Beach Access and Park Issues
April 1, 2009

UPDATED….Park Service releases final report
on negotiated rulemaking committee

The National Park Service has released the final report of the Negotiated Rulemaking Advisory Committee for Off-Road Vehicle Management for Cape Hatteras National Seashore. The 1,654-page report provides diverse stakeholder input on a full spectrum of ORV management issues for the seashore. 

The report was compiled and prepared by the Reg-Neg committee facilitators – Patrick Field and Ona Ferguson of the Consensus Building Institure in Boston, Mass., and Robert Fisher of Fisher Collaborative Services in Alexandria, Va. – for the National Park Service

The report can be found at:

The report has been uploaded to the PEPC website, under the ORV Management Plan project, and is the last bullet on the documents list page.  Due to the size of the report, it is separated into two files.

For more information, call 252-473-2111 ext. 148.

March 30
, 2009

Environmental groups submit their response to negotiated rulemaking


The environmental caucus, which includes four members of the negotiated rulemaking committee and one alternate, submitted its response to the process and suggestions to Cape Hatteras National Seashore officials on off-road vehicle rulemaking.

The 77-page report is entitled “Addendum to the Final Report of the Proceedings of the Negotiated Rulemaking Advisory Committee for Off-Road Vehicle Management at Cape Hatteras National Seashore.”

It was prepared and submitted by Walker Golder, Audubon North Carolina; Sidney Maddock, National Audubon Society and Golder’s alternate on the committee; Jason Rylander, Defenders of Wildlife; Derb Carter, Southern Environmental Law Center, and Destry Jarvis, Natural Resources Defense Council and The Wilderness Society.

It is intended to be included in a final report on the process that will eventually be issued by the National Park Service and the facilitators for the negotiation process.

The negotiated rulemaking process ended without a consensus on an ORV rule for the seashore on Feb. 27.

All 29 members of the committee, who were advising the Park Service on the long-range ORV plan, were invited to submit their comments to the facilitators for inclusion in a final report.  They could submit them individually or as a group.

The addendum submitted by the environmental groups is essentially what they were offering at the last meeting of the negotiating committee. That offer was voted down by the beach access caucus.

Click here for the 77-page addendum to the final negotiated rulemaking report from the environmental groups.

March 30
, 2009

Beach Access groups submit their response to negotiated rulemaking


The beach access caucus, which includes 16 members of the negotiated rulemaking committee, submitted its response to the process and their suggestions to Cape Hatteras National Seashore officials on off-road vehicle rulemaking.

The 77-page document is entitled “Addendum to the Final Report of the Proceedings of the Negotiated Rulemaking Advisory Committee for Off-Road Vehicle Management at Cape Hatteras National Seashore.”

It is intended to be included in a final report on the process that will eventually be issued by the National Park Service.

The negotiated rulemaking process ended without a consensus on an ORV rule for the seashore on Feb. 27.

All 29 members of the committee, who were advising the Park Service on the long-range ORV plan, were invited to submit their comments to the facilitators for inclusion in a final report.  They could submit them individually or as a group.

The beach access members decided to submit theirs as a group.

All members of the beach access groups contributed to the document, which was pulled together by Carla Boucher, an attorney who represented United Four Wheel Drive Associations on the committee.

The document is essentially “Alternative X,” which the access groups put forward in the last month of meetings. The Park Service has produced five alternatives for an ORV rule, including three “action” alternatives.  It was the hope of park officials that negotiated rulemaking would produce a fourth action alternative.

Alternative X did not pass muster with the full committee. And, in the end, there was no fourth action alternative.

The addendum issued by the beach access groups pulls together and fleshes out their Alternative X with an introduction and legal justifications and a proposal for what a final rule might look like with maps, charts, and other proposals.

Click here for the 77-page addendum to the final negotiated rulemaking report from the beach access groups.


March 10
, 2009

Committee members weigh in on the successes
and failures of negotiated rulemaking


The negotiated rulemaking process, which was to assist the National Park Service in writing a long-term off-road vehicle regulation for the Cape Hatteras National Seashore, ended after 14 months of meetings on Thursday evening, Feb. 26.

The process fell short of its goal, which was a consensus by committee members backing a plan that would become one of the alternatives – or perhaps the preferred alternative -- that the Park Service would use in its ORV rulemaking.

The Island Free Press asked committee members by e-mail to share their views on the negotiating process – its successes and its failures.

We had 12 responses from committee members and several alternates. Some responses were short and some were long.  All were thoughtful and shed some light on the process that the Park Service hoped would be its blueprint for rulemaking on what has become an increasingly contentious issue – balancing the dual responsibilities of seashore officials to provide for recreation and protect natural resources, especially nesting shorebirds and turtles.

The committee members began preliminary meetings to learn about the negotiation process in 2007.  It was a committee appointed by the secretary of the Department of the Interior. It originally had 30 members, but after a resignation, the final group was down to 29.

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.

During the 14 months of meetings, the committee finally separated itself into two “caucuses” – ORV access groups and pedestrian and environmental groups.

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

The entire process has cost taxpayers an estimated $800,000, and not all the final costs have been tallied, according to Sandy Hamilton of the Park Service’s Environmental Quality Division in Denver, Colo.

“That figure,” she said in an e-mail, “comprises the Reg-Neg associated activities NPS funded through the U.S. Institute for Environmental Conflict Resolution, such as the negotiated rulemaking feasibility assessment, the three collaboration workshops before the committee was formed, the establishment of the committee and the facilitation work with the committee, subcommittees, workgroups, and members between meetings, as well as travel reimbursement for a few of the non-governmental committee members.”

Despite the time put in by committee members and the cost to the public, negotiated rulemaking in the end couldn’t reach its goal of consensus. Time just ran out.

However, not all members of the committee consider that to be a failure of the process.

“The committee worked extremely hard over an extended period of time and generated a considerable amount of useful information and options for NPS to consider,” said Mike Murray, the seashore’s superintendent who led the committee as its designated federal official. “Though not reaching a consensus is disappointing, the plan will be a better plan and the regulation will be a better regulation because of the collective effort of the committee.”

“As a result of the committee's work, the Park Service now has more than enough information to move forward to develop an off-road vehicle regulation that is consistent with the best available science and all applicable legal requirements,” said Jason Rylander, attorney for Defenders of Wildlife and a committee member.  “I also think the process provided an important opportunity for members of the public to air their concerns and learn more about the unique and sensitive resources of Cape Hatteras National Seashore.”

“I'd say the Reg-Neg process did not fail because it gave NPS what it lacked/needed to prepare a fully compliant plan and Environmental Impact Statement,’ said committee member Destry Jarvis of the Natural Resources Defense Council.  “Time will tell, but I think now they can do the job they are legally required to do, for the first time in decades.”

“To the disappointment of many committee members we did not come up with a plan,” said Jim Lyons, who represented pedestrian interests on the committee. “We did successfully advise the park on many issues, concerns, laws, data, studies, etc., which I feel will be of great help to NPS managers.  The public also had ample opportunity to submit comments during the process.’

That being said, 12 committee members had a great deal to say about the problems with the process of negotiated rulemaking for ORV regulation on the seashore.

The 12 members who responded include Jason Rylander, Defenders of Wildlife; Destry Jarvis, National Resources Defense Council; Jim Lyons, Cape Hatteras Recreational Alliance; Burnie Gould, alternate for the Cape Hatteras Recreational Alliance; John Alley of the Outer Banks Preservation Association (OBPA); John Couch, alternate for the Outer Banks Preservation Association; Jim Keene, North Carolina Beach Buggy Association (NCBBA); Patrick Paquette, Recreational Fishing Alliance; Frank Folk, Avon Property Owners Association; Jeffrey Wells, Hatteras Landing Homeowners Association; Judy Swartwood, Cape Hatteras Business Allies, and Warren Judge, chairman of the Dare County Board of Commissioners.

We asked these two questions:

•    Why did Reg-Neg fail to produce a fourth action alternative for the Park Service?
•    Should anything have been done differently?

I will summarize the problems that committee members mentioned and include quotes from their e-mails.

I have chosen to include two responses in their entirety – from John Alley of the Outer Banks Preservation Association, a member of the access caucus, and Jason Rylander of Defenders of Wildlife, a member of the environmental/pedestrian caucus.  These two responses were sent in essay form and were particularly cogent and compelling, and they represent the two points of view, that, in the end, brought a halt to negotiations. You can read them by clicking on the links at the end of this story.


The lawsuit loomed large over the committee work, according to all of the access caucus members who responded.

 The lawsuit was filed just as the committee was forming in October, 2007, by Defenders of Wildlife and National Audubon Society, represented by the Southern Environmental Law Center.  The groups sued the National Park Service over its Interim Protected Species Management Plan, which was to manage the park until a long-range rule is written.

Stakeholders with a seat at the table had to agree not to sue, but the environmental groups claimed their lawsuit did not break the rules because it was narrowly targeted against the interim plan only, not the broader issue of ORV access and rulemaking.

The lawsuit was settled with a consent decree signed by a federal judge last April.  The terms of the consent decree significantly increased the number and length of resource closures last summer.

The legal action took its toll on the trust among committee members in the negotiating.  The access members were outraged by the suit, and much of the public comment at the meetings reflected that outrage.

As one person who attended many of the meetings noted, “win-win” was not possible.  The pro-access groups had everything to lose and nothing to gain, and the environmental groups had everything to gain and nothing to lose.

Pro-access groups felt as if the other side had gotten what it wanted in the consent decree with its expanded buffers and a night-driving ban and that negotiations were beginning from that point and not from an even playing field.

“I believe this single event turned the collective attitude of the committee towards distrust and futility from the start,” said Dare County’s Warren Judge, who called the lawsuit a “violation of the ground rules.”

“The consent decree plaintiffs should have been excused,” said OBPA’s John Couch.

“The consent decree was doomed a year ago when three seats at the table filed a lawsuit against NPS for not already having what Reg-Neg was trying to do in place,” said Frank Folb of the Avon Property Owners Association.

“The lawsuit should have eliminated DOW, Audubon, and SELC,” said NCBBA’s Jim Keene.

“The lawsuit by Defenders of Wildlife and Audubon Society completely fractured the process,” noted OBPA’s John Alley.

“The biggest factor that I see that prevented consensus was fear -- fear spawned by prior lawsuits,” said Judy Swartwood of the Cape Hatteras Business Allies. “Everyone, our side, their side and NPS included, were more focused on what was legally defensible, or on being in a position to file a lawsuit, instead of trying to come to a conclusion that everyone could benefit from. What would or would not stand up in court, if there was a lawsuit, seemed to be the focus, especially from NPS. Sadly, if we had actually come to consensus, then there would not have been a need for anyone to enter a courtroom to start with.”

“Obviously, the consent decree prevented any manner of trust between committee members,” said Patrick Paquette of the Recreational Fishing Alliance. “This was definitely a fatal blow to the possibility of a positive solution.”

However, Paquette added that he still doesn’t think the parties to lawsuit should have been dismissed from the committee

“They had to be a part of any compromise,” he said, “because if they were not a part of one, what benefit would it have served? They would just have sued, which I think is inevitable when the final rule is released.”


Many members thought the size of the group was unmanageable – too many stakeholders, with too many diverse interests, and, some said, too many single-focus issues.

The Park Service said in the beginning that the committee should have about 25 members.

The number of stakeholders kept growing until there were 30 on the committee.

“I think all members of the committee agree that the committee was too large to get consensus,” said Paquette, adding that he now feels that no matter what the size, there would have been no consensus.

And there is the issue of who was chosen to take a place at the table.

“There was an imbalance of vision and purpose among committee members on all sides of the issue,” said Warren Judge. “There were people sitting on the committee who were prepared to negotiate for the good of the all, and yet you had small groups represented by very single-focus members who were at the table for their interests.”

“There were seats on both sides of the issues that had organizations that were not well defined, and we never really knew who their constituencies were,” Judge added.

“There were four seats on this committee that from the beginning,” wrote Frank Folb of Avon Property Owners Association, “everyone knew were ghost seats representing few people with only selfish interests in this quest.

Folb singled out the Cape Hatteras Recreational Alliance, the Cape Hatteras Bird Club, Hatteras Landing Homeowners Association, and Hatteras Island Homeowners Coalition. He added that he thinks Jeff Wells of the Hatteras Landing group, signed on to “get Hatteras village beaches closed in front of his and neighboring oceanfront homes so they have private beaches,” but, in the end, Folb said that Wells really tried to negotiate.

Jim Keene and John Couch also mentioned too many committee members “with single interests.”

Burnie Gould, who was allied with the environmental/pedestrian caucus as a member of the Cape Hatteras Recreation Alliance, mentioned the lack of shared values among committee members.

“For consensus to be reached, there must be some shared values upon which to draw,” he said, adding “One’s value system often interferes with his/her ability to understand other points of view.’


The battle over what was acceptable science raged thorough the negotiating process until the very end.

The environmental groups claimed that the best available, peer-reviewed science had been presented to the committee.

The pro-access groups claimed that the science presented was not independently peer-reviewed, and was, in many instances, biased.

“Committee discussions repeatedly devolved into unproductive debates about what did and did not constitute good science,” noted Jason Rylander.

“Another factor was the use of biased, non peer-reviewed science,” said Judy Swartwood. This science was wielded around as if it was a weapon, and used as an excuse over and over again when it came to resource protection. All we ever heard were statements such as ‘the best available science’ or ‘I'm concerned about (pick a bird or turtle and insert here)’ or ‘It could put (pick a bird or turtle and insert here!) at risk.’ What I never heard
were the words, ‘It may not, might not cause harm.’”

“When it was all said and done,” said Jeff Wells of the Hatteras Landing homeowners group, “it was done with no data and no information on the impacts on people.  There was no empirical data that could be used to make decisions, so it was very anecdotal and people got very emotional.”


The committee members who responded to our e-mail heaped some of their heaviest criticism on the process – specifically on the National Park Service and the facilitators with which it contracted to run the negotiations.

About the Park Service, the committee members said park officials provided too little, too late on too many topics and did not do enough to signal their expectations from the committee members.

“I think the process might have been improved in a number of respects,” Jason Rylander said. “Most notably, the negotiations were too open-ended.  Cape Cod National Seashore's negotiated rulemaking was limited in scope, lasted just six days, and resulted in a consensus agreement.  Our committee spent far too much time on issues that were not really before us or which were beyond the groups' ability to debate effectively.’

Rylander went on to say that the Park Service and the facilitators should have presented its experts earlier in the process, should have stated from the outset what was considered “the best available information” and should have explained “how they intended to rely on that information.”

Rylander also said the Park Service waited too long to explain how its legal obligations apply to the seashore and ORV rulemaking.

“In my opinion,” he said, “because the Park Service failed to clearly communicate its expectations, many participants clung to negotiating positions that simply did not meet the seashore's minimum legal requirements.”

Others said that the Reg-Neg process was poorly planned from the beginning by the National Park Service, that NPS project office Sandy Hamilton did not have a clear plan, the Department of Interior solicitors were ineffective, that NPS did not enforce the “no litigation” rule, did not insist that the environmental and pedestrian stakeholders meet their deadlines for committee work, and did not present all the pertinent science in a timely manner.  

There was also criticism of the lack of information on the economic impact of an ORV rule on the Outer Banks.

The Park Service seemed to rely on the much-criticized Vogelsong study, completed several years ago.  That study was submitted for peer review and flunked the test. The Park Service has now contracted with Research Triangle Institute International (RTI) to “develop a model to project economic impacts” of ORV regulation. This study is still in the planning stages, so economic impact information was sorely missing during the negotiation process.

Mike Murray expects the RTI study to be part of the draft environmental impact statement, which is due in the fall of this year.

And, finally, the Park Service was criticized for not managing its facilitators.  They included Patrick Field and Ona Ferguson of the Consensus Building Institute in Boston, Mass., and Robert Fisher of Fisher Collaborative Services in Alexandria, Va.

“The facilitators were inept and incompetent on their good days,” said Jeff Wells.

“CBI failed too many times in challenging and attempting to challenge, after a vote, stakeholder positions,” noted John Couch. “When the committee had momentum in bringing issues to a focus and vote, CBI failed to take advantage.”

Couch also noted that CBI “failed to provide status reports and minutes to the committee in a timely fashion.”

“I give Mike Murray very high praise,” Warren Judge wrote. “However, I would give the facilitators a failing grade.”

Jim Keene said the facilitators were “weak” and that the designated federal official, Mike Murray, was “often non-specific.”


“At this stage of the process, it is natural to wonder if the outcome could have been different if one or more variables (e.g., membership, sequencing of information and topics, facilitation, etc.) had been different,” Mike Murray said in an e-mail. “We have no way of knowing that and the outcome that occurred is the reality we have to deal with.”

Murray notes that the Cape Hatteras committee was the fourth time that the Park Service used regulatory negotiation process.

“I understand that the approach taken this time (e.g., doing the Reg-Neg process parallel with the NEPA process, instead of a staggered approach) was based, in part, on lessons learned from the previous three efforts. Undoubtedly, there are lessons to be learned from the Cape Hatteras effort.”

Murray added that the Park Service and the U.S. Institute for Environmental Conflict Resolution will “conduct a review to determine the lessons learned from the Cape Hatteras negotiated rulemaking effort, so those lessons can be applied the next time NPS decides to use the regulatory negotiation.”

Murray and his staff on the seashore will continue the process of writing an ORV regulation and an Environmental Impact Statement.  According to the terms of the consent decree, the final rule is to be completed by the end of December, 2010, and must be in place 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.


To read two responses from committee member in their entirety:

A view of why Reg-Neg failed by John Alley, Outer Banks Preservation Association

Reg-Neg was not a failure by Jason Rylander, Defenders of Wildlife

Stories about negotiated rulemaking and beach access can also be found on the Beach Access Page of The Island Free Press.

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