| Beach Access Issues | |
| October 22, 2008
The problems with the negotiated rulemaking process
By Irene Nolan  The public process for negotiating a rule for off-road vehicle use on the Cape Hatteras National Seashore is not much of a process and is not public enough. It’s not much of a process because the committee of stakeholders doing the negotiating has been meeting officially since the first of the year and unofficially since the middle of last year and has yet to agree on anything, including such marginal issues as tire pressure and speed limits on the beach. It’s not very public because the National Park Service has decided to move all future meetings off Hatteras Island and away from meeting rooms in hotels on the northern beaches to the Wright Brothers National Memorial in Kill Devil Hills -- on federal property. This makes it a burden for Hatteras and Ocracoke islanders, who will be most affected economically and culturally by a final ORV rule, to attend and comment at the meetings. Also, it’s not a very public process because seashore superintendent Mike Murray has so far not said whether he will allow Dare County to pay for videotaping the meetings for broadcast on local cable and perhaps the county Web site, so islanders and visitors who have a stake in the outcome can have more access to the rulemaking and its progress – or lack thereof. THE BACKGROUND The negotiated rulemaking process was initiated by the National Park Service to help formulate an off-road vehicle plan for the seashore. Though, the Park Service has been required to have a plan since the early 1970s, no rule has ever been officially put in place. A 1978 plan was sent to NPS in Washington, D.C., but was never published in the Federal Register. Under pressure from environmental advocacy groups, the Park Service got serious about implementing a plan only in the last few years – mostly since Murray’s arrival at the seashore. The Park Service is devising a draft environmental impact statement on ORV use on the park’s natural resources, while at the same time trying to negotiate a plan through the federal process of negotiated rulemaking. The negotiated rulemaking committee, whose members were appointed by the Secretary of the Department of Interior, is comprised of 29 members who represent the people who have a stake in the final rule. The members represent environmental groups; local, state, and federal government bodies; groups that advocate free and open access for ORVs on the seashore, and other groups that want ORV access but want it more limited. Their discussions at meetings this year have 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. THE BROKEN PROCESS Despite meeting since January and subcommittee meetings during the summer, the negotiating committee has made no real progress on ORV access. Each side on the issue – environmental groups and open access organizations – remains entrenched in its views and proposals. At the September meeting in Avon, the argument boiled down to two opposing viewpoints. The environmental groups take the approach that the beaches are closed to vehicles unless they can be opened and still protect wildlife and other resources. On the other side are pro-access groups that believe all the seashore’s beaches should be open, unless there is a compelling reason to close them. Even the least controversial of subcommittee reports from the groups on vehicle characteristics and operations and village beachfront closures did not bring any consensus from the members. By its own rules, the committee has defined consensus as the agreement of all members. Even one stakeholder can stop the group from reaching consensus. In June, after six months of no progress, seashore Supt. Murray asked the Department of the Interior Office of Collaborative Action and Dispute Resolution (CADR) to survey the 30 members of the committee and get their opinions on how they believed the committee was progressing. CADR finished the survey at the end of July and spoke to 29 of 30 stakeholders. (There were 30 members in June. The Nature Conservancy later resigned its seat on the committee, saying that the group’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, success [science-driven consensus] by any given deadline seems unlikely.”) “Despite the perceived lack of progress,” the CADR report says, “members overwhelmingly support continuing the negotiated rulemaking process.” Four members of the committee suggested that the Park Service abandon the RegNeg process. The next meeting after this report was issued was in Avon in September, and there was again little progress toward a consensus. Privately, many more than four members of the committee members say that they do not think that the negotiation process will succeed. However, none of the stakeholders wants to be the first to leave the table – so they hang in there without any progress. The RegNeg process has also been affected negatively by the decision of three environmental groups with a seat on the committee to go to court last year. In October, 2007, the Defenders of Wildlife and the National Audubon Society, represented by the Southern Environmental Law Center, filed a lawsuit against the National Park Service. They contended that the park’s interim plan to govern ORV use and resource protection until there is a final rule did not go far enough to protect birds and sea turtles. Last February, these groups requested an injunction to halt ORV use year-round at five of the most popular areas of the seashore until there was a final ORV plan. The lawsuit and injunction request were settled on April 30 by a consent decree from a federal judge that was signed off on by all parties – including Dare and Hyde counties and pro-ORV access groups that were granted intervenor status in the legal action. As a result of the consent decree, ORV use at Bodie Island spit, Cape Point, South Beach, Hatteras Inlet spit, and the South Point of Ocracoke was not halted year round, but there were unprecedented closures of these popular beaches for up to four months this summer -- from early May until September. Defenders, Audubon, and SELC all have a seat on the RegNeg committee. They say their presence is not a violation of their agreement to not take legal action, since their action was aimed only at the interim plan for ORV management and not at the long-range planning. However, the legal action has had a totally chilling and negative effect on the RegNeg committee. The environmental groups got almost all of what they wanted in the consent decree to protect resources. Thus, pro-access groups feel that they are negotiating at a disadvantage – and they are. There is little or no incentive for environmental groups to negotiate given what they gained in the consent decree.  There are also the laws that must be taken into account in the negotiation process, including the Endangered Species Act, Executive Orders from the 1970s, and the National Park Service Organic Act, which all require the Park Service to protect resources. “As a general matter, neither the Endangered Species Act, the National Park Service Organic Act, the Migratory Bird Treaty Act, or even the Organic Act for Cape Hatteras National Seashore require any balancing of alleged impacts on visitor use and experience or economic impact,” Jason Rylander, attorney for Defenders of Wildlife, wrote in an e-mail to pro-ORV access groups earlier this month. “These statutes all require federal agencies to protect natural resources first, irrespective of these impacts. On national parks, statutes and regulations make clear that conservation is to be predominant. “As Mr. Murray made clear in the last RegNeg meeting,” Rylander’s e-mail continued, “no reasonable reading of these policies supports the notion that the entirety of Cape Hatteras National Seashore can remain open to ORVs. Hence, Mr. Murray is completely correct that the final rule must be more protective of natural resources, and hence more limiting of vehicle use, than past practices at the seashore.” Rylander also wrote that until there is a “shared understanding of science and law,” there is no incentive for the committee to work for solutions. “Until the members of the committee have a common understanding of what the legal sideboards are, the Re Neg process will remain broken,” he said. Members of the RegNeg committee who favor ORV access have a different view of the law. They point to the enabling legislation for the Cape Hatteras National Seashore, passed by Congress in 1937 and later amended to call the area the Cape Hatteras National Seashore Recreation Area. They note that the director of the National Park Service, Conrad Wirth, promised the people of the Outer Banks in 1952, on the eve of the establishment of the seashore, that the beaches would always be free and open. And they believe that the law requires the Park Service to take into account the economic and cultural consequences of an ORV regulation. These two sides are so far apart in their views that it is very unlikely that there will be any consensus by the end of January, which is when the committee must conclude its work. No one is willing to call it quits, so the members will keep on keeping on for two days of 8- to 10-hour meetings in November and December and perhaps several meetings in January. More folks are beginning to think that this effort is a waste of time and money. The alternative is that the Park Service writes the long-range ORV plan with public input, and that is what will probably happen. It is clear that the negotiated rulemaking committee is on life support for its final meetings. It is broken, dysfunctional, and will never negotiate a consensus on any of the substantial issues of ORV use on the seashore. However, as some members have noted, the discussions of the past year, which have gone on for hours, will at least give the park officials some insight on where the stakeholder groups stand. Whatever the outcome, it is increasingly clear that whatever the final ORV rule turns out to be, one side or the other is likely to file a lawsuit, and the issue will be back in the federal courts for a judge to decide the management of the seashore. PUBLIC ACCESS If you live on Hatteras or Ocracoke and you want to attend the upcoming meetings of the negotiated rulemaking committee, you will have to travel to Kill Devil Hills. That’s an almost three-hour round trip for Hatteras islanders, and perhaps twice that for Ocracokers who have to take a ferry part of the way. Many islanders are unhappy with this development. We are unhappy that the people who will be most affected by the economic and cultural consequences of a long-range off-road vehicle rule will have less access to the public process of negotiating the plan. Since the committee began its formal meetings in January, the venue has alternated between the northern beaches, usually in a hotel meeting room, and Hatteras Island, usually at the Avon Volunteer Fire Department. Then late last month, Cape Hatteras National Seashore Superintendent Mike Murray announced that the October meetings, which were scheduled for Tuesday and Wednesday, Oct. 21 and 22, at the Hatteras Village Civic Center would be canceled and that all future meeting would be at the Wright Brothers National Memorial in Kill Devil Hills. The next meeting, scheduled for Nov. 14 and 15, which was to be at the Clarion Oceanfront hotel in Kill Devil Hills; the Dec. 11 and 12 meeting, which was scheduled in Avon, and any meetings in January will be at the Wright Brothers Memorial -- on federal property. Murray gave two reasons for the change – to accommodate more members of the general public at the meetings and to assume control of security. First of all, no one believes that the meetings were moved to make more room for the public. There has been plenty of room for the general public at the meetings. So that leaves assuming control of security by moving the meetings to a federal compound as the real reason. Mike Murray has no doubt been advised by Department of Interior solicitors that he must take control of the negotiation process, which has become increasingly more contentious and bitter. At the September meeting in Avon, demonstrators lined the road to the fire station as the committee members arrived. They carried signs with messages such as “DOW: Offenders of Wildlife,” “DOW: We did not eat the plover,” “Sue is Audubon’s middle name,” and “DOW are American terrorists.” The demonstrators were controlled and under the watchful eye of Dare County deputies. Some did approach committee members and shout at them, but, by and large, the demonstration was non-threatening. Some of the protesters went into the meeting, but they left their signs outside. However, this protest, along with other threats and harassment aimed at committee members, is apparently what led Murray to move meetings onto federal property. In the media release on moving the meetings, Murray referred to “perceived or actual threats” to committee members. In an interview, Murray said that he had received reports from committee members in writing and verbally – more than five and fewer than 10. Murray did not provide any more details on the nature of the threats, and a Freedom of Information Act request by The Island Free Press to the Park Service for copies of emails among Murray, seashore staff, DOI solicitors, committee facilitators, and committee members is pending. It is clear that there has been harassment of committee members through e-mails and on message boards and sometimes in person for the members who live on Hatteras Island. The committee members from environmental groups – Defenders of Wildlife, National Audubon, and SELC – have taken heavy hits on message boards with comments that have been, at times, clearly inappropriate. Most of them do not live on the island, so harassment has been limited to message boards and e-mails. Sidney Maddock, who is the Audubon Society alternative on the committee, does live on the island. Although he will not talk about threats and harassment on the record because he thinks it will make the situation even more polarized, it is well known that nails have been scattered in Maddock’s driveway and there have been other harassment incidents. However, groups that favor something less than the major pro-access organizations have come in for their fair share of harassment. These groups include the Cape Hatteras Bird Club, the Cape Hatteras Recreational Alliance, the Hatteras Landing Homeowners Association, and the Hatteras Island Homeowners Coalition. Although committee members from all groups note that they do not oppose ORV access, they all do favor restrictions for such things as closures in front of the villages or pedestrian-only beaches. Most of these folks also do not want to talk on the record because they also fear the issue could be worse if they did. A few did talk. Jeffrey Wells of the Hatteras Landing Homeowners Association said he has received “intimidating” e-mails. So has Stephen Kayota, who represents the Hatteras Island Homeowners Coalition. Both groups advocate for closing year-round beach in front of the island village. And both say their e-mail address and, in Kayota’s case, home and office phone number have been posted online, and they have been on the receiving end of harassing calls by pro-ORV access people. The other person willing to go on the record is Burnie Gould, the alternate for the Cape Hatteras Recreational Alliance, which favors some beaches for pedestrians only. Gould says that at the meeting in Avon in September, a member of the committee, whom he will not name, approached him twice to say, “There could be a bomb in your car, so be careful.” Gould says he thinks it’s possible that the person may have been making a facetious remark, but since he didn’t know the person well, he didn’t assume that it was meant to be less than threatening. He also says he did not feel comfortable reporting the incident to the Dare County Sheriff’s Office because he says the county is totally in favor of open access. In any case, the comment was not very funny. Gould’s experience was the most serious I could find. And although others didn’t want to talk on the record, it is clear that subtle harassment and verbal insults to these committee members are rampant. Maps to their homes have been posted online and in local businesses. There have been “wanted” posters featuring photos of them. The posters have been made into T-shirts. The committee members from these groups, perceived as anti-ORV, have had car horns honking at their homes or as they do business in the villages or ride their bikes. People have made obscene gestures and yelled obscenities at them. All of this harassment, taken together, is why Mike Murray had to move the meetings off Hatteras. Certainly, the process of regulating ORVs and especially the consent decree have changed the lives of islanders – and not for the better. Some businesses have suffered economic hardship during the summer closing of popular areas of the seashore. What these business folks see down the road is even more disturbing. And the increased regulation of ORVs will change the life and culture of islanders and the experience of visitors. The future is indeed upsetting, threatening, frustrating, and terrifying to many islanders, whose income and lifestyle is dependent to varying degrees on continued ORV access to popular beaches. However, that cannot justify harassment of RegNeg committee members who are perceived, rightly or wrongly, as being on “the other side” or “the dark side,” as the environmental groups are called. Insults and obscene gestures may make the people who are doing this feel better, but, in the end, we all suffer by being even more separated in distance from participating in the process. Many of us who attended parts of the meetings or who came on their lunch hour to make public comments will not be able to take off work and travel to Kill Devil Hills. I cannot agree that the local RegNeg members have brought this harassment on themselves, by “turning” on their community and support some restrictions on ORV access. And, if Mike Murray decides that the sessions will not be videotaped so that we who live here and those who love to visit these islands can see the process, we will be punished even more. Five of the 29 committee members opposed videotaping at the September meeting when Murray asked for a show of support. The committee was told in the beginning that the meetings would not be videotaped, and Murray says that is because the Park Service did not have the money to do it. He and others have mentioned “changing” rules in the middle of the process as a reason not to videotape. But now that Dare County has stepped up and offered to pay for videotaping, it would seem that the reason for not doing it is gone. Some don’t want videotaping because of privacy issues. These committee members are appointed by the secretary of the Department of Interior. They are involved in a highly public process that will affect all of our futures. They should not be protected in this manner. Others think videotaping will promote grandstanding by some members. There is already plenty of grandstanding happening. Jeff Wells noted that in his corporate experience, people behaved better when they were being videotaped. And moving meetings to Kill Devil Hills and denying videotaping will certainly not reduce harassment of committee members. If anything, it will make it worse. The Park Service decision to move the meetings is made, and no one expects that to be overturned. But park officials could decide to approve the videotaping, which would go a long way toward making negotiated rulemaking the public process it is meant to be. I think Mike Murray wants this process to be public and transparent. Let’s hope he decides to make it so by approving the videotaping of meetings. RELATED INFORMATION Other articles on The Island Free Press: http://islandfreepress.org/2008Archives/09.18.2008-ControversyContinuesOverVideotapingOfNegotiatedRulemakingMeetings.html http://islandfreepress.org/2008Archives/09.12.2008-NegotiatedRulemakingCommitteeMeetsForTwoDaysButFindsLittleCommonGround.html http://islandfreepress.org/2008Archives/09.03.2008-CommitteeMembersFavorContinuingNegotiatedRulemaking.html Updated List Of Negotiated rulemaking committee members and the organizations they represent |
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