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Pea Island "OBX" (closed for Kiteboarding)

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Zepheros
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Re: Pea Island "OBX" (closed for Kiteboarding)

Postby Zepheros » Mon May 12, 2014 4:59 am

I absolutely agree with Richard. The repliers need to chill, this is not an attack on Dimitri, but an attack as to how we all deal with authority, especially in America.
With all due respect whoever cited the general mission of the fish and wildlife authority proves Richard's point exactly, And, for no one on this forum to see the issues as highlighted by Richard is very concerning. Holding authority accountable is our obligation as American citizens. Why is it that we have an issue with demanding from officer a$$ four pieces of information, 1) officers name, 2) regulation that is violated 3) time 4) and date description. Officer a$$ shows up to Dimitri's house talks to his wife, demands that he spread the word within the community and cannot even provide a reg number or his name! Seriously, seriously? Dimitri like a good automaton did exactly what he was told without even a moments hesitation. It is our right and more importantly our obligation to hold officer a$$ accountable to provide 4 points of information, at minimum!

Richard, congratulations apparently officer a$$ from the fish and wildlife authority is more well liked on this forum than you are. And, for that, you need to take responsibility. Too bad, because you are right.

Ben Franklin said when asked, "what type of government have you created sir? He replied, a republic, ma'am, if you can keep it". This begs the question, Can we keep it?

One last point...a you tube posting was the evidence! Geez!


Zepheros
Last edited by Zepheros on Mon May 12, 2014 6:06 am, edited 1 time in total.

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Re: Pea Island "OBX" (closed for Kiteboarding)

Postby RichardM » Mon May 12, 2014 5:49 am

.
SSK:

Thank you for posting some information - a tad of which is actually helpful.

Although you take the gutless wimp know-nothing sheeple approach by ASSUMING that “He broke the law, like it or not, and they have every right to enforce it.”, you are INCORRECT in that:

1. The “law” must be LEGALLY CREATED and there are MANY, MANY ways to blow this process - any one of which means the supposed “law” IS, AND ALWAYS HAS BEEN, COMPLETELY VOID (has NO effect and is completely UNENFORCEABLE).

2. Even IF the “law” is legal, they do NOT necessarily have ANY “right to enforce it”. For example, they may not LEGALLY enforce it ARBITRARILY (only against SOME alleged violators).

3. They must PROVE he violated the “law” (assumptions and videos from Utube are unlikely to constitute acceptable evidence) unless of course he made it EASY for them by ADMITTING that he violated the supposed “law”.

Although I don’t have time to look up the REAL laws which apply (it’s possible that these are found in Title 50 of the CFR - see below***), a GLANCE at the mostly garbage provided points to some obvious possible approaches to attacking denial of access. Those that are IMMEDIATELY apparent include:

(From “Refuge Regulations for Alligator River and Pea Island National Wildlife Refuges” at http://www.fws.gov/peaisland/reg.html )

Although the FIRST line states “Download Regulations Sheet for details and explanations of Pea Island National Wildlife Refuge Regulations” the sheet (which is NOT the actual law in any event) neglects to define in ANY way whatsoever what “kiteboarding” means. Therefore, there is apparently no restriction WHATSOEVER as to flying a kite on land and/or bodydragging.

This indicates that there are several grounds ON THE FACE of the supposed reg that it is ILLEGAL. One is that it is MUCH too vague. A second is that it is unreasonably ARBITRARY (only actual “kiteboarding” is supposedly prohibited). NOTE: that the citation was supposedly for LAUNCHING and/or RECOVERING a “kiteboard, NEITHER of which fit the usual definitions of “kiteboarding” and therefore should NOT be prohibited).

Furthermore, I didn’t see any obvious link to a MAP of the refuge so I can’t tell how MUCH of the water is supposedly covered but it might be possible to LAUNCH a kite and BODYDRAG far enough to be OUTSIDE the refuge since NEITHER of these activities are supposedly prohibited “kiteboarding”.
Self-rescuing also is NOT “kiteboarding” and therefore is apparently PERMITTED.

In fact, the supposed regulation, “8. Kiteboarding and the use of Personal Watercraft are prohibited.” can be read to mean that ONLY the COMBINATION of “kiteboarding” WITH the use of “Personal Watercraft” is prohibited.

More generally, assuming that the “goals” SSK listed are accurate and complete, they have to have some REASONABLE evidence that “kiteboarding” is so incompatible with said “goals” that it must be prohibited EVERYWHERE in the refuge. Although I’m not familiar with the Refuge’s particular environment, it seems EXTREMELY unlikely that the foregoing could be the case and at WORST “kiteboarding” (or some constituent activity such as launching) MIGHT be incompatible at SOME portions of the Refuge.

In fact, the third “goal” listed states, “■ Provide the public with safe, quality wildlife-dependent recreational and educational opportunities that focus on barrier island wildlife and habitats of the refuge. Continue to participate in local efforts to sustain economic health through nature based tourism.”

Obviously, “kiteboarding” provides excellent and unique recreational and educational opportunities which enable relatively harmless interaction and/or observation with, or of, both the marine and land environments. Furthermore, it is indisputable that kiters thereby substantially “sustain economic health through nature based tourism.”

So, to summarize:

There are AT LEAST SEVERAL grounds to fight the supposed “special regulation” right ON ITS FACE. Not the least of which is that it arbitrarily and UNNECESSARILY prohibits kiting and said prohibition CONTRADICTS the supposed stated GOALS of the Refuge.

There are likely MORE grounds to be discovered in the actual applicable “law”.

There would have been AT LEAST several ADDITIONAL BLATANT grounds to fight the citation (if guilt had not been admitted and it was not a “warning”) right ON THE FACE of the potential “citation”.

Unfortunately, evidently all/most of the kiters at the location (and virtually everywhere else) are so scared, weakminded and/or apathetic sheeple that they would rather make it as EASY AS POSSIBLE for petty tyrants to arbitrarily deny them their right to access than to make the SLIGHTEST attempt (other than possibly using their tongues in a non-verbal manner) at resistance.

If it was MORE WORK for them to deny access (due to kiter resistance) than to ALLOW access, I think their attitude would be a LOT more cooperative.

I’m sorry if the truth is uncomfortable, but as I’ve mentioned before, I’ve lost all patience with the foregoing kiters - who make it impossible for the few who DON’T fit the above description to prevent the CONTINUING and ACCELERATING loss of access EVERYWHERE.


****NOTE: the REAL laws which apply MIGHT be found in Title 50 of the Code Of Federal Regulations (CFR). However, the CFR is in fact only an INTERPRETATION of the ACTUAL LAWS which are found in the United States Code (USC). Hopefully, the CFR references the applicable sections of the USC so that checking the interpretation is easier. It is NOT unusual for the CFR to DIFFER from the USC - and any material difference can be grounds to attack the legality of the particular CFR section.

P.S. Thank you Zepheros. I was seriously starting to wonder if there were ANY kiters on this forum willing to make any attempt at standing up for their rights. It is quite a relief to know that SOME exist.

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Re: Pea Island "OBX" (closed for Kiteboarding)

Postby Zepheros » Mon May 12, 2014 6:27 am

Richard, many kiters would like to stand up for their rights, they simply do not understand their rights and more importantly do not know how to handle the inevitable bureaucracy that will be encounter.

Now, it's time to put your pontificating to real -practical use. What exactly would you recommend a kiter do in similar circumstances? Please be specific and practical. Please don't drone on about requesting a hearing or somehow appealing the warning in writing after finding the applicable code and it's interpretation in the CFR and USC? You and I both know that is a challenge even for trained counsel and to be frank completely useless a kite boarder.

What exactly should a kite boarder do when faced with a warning, or when requested by a park ranger not to kite in a specific area, when there is likely no prohibitive reg? This is a common problem.

Well?

My guess is you have no real PRACTICAL answer, and therein lies the real problem sir.

I await your response, patiently.

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Re: Pea Island "OBX" (closed for Kiteboarding)

Postby Zepheros » Mon May 12, 2014 6:48 am

And also, let's be real the challenges you suggest above are by no means easy or many as you suggest.

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Re: Pea Island "OBX" (closed for Kiteboarding)

Postby RichardM » Mon May 12, 2014 9:27 am

.
Zepheros wrote:Richard, many kiters would like to stand up for their rights, they simply do not understand their rights and more importantly do not know how to handle the inevitable bureaucracy that they will encounter.

Now, it's time to put your pontificating to real -practical use. What exactly would you recommend a kiter do in similar circumstances? Please be specific and practical. Please don't drone on about requesting a hearing or somehow appealing the warning in writing after finding the applicable code and it's interpretation in the CFR and USC? You and I both know that is a challenge even for trained counsel and to be frank completely useless a kite boarder.

What exactly should a kite boarder do when faced with a warning, or when requested by a park ranger not to kite in a specific area, when there is likely no prohibitive reg? This is a common problem.

Well?

My guess is you have no real PRACTICAL answer, and therein lies the real problem sir.

I await your response patiently.
To answer your specific question, I would DO whatever they told me to do, since to not do so is a separate violation. But I'd make sure to get his name and/or ID# and the NAME, TITLE, and CONTACT info for his supervisor. I'd then send the super a CERTIFIED letter letter requesting details of EXACTLY WHAT reg was supposedly violated or about to be violated. Assuming that I thought the reg was bogus and wanted to fight it or I was desparate to kite there, I'd go back and if caught, accept a ticket as below. If I got a warning, I'd save it but ignore it, and go back and if caught, accept a ticket as below.

As far as solving the underlying problem:

Unfortunately, there are only 3 possible approaches. One is to apply political pressure through organizing locals - probably mostly business related. However, I personally have little interest or knowledge in this regard and don't discuss it herein.

Another is to fight the regs and/or tickets in court (which is NOT necessarily beyond the ability of average kiters).

The other is to INSIST that they produce ALL their reasons and objections to kiting in WRITING and then nullify their concerns by either providing reasonable solutions and/or showing that the concern(s) are misplaced. I believe a combination is probably the way to go and I'd suggest that attempting to get their concerns in WRITING first. However, since I have little faith in bureaucrats desire to actually do any more WORK than absolutely necessary, I imagine that obtaining their cooperation out of the goodness of their hearts is unlikely.

In which case, I would try to make enforcement as much of a problem as possible by at LEAST fighting tickets in court.

Since I do not want to be accused of providing legal advice, the below is NOT advice, it is only what I would try to do based upon the very limited information I've gleaned from this thread.

Unless I intended to specifically try to have the reg thrown out, my primary goal would be to simply be able to get the ticket dismissed. If it became necessary to attack the reg itself (probably by appealing a loss in an administrative hearing or lower court), it becomes much more complicated and beyond the abilities of kiters without a legal background or broad support from other kiters and/or the industry.

However, even only fighting the ticket through initial hearings is worthwhile - even if defeated because it uses up THEIR resources and creates opportunity to create publicity and MIGHT lead to beneficial alliances with OTHER groups such as dog owners, ATVers, fishermen and others who also see their access being reduced for no good reason. Of course, it is also within the realm of remote possibility that a kiter could actually prevail and not only have the ticket dismissed but get the reg thrown out.

At every stage it is important that the kiter try to create the impression that no matter what happens he will NEVER give up. Bureaucrats don't like WORK. If they believe that fighting kiters is more WORK than appeasing them, they will OBVIOUSLY be more conciliatory.

The foregoing being the case, I would:

Not argue with or try to antagonize the Ranger.

Not admit in ANY WAY that I did ANYTHING wrong.

Not LIE about ANYTHING. It is a separate and more serious offense to LIE to a Fed. For example, if asked for ID, I would politely say that I did not believe it was necessary to have ID to kite and that I did not believe that I was required to produce it. If asked if I HAD ID, I would politely say that I decline to answer questions which are not required by law to be answered (this can open a can of worms but so far as I know, the only info you must disclose is your NAME). If asked if I drove there I might say the same thing or I might say that "I decline to answer on the basis that my answer might tend to incriminate me". (For all I know, driving and/or parking violated some reg/law).

Stress that my answers were based upon the advice I received from an attorney (once upon a time).

Try to have a witness present.

Not correct mistakes on the ticket (such as wrong time, an obviously bogus description such as on the subject ticket, etc). The idea is that in court I'd want to show that the Ranger didn't have a clue what he was doing.

Make sure that the Ranger clearly identified himself with his # and/or name and I'd USE his name and ask if I was pronouncing it properly so that he was aware that I was paying attention to it.

Ask where I could look up the violation (after it was written down) and unchangeable.

NOT state that I intended to fight the ticket.

Ask if he was recording - audio and/or video our conversation.

After receiving the ticket, NOTHING on earth will make me say "thank you" or act happy about it.

Although many years ago, after I got a ticket for sleeping in a car, I got the ordinance thrown out that made it illegal to sleep in a vehicle (or almost anywhere else because it was so badly written) my only recent experiences with citations in CA involve 5 moving violations ALL of which were DISMISSED and 1 J walking ticket, the fine for which I got reduced by 2/3. Of the 5 moving violations, the cops only showed up twice - once the cop asked for it to be dismissed (he was an amazingly honest CHP newbie) and I actually won the other (declared not guilty) by convincing the judge that I COULDN'T have done what the cop alleged.

The main point is that 3 times the cops DIDN'T show up. They usually don't show up here about 30% of the time. I believe I DOUBLED the no-show rate by requesting "Discovery" from them prior to the hearing. Since the kiting citation is also a criminal matter, without looking up the applicable Federal Rules of Civil Procedure (FRCP), I assume that some type of "discovery" is also allowed. Discovery is the process of requesting that the Cop/RAnger provide copies of all evidence that he has regarding your citation and includes things like photos, diagrams, recordings, etc. Theoretically, (assuming the Fed situation is similar to CA) if they ignore a reasonably proper discovery request, the judge should not allow the evidence to be used. However, I believe the MAIN benefit is that it tells the Cop/Ranger that the case is going to involve a LOT more WORK than usual and especially if its a weak case, a LOT more opportunity for him to lose. Although, the odds of him losing are still minuscule, I suspect that it looks REAL bad and they get laughed at by their colleagues if they lose, ESPECIALLY against a pro se (no attorney) defendant. The bottom line is that he is likely to be more motivated than usual to NOT show up - in which case the defendant wins.

If the defendant wins, the department has lost a comparatively large amount of resources in terms of time and effort without gaining its expected extortion fee. I'm pretty sure that that's about the MOST damage that the average kiter can expect to accomplish but you can be SURE that if even a few kiters prevailed, they'd notice that their little extortion machine wasn't working like it should.

There is also the possibility that they MIGHT care somewhat about the obvious ill will that their comparatively unproductive kiter tickets cause.

If they ran into someone with the wherewithal (or backing) to actually attack an obviously bogus regulation, their exposure goes WAY up in that it becomes REAL WORK to meet with attorneys, department heads etc. and there's also the possibility that a legal battle will lead to OTHER flaws being exposed etc. which will further keep them from their normal activities of doing very little.

I'll bet that it would occur to them that the greater the number of kiters who fight their tickets means the greater the likelihood that their bogus regs WILL get challenged. At some point, someone will hopefully get motivated enough to realize that it's better to placate the kiters.

Of course this can be helped along by kiters who take the time to actually come up with reasonable solutions (even if it involves compromises) to any rational objections which show some reasonable concern for kiter related problems (like keeping wannabe pros from electrifying their kites).

It might not be necessary to actually do any fighting at all. It might just be enough to show how bogus the reg is and come up with reasonable solutions to any reasonable concerns.

However, the bottom line is that there's no reason for them to pay the slightest attention to kiters if all they have to do is say "NO KITING" and go back to doing almost nothing.

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Re: Pea Island "OBX" (closed for Kiteboarding)

Postby Dimitri M » Mon May 12, 2014 11:56 am

Guys,
If you want more information you can always check my FaceBook: "Dimitri Maramenides". Make sure to choose the good looking one because the other one is my cousin.

By reading all these posts, you will be able to get a lot of info, plus you will see that you have a lot of loop holes about this insane rule which doesn't make sense to any of us.
So again the officers try to make an example by using me, which is fine for now. But I know how to choose my battles.


P.S. One of the many "loop holes" will be to jump the entire PEA ISLAND.
:lol: :lol: :lol: :lol: :lol:
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Re: Pea Island "OBX" (closed for Kiteboarding)

Postby SSK » Mon May 12, 2014 1:16 pm

Dimitri, there is so much wrong information posted on that facebook page. Again, it has been posted and in effect since at least Spring of 2013. It has been on the webpage since that time. This sign at the North end of the Refuge went up in 2013 along with the other on the South end. I am pretty sure that says launching and landing in the refuge is forbidden. I am pretty sure they can limit activities in the refuge. Take your jet ski to new inlet and see if you can fight that. Sure I hate this rule, and I am not a lawyer. But all these people saying they cannot do it, it is not written, and it is not enforceable I am guessing are wrong. I do agree that the rangers do not want to enforce it or that you can Ninja your way around it (I did not confirm or deny that my vehicle has no kite stickers, coolers to stash all kite gear, a gratuitous boogie board and surf fishing rod). Also this is a refuge it is not NPS. The refuge has different goals and objectives and different administration. People are confusing the two. The refuge was built initially to encourage water fowl, for increased hunting opportunities on the island. Back then that was the big tourism to OBX.
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Re: Pea Island "OBX" (closed for Kiteboarding)

Postby robg » Mon May 12, 2014 1:45 pm

I must have driven past that sign a hundred times and never noticed it. Amazing.

It boogles the mind to think a ban has been in place for all of Pea Island on both sides for over a year and almost nobody knows about it. Even worse is that nobody knew it was coming and if they did no one bothered to fight it.

Maybe I am wrong but I think Hatteras Island has one of the largest concentrations of kiting related businesses in the world. How does stuff like this get by? It might be time to wake up.

"For Real dude. You mean to tell me I Best not be flying my Kitty Hawk Kite in Pea Island? That is an Extreme and Epic bummer."

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Re: Pea Island "OBX" (closed for Kiteboarding)

Postby s1buell_wl » Mon May 12, 2014 2:00 pm

I think richardm has cut a clear path for you guys to follow. Now you just need to follow it and find someone committed enough to seeing it to completion (need some time too)

And if as one person said "It just came to be without taking the proper channels/process" You should discover this through the investigation process. Many times in these small areas people think they are God and can do as they please.

Could be an interesting project.

Man they also band "Public Nudity"???? Why would anyone want to go there?

But seriously..... This make me think its a bunch of Church goers that have empowered themselves.

Do as the sign says don't launch your kite board and you will be fine just launch the kite.

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Re: Pea Island "OBX" (closed for Kiteboarding)

Postby Dimitri M » Mon May 12, 2014 2:31 pm

SSK,
This is the first time I see this sign. Did they put it up yesterday!!!
Plus it says "Launching and Landing a Kiteboard". So in few words you can launch and land the kite in the water. They have no jurisdiction in the water only on land. Or you can actually launch and land before and after Pea Island.


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