The National Park Service’s negotiated rulemaking committee ended its sixth two-day meeting late on Tuesday afternoon, Sept. 9.

After two days and almost 18 hours of discussions, the committee members had reached a consensus on – nothing. 

At this point in the negotiations, it would seem that the Democrats and Republicans in Congress have a better chance of reaching an agreement on any of their contentious issues than this group has.

The negotiated rulemaking committee, whose 30 members and their alternates were appointed by the Secretary of the Department of the Interior under the Federal Advisory Committee Act (FACA), is charged with developing a long-range rule for ORV operation on the Cape Hatteras National Seashore.

The seashore has been required to have an ORV plan since the mid-1970s.  Although a plan for the seashore was developed with public input and submitted to the National Park Service in Washington, D.C., in 1978, it was never officially adopted through publication in the Federal Register.

The seashore’s lack of an ORV plan resulted in a lawsuit by environmental groups that was filed last October and settled with a consent decree in April.  The decree spells out natural resource and ORV management until the negotiated rulemaking committee finishes its work.

Under the decree, the National Park Service is required to complete an ORV management plan by December, 2010, and publish the final regulation by April 1, 2011.
 
To meet that deadline, the negotiated rulemaking committee must finish its work in January.  Its members were officially appointed late last year, and the committee’s first meeting was January of this year. The last meeting of the committee was in mid-June.  Subcommittees met in person and/or conferred by phone over the summer.

At this month’s meeting those subcommittees put their proposals on the table for the entire committee to comment on and consider.

The discussions highlighted how divided the committee is with environmental groups at one end of the spectrum and groups that advocate free and open access on the other end.  In between are other stakeholders – birdwatchers, some homeowners’ associations, commercial fishing, local government, business interests, and a watersports association. Most of these groups have aligned themselves with one side or the other – with some casting their lot with environmental groups and others lining up with open access groups.

Mike Murray, superintendent of the Cape Hatteras National Seashore, is the designated public official (DFO), whose job it is to lead and guide the committee.

“The National Park Service wants to reach agreement on areas that we (on the committee) can,” Murray said in his opening remarks Monday morning. “That will be the best solution.”

The committee decided early on that consensus would mean all members of the committee signing off on any agreement.  However, the committee does not have to reach consensus in all areas.  If consensus is not reached on some issues, it will be up to the Park Service to propose the rules.

Murray also noted that two members were leaving the committee.

Roy Kingery, representing the Hatteras Village Civic Association, will be taking a job overseas.  He did not have an alternate and will be replaced by Bill Foster of Hatteras village, who was approved as an alternate for the commercial fishing seat on the committee.

The Nature Conservancy (TNC) also left the committee.  In a letter to Murray, Sam Pearsall, the director of science for the group, said in his letter that “TNC’s current assessment of the negotiations is that they are not based on a mutually acceptable information base, nor are plans materializing for the development of such a base.”

“Thus,” Pearsall wrote, “success (science driven consensus) by any given deadline seems unlikely.  Like most negotiations, these were initially about defending pre-established positions, but we see little chance for movement away from that.”

(The full text of the letter is available at the end of this article.)

Because of the time involved in choosing a replacement for The Nature Conservancy and having that person approved and vetted, Murray said that the committee will not replace that organization or that person in the group, but will continue with 29 members.

Murray also addressed the Park Service’s policy of protecting species that are not listed under the federal Endangered Species Act. 

The question has been raised because the piping plover is the only bird species nesting in the seashore that is federally listed.  Other birds that are being protected by the park include American oystercatchers, least terns, and colonial waterbirds, such as the black skimmer. These species are listed for protection by the state.

“We do have a responsibility to protect species that are not (federally) listed,” Murray said, including all of those listed by the state.  “The legal constraints are clear to us, and we will protect them.”

Some committee members expressed their frustration that the Park Service would not extend the meetings past January, but they were told that was not going to happen.

The bulk of the committee’s work over the two days was to address the reports put forward by its five subcommittees, which had been meeting over the summer.

Three of these committees agreed on a single document that laid out various alternatives for agreement.  These subcommittees are Village Closures, Vehicle Characteristics and Operation, and Permits, Fees, and Passes.

The other two subcommittees – Natural Resources and ORV Routes and Access – could not agree on a single document. 

The ORV Routes and Access Subcommittee submitted two proposals – one by environmental groups and the other by ORV access proponents.

The document submitted for Natural Resources was an attempt by the facilitators and the Park Service to combine two documents – one submitted by environmental interests and one by access groups.  The subcommittee decided to narrow its focus by using Cape Point as its example of how resources would be managed.

All of these documents are available in their entirety at the end of this article.  Following is a brief summary of many hours of discussion about the subcommittee proposals

 


The members are David Goodwin (Cape Hatteras Business Allies), Frank Folb (Avon Property Owners Association), Jim Keene (North Carolina Beach Buggy Association, Burnie Gould (Cape Hatteras Recreational Alliance), Destry Jarvis (National Resources Defense Council and the Wilderness Society), and Sidney Maddock (North Carolina Audubon).

This subcommittee was unable to agree on a single document so submitted two, and the discussion of the two brought some of the most contentious exchanges.  The discussion ranged over both days of the meeting, starting on Monday afternoon and ending on Tuesday morning.

“There is no group proposal,” Jim Keene of the North Carolina Beach Buggy Association said at the beginning of the discussion. “We are that far apart, I’m sorry to have to say.”

“What we tried to do,” said Sidney Maddock who wrote the report for the environmental groups, “is synthesize the concerns of the environmental groups and the access groups…We recognized the appropriateness of ORV routes and access.”

The proposal of the environmental groups mentions closing four or more of seven areas of “high ecological value” year round to ORVs and designating them for pedestrians only. The four areas singled out in the report are Bodie Island Spit, Ramp 27-30 south of Salvo, South Beach in Frisco, and South Point on Ocracoke, which is proposed to be a wilderness study area.

“Bodie Island spit was just thrown under the bus,” said Renee Cahoon, alternative for the Dare County Tourist Bureau.

David Scott Esham, representing Hyde County and the Ocracoke Civic and Business Association, added to Cahoon’s concerns.

“We feel like we’ve been run over by a train that is five miles long,” he said, referring to the proposal for South Point.

“People who have an interest in ORV use have a legitimate interest,” said Derb Carter of the Southern Environmental Law Center. “And people who want pedestrian-only access have a legitimate interest.  Both are legitimate interests and we need to accommodate both.”

Some members of the group over the two days ignored the committee ground rules that prohibit personal attacks.

“Sidney, this just sucks,” said Bob Eakes.  “If this is the best you can do – bring something to the table that is unpalatable to our community and to our heritage, then shame on you.”

“I was hoping and praying that we could come to a decision,” said Jeffrey Wells, who represents the Hatteras Landing Homeowners Association, “because if we have to go before a judge, we all lose.

“We can’t have everything anymore,” Wells continued. “What is fair? What is balanced?  This point (of disagreement) is where I thought we would end up, but I am really troubled that we are here.”

“One thing we can all agree on,” said Jason Rylander of Defenders of Wildlife, “is that the frustration level is high in this room….If we are going to succeed, we have to find a way to get past this.”

The discussion on this report centered on whether all seashore beaches are open to ORVs unless there is a reason to close them, which is the view of access groups, or whether all beaches are closed to ORVs unless there is a reason to open them, which is the view of environmental groups – and, apparently, the National Park Service.

When the discussion continued on Tuesday morning, Mike Murray noted that the Park Service must comply with executive orders, but, he noted, “The devil is in the details.”

“In looking at the two proposals,” he said, “the Park Service and the solicitors think the one by (the environmental groups) meets the requirements…..A relative overview of the other (access groups’) proposal still sticks with the idea that everything is open….This will not meet the requirements of the executive orders.”

Murray said that the orders indicate that areas are closed to ORVs unless they are designated open.

“The past practice,” he said, "was that everything was open unless there’s a reason to close it.”

Later in the discussion, Murray noted that there has been “a fundamental lack of acceptance” that what the Park Service did in the past was not legally permissible.

The ORV access groups reiterated their position that they do not agree to designate any areas as permanently closed. 

“We don’t want to drive on every inch of this beach,” said Jim Keene of the North Carolina Beach Buggy Association, “but we want every inch designed as drivable.”

Murray asked the subcommittee to try again to “explore vigorously” the issues of ORV routes and to come back to the full committee with “something with flexibility.”

“Legally,” he said again, “I don’t know if you can start with everything is open to ORVs.”




Members are Renee Cahoon (Dare County Tourism Board, Jim Keene (North Carolina Beach Buggy Association, Patrick Paquette (Recreational Fishing Alliance), Derb Carter (Southern Environmental Law Center, and Neal Moore (Cape Hatteras Bird Club).

This was probably the least controversial proposal that was put on the table at the meetings.

It generated about an hour of discussion on such things as the definition of an all-terrain vehicle and what constitutes camping on the beach versus just taking a nap. For example, if you come to the seashore in a self-contained camper to fish all night but pause to nap, does that constitute camping?

There was no attempt at reaching consensus on this report.  It was sent back to the subcommittee for more work.



Members are Renee Cahoon (Dare County Tourism Board), Michael Peele (North Carolina Fisheries Association),  Patrick Paquette (Recreational Fishing Alliance), Dwight Rettie (Coalition of National Park Service Retirees), Destry Jarvis (National Resources Defense Council and the Wilderness Society), and  Derb Carter (Southern Environmental Law Center).

The subcommittee report assumes that there will be fees of some sort in the seashore’s future – whether they are entrance fees to come into the park, or some sort of passes or special use permits for beach access.

A number of options were discussed (and are included in the report at the end of this article). 

In general, there were philosophical and practical concerns with entrance fees for the park.  Other types of permit seemed more palatable, but some of the comments centered on whether permits to use the beach should be for ORVs only or for drivers and pedestrians and whether permits should be limited by carrying capacity, an issue that has not yet been addressed.

Many of the committee members noted that they did not want to discuss fees and permits until they know what their money would buy them in terms of beach access.



Members are Jeff Wells (Hatteras Landing Homeowners Association, Roy Kingery (Hatteras Village Civic Association and now replaced by Bill Foster), Sonny Duke (Rodanthe-Waves-Salvo Civic Association), John Alley (Outer Banks Preservation Association), Jim Lyons (Cape Hatteras Recreational Alliance), Steve Kayota (Hatteras Island Homeowners Coalition),  and Wayne Mathis (North Carolina Marine Fisheries Commission).

The subcommittee report boiled down to two options – close all beaches in front of all villages to ORVs year round or the status quo, which mean year round closures in southern Hatteras Island villages and seasonal closures from Avon north.

Discussions centers on issues of pedestrian safety and whether or not closing village beaches to ORVs amounted to privatization of public beaches.

A vote was called for, but the committee could not reach consensus.



Members are Judy Swartwood (Cape Hatteras Business Allies), Larry Hardham (Cape Hatteras Anglers Club), Bob Eakes (American Sportfishing Association), Walker Golder (North Carolina Audubon), Rob Milne (Coalition of National Park Service Retirees), Jason Rylander (Defenders of Wildlife), David Allen (North Carolina Wildlife Resources Commission), and David Rabon (U.S. Fish and Wildlife Service).  

Two separate proposals were written that focused on resource management at Cape Point – one by Walker Golder for environmental groups and one by Bob Eakes for access groups.  The Park Service released its attempt to combine the two proposals into one document.

“After policy discussions,” Mike Murray said, “the clear feeling is that the determination of methodology, buffers, etc. is essentially a Park Service responsibility.”

Although Golder’s proposal mentioned specific buffer distances for nesting wildlife, the Park Service document did not.

“The document is of limited value without the buffer distances,” Walker said during a discussion.

And this is one thing that both sides in the ORV access controversy agreed upon at the meetings.  Neither side was interested in a natural resources proposal without buffer distances.

Both sides wanted to know where the Park Service stands on buffers and on its goals for the wildlife.  Is the goal recovery?  Is it stability?  And at what point in time?

“It may not be productive to have more discussions before that information is available,” Murray concluded.



More than 30 people spoke at three public comment sessions in the two-day meeting.

Almost half of them came from Ocracoke, and many of the Ocracokers said they came because they read about the ORV Routes and Access Subcommittee’s working proposals in The Island Free Press several weeks ago.  They said it “woke them up” to the possibility of South Point, the most popular beach area on Ocracoke, could be closed year round to vehicles.

The committee discussed at some length whether the publication of these working documents, provided by an unnamed source, was a breach of confidence or of committee ground rules. And they talked about when documents should become public.

In the case of the ORV Routes and Access Subcommittee documents, if they had not been published in The Island Free Press, they would not have been available to the public until this week’s meeting. Therefore, Ocracokers would not have had a chance to comment until the next meeting in late October.

It’s a public process, and it should be public from top to bottom,” said John Alley, who represents the Outer Banks Preservation Association.

However, some others noted that committee members should not have to read the working documents of subcommittees in the media.

In the end, the committee agreed that each subcommittee would decide when to make its documents public.

Also, on the subject of public access, the group considered a proposal by Dare County Commissioner Warren Judge, a committee member, to have the county organize and pay for videotaping of the negotiated rulemaking committee meeting for broadcast on the county’s cable channel, and perhaps for posting on its Web site.

Mike Murray said that FACA regulations do not prohibit videotaping, nor do they require it.  He said that at the start of the committee meetings, the Park Service notified members said there would not be videotaping (or audio taping) because there were no resources for it.

Therefore, Murray asked the committee for its opinions on changing the agreement to allow videotaping.

Six members of the committee weighed in against the idea.

They are Derb Carter of the Southern Environmental Law Center, Walker Golder of the Audubon Society, Jason Rylander of Defenders of Wildlife, Neal Moore of the Cape Hatteras Bird Club, Robert Milne of the Coalition of National Park Service Employees, and David Allen of the North Carolina Wildlife Resources Commission.

“Videotaping affects the individuals in such a way as to be detrimental to justice,” said Carter.  “When you have trials with cameras, you get the O.J. Simpson trial.”

Golder said he did not think that videotaping meetings “would be in any way constructive and could be destructive.”

Rylander agreed with Carter and added that committee members “are not public figures and are not used to speaking on television.”

“It would be an invitation to even more theater than we already have,” said Milne.

Allen did not speak at the meeting to explain his vote, but said in a telephone interview that he agreed with the others and added that he was concerned about some members of the Hatteras Island community who have been harassed about their views on ORV access.

The next committee meeting will be Oct. 22-23 at the Hatteras Civic Center in Hatteras village.

FOR COMPLETE INFORMATION ABOUT SUBCOMMITTEE PROPOSALS

Following is a list of all of the proposals by negotiated rulemaking subcommittees that were made public at the Sept. 8-9 committee meeting.

All of these were released to the full committee and the public as “working drafts for discussion.” None of these documents represent a consensus by the committee, and none of them have been agreed upon by the full committee. They are described as subcommittee members and negotiated rulemaking officials as “beginning points” for discussion.

There are five subcommittees – natural resources management, ORV routes and access, permits and fees, vehicle characteristics and operation, and village closure.

Three of the subcommittees issued reports that were agreed upon by all stakeholders involved, though the recommendations cover a range of options preferred by different groups. 

The ORV routes and access subcommittee issued one proposal by environmental and pedestrian access groups and another by ORV access groups.

The subcommittee on natural resources issued reports by environmental groups and beach access groups.  The National Park Service and the committee facilitators reworked the two proposals into one document.

To read the documents:

Natural Resources Subcommittee—Proposal by Environmental Groups

Natural Resources Subcommittee—Proposal by Access Groups

Natural Resources Subcommittee – Environmental and Access Group proposals as combined and presented by NPS and facilitators

ORV Routes and Areas Subcommittee – Proposal by Environmental and Pedestrian Access Groups

ORV Routes and Areas Subcommittee – Proposal by Access Groups

ORV Routes and Areas Subcommittee—Ramp by Ramp Plan by Access Groups

Permits/Fees/Passes Subcommittee Report

Vehicle Characteristics and Operations Subcommittee Report

Village Closures Subcommittee Report

FOR MORE INFORMATION:

Members of the Negotiated Rulemaking Committee

Summary of June 17-18 Negotiated Rulemaking Meeting

Copy of Letter from Nature Conservancy, which has resigned from the committee