| February 16, 2009
Guest Column: Reg-Neg – the final act
and what you need to know about it
By MICHAEL A. BERRY
The regulatory negotiation process to develop an off-road vehicle
management plan for the Cape Hatteras National Seashore Recreational
Area is in its final stage. The last two public meetings will be held
February 26 and 27 at the Wright Brothers National Memorial in Kill
Citizens who care about the future of public access to the seashore are
encouraged to invest some time to understand the current proposals of
the ORV planning process. The current Reg-Neg discussion is as much
about the future purpose of the park -- public access and use -- as it
is about reasonable ORV management.
In 1937, during the Great Depression, a period of public malaise, not
too much different from what we are currently experiencing, Congress
established the Cape Hatteras National Seashore Recreational Area. The
enabling legislation for the National Seashore states: “said
area shall be, and is, established, dedicated, and set apart as a
national seashore recreational area for the benefit and enjoyment of
the people and shall be known as the Cape Hatteras National Seashore
Recreational Area.” A primary purpose of the
national seashore was to lift the spirit of economically distressed
citizens who could not otherwise afford other forms of recreation.
Management of the Cape Hatteras National Seashore Recreational Area
falls under the jurisdiction of the National Park Service (NPS). The
National Seashore is subject to the same management regulations and
polices as all other national parks. In 1972, Executive Order 11644
directed all national parks to prepare an ORV management plan to ensure
environmental sustainability and enjoyable use for future generations
of Americans (1). Readers should note, that the Executive Order
does not direct that ORVs be banned, but that they be managed to ensure
the intended purpose of the Park Service facility.
After more than three decades of non-compliance with the Executive
Order at Cape Hatteras National Seashore Recreational Area, the
National Park Service launched a planning process about 18 months
ago. In an effort to diffuse multiple stakeholder conflicts, NPS
chose to use a process know in government as “regulation
negotiation,” or “Reg-Neg.”
Thirty stakeholder groups were commissioned in late 2007 to provide the
National Park Service with information and ideas on how to structure a
final ORV management plan.
The purpose of any regulation negotiation process carried out by the
federal government is to avoid costly litigation and to provide the
government with useful information for formulating a regulation or
policy. In many instances, the “good faith
negotiation” process has been shown to establish respectful and
trustful interactions and produce constructive and equitable
regulations. The process tends to function well when the government
agency is “dialoguing” with a single or a small number of
As with all federal Reg-Neg processes, it was initially understood and
agreed that all stakeholders in the ORV management planning effort
would refrain from litigation and attacking each other in the media.
Also it was agreed that the purpose of ORV Reg-Neg process was to
arrive at 100 percent agreement, or consensus, on an ORV management
The NPS decision to use a regulation negotiation process to implement
the Executive Order was not wise. Had NPS policymakers reviewed the
20-year success record of Reg-Neg, they would have found that Reg-Neg
processes tend not to work when there is such a high number of diverse
stakeholders as are currently taking part in the Cape Hatteras National
Seashore Recreational Area ORV management planning process.
Committee members negotiating rulemaking on the seashore include ORV
access groups that want as much of the beach open to ORVs as possible,
environmental groups that want as much of the beach closed to ORVs as
possible to protect birds and sea turtles, a pedestrian-only group that
wants more of the seashore reserved for walkers, and several village
and homeowner associations that vary in their goals – from
closing beaches in villages to ORVs year-round to seasonal closures.
From the start, the 100 percent consensus ground rule was not realistic
with such a large and diverse committee. Reg-Neg facilitators
should have known that many Reg-Neg processes produce majority and
Any chance of reasonable agreement was completely lost after two
environmental organization stakeholders, represented by a third
environmental stakeholder, launched litigation early in the
process. That litigation denied significant public access to the
national seashore during 2008 and created enormous public outrage and
tension. This unnecessary litigation all but destroyed the good faith
negotiation process. NPS allowed the environmental stakeholder
litigants to remain a part of the Reg-Neg committee, even though every
aspect of trust and respect was breached.
In this final stage of the regulation negotiation process, there are
four distinct stakeholder groups: National Park Service; pro-access
stakeholders; pedestrian stakeholders; and environmental activist
As of the 12th Reg-Neg meeting on February 3, each of these stakeholder
groups has indicated or presented draft access and use alternatives.
In October 2008, the National Park Service took the lead and proposed
five management alternatives for consideration by the committee. NPS
outlined a general rationale and description for each of the five
alternatives. The NPS alternatives serve a useful purpose of
stimulating conversation and establishing legal parameters for
additional proposals. The NPS alternatives were listed and
discussed by The Island Free Press on Nov. 9, 2008 (2).
The pro-access, pedestrian, and environmental stakeholder groups have
also proposed draft access and closure alternatives. These are
represented by colored lines on the maps published by The Island Free
Press on Feb. 9 (3).
PRO-ACCESS ALTERNATIVE X
Despite the fact that there will likely be no consensus recommendation
coming out of the regulation negotiation process, there has emerged a
majority recommendation put forth by the pro-access stakeholder
group. Pro-access stakeholders call this majority backed proposal
Alternative X is represented by line No. 1 on the maps referenced above.
With the exception of the reasoning presented by NPS for the five
alternatives presented in October, Alternative X is the only proposal
that has been explained in some reasoned detail by any of the
non-governmental stakeholder groups.
From my perspective as an environmental manager seeking compliance with
the Executive Order, a reasonable scientific basis of resource
protection and management, equity in public access and use of the park,
economic efficiency, and cost effectiveness, Alternative X is
recommended as a well-crafted proposal.
Alternative X deserves serious consideration as a viable management strategy for the following reasons:
- Alternative X complies with the requirements of the Executive Order to promulgate an ORV management plan.
X is based on the in-depth knowledge of the national seashore
environment and its natural processes, acquired over a lifetime of
day-to-day and year-to-year exposure and observation by many of the
X provides justification, agreement, and general enhancement to NPS
Alternative E, which is the most reasonable, equitable and flexible
management strategy of the of the five NPS alternatives.
X is fully consistent with the proactive environmental performance
record of the pro-access stakeholders. Pro-access stakeholders, time
and again over many years, have demonstrated and established a record
of responsible management of natural resources in the Cape Hatteras
National Seashore Recreational Area. Pro-access
stakeholders have been visibly proactive in cleaning beaches,
protecting vegetation and wildlife, and educating the public about safe
access and use of the environment so that seashore users and species
X recognizes that an environment as dynamic as the national seashore is
a set of continuously changing conditions that affect the life of
organisms. Alternative X, like NPS Alternative E, is an effective
resource protection strategy that utilizes to the fullest extent the
professional judgment and technical capabilities of NPS to respond to
specific or changing conditions that require resource management
X allows the National Park Service to do the job for which it was
created and accents the needs for professional judgments and
discretionary decision-making on the part of NPS officials for the
purpose of effective resource management.
- Alternative X recognizes that closures for resource management may be required, based on judgments of NPS.
X recognizes the limitations of available science and data and does not
misrepresent science with unsubstantiated or exaggerated science claims
or demands for non-existent or impossible scientific proof.
X provides for reasonable access and use by all the traditional
recreational users of the National Seashore Recreational Area.
- Alternative X is fully accommodating to pedestrians and those citizens who seek solitude.
X provides that ORV users have access to about half of the
shoreline. Pedestrians have access to all of the shoreline.
X is the only alternative that has addressed and responded to the
access needs of the physically disabled, the elderly, and those
citizens of all ages incapable trekking to the shoreline through sand,
over dunes, and otherwise difficult terrain.
X has addressed public safety concerns to a greater extent than other
alternatives. It has addressed speed limits, vehicle safety
characteristics, ORV corridor safety boundaries, emergency equipment,
and safety education for visitors to the national seashore.
- Alternative X reduces access uncertainties on a seasonal basis and will produce less public anxiety than other proposals.
X does not deter visitations, access, and recreational use of the
National Seashore and does not have an adverse effect on the Outer
Banks economy to extent the other proposals have.
to all other stakeholder alternatives, Alternative X has a
well-reasoned and equitable basis that can be explained to the public
to gain public support for the management plan.
The pedestrian access proposal is represented by line No. 2 in the maps referenced above.
The pedestrian proposal is without a clear explanation or
justification. There is no transparent motive behind the pedestrian
proposal. The pedestrian stakeholder proposal seeks extensive ORV
denial, especially on Ocracoke Island, where it proposes a
“pedestrian area” that can only be reasonably accessed by
ORVs. The proposal totally disregards the infrastructure of the
The maps indicate that the pedestrian proposal sets aside miles of
shoreline near villages for what one can only assume to be the
exclusive benefit of private property owners and dwellers, and
pedestrians physically capable of walking the sands.
This alternative, as some others, fails to address the Americans with
Disabilities Act, especially as that act applies to federal facilities
such as the national seashore.
In the absence of a clearly stated purpose, the pedestrian proposal
appears to be an attempt to extend individual use preferences and
personal private property rights into public property--the national
park shoreline-- without regard to equitable use or seasonal resource
ENVIRONMENTAL ACTIVISTS’ ALTERNATIVE AND SCIENCE CLAIMS
The environmental activists’ proposal is represented by line No. 3 on the maps.
For the most part, the environmental activists’ proposal is a
long red line that denies ORV access to the majority of shoreline and
allows only pedestrian access, but then only with highly regulated
The environmental stakeholders appear to want to permanently turn a
major part of Cape Hatteras National Seashore Recreational Area into a
“bird use area” far more extensive than the public
experienced this past year under the infamous consent decree.
The environmental alternative calls for permanent, year-round closures
to ORV traffic and traditional recreation uses in many of the most
popular locations within the national seashore—to include Cape
Point, South Beach, and a major part of Ocracoke Island. Most of
these areas are currently accessed primarily by ORV vehicle. A
large number of citizens who use this national seashore for recreation
would, for all practical purposes, no longer be able to frequent the
area. These areas are impossible to get to by disabled citizens.
In analyzing the access and use implications suggested by the maps, one
can reasonably calculate and conclude that should the NPS accept and
implement this environmental activists’ proposal, future ORV
access will be, on average, less that 20 percent of traditional ORV
One can also conclude that, should this alternative be implemented, the
Cape Hatteras National Seashore Recreational Area would contain one of
the largest bird-use areas in the country under the jurisdiction of the
National Park Service.
The main reason given for permanent closures to ORVs is a sweeping
generalized claim that “historically” bird activity has
been observed on the shore in that area of the national seashore.
If you accept this reason, ORVs would be disallowed everywhere in the
There is little chance there will be any further significant agreement
between the pro-access and environmental stakeholders. The
environmental organizations have insisted they will not budge from
their current position.
The environmental stakeholders have stated time and again, the “law and science” is on their side.
Before accepting this claim, readers should consider the following:
With regards to law: The law will be determined in a federal court by a
federal judge, and not by environmental lawyers sitting at the Reg-Neg
table representing national environmental activist organizations.
With regards to science: During the past 13 months of Reg-Neg, there
has been no presentation of data, formal and substantive scientific
presentation and discussion, let alone independent verification and
validation. After 13 months of requests for data from individual
Reg-Neg members and the public, there has been no scientific data
presented that indicates ORV access to beaches of the park is
threatening environmental sustainability. A cause-and-effect
relationship-- ORVs and harmed species-- has not been established.
There has not been a single peer-reviewed, published study presented
this past year that indicates ORV access to the shoreline is
threatening environmental sustainability.
THE SEASHORE IS A HEALTHY ECOSYSTEM
Cape Hatteras National Recreational Area Seashore is by definition a
healthy ecosystem, given its diversity of interactive plant and animal
species. In the face of literally several thousand ORVs that allow the
public to access the beaches of the Seashore every year, the National
Park Service and the U.S. Fish and Wildlife Service pamphlet, titled
“Birds of the Outer Banks,” opens with following sentence:
“Nearly 400 species of birds have been sighted within the Outer Banks of North Carolina.”
Such a large number of observed bird species is hardly an indication of
a threatened ecosystem and bird population damage as claimed by the
environmental activist stakeholders. In fact, this verifiable bird
species statistic is a measurable tribute to the resource management
competency of the National Park Service and the cooperative efforts of
other government agencies, non-governmental organizations, and the
concerned public throughout the 70-year history of the Cape Hatteras
National Seashore Recreational Area.
PEER REVIEW DEFICIENCIES
All substantive and responsible environmental management and policy
formulations begin with a basic understanding of how the environment
works. Science-related statements for government regulation must be
fully referenced and clearly indicated as actual observations,
hypothesis, speculation, or personal judgment.
Science is a body of knowledge that answers the question
“How?” Science is the only discipline that subjects itself
to disproof. Credible scientists are always open and responsive to
questions and accepting of disproof, should that occur.
In all sciences, particularly wildlife science, there are many
uncertainties, data gaps, and limited observations. These
limitations always need to be disclosed, especially when the "fuzzy
science" is being used to regulate the public.
For the past 40 years, it has been the policy of the federal government
to have in-depth, open science review of the basis for regulations that
affect the public and the environment (4). The ORV management plan is
such a regulation. Its science basis must be sound and disclosed
honestly. The mere personal opinions and even professional judgments of
a scientist do not constitute “best available science” or a
demonstration of the Hard Look Doctrine, which is required in
The NPS Policy Manual (August 31, 2006, page 195) clearly states the
policy of peer review and journal publication of science. In
recognizing the importance of science, the newly appointed Secretary of
Interior, Ken Salazar, reconfirmed the NPS policy several weeks ago
when he made it clear that the Interior Department would base all
decisions on sound science. Up to now, in the development of the
final ORV management plan, there has been no such open review of
A good example of why science claims need a in-depth review can be
found in the unquestioned acceptance of the restrictive buffer
distances tables in what is commonly called the USGS Protocols
Without review and explanation, these highly restrictive boundary
distances were accepted as credible science by a federal judge last
April. These boundary distances have closed down the beaches and have
turned them into bird-use areas. They have denied thousands of
citizens ORV and foot access to many of the most popular beaches in the
national seashore. They have caused substantial economic loss for the
Outer Banks community.
Since their release, the protocols have been touted by environmental
organization as the “best available science.”
However, there is no public record that the protocols and boundary
distances and closures have been officially peer reviewed following
USGS Peer Review Policy (6), so as to even begin to accept them as
being “best available science.”
The protocols are not dated. There is no USGS document or publication
number. There is no indication that the protocols were ever published
in the Federal Register and made known to the public other than in
local press releases Nowhere in the public record is there
an explanation of how scientists used studies and their science to
calculate/arrive at various closure distances and protective boundaries
that have now denied the public access to the shoreline.
The following questions have yet to be answered: What is the
specific basis in science for the boundary distances? What was the
analytical methods/rationale the authors used to arrive at the buffer
The boundary distances are not science. The USGS Protocols that contain
the boundary distance are management guidelines which should be applied
as they were originally intended--with professional management judgment
and experience, balanced reason, and flexibility to changing
As stated in the notice of their availability, the protocols
“…represent the professional opinions of scientists that
analyzed and interpreted the scientific data associated with protected
species found at the Seashore.”
The notice also states, “The information provided in the
Protocols can be used by park managers as a tool to assist in the
development of management plans and conservation strategies for species
protection and public use. In addition to science, many other factors
such as federal laws and mandates, National Park Service (NPS)
policies, public input, practical field experience, and other
scientific information are also considered in the development of plans
There is nothing in law that requires the application the USGS
Protocols. It is strictly at the discretion of the NPS as to how
the protocols will be considered and used in resource management.
Most importantly now, in the final days of Reg-Neg, these access
restrictive boundary distances are being written into the various ORV
management alternatives. If not properly applied with
professional management judgment, these boundary distances will cause
significant denial of public access in the days and years to come.
RECENT LITERATURE IDENTIFICATION
The absence of a scientific literature review and objective assessment
of data is one of the most blatant failures of the current regulation
In the absence of a literature review and assessment that should have
been carried out by the National Park Service nearly a year ago, a
96-page list of scientific citations and a literature review was
provided to the Reg-Neg committee by the Audubon Society shortly after
the Feb. 3 public meeting. The environmentalist stakeholders contend
that the list of citations justify the ORV access denial to the
Such a literature list drawn up by the NPS should have been a starting
point for discussion a year ago. Even in accepting the literature
list provided by the Audubon Society as being free of significant bias,
the long literature list comes on the wrong end of the Reg-Neg
process. Without an in-depth examination of key papers and a well
referenced assessment of the data in the papers, it is impossible to
conclude anything about ORVs and natural processes and resources.
It is impossible at this juncture to locate hard copies of papers to
give them the in-depth look that is necessary so as to draw any useful
conclusion for ORV management on the national seashore.
One can at best invest a few hours and read the abstracts of papers in
the 96-page Audubon Society handout. In general, the abstracts
indicate many unknowns, speculation, non-validated models, and the need
for more research. Some papers even conclude ORVs have no significant
effect on birds. Some papers encourage reasonable informed judgments
and support the Interim Strategy that was overturned, without open
review, by the consent decree.
Some well understood risks are found in the abstracts. For example,
birds are at greatest risk because of natural predators. Pedestrians
and pets increase the risk of bird loss. Bird populations are adversely
affected by commercial and residential development and lost habitat.
Bird counts go down after severe storms and during drought periods.
These facts have been known for many years.
However, in reading the abstracts carefully, one will find not a single
document that supports the position that one needs to permanently
restrict ORVs at the national seashore to protect birds.
The environmental representatives at the Feb. 3 Reg-Neg meeting made a
point to say that four new pieces of science were uncovered that
support the case for ORV access denial. These papers were posted on an
NPS website and made available for review on Feb. 6. They are
referenced as: Barbee, 1994; Harrinton, 2008; Tar, 2008; Callazo, 1995.
In examining these documents, one finds that Tar, 2008 and Barbee, 1994
are unpublished master degree theses. Harrinton, 2008 is a
“Technical Note”, and Callazo, 1995 is an unpublished
research report. None of these documents comply with federal government
guidelines for peer review.
The project officer for the Callazo research report is Dr Theodore
Simon a well known, highly respected scientist who presented his
opinions in an interesting informal background talk to Reg-Neg six
months ago. Dr. Simon and Dr. Callazo are colleagues at North
Carolina State University and both of them also signed off on the Tar
thesis as reviewing professors. Their research bias is apparent. Also
their research affiliation with Audubon Society has never been
The public should know that dissertations or theses are academic
exercises and degree requirements. Their purpose is to demonstrate some
appropriate level of research skill on the part of the student.
However, many are biased when the student interprets data. Students
often write to satisfy the professor so as to graduate. That being a
common case, a good dissertation or thesis is universally recognized as
one that produces a refereed publication after its academic review.
Neither of the two cited theses has accompanying refereed publications.
Readers should also know that a dissertation or thesis by itself is
never used as the basis for environmental policy or regulation in any
federal agency. At best, they serve as buttressing information. (I
know, because I helped develop the multi-federal agency science review
policy with the help of the National Academy of Sciences and the U.S.
Environmental Protection Agency’s Science Advisory Board in 1980.)
Even though these “new science finds” were presented on
Feb. 3 as demonstrating that ORVs should be banned from a large portion
of the national seashore, Callazo, 1995 pages 8-9 states:
recommend that ORV traffic be allowed in such key colony sites as Cape
Point, Hatteras Inlet, Power Squadron Spit, and the west end of
Shackleford Island during the fall and winter to assist in maintaining
the bare or nearly bare upper beach habitat necessary for nesting terns
Perhaps the environmental stakeholders should take an in-depth look at
the documents they are referencing before making sweeping claims that
ORV access must be disallowed at the Cape Hatteras National Seashore
Recreational Area because there is science that supports the position.
WHAT THE PUBLIC CAN DO NOW
As this Reg-Neg process comes to an end, citizens are encouraged to
stay involved and continue to learn facts and voice their concerns and
opinions to the National Park Service. After all, if citizens fail to
take part in the processes of government decision-making, they have
nothing to complain about at a later date if they are delivered an ORV
management plan they do not like.
The public will have an opportunity to comment on the final plan when
it is proposed by the National Park Service as makes it way through the
formal rulemaking process in the months to come. The National Park
Service must present for public review a proposed management plan that
complies with the Executive Order, an economic analysis, an
environmental impact analysis, and an opinion from the U.S. Fish and
Wildlife Service. Citizens should be prepared to submit written
comments during that period.
Citizens are encouraged to request meaningful public hearings on the
content of the final plan. Public hearings are to collect useful
information and data, and not be glorified public venting events
Citizens should request a detailed explanation from the National
Park Service for the various aspects of the plan to include the legal
basis. These explanations should be published in the Federal Register.
Keeping in mind that we cannot manage our environment effectively and
efficiently until we understand how it works, citizens are encouraged
to demand formal, open, independent review of all science associated
with the final plan. The National Academy of Sciences can conduct
such a review.
Finally, readers are encouraged to give full consideration to
supporting ORV management Alternative X for the reasons presented in
this article. Readers are particularly encouraged to thank those
citizens who have stayed at the Reg-Neg table for the purpose of good
faith negotiation, as difficult and dysfunctional as the process has
been over this past year. Many on the Reg-Neg committee have made a
good faith effort to advise the National Park Service on an ORV plan
that will work for us all. These hard working citizens represent the
very best in our democracy.
FOR MORE INFORMATION
Click here for a matrix comparing NPS management alternatives with Alternative X, designed by access groups.
Click here for ORV routes and areas table compiled by access groups
1. Title 36, section 4.10 of the Code of Federal Regulations implements
the executive orders by providing that routes and areas designated for
off-road vehicle use shall be promulgated as special regulations.
4. Guidance on peer review selection for "highly influential scientific
assessments," as defined by the Office of Management and Budget, is
found in OMB, Final Information Quality Bulletin for Peer Review.
5. The USGS Protocols are currently available on the Interim Protected Species Management Strategy website at http://parkplanning.nps.gov/document.cfm?parkID=358&projectId=13331&documentID=12970
The buffer distances are published on page 12, Table 1 of the report
Synthesis of Management, Monitoring, and Protection Protocols for
Threatened and Endangered Species and Species of Special Concern at
Cape Hatteras National Seashore, North Carolina. Jonathan B. Cohen, R.
Michael Ermin, John B. French, Jeffrey L. Marion, J.Michael Meyers. US
Geological Survey, Patuxent Wildlife Research Center. (Undated
6. USGS Peer Review Policy http://www.usgs.gov/usgs-manual/500/502-3.html.
ABOUT THE AUTHOR
Michael A. Berry served as an Army officer in Vietnam in the 1960s.
After returning to civilian life, he earned a doctorate in public
health and worked in the U.S. Environmental Protection Agency, where,
as a senior manager and scientist, he served as the Deputy Director of
National Center for Environmental Assessment at Research Triangle Park,
N.C. During his 28-year career with EPA, he had extensive interactions
with environmental organizations, local governments, the federal
courts, U.S. Congress, universities worldwide, and institutions, such
as the National Academy of Sciences, the World Health Organization, and
the North Atlantic Treaty Organization. For more than 20 years, Dr.
Berry taught public health, environmental science and management, and
business and environment courses at the University of North Carolina.
He is currently a writer and research adviser, specializing in the
evaluation of environmental quality and human health effects,
environmental management strategies and policy for small communities.