Shooting the Breeze
February 27, 2009

Negotiated rulemaking ends with no consensus

The 29-member negotiated rulemaking committee, appointed to help the National Park Service write a long-term rule on off-road vehicles on the Cape Hatteras National Seashore, ended its work on Thursday, Feb. 26, without having reached a consensus on access to the beaches.

Shortly after 6 on Thursday evening, the first day of the committee’s final two-day meeting, Robert Fisher, one of the facilitators working with the committee, went to the podium and announced the decision that the members had reached in caucuses that had ended just minutes before.

“The committee members have determined that it’s time to stop,” Fisher said.

It was an ending to the negotiated rulemaking process that almost all committee members and spectators knew was probably coming – various parties to the negotiation were handing out prepared media releases within minutes of the announcement.  And Fisher’s proclamation was almost anti-climactic, greeted mostly with a bittersweet resignation and relief by all in the room.

After a short discussion by Fisher and facilitator Patrick Field about final reports, some members of the committee made brief statements, most expressing appreciation for the hard work of their fellow members.

“I have appreciated the opportunity to meet and get to know all of you here,” said Jason Rylander, attorney for Defenders of Wildlife, whose views of access were very different from many of the other members.

Rylander again stated his belief that despite the failure of the committee to reach consensus, many perspectives were shared in the meetings and the Park Service has much more information to continue formulating the final ORV rule.

The final speaker at the final meeting was Cape Hatteras Seashore Superintendent Mike Murray, who led the committee for more than a year as the “designated federal official” or DFO.

“Well, all things come to an end,” Murray said with a slight smile and in what has become his signature calm and unflappable demeanor at the negotiating table.

“I wrote down some thoughts,” he said, “and I didn’t know when or where I would need them.”

Even last week, Murray said he was still “cautiously optimistic” that the group would reach consensus.

Then Murray proceeded to make his closing comments.

“Could we have reached consensus with more time?” he asked. “I’ve reached the unavoidable conclusion that we could not have.”

Now, Murray and his staff will proceed with forming the final regulation under the National Environmental Policy Act, a process the staff has already started and were working on concurrently with negotiated rulemaking.

“We’ve learned a great deal about each other and our points of view,” Murray said.  “There is not a doubt in my mind that the regulation will be a better one because of your work.”

Then in his last official act as DFO, Murray adjourned the Cape Hatteras National Seashore Negotiated Rulemaking Advisory Committee.

The committee began meeting informally in late 2007, but didn’t have its first official meeting until January of last year.

Its members represented various stakeholders in the future of access at the seashore – ORV access groups, surf fishing clubs, environmental and conservation organizations, homeowners associations, a pedestrian access group, business owners, recreational users, and federal, state, and county government representatives.

The group met as a full committee 11 times.  In between were many subcommittee meetings when members met in person or by tele-conference.

The meetings generated pages and pages of reports, maps, matrices, and proposals by all sides on the contentious issues of where people can drive and walk on the seashore beaches.

Dozens and dozens of business owners and private citizens spoke during public comment periods.  Twenty-seven people, the largest number to speak at one comment period, addressed the final meeting.

Almost without exception, these speakers made impassioned pleas to keep beaches open to ORVs, to remember that the park is the Cape Hatteras National Seashore Recreational Area, and to respect the cultural heritage of the island and the tradition of driving on the beaches. Business owners talked about the losses they suffered under the consent decree last summer and about their fears for this summer.

It was obvious from the first meetings, that there was a basic philosophical difference between what boiled down to two distinct points of view – groups that favored free and open access and environmental and conservation groups that favored more beaches closed to ORVs to protect resources.

Access groups wanted all beaches to be declared ORV routes, unless they had to be closed by the Park Service to protect resources.  Environmental groups wanted all beaches to be considered closed unless they could be open to ORVs without harming resources.

For some months, it seemed that the two sides were making progress in their most controversial task – mapping which beaches would be open to ORVs and/or pedestrians and which would be closed year round to protect birds.  What began as a discussion about nesting shorebirds became, late in the game, a discussion of more beach closures for migrating and wintering birds. 

Although the piping plover is the only federally protected bird in the park, environmental groups wanted protection for state-listed species of special concern, including American oystercatchers, least terns, and black skimmers.  Eventually, the environmentalists asked for year round ORV closures to protect such migrating and wintering birds as red knots,
 willets, whimbrels, and sanderlings.

With each map, the routes and areas subcommittee produced, the green lines (open to ORVs) became shorter and the red lines (pedestrians allowed but no ORVs year-round) became longer. (Both red and blue areas would be subject to the usual resource closures for ORVs and/or pedestrians.)

The access groups estimate that when the map negotiations started, their proposed map lines were 56 percent green and 9 percent red with 10 percent blue (for pedestrians year-round and ORVs in the off season) By the time of the final proposal at the final meeting, the groups say their lines were 63 percent red and 28 percent green and 8 percent blue.

Most members of the access caucus admitted privately that they had given all they intended to give. And so did members of the environmental caucus.

The sides became entrenched.  Environmentalists and conservations said the law was behind them and the Park Service was required to reach a higher level of resource protection on the seashore.  The access groups said there was no legal requirement to protect many species of birds.

The access groups questioned the science presented by the environmental side, noting that studies cited were not independent and peer reviewed.  Environmental groups defended the science as sound and as “the best available science.”

That argument went on into the last hour of the last day, centered on red, green, and blue lines on seashore maps.

Discussions of other subcommittee work on permits and fees, vehicle characteristics, village closures, and natural resources fell by the wayside as the fight for access, or lack thereof, centered on the maps.

At the Feb. 3 meeting, an integration subcommittee of nine members was formed with three representatives each from the access and environmental caucuses, one member of a pedestrian group, one from government, and Mike Murray for the National Park Service.

They met in person for five full days and followed up with tele-conferences on final proposals.

Most of the last meeting on Thursday centered on the maps again, now down to two proposals from three.  The pedestrian access representative joined with the environmental groups.

(The final proposed maps can be viewed at the end of this column.)

Although the access caucus gave up on some green lines from the Feb. 3 proposals (from about 48 percent green down to 19 percent), the red lines increased.  The environmental groups expanded their no ORVs year-round areas to include almost all of the inlet and spit areas on both Hatteras and Ocracoke, as well as South Beach in Frisco, which it already wanted closed year-round to ORVs.

Each caucus explained its map and then committee members had time to go around the table – once or twice or three times – to comment and ask questions.

When that process ended late in the afternoon, the integration committee wanted to see a vote of the full committee on the maps.

According to committee ground rules, members could vote “yes,” vote “no” or abstain.  An abstention would not doom a proposal, but rather was more of a “pass.” Also according to committee rules, one “no” vote would mean there was no consensus.

The first vote was on Option A, presented by the access caucus.

The vote was 17 in favor, five against, and two abstentions. 

The five votes against were from Walker Golder of National Audubon, Jason Rylander of Defenders of Wildlife, Steven Kayota of the Hatteras Island Homeowners Coalition, Neal Moore of the Cape Hatteras Bird Club, and Jim Lyons of the Cape Hatteras Recreational Alliance.  The two abstentions were Mike Murray and Pete Benjamin of the U.S. Fish and Wildlife Service.  Voting in favor were members of access groups, county governments, and such groups as the Dare County Tourist Bureau, and Outer Banks Chamber of Commerce, most homeowners’ association, the commercial fishing representative, and representatives of the state Marine Fisheries Commission and National Wildlife Resources Commission.

Next up was Alternative B, put forth by environmental groups and a pedestrian group.

The vote was five in favor – the same five who voted against Option A.  Three members abstained – Murray, Benjamin, and David Allen of the Wildlife Resources Commission. Sixteen voted against – the same except for Allen.

The majority favored the access Option A, but the majority did not rule in the committee. It took only one “no” to vote down a proposal.

After about an hour of sometimes awkward discussion about where to go from there – no one wanted to be the first to say there was no point in negotiating further – the committee broke into access and environmental caucuses.  The facilitators talked with each group and came back to say the committee was ready to stop negotiating.

The committee seems a little disappointed, but accepting and greatly relieved.

They worked really hard and under intense pressure for more than a year, and some – or even much – of their work will probably find its way into the final plan to be devised by Mike Murray and his staff.

Some committee members were on the payroll while they gave many hours of time to committee work, including folks from environmental groups and state and federal agencies.  A few are retired, but others, especially those from Hatteras and Ocracoke islands, were business people, who were not being paid to negotiate and were taking valuable time from their businesses. They were thanked by many of the speakers during Thursday’s public comment – and speakers at previous meetings.

When Murray adjourned the final meeting, most committee members were not in a hurry to pack up and leave.  They lingered, walked around the room, shook hands with some of their colleagues with whom they had vehemently disagreed during negotiations, and exchanged business cards and other information.

From here, the facilitators have promised a short report to the committee within a week.  Members will have until March 27 to submit their comments on the process and the future of ORVs on the beach for Murray.  The final reports will eventually be made public.

The Park Service will continue the process of writing an ORV regulation and an Environmental Impact Statement.  The final rule is to be in place, according to the consent decree by April, 2011.

There will be opportunities for public input along the way.

The end of negotiated rulemaking will have no effect on the management of seashore resources until 2011. The beaches will be managed this summer and next under the terms of the consent decree.
(I will be writing more about the collapse of negotiated rulemaking and how the Park Service will devise its final ORV regulation in the coming weeks.)


Statement by ORV access groups
Statement by environmental groups
Statement from Dare and Hyde counties


Click here for final proposed access maps voted on at last meeting

(Red lines indicate pedestrian only areas except for resources closures. No ORVs in red areas any time of the year. Green lines are ORV routes than can be closed for nesting birds and turtles, and blue areas are pedestrian year-round and ORVs off season.)

Updated List of Negotiated rulemaking committee members and the organizations they represent

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