You’ve obviously put a lot of productive time and effort into this situation. It is neither easy nor fun finding this crap and trying to sort through it.
If no one has yet tried a “nice” approach to gaining cooperation, by all means try it. It could work and save untold amounts of miserable effort. You tend to catch more flies with honey (this assumes of course you don’t want to kill them).
Furthermore, it is distinctly possible that the ban was initiated because of some perceived or ACTUAL problem and perhaps kiters would be more likely to find a solution - in which case everyone gets happy AND you make some helpful friends.
Unfortunately, I’m too busy at the moment to be helpful. However, I’d like to thank those who have had some kind words (especially the words involving MONEY) and since this obviously illustrates Zepheros’ PR skills, I wouldn’t object if those who were nice enough to offer me some monetary incentive to instead donate it to him.
Since I didn’t have time to do more than glance at the above sections, I’ll just point out a few things I noticed.
["It looks like pretty broad authority.
it does not appear that way to me. "
This is possible. However, bear in mind that whoever wrote it is a LOT more likely to WANT to give that impression than the opposite.
" No where does it say encouraging non-wildlife recreation. "
Recreational uses such as, but not limited to, sightseeing, nature observation and photography,
interpretive centers and exhibits, hunting and fishing, bathing, boating, camping, ice skating, picnicking, swimming, water skiing, and other similar activities
may be permitted on national wildlife refuges. Kiting seems to be obe of the more compatible - especially if you give some thought as to how it could be tied to sightseeing, nature observation and photography,
NOTE: supposedly the kiting ban is a special reg- - (6) Special regulations for public use, access, and recreation are published in the daily issue of the Federal Register and may be codified in the Code of Federal Regulations. They shall be issued in compliance with procedures contained in the Departmental Manual.
check out some of the stuff that they theoretically were supposed to do in order to create the ban
see § 26.41
7/09/14 EDIT: I noticed that I improperly quoted SSK so that it is unclear which part of this post is his posting. Therefore, I have put his partial post in RED.
"Again I hate this rule it effects me. I am not trying to be a naysayer, but I think the chance of fighting it is slim. The chance of working with the refuge manager maybe better, there are provisions for that, and I am all for that.
But I just want to make sure people have some perspecitve. The conspiracty stuff is killing me. Bottom line, this is a wildlife refuge. Not a state park, not public land, not a National Park. You can read the the refuge objectives, and the objectives of the national refuge system. No where does it say encouraging non-wildlife recreation. I do not think this is some new Federal broadening of powers. The refuge was created in 1938 and I assume most of these rules have been in place since the creation of the National Refuge System.
I am not a lawyer, just a simple man reading the federal Law. 50 CFR Chapter I, Subchapter C - THE NATIONAL WILDLIFE REFUGE SYSTEM
http://www.law.cornell.edu/cfr/text/50/ ... bchapter-C
From all I can see the law clearly states they can create this rule and enforce it very easily. My interpretation of this is that entry into a refuge is not a right but may be permitted. Curtailing any non-recreational activity is at the descretion of the Refuge Manager. It looks like pretty broad authority. There is no discussion period, public notice, ... just post it. It may seem unfair and unjust, but it does not appear to be new or capricious.
My only point here is that (again a very simple man interpretation) the Federal law states they can do this, and unfortunately very easily. If you think the law protects your access to a national refuge, it does not appear that way to me.
The finer points of where you can actually kite and not kite, how they can fine you, can you challenge a ticket, what requirements they have to follow may be a different issue and could be challenged.
Recreational uses such as, but not limited to, sightseeing, nature observation and photography, interpretive centers and exhibits, hunting and fishing, bathing, boating, camping, ice skating, picnicking, swimming, water skiing, and other similar activities may be permitted on national wildlife refuges. When such uses are permitted the public will be notified under the provisions of this subchapter C
§ 25.31 General provisions.
Whenever a particular public access, use or recreational activity of any type whatsoever, not otherwise expressly permitted under this subchapter, is permitted on a national wildlife refuge or where public access, use, or recreational or other activities previously permitted are curtailed, the public may be notified by any of the following methods, all of which supplement this subchapter C:
(a) Official signs posted conspicuously at appropriate intervals and locations;
(b) Special regulations issued under the provisions of § 26.33 of this subchapter C.
(c) Maps available in the office of the refuge manager, regional director, or area director, or
(d) Other appropriate methods which will give the public actual or constructive notice of the permitted or curtailed public access, use, or recreational activity.
§ 26.33 Special regulations.
(a) Special regulations shall be issued for public use, access, and recreation within certain individual national wildlife refuges where there is a need to amend, modify, relax or make more stringent the regulations contained in this subchapter C. The issued special regulations will supplement the provisions in this part 26.
(b) Special recreational use regulations may contain the following items:
(1) Recreational uses authorized.
(2) Seasons, period, or specific time of use.
(3) Description of areas open to recreation.
(4) Specific conditions or requirements.
(5) Other provisions.
(6) Special regulations for public use, access, and recreation are published in the daily issue of the Federal Register and may be codified in the Code of Federal Regulations. They shall be issued in compliance with procedures contained in the Departmental Manual.
§ 26.41 What is the process for determining if a use of a national wildlife refuge is a compatible use?
The Refuge Manager will not initiate or permit a new use of a national wildlife refuge or expand, renew, or extend an existing use of a national wildlife refuge, unless the Refuge Manager has determined that the use is a compatible use. This section provides guidelines for making compatibility determinations, and procedures for documenting compatibility determinations and for periodic review of compatibility determinations. We will usually complete compatibility determinations as part of the comprehensive conservation plan or step-down management plan process for individual uses, specific use programs, or groups of related uses described in the plan. We will make all compatibility determinations in writing.
(a) What information do we include in a compatibility determination? All compatibility determinations will include the following information:
(1) The proposed or existing use;
(2) The name of the national wildlife refuge;
(3) The authorities used to establish the national wildlife refuge;
(4) The purpose(s) of the national wildlife refuge;
(5) The National Wildlife Refuge System mission;
(6) The nature and extent of the use including the following:
(i) What is the use? Is the use a priority public use?;
(ii) Where would the use be conducted?;
(iii) When would the use be conducted?;
(iv) How would the use be conducted?; and
(v) Why is the use being proposed?.
(7) An analysis of costs for administering and managing each use;
(8) The anticipated impacts of the use on the national wildlife refuge's purposes and the National Wildlife Refuge System mission;
(9) The amount of opportunity for public review and comment provided;
(10) Whether the use is compatible or not compatible (does it or will it materially interfere with or detract from the fulfillment of the National Wildlife Refuge System mission or the purpose(s) of the national wildlife refuge);
(11) Stipulations necessary to ensure compatibility;
(12) A logical explanation describing how the proposed use would, or would not, materially interfere with or detract from the fulfillment of the National Wildlife Refuge System mission or the purpose(s) of the national wildlife refuge;
(13) The Refuge Manager's signature and date signed; and
(14) The Regional Chief's concurrence signature and date signed.
(15) The mandatory 10- or 15-year re-evaluation date.
(b) Making a use compatible through replacement of lost habitat values or other compensatory mitigation. We will not allow compensatory mitigation to make a proposed refuge use compatible, except by replacement of lost habitat values as provided in paragraph (c) of this section. If we cannot make the proposed use compatible with stipulations we cannot allow the use.
(c) Existing right-of-ways. We will not make a compatibility determination and will deny any request for maintenance of an existing right-of-way which will affect a unit of the National Wildlife Refuge System, unless: the design adopts appropriate measures to avoid resource impacts and includes provisions to ensure no net loss of habitat quantity and quality; restored or replacement areas identified in the design are afforded permanent protection as part of the national wildlife refuge or wetland management district affected by the maintenance; and all restoration work is completed by the applicant prior to any title transfer or recording of the easement, if applicable. Maintenance of an existing right-of-way includes minor expansion or minor realignment to meet safety standards.
(d) Termination of uses that are not compatible. When we determine an existing use is not compatible, we will expeditiously terminate or modify the use to make it compatible. Except with written authorization by the Director, this process of termination or modification will not exceed 6 months from the date that the compatibility determination is signed.
7/09/14 EDIT: NOTE: I added all the bolding to bring attention to the various sections which seem to be vulnerable to attack.