present day, modified VW fame types with roll bars and pipe welding.  Our beach buggies come in all shape and sizes and are mobile sport fishing vehicles, which ride the level beach, entering and leaving by, access and egress trails approved by authorities.  Members must not travel on any dunes or vegetation, as this practice is not consistent with the philosophy of the organization with reference to the preservation of our coastal resources.

H.R. 896 would assure that express promises made by Congress 28 years ago would continue to be honored.  This bill would assure that important recreational opportunities will be preserved and that environmentally benign traditional uses will be able to continue.  We urge the Subcommittee to act quickly and favorably on this measure.

Rep. Saxton’s measure simply keeps a promise: it would statutorily assure what we were promised years ago – that surf fishermen could continue to access Holgate using beach buggies.  Over 28 years ago surf fishermen and the environmental community banded together to guarantee the conservation of the wildlife resources of Holgate Beach.  We worked with Congress to have this portion of then Brigantine National Wildlife Refuge designated wilderness to prevent unwanted commercial development of the beach.  However, we were repeatedly assured that this commitment to conservation would not adversely impact our ability to use beach buggies for surf fishing.  With those assurances from Congress, we strongly supported the wilderness designation.   We are bitter that the U.S. Fish and Wildlife Service seems intent on disregarding those promises and banning us from the very beach we helped to save.  The Association is heartened that Congress appears to understand the need to honor promises and commitments and it can do so by passing H.R. 896.

The US Fish and Wildlife Service (FWS) announced on February 14 a pending decision to limit beach access for the Holgate unit of the Brigantine Wilderness Area.  Under this directive, motor vehicle use by the public would be limited to the area below the mean high tide mark.  The mean high tide mark is an 18.5 year average, not a day to day thing.  At this time, I do not know where it falls.  It may be 50 yards out in the ocean or it may be the entire peninsula.  I wonder if FWS knows.  Their brochure on beach use shows it as the wet sand between the tides.  This is wrong, although many people are not aware.

Because the limiting of beach vehicles is so controversial, the FWS Acting Regional Director provided a 30 day public review period before signing off on the Finding of No Significant Impact (FONSI).  This period ended on March 19, 2001.  As of this date, June 7, 2001, it has yet to be signed.

FWS has chosen Alternative B of the Comprehensive Conservation Plan (CCP), which was the Service’s proposed action all along.  Besides limiting, or perhaps banning altogether, vehicle use on the beach, this alternative also triples the refuge staff, triples the operating budget, and makes provisions for “taking” additional land outside the boundary of the Refuge.  The current staff level is 17.  Alternative B would raise this to 42. Staff and projects funding for the next 15 years is currently $15.3 million.  “B” would raise this to $54.2 million. Land protection is currently $19.7 million for 15 years.  “B” would raise this figure to $57.7 million.  Land protection for what?  It is a federal wilderness!

While it is true that the Edwin B. Forsythe National Wildlife Refuge is protected under the Wilderness Act of 1964, the beachfront that abuts the property is public land, which has been used by mobile sport fishermen for generations before the refuge was established.  These “beach buggies” are inspected, insured, street legal pick up trucks or sport utility vehicles that drive at slow speeds along the beach looking for a good place to wet a line.   They are not ATV dune buggies racing aimlessly down the beach.  It is not consistent with the NJBBA code of ethics to walk on the dunes, let alone drive on them, as they are a very fragile and priceless part of the ecosystem.

In 1973 when the Brigantine Wilderness area was being proposed, Holgate was not even going to be considered as part of it.  The Department of the Interior did not want to include it because the public would never be able to get a true wilderness experience there.  It was added at the last hour at the urging of the NJ Sierra Club, with backing of NJBBA.  NJBBA President Bob Lick collaborated with Hope Cobb, President of the NJ Sierra Club on Ms. Cobb’s testimony pushing for inclusion of Holgate on April 12, 1973.  These diverse organizations came together to prevent construction of a proposed bridge from the south, with provisions that existing access and usage prevail.   At the time, opinion was widely held that the least expensive way for development was to go through public land. NJBBA and the Sierra Club did not think that Refuge protection was strong enough to prevent this bridge construction and resulting development and sought statutory protection provided by Wilderness designation. NJBBA would not have backed this effort without assurance that vehicle access on the beachfront that abuts the property would be allowed to continue. Bob Lick got assurance from Senator Case that, since the beach was state owned and not part of the Wilderness, vehicle beach access would not be jeopardized, and mobile surf fishermen continued to use the beach after wilderness designation, just as before the wilderness designation.

Rep. Saxton in July 1990 helped negotiate a written agreement entitled “Public Use Management for Holgate Unit” which permits the operation of over-the-sand vehicles (OSV) in the Holgate Unit of the Brigantine Wilderness Area.  This written agreement, submitted by the (then) Edwin B. Forsythe Refuge Manager, and approved by the Regional Director for Refuges, is in direct conflict with the Final Comprehensive Conservation Plan (CCP) proposed in July 2000 by the Fish and Wildlife Service (FWS).

The 1990 agreement specifies the tidelands will be open to OSVs from September 1 through March 31, and will be closed to all public use including boat landings from April 1 through August 31 to protect piping plovers and their habitat.  During the September 1 through March 31 period, OSVs may utilize the tidelands below the mean high water line.  In order to minimize the distance of travel on the loose or dry sand above the mean high tide, the OSVs shall be parked within 30 feet of the water edge at high tide and generally park perpendicular to the water edge.

Endangered piping plovers are not an issue in 2001.  Surf fishermen agreed to the closure at Holgate in 1990 to protect the endangered piping plover based on the FWS allowing the continued access for OSVs to the end of Holgate Peninsula.  It is unfair and unsustainable for the FWS, after signing this written agreement, to propose to discontinue this previously established public use.  In eleven years, the fishermen have stayed out of Holgate from April 1 through August 31 in compliance with this agreement.  The piping plover nesting pairs have greatly increased and there has been no environmental damage to the wilderness area.

The Department of  the Interior utilized its discretionary authority for 28 years to permit vehicles in Holgate because such uses were established prior to the date the wilderness area was designated by Act of Congress.  It is outrageous that prior public uses at Holgate have been proposed to be terminated without consideration to this agreement.  We have separately communicated with the Department of the Interior and explained that the law and the facts enable and obligate FWS to continue traditional beach buggy at Holgate.  A copy of our letter to Secretary Gale Norton is attached.

H.R. 896 would solve this problem by revising the boundaries of Holgate to provide a narrow transition zone between the mean high tide line and the wilderness boundaries to permit vehicles to safely access and park on the beach without inadvertently entering the wilderness area.  This bill would continue to allow access by vehicles into Holgate, as has been the case for nearly 60 years, without negatively impacting the environment.  The public is not permitted in the wilderness land only on the state owned beach.  This applies to walkers as well. Beach buggy users are happy to share this resource with any other user groups.

H.R. 896 would provide a 30 foot buffer zone along the state owned beach between the ocean and the FWS property so vehicles can safely have ingress and egress during periods of abnormally high tides.  Beachfront by nature comes and goes. It is a complex issue.  A 30 foot right of way above wet water is not unreasonable and would still be legal within the Wilderness Act. Section 5 (a) mandates access through wilderness to privately held property.  Mobile sport fishermen are permitted incidental contact with wilderness property to safely access other parts of state owned Holgate beach during periods of moon tides coupled with east winds where the beach may be constricted.  When the beach is constricted on the front, it is coincidentally expanded on the back side.  The refuge manager at Holgate immediately claims this “found” land as wilderness property, regardless of any mean tide averages while attempting to claim temporarily eroded beach to an imaginary previous line in the ocean.

In, addition, FWS Wilderness Preservation and management and Regulations (50CFR35.5) specifies: (b) “The Director may permit the use of motorized equipment at places within a wilderness where such uses were established prior to the date the wilderness was designated by a Act of Congress.” 

The Refuge Improvement Act of 1997 ensures that priority public uses receive enhanced attention in planning and management within the Refuge System.  Somehow the refuge manager at Holgate has interpreted this as carte blanche to ban vehicles from the state owned property that abuts the wilderness. 

In 1999, when the refuge manager first proposed his new ban on vehicles, the reason given was because the public could never get a true wilderness experience with vehicles on the state owned beach.  The walking public is also prohibited on the federal wilderness and must view from the state owned beach as well.  In 1973 when NJBBA and the NJ Sierra Club argued for inclusion of Holgate into the Wilderness Act, we had to overcome the objections of E. U. Curtis Bohlen, Deputy Assistant Secretary for Fish, Wildlife, and Parks, Department of the Interior, who was adamant that Holgate did not qualify because, ironically, the public could never get a true wilderness experience there.  When asked why he is suddenly asking for a mobile sport fishing ban after nearly 60 years of established use, 28 since wilderness designation, the refuge manager said, “Because the law gives me the authority to do so.  Look, we are holding a public hearing because we are required to get public input, but the final decision rests with us. We already have the Wilderness Act.   It’s clear on not allowing vehicles on the refuge and on what a wilderness experience should be.  I really think that’s all we need.” (New York Times, June 20, 1999).  In 2000, with public support dwindling from this demonstrated disdain of the public hearing process, the argument changed to “a violation of the Wilderness Act’.  Public support has since all but disappeared.

The mismanagement of the Forsythe Refuge damages the public impression of the entire refuge system and has put FWS as head of the list of most despised federal agencies in New Jersey, a feat that three years ago, I would have thought impossible.  The refuge program uses tax money to acquire land, and then attempts to keep taxpayers off that land.  It is as if they put up signs that read, “Public property.  No trespassing.”  Future land acquisition by FWS in New Jersey has been put in serious jeopardy because of the arrogance and mismanagement at Holgate.  FWS is a bad neighbor.  

In 1973 during the hearing for H. R. 5422, which established the Brigantine Wilderness Area, Assistant Secretary Bohlen testified on Holgate.  “We did not think that suitable to be recommended as part of the wilderness.” he said.  “It is part of the refuge, but it is not included as part of the area set aside for wilderness.”  It has since become less suitable to be part of the wilderness.  In 1999 when the FWS first proposed the Comprehensive Conservation Plan, it pictured on the cover of the ensuing manual what they thought to be a representative example of what a wilderness should be.  That cover photo showed some sedge land with the skyline of Atlantic City in the background.  I pointed out in my testimony in Stafford Township on July 8, 1999 that if they took that picture at night, there would be nothing but bright flashing lights, searchlights, and assorted casino glitter.  So much for the public’s ability to have a wilderness experience.   Incidentally, in 2000 when the FWS tack switched from the 1999 ploy of “vehicles on the beach have a negative impact on the public’s ability to enjoy the wilderness” to “a violation of the Wilderness Act” they had the good sense to shoot the new manual cover photo in another direction.

The fact remains that now Holgate is part of federal wilderness.  Any land that can be designated so in the most densely populated state should be treated with respect, no matter how badly mismanaged.  I think that it is unreasonable to treat wilderness land in New Jersey exactly the same as treated in Alaska and Rocky Mountain states.  In a state with a population density greater than that of India and Japan, be thankful for any land that can be designated wilderness.  In New Jersey, if a person goes out for a wilderness experience, and there are 3000 other people there, consider it isolated.  In Holgate, there are only 25 vehicles on the three - mile stretch of beach, mostly all sit parked while the owner is fishing.

An amicable and equitable anti-development solution was worked out to give Holgate protection, continued recreational use was promised, and that promise reinforced by the agreement between Rep. Saxton and FWS in 1990.  Now the FWS wants to renege.  Please don’t let it.