February 29, 2008
Guest column…One spectator’s view of the negotiated rulemaking process
By VIRGINIA LUIZER
Few people are aware of the fact that the negotiated rulemaking
committee meetings are not only open to the public, but that the public
is provided an opportunity to speak at each meeting.
Since the Southern Environmental Law Center, representing Defenders of
Wildlife and the National Audubon Society, has asked a federal judge to
declare portions of the Cape Hatteras National Seashore off limits to
off-road vehicles and that the February 26-27 committee meeting in Nags
Head was scheduled as the first meeting for actual negotiation on the
components of an ORV rule, I decided to attend the Feb. 26 meeting of
While a variety of topics were addressed, the bulk of the discussions
were devoted to the legal actions taken by SELC and setting a speed
limit for the park’s beaches.
The first question you may have is why speed limits took the spotlight
for the day. The second question might be why it took the bulk of
the day to attempt to come to agreement on speed limits. The
summary presented below will give you answers to these questions.
It will also give you some feel for the prospects for beach access this
year and the potential for the committee’s actually completing
the task of writing an ORV rule/regulation as required by law.
I tried to keep the summary short but couldn't -- even though I left most of the events out.
Derb Carter from Southern Environmental Law Center stated that the
request for a temporary injunction against driving on many popular
areas of seashore beaches addressed concerns about species management
and not concerns about the ORV process currently underway.
Carter also noted that the current complaint was filed prior to the
beginning of the negotiated rulemaking deliberations. He advised
the committee that the request for the temporary injunction is simply a
part of the process that began before the RegNeg rulemaking process.
Based upon these facts, Carter stated that SELC actions cannot be
construed as demonstrating a lack of commitment to the negotiation
The comments offered by committee members clearly demonstrated that the
rest of the committee just didn't buy Carter’s explanation.
Most questioned the timing and intent. In my comments, I
acknowledged that the letter of intent was indeed filed prior to notice
of intent to use the negotiated rulemaking process in June of 2007.
That said, contrary to Carter’s claim, the actual complaint was
not filed until December, 2007. I found out later that it was filed in
October, but that is still 10 months after the original 60-day letter
of intent, and, as such, demonstrates the refusal by SELC, DOW, and the
National Audubon to accept anything other than restrictions on
night-time use and closures of Cape Point and the inlets.
I further noted that the fact that the injunction requests not just
seasonal closures but year-round closures means the requested action
has the effect of attempting to bully committee members into accepting
SELC, DOW, and Audubon’s demands. Finally, I stated that such
blatant attempts to influence the process cannot be ignored.
A bystander’s view of negotiated rulemaking
In the beginning of the meeting, the facilitators seemed to be doing a
good job. A list of ORV issues was distributed. (I think gleaned
from the workbooks that the National Park Service collected as part of
the National Environmental Policy Act.) The strategy was to rank
them in terms of importance.
Here is the first place the facilitators dropped the ball. After
taking a tally of the rankings for the first issue (access), a
committee member asked for a definition of importance -- was
it “Yes, I want it” or “No, I don't want
it?” The answer was that importance means you feel strongly
either way or you feel the issue may be contentious. Well, that
just about covers everything on the list!
On to the next step. The facilitator suggested that a low-importance
item be selected so that the committee could focus on the
implementation of the negotiation strategy—practice, if you
will. After some discussion as to whether it might be more
appropriate to address a high-importance issue first, it was agreed to
address a low importance issue, but only if the committee addressed
closures before the end of the February session. The logic for
discussing closures was that if the injunction is granted, it could
become necessary to adjust safety and seasonal closures to make room
for displaced visitors.
As a side note, a retired U.S. Fish and Wildlife Service employee
stated that he was of the opinion that even the most incompetent of
judges would be slow to grant the injunction--for political
reasons. We found out later that federal Judge Terrence Boyle,
who will be hearing the request for the temporary injunction, has
already been advised that his appointment to the federal Court of
Appeals will not be pursued by the Bush administration. At that point,
the retired USFWS employee rolled his eyes and simply said, "I take it
back." That is, we have a judge with a highly questionable record
who has nothing to lose. Watch out, folks.
Back to negotiations, the topic chosen was speed limits. The
facilitators did a good job of tracking/listing the issues. At
some point, someone suggested that a 10 mph speed limit should be
implemented near resource closures. Walker Golder of North
Carolina Audubon took this opportunity to state that speed limits are
not a substitute for resource closures and went into a long diatribe
about how difficult it is to see a chick in a tire rut, at any speed.
This is where, in my opinion, the facilitators dropped the ball a
second time. Despite the fact that the committee ground rules do not
permit a committee member to change the topic in this fashion, the
facilitators did absolutely nothing. At the very least, they could have
noted the diversion, then let the committee decide if Walker’s
comments were, in fact, a departure from the topic at hand.
Anyhow, discussion continued with a wide variety of speed limits
proposed, and all the possible exceptions to any general speed limit
started snowballing. Only a few attempts were made to focus on
any one exception listed. The one thing seashore superintendent
Mike Murray made clear is that the greater the number of speed limits,
the more difficult it would be to implement the rule.
The response from the facilitators was to attempt to get the committee
to set the issue aside and move to another related topic, such as
signage. After a committee member called for a procedure that
involves breaking out into smaller groups (caucus) and then
reconvening, it was decided that there was not that much of a
difference in opinion and that the committee should proceed with the
exceptions one at a time and reach a conclusion on speed limits.
The first exception was ramp speed limits. The issues were that
reducing the 25 mph speed limit to 10 or 15 could result in users
slowing down to the point where they can't make it over steep ramps. On
the other side of the coin was the concern that 25 mph is too fast,
especially with pedestrians and people stopped to air down. The
solution was to add a caution sign at ramp entrances. Someone
asked the facilitators to take a poll for consensus.
Once again, I feel the facilitators dropped the ball in that they
insisted on gathering other options first. The second option was
a ramp speed limit of 15 mph. Finally, someone actually got the
facilitators to take the poll on the caution sign. There was
agreement from all but one committee member – Mike Murray.
Murray’s concern was the number of signs required (aesthetics and
Apparently there is another ground rule--if there are one or two
dissenters, an effort should be made to find some way of making the
proposal acceptable to that person.
Did the facilitators make even the weakest attempt to find out if there
was a way to mitigate this concern? No, they did not. Meanwhile, we
lowly observers were sitting there saying, “Wow, just put the
caution sign on the ramp number sign, maybe even with a reminder of
What did the facilitators do? They immediately polled the second
alternative -- 25 mph generally, and 15 for ramps. Interestingly,
Murray did not object based upon the need for another sign. In
all the confusion, one person abstained without realizing what the
committee members were agreeing to and then took back the abstention,
and off we went again.
This time, the facilitators changed the focus to analyzing the process
itself. At some point, Patrick Paquette of the Recreational
Fishing Alliance objected, pointing out that he came here to write a
rule not to take a course in facilitation techniques.
According to the retired USFWS employee that I was sitting next to,
this type of pain and suffering is part of the learning curve and can
be expected on a first attempt to come to consensus on an issue.
I get that, and I can see that it makes sense that the committee
members have a bit of learning to do. I still think, however,
that the paid-for, experienced facilitators could have done a much
better job directing the deliberations, and I really feel that, in many
cases, the facilitators did more to impede progress than they did to
help. Question: Do they get paid by the hour?
For those who want to know, the decision was 25 mph generally with 15
mph on ramps, interdunal roads, soundside, and one other location, with
a variety of exceptions to be discussed later when the relevant topics
come to the table, such as ORV use in front of the villages, safety
closures, etc. Oh, this is only a tentative rule. The committee
is to sleep on it and decide the next day whether or not to write it up
in a more formal manner. Right now, the various options are on a
series of white papers plastered all over the walls of the room.
I stayed awhile longer and listened to Carla Boucher, the
representative for United Four Wheel Drive Associations, press Derb
Carter from SELC for a yes/no answer to her question regarding whether
SELC would consider negotiating on anything less than the moderate USGS
protocols. After at least a half dozen repetitions of the
question, Carter stated that it was not appropriate to ask him to
detail what he is or is not willing to negotiate on. Boucher
simply pointed out that for any other committee member that would be
true, but that SELC had set itself apart from the committee at large by
way of its legal action.
I left at 4 p.m., but it is my understanding that the committee did
address closures shortly after that. The word is that one group
decided that the park documents do not provide for ORV use per se and
that the starting point would be to assume the entire park is closed to
ORVs, and then decide what to open to ORV access. The other group
felt that ORV use is, in fact, one of the appropriate forms of
recreational use referenced in the park’s documents and that the
starting point should be to assume the entire park is open to ORV use,
then decide what to close to ORV use. The end result was that the
whole issue of closures was tabled until the upcoming March meetings.
What is interesting here is that a decision had been made to separate
ORV planning from species management and to defer species management
until the end. The reason for this is abundantly clear from the
results of the attempt to discuss closures. My initial appraisal
of the situation was that, at the very least, the park might get a feel
for the type of ORV rule acceptable to all parties, but that the
process would crash and burn on species management. Based upon
the observations detailed above, I am no longer certain the committee
will get that far.
(Virginia Luizer is a
retired professor of computer applications and accounting. She
and her husband, Jim, found Hatteras Island in 1980. She says
that as they started to learn the ins and outs of surf fishing, it
became apparent that success depended being able to traverse large
sections of the beach in search of their quarry—in other words,
ORV access to the beaches. They retired to their home in Frisco in 2002
and spend much of their time fishing from the surf and in their boat,
crabbing, clamming, oystering, gardening, and processing the fruits of