Assateague Island Administrative History

Law Enforcement

Law enforcement concerns inevitably accompany heavy public use. Miscreants caused problems for the Service on Assateague from the beginning. Three arsonists burned two hunting camps, Pine Tree Lodge and Valentine Lodge, in February 1966. Vandals removed historic wooden markers from the Green Run Cemetery that April. Uncontrolled camping and beach buggy use were prevalent in Maryland, with resultant littering. Much of the public assumed that authorization of the national seashore automatically meant Federal acquisition; as a result, they displayed little regard for the extensive private property. With its limited manpower and no assistance from the Worcester County sheriff's department, the Service found trespassing difficult to prevent. [26]

Even after the private lands were acquired, jurisdictional complications affected law enforcement. The Service took title for the United States only to the mean high water line in Maryland, leaving the beach and water below that point to the state. (BSFW had acquired Federal title to the low water line in Virginia.) Superintendent Norris sought a formal long—term use and occupation agreement with each state giving the United States administrative control 1000 feet seaward, his object being to remove any Federal jurisdictional hiatus along the waterfront. In 1973 the Solicitor's Office judged that by its legislation setting the national seashore boundaries one—half mile beyond the mean high water line, "Congress created a sufficient Federal interest in the lands and waters therein to enable the Park Service to regulate the conduct of visitors who enter this area whether or not the United States owns the lands." The Service was nevertheless advised to seek concurrent jurisdiction with the states to preclude any contentions of Federal overreaching. [27]

Superintendent Roberts had begun the effort to obtain concurrent jurisdiction from Maryland in 1966. Without such a grant of power from the state, the Service had only proprietary jurisdiction and could not prosecute for violations of state law on its land. Public Law 94—458 of October 7, 1976, directed the Secretary of the Interior to "diligently pursue" concurrent jurisdiction within all units of the National Park System, but two years later Superintendent Norris cited this as still a goal at Assateague. [28] In 1982 Superintendent Finley was designated Maryland state coordinator to obtain concurrent jurisdiction for all national parklands in the state. Excellent progress was being made at this writing.

The Service's presence in Chincoteague National Wildlife Refuge was another factor complicating its law enforcement work. Its regulations were in Title 36 of the Code of Federal Regulations; the refuge regulations were in Title 50. Fears that Title 36 might be unenforceable in the refuge were realized when Public Law 94—223 of February 27, 1976, defined the National Wildlife Refuge System as administered exclusively by the U.S. Fish and Wildlife Service (Chapter V). This development forced the Park Service to withdraw its Title 36 oversand vehicle regulations from application to Toms Cove Hook. The Fish and Wildlife Service published revised regulations under Title 50 to fill the gap, and it empowered the NPS district ranger in Virginia to enforce Title 50 violations there. [29]

The Virginia district ranger was also deputized as a county sheriff to handle traffic violations not adequately covered by the Code of Federal Regulations. He could now prosecute serious offenses like drunk driving through the state court system. Several other park rangers were deputized by the Fish and Wildlife Service as Federal game agents to handle waterfowl hunting violations. [30]

The Park Service found operating under Title 50 difficult. The refuge manager required citations to be processed through him, and for some time violations had to be heard by a U.S. magistrate in Norfolk—much farther away than Salisbury, Maryland, where Title 36 violations were heard. Until the U.S. District Court resolved this difficulty, allowing Title 50 violations to be heard in Salisbury, Service rangers tended to be reluctant to cite for relatively minor recreation—related violations in Virginia. In addition, the effectiveness of seasonal rangers was often impaired by delays in their deputization. Efforts to easy the situation have not been entirely successful, making law enforcement the greatest remaining problem of the interagency relationship in the refuge. [31]

Oversand Vehicle Use

No aspect of public recreation at Assateague has required more management attention or engendered more controversy than off—road or oversand vehicle use.

Off—road vehicles (ORVs) have plied the beaches and dunes of Assateague since the late 1920s. "The Model A Ford opened up the beach," Robert Phillips of Berlin, Maryland, a long—time local resident, recently recalled. He drove his father's new 1928 Model A down from Ocean City on partially deflated tires and found many others doing the same. [32] After the cutting of Ocean City Inlet in 1933 left Assateague surrounded by water, Alfred Peters started operating a small ferry from the mainland. Intended primarily for transporting his cattle grazing on the is land, it was also used by vehicles carrying surf fisherman and hunters. Leon Ackerman inaugurated a larger five—car ferry about 1950 in connection with his Ocean Beach real estate venture, and it too was patronized by recreational ORVs. [33]

The Park Service found "beach buggy" use widespread when it arrived on the scene in 1965—66. Many local vehicle owners were members of the Assateague Beach Buggy Association, formed in 1965 and renamed Assateague Mobile Sportfishermen's Association (AMSA) in 1968 upon its affiliation with the United Mobile Sportfishermen's Association. Their primary purpose was to lobby for continued and expanded beach access in the face of conservationist pressures to restrict or eliminate ORVs. Seeking to counter the bad image of ORVs among environmentalists, AMSA promulgated a code of conduct prohibiting indiscriminate dune driving, littering, and other offensive practices. Its members, numbering 857 in 1973, voluntarily assisted the Service in beach clean—up projects as well as by installing and repairing sand fences and planting beach grass to encourage dune construction. [34]

Not all ORV drivers were so cooperative, making restraints necessary. By 1970 the Service had installed posts and cables to keep the vehicles on a designated track from North Beach some four miles south, where a fenced "bullpen" was established for self—contained camping units. Tents and campers removed from pickup beds were prohibited in the enclosure, but trailers were allowed. [35]

Superintendent Roberts took a dim view of ORVs. "The National Park Service, with respect to Assateague Island, has every evidence to believe at this time that with the increased use of sand vehicles and the absolute need to protect the natural resources of beach zones, vehicle use on these fragile areas must be phased down and out," he wrote in 1970. Later that year he expressed similar views to another park superintendent:

In brief, the staff here recognizes that beach vehicles are destined to be banned from the public beaches. The only question is when such activity will cease to be a pleasure and become a total nuisance. Each season the number and variety of beach vehicles increases and it is just a matter of time until the outcry against them becomes stronger than the great political pressure exerted by them. [36]

Influenced by the Committee to Preserve Assateague and other conservation sentiment, Maryland's Joint Executive—Legislative Committee on Assateague Island in 1972 recommended further restrictions on ORVs and their banning "if determined to be detrimental to the island's ecology, or disruptive, physically or aesthetically, to the enjoyment of the natural barrier island." A year later Superintendent Norris took steps to prohibit new all—terrain vehicles like the Honda ATC—90. The ATC—90 could not be licensed for highway use, enabling Norris to ban it under Code of Federal Regulations provisions declaring state law applicable to vehicles within parks. [37] His case was weak, because unregistered snowmobiles were allowed in certain other parks and the lightweight Hondas were less likely to cause damage than heavier dual—purpose vehicles already present. Motorcycles were also banned, even when licensed. The NPS posture was simply to prevent opening the beach to new classes of vehicles, regardless of their relative merits.

After widespread public review and comment, final rulemaking on the ORVs was prepared in July 1974 and subsequently published in Title 36 of the Code of Federal Regulations, section 7.65. Under the regulation, a permit system was inaugurated in January 1975 by which a maximum of 12 vehicles per mile would be allowed at any time on designated portions of the beach in Maryland and Virginia. In the spring of 1976 the regulation was amended to more clearly define allowable vehicles and establish fees for the permits. Some 3,400 annual permits were sold for $5 that year, about 1,000 less that had been issued free in 1975. [38]

In 1979 more than 5,300 permits were sold to ORV owners who made over 32,000 trips in Assateague's 15—1/2 miles of oversand zone (12 in Maryland, 3—1/2 in Virginia). Twenty—eight percent of all citations in the seashore that year were written for ORV violations. At the request of Assistant Secretary Robert L. Herbst, who was concerned about the trend, the Park Service and the Fish and Wildlife Service began joint funding of a two—year, $50,000 study of ORV and other human impacts on the island's dune and beach systems. The Park Service's Denver Service Center contracted the first year's study to Applied Biology, Inc., of Atlanta that July. [39]

The results were inconclusive. "[T]he nature of their research and the contents of the final report were not of the best scientific standards.... [T]he number of transects and samples taken from those transects were far too small to provide any conclusive results on which to base management decisions," John F. Karish, regional scientist for the NPS Mid—Atlantic Region, said of Applied Biology's product in September 1980. Karish contracted the second year's study with the University of Virginia's Department of Environmental Science, specifying emphasis on Fox Hill Levels and Toms Cove Hook where ORV use was particularly heavy. [40]

The draft final report, submitted by William E. Odum and Raymond Dueser in April 1982, stated rather tentatively its implications for management:

ORVs appear to have a negative primary impact on incipient (developing) dune lines on the open beach at Toms Cove Hook. This may affect the future dune field as this beach continues to grow seaward.

ORVs may have a negative secondary impact on dunes and dune vegetation at Fox Hill Levels through altering dune geomorphology, plant cover and, ultimately, surface groundwater salinity.

Karish and Superintendent Finley both judged the study results inadequate once again for management decisionmaking on ORV use. Karish planned to return the draft for revision but had little expectation that firmer data would be forthcoming. [41]

The 1979 "Preferred Planning Alternative for Assateague Island Comprehensive Plan," a chapter in the planning process initiated by the amendatory legislation of 1976, gave no bayside access to ORVs in Maryland except for holders of retained rights and hunters during open seasons. Pressure from AMSA and intervention by Representative Robert E. Bauman led the Service, following consultation with the Committee to Preserve Assateague and the National Parks and Conservation Association, to compromise on a cabled access to the bay at Fox Hill Levels in 1980. This provision appeared in the subsequent General Management Plan. [42]

The General Management Plan incurred the hostility of AMSA on another proposal: the banning of trailers from the "bullpen" enclosure. Originally envisioned as an "overnight parking area" where surf fishermen with ORVs could pull their rigs off the beach for the night, it had evolved into a de facto camping area where self—contained trailers were detached and left for longer periods. ORV owners who had acquired trailers for use there were especially upset about the prospect of exclusion and received some sympathy from seashore management when they charged unreasonable discrimination. It appeared that some time might pass before the trailer ban was enforced. [43]

Mindful of the widespread opposition to its activity, AMSA went on the offensive in July 1981 by proposing that an additional 10.5 miles of Chincoteague National Wildlife Refuge beach—from the state line to just above the Toms Cove visitor center—be opened to ORVs. It also wanted passage through the refuge fence at the state line so vehicles could drive through to and from Maryland. Refuge Manager Dennis F. Holland sought comment on the proposal, and Superintendent Tousley responded for the Park Service with objections. He noted that approximately half the beach fronting the undeveloped portions of Assateague was already accessible to ORVs; that providing entry to the refuge at the state line would complicate wildlife management and refuge closure; that the greater access to the island just above the line could increase trespassing on retained rights properties there; and that funds to police the expanded use were unlikely to be forthcoming. [44]

The Delmarva Advisory Council held a hearing on the AMSA proposal in September at the refuge headquarters. Of 11 speakers, 10 were opposed. Five of them advocated a total ORV ban in the Virginia portion of the is land, contending the vehicles were already given too much freedom by the Park Service in Maryland. The opposition of the Chincoteague Town Council was noted, and Dennis Holland reported that of 1,157 written responses received, only 55 supported AMSA. [45] (A month later, after AMSA had enlisted the United Mobile Sportfishermen's Association in a letter—writing campaign on its behalf, the responses totaled 3,115 for and 4,882 against.)

In March 1982 the Interior Department turned down the AMSA request. To mollify the sportfishermen, Assistant Secretary G. Ray Arnett's office proposed that an additional two miles of beach directly below the Toms Cove visitor center be opened to ORVs between November 1 and April 30. In response, all six Delaware, Maryland, and Virginia senators and seven Republican congressmen representing the Delmarva Peninsula signed a protest letter to Secretary James G. Watt. While applauding the decision against AMSA's proposal, they argued against any increased ORV use in the refuge on the grounds that existing problems of erosion, wildlife protection, and law enforcement would be aggravated. [46]

Nor was AMSA satisfied. The two miles were on a narrow stretch of the beach undergoing storm rehabilitation, a paved road paralleled the stretch just inland, and the opposition threatened a lawsuit that would tie the matter up indefinitely. AMSA thus decided to encourage Interior to abandon the compromise. On May 18 Secretary Watt wrote the protesting members of Congress that he would keep ORV use in the refuge at its current level—a decision for which he gained rare editorial praise in the Washington Post. [47]

With an Administration generally favoring recreational use taking this hold—the—line stand, and absent clear scientific evidence of significant ecological harm from legal ORV activity at Assateague, continuation of the status quo appeared likely for the foreseeable future.