Beach Access Issues
March 20, 2008

Threat of beach closures hangs over negotiated rulemaking meeting


The committee charged with negotiating a long-term rule on off-road vehicle use on Cape Hatteras National Seashore beaches had its third meeting in Avon on Tuesday and Wednesday, March 18 and 19.  And the request for a temporary injunction to ban driving on popular parts of the beach by environmental groups with members on the committee was the elephant in the room.

The threat of the injunction was discussed by many of the 30 committee members during breaks, came up during official committee discussions, and dominated the sometimes very emotional public comment periods both days.

The National Park Service has been required to have regulations for ORV use on the beaches since 1972. At Cape Hatteras, there have never been federally approved and adopted rules on ORVs. 

The Park Service has started the process of making a long-term rule through an Environmental Impact Statement under the National Environmental Policy Act and negotiated rulemaking, in which stakeholder groups with diverse interests sit down and work through the access issues to reach a consensus.

Park officials are trying to balance the competing missions of providing recreation and beach access at the seashore with its mission to protect the park’s wildlife.  Until a long-term plan is in place, the park is operating under an interim policy.

Several environmental groups have taken issue with that policy.  They don’t think that it goes far enough to protect wildlife and they don’t thing the Park Service has moved quickly enough to devise a long-term plan.  And they filed a lawsuit in U.S. District Court in October that claims ORVs on the seashore are illegal since the park has no long-term rule.  The groups contend that the plan does not go far enough to protect shorebirds, which include the threatened piping plovers, as well as black skimmers, American oystercatchers, and gull-billed and common terns.

The lawsuit was filed by Defenders of Wildlife and the National Audubon Society, which are represented by the Southern Environmental Law Center.  All three of these groups have a seat at the negotiating table for making long-term ORV rules.

That was enough to make some other user groups that advocate for ORVs on the beaches unhappy about the participation of the environmental groups in negotiated rulemaking. How, they asked, could these groups negotiate in good faith when they had already staked out a position on the issues and decided to take it to court – not to the table?

That issue became more complicated when the environmental groups went back to U.S. District Court in February to request a temporary injunction against beach driving.

The request for the injunction, filed Feb. 20, asks that U.S. District Court Judge Terrence Boyle replace the interim plan with more restrictive measures until after the lawsuit is settled.  Specifically, the plaintiffs are asking Boyle to stop ORV use year-round at the most environmentally sensitive areas of the seashore – Bodie Island spit, Cape Point and part of the South Beach, Hatteras Inlet, and the north and south points of Ocracoke.  These are also the areas that are most popular for recreation, especially fishing.

And so the battle continues in the courts, while all of the groups try to sit down and negotiate. They are all officially appointed by the Secretary of the Department of the Interior and must agree to negotiate in good faith.

The environmental groups say they are negotiating the long-range plan in good faith and are challenging only the Interim plan in the courts.

So far they all sides in this contentious debate are still sitting around the table, though the tension is becoming more apparent with each meeting.

The work of the committee is expected to take more than a year, and the entire road to a final ORV rule is expected to take up to three years.

And it’s slow going in the beginning.  The facilitators, under contract to the federal government, run the meetings to keep every issue focused and every meeting on time.  A number of the committee members come from off the Outer Banks to attend the monthly two-day meetings, so time is of the essence.

At the meetings this week in Avon, the committee addressed the need for a socio-economic analysis of the effects that limiting or eliminating ORV use on seashore beaches will have on the culture and economy of the Outer Banks.  This study promises to play a major role in the negotiating for ORV rulemaking, so members on all sides are paying close attention to how the survey will be formulated, what it will ask, and other details.

On the table for the analysis are both a survey of businesses and one of visitors, along with a peer review of past studies of visitors and business implications and an identification of data about any changes in other parks that have made ORV management changes.

In two work group gatherings, committee members addressed ORV closures and the reasons for them – protection of resources or safety of drivers and visitors – and permits and passes on the seashore.

No committee decisions are made by work groups.  Their purpose is to discuss issues and list topics to be discussed by the group.

For instance, the permits and fees work group talked about whether there should be permits for ORVs or passes – a charge for all people or vehicles entering the seashore. Permits and/or fees are very likely to be a part of any ORV long-term regulation, and none of the 15 or so committee members in the discussion argued against that.

Instead they discussed the advantages of a program – fees to raise money for the park and education of visitors about beach access -- the affordability of passes and whether it might discourage visitation, the administration and management of a permit or fee system, and how physically it might be set up to require all visitors to the seashore to get a pass or all vehicles on the beach to get a permit.

The beach closures work group came up with some suggestions that the whole committee should consider on safety closures – when the beach conditions are unsafe for ORVs.  The issue of seasonal closures in front of the villages was more problematic.

Of course, the major issue that the committee will negotiate is how much of the beach will be open to ORV access, and some committee members feel that the details of an ORV plan cannot be worked out until that question is answered.

Much of Tuesday’s meeting centered on maps, presented by the Park Service, on seashore beaches and access, noting safety closures, seasonal closures, year-round closures.  The issues on the table were the history of the closures, why beaches had been closed, how long they had been closed, why some had never re-opened, whether they were closures to protect natural resources or for safety of ORV drivers and/or visitors.

It may be difficult to understand how this discussion could go on for almost two hours, but the stakes are high in this negotiating process.  ORV access groups want to establish facts about the history of beach driving, which beaches have historically been open, which have been closed and why.  Some committee members want some beaches to be reserved for pedestrians only. Therefore, much of the discussion during the meeting is about posturing – staking out the position of one group or another and getting it on the record.

Wednesday morning’s meeting had an interesting start.  Highway 12 was closed because of ocean overwash until mid-morning and several committee members were late arriving in Avon.  Mike Murray, the seashore superintendent who is the designated federal official who must convene the meetings, had to fly to Hatteras.

After Murray arrived, there was a discussion about exactly how much of the beach would be closed if Judge Boyle grants the temporary injunction that the environmental groups want.

Murray struggled with trying to impose outdated maps of areas that scientists for the U.S. Geological Survey  recommended be closed for nesting shorebirds on aerial photos of the way the areas, such as Cape Point, look today.

Murray stressed that this was the first attempt by the Park Service to map areas that might be closed if the judge issues an injunction, and he mentioned several times that seashore officials are not sure at this time what the lawyers for the environmental groups are asking for.

“There sitting right in front of you, why don’t you ask them?” asked Wayne Mathis, a committee member representing the North Carolina Marine Fisheries Commission.

Murray asked Derb Carter, the committee member from the Southern Environmental Law Center, which represents the groups asking for the injunction, if he wanted to respond.

“We are not prepared to say today what the boundaries should be,” Carter said.  “Eventually there will be maps.”

At this point, Mathis said that he was appalled by the “failure to aggressively represent the interests of the public against hypothetical arrival of potential birds” at the seashore.

Patrick Paquette of the Recreational Fishing Alliance asked a number of questions aimed at getting to the goal of the environmental groups and their role in the long-term negotiating. 

Given the request to close large areas of popular beaches, he asked, “Is it possible for you to negotiate for less in the long-term plan”

“We’re not going to decide what gets closed,” Carter answered. “The courts will decide.”

Carter also added, “We are involved in this to protect the birds and the turtles and other seashore resources…We are not per se opposed to ORV use on beaches.”

Paquette answered, “If there’s not a shot at opening some of these areas through negotiation, then there’s no reason to be here.”

The tension among the groups was apparent through the two days.  Sometimes joking references were made to opponents at the negotiating table.  At other times, the comments were more pointed.

“I suppose this process is close to failure now,” said Bob Eakes of the American Sportfishing Association, during the work group meeting on fees, permits, and passes.

“If I were the DFO (designated federal official),” he added, referring to Mike Murray, “I would have called this thing off this morning.”

At one point, a facilitator for the meetings, Patrick Field of the Consensus Building Institute in Cambridge, Mass., admonished the committee members to “keep it to yourself,” referring to body language and facial expressions when other members were commenting.

Though the strain on the group of the ongoing litigation by some members of the committee grows increasingly obvious, they were all still at the table when the meetings ended Wednesday afternoon.

The next meetings of the Negotiated Rulemaking Committee will be Thursday and Friday, May 8 and 9, at the Comfort Inn in Nags Head. The public can attend and there are public comment periods both days, usually at noon.

(More information on negotiated rulemaking and materials handed out to the committee can be found at the National Park Service’s planning Web site,  Click on Negotiated Rulemaking.)


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