Planning for the future of beach driving:
Will the lawsuit have a chilling effect at the negotiating table?
NOV. 14, 2007 NEWS ALERT AT THE END OF ARTICLE
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By IRENE
NOLAN
Reasonable people seem to agree that the best way to formulate a long-range plan for the contentious issue of driving on the beaches of the Cape Hatteras National Seashore is a process called negotiated rulemaking. However, a lawsuit filed Oct. 18 by environmental groups involved in negotiating has complicated the process and could make it even more contentious. For now at least, it seems that the negotiations will continue. The 28 proposed negotiators who met in a workshop just days after the lawsuit was filed decided that they want to go forward with the process. “Everyone involved is still committed to participating in the negotiating process,” seashore superintendent Mike Murray said last week at a media briefing. “It was a disappointment, but not a surprise,” Murray said. Continued from front page....  The issue of driving on seashore beaches pits groups that advocate open, and sometimes unlimited, access for ORVs against environmental groups that advocate increased protection of natural resources. Caught in the middle is the National Park Service, which has the dual, and often conflicting, role of providing for public recreation on the beaches and protecting the seashore’s natural resources. The issue is further complicated by the fact that the parks have been required to have approved regulations in place to manage ORV access for more than 30 years. The Cape Hatteras National Seashore developed a plan in 1978, but it was never formalized. This fact has not escaped attention by national environmental advocacy groups. Currently, the seashore has an Interim Protected Species Management Plan that sets guidelines for managing ORV access. And for almost three years, park officials have said that they intend to develop a long-range plan by negotiated rulemaking. Negotiated rulemaking, also known as RegNeg, is a process set up by federal legislation to resolve environmental disputes that involve federal agencies or interests. It requires that all parties to a dispute – the stakeholders who have an interest in the outcome -- sit down at the table and reach an agreement, not by majority rule but by consensus. Lawrence Belli, who was Murray’s predecessor as seashore superintendent, first started talking about negotiated rulemaking in 2004. At that time, he said that if the Park Service decided the process was feasible here, it could begin in January, 2006. A negotiated agreement, he said, was possible by April of 2007 and a final rule, after public comment, by 2009. We’re now into the final months of 2007, and a final negotiated rulemaking committee has yet to be appointed by the Secretary of the Department of the Interior. A notice of intent to proceed with RegNeg was published in the Federal Register in December of last year. Last June, a notice of intent to establish a committee along with a list of 28 proposed members and their alternates from stakeholder groups was published. That comment period ended July 30. Murray said last week that the Park Service had 143 comments on the proposed committee and that a number were concerned about the makeup of the group --either too many or not enough stakeholders on various sides of the issue. Currently, he said the notice of establishment is under review at the assistant secretary level at the Department of Interior in Washington. This year, the proposed committee members have had three workshops, meetings intended to familiarize them with the RegNeg process. The third one, the final workshop before the official sanctioned meetings begin, was on Oct. 22-23 in Nags Head. Just four days before that workshop, on Thursday, Oct. 18, two of the environmental advocacy groups that have been proposed for seats at the negotiating table – Defenders of Wildlife and the National Audubon Society -- filed a suit against the National Park Service for what they claim is the agency’s failure to regulate beach driving on the seashore according to federal laws. A third advocacy group, the Southern Environmental Law Center (SELC), which also is a proposed member of the RegNeg committee, is representing the other two groups in the lawsuit. In a teleconference when the suit was filed, the groups noted that the lawsuit is aimed at the Interim Protected Species Management Plan, not beach driving in general. They said they did not want to shut down the beaches to ORVs and that their goal was only to protect threatened and endangered species. They said they still intended to participate in negotiated rulemaking. Murray and the consultants hired by the Park Service to conduct the RegNeg sessions were notified in advance of the lawsuit. Other members of the negotiating committee read about the legal move online or in newspapers the next day. “I was interested in how everyone would react,” Murray said about the workshop. “To me, the key was that they all showed up and they all interacted,” he added. That wasn’t a given going into the meetings. Some of the ORV access groups met before the workshop. "Our initial response was to tar and feather them and send them out of here," said proposed committee member David Goodwin, who represents the Cape Hatteras Business Allies. “Then we decided,” he added, “that wasn’t right for us, for the process, or for Mike Murray.” Goodwin said none of the ORV access groups were happy about the situation, especially, he said, because in previous workshops the committee members had agreed that any group that planned to take action that could affect the process would give the others a “heads up.” “We were just disappointed that this (the lawsuit) happened, and we were surprised,” said Larry Hardham of the Cape Hatteras Anglers Club and also a proposed committee member. “We were all very apprehensive,” Hardham said about the workshop. “It was very emotional initially, but the bottom line is that it will go forward…and there will be no penalty for them for violating the spirit of the agreement.” “We’re just really disappointed that they chose to do this at this time, breaking a good faith agreement,” said John Couch, president of OBPA. He added that, in the end, the ORV user groups decided to follow an old adage to keep your friends close and your enemies closer. Hardham, Goodwin, and Couch all mentioned that they thought that filing a lawsuit violated the spirit of the agreement to come to the table and negotiate in good faith. They note that earlier in the process of developing the committee, the National Parks Conservation Association (NPCA) was taken off the list of proposed members after it joined several other environmental groups and sued the Park Service over its ATV and ORV policies at the parks nationwide. “One of the ground rules,” said Warren Judge, chairman of Dare County’s Board of Commissioners and a proposed committee member, “is that we don’t get mad and go off and file lawsuits. This was a breach of faith. We all agreed t o put those weapons away.” However, Derb Carter of the Southern Environmental Law Center noted during the teleconference on Oct. 18 and in his remarks at the workshop that the lawsuit was aimed at the Park Service’s interim plan and not its lack of a long-term plan, as was the case with the NPCA. “We have expressed to the National Park Service several times our concerns about the interim management plan,” said Jason Rylander, attorney for Defenders of Wildlife and a proposed negotiating committee member, in an interview after the workshop. “This was the worst season in recent years for (bird) nesting,” he said, “and we feel strongly that these issues need to be addressed now before the next breeding season.  “There is a place for beach driving,” he added, “but resource protection should take priority.” Rylander noted that the groups were frustrated by the Park Service’s lack of response to concerns about the interim plan and its failure to get negotiated rulemaking started in a timely manner. “There’s still no word,” he said, “on when or if it will happen.” Rylander also added that it is “understandable that people feel passionately” about the issue of ORV use on the beach, and that he appreciated their frankness at the workshop. “There was a lot of tension,” Jim Lyons said about the workshop. “But I thought the negotiators did a good job of giving people time and space to vent about the issues.…People were speaking very emotionally.” Lyons of Buxton represents a group called the Cape Hatteras Recreational Alliance. He describes himself as an ORV user who doesn’t think ORVs should be allowed everywhere. He thinks there is room to set aside space for “aesthetics,” for people who want to enjoy the views and sounds of the seashore without vehicles around. “Things have changed since 1952,” he said, “and this place can’t operate under the same rules that it once did.” Lyons admits his is a view that does not endear him to some ORV user groups, but he hopes that negotiated rulemaking will continue and that he can represent the interests of seashores users who fall somewhere between totally open access for ORVs and totally reserving the beach for birds and turtles. “Good things have come out of every meeting I’ve been to,” he said. While the proposed committee members have agreed to go forward with negotiated rulemaking, there is some suspicion about what the next move will be and who will make it. The environmental groups have not asked for an injunction to stop beach driving until the interim plan issues are resolved. Carter and Rylander have not directly said that they will not later seek an injunction. “I think it’s safe to say,” said David Goodwin, “that if they go any further, the process will be over.” And, to further complicate matters, the lawsuit has been assigned to the court of federal Judge Terrence Boyle of the Eastern District of North Carolina in Elizabeth City. In a ruling last July in a case that involved reckless driving on the beach, Boyle surprised groups on both sides of the issue by ruling that since the Park Service does not have the required ORV plan in place, that all driving on the beach is illegal. Murray submitted a long explanation to Boyle about the interim management plan that is in place and the plans for negotiated rulemaking to develop long-range management of ORVs. Murray has so far declined to ask rangers to ticket people for driving on the beach. Also, some of the ORV user groups have acknowledged that there is discussion about intervening in the lawsuit by the environmental groups on the side of the National Park Service. “We’re left again,” said Larry Hardham of the Anglers Club, “with the National Park Service having to defend the life and livelihood of Outer Banks businesses.” Murray noted that when negotiated rulemaking gets underway at Cape Hatteras, it will be only the fourth time that the Park Service has used the tool to solve an environmental impasse. “It’s time consuming and expensive,” he said, “and it’s reserved for the most contentious and difficult situations.” The management of ORVs on the seashore beaches is one of them. “ORV management and resource protection,” he said, “have been long-standing issues here. It’s been clear since the day I arrived that it’s not going to be resolved in a clear and linear fashion.” Murray still favors negotiated rulemaking as the process with the best chance of resolving the beach driving issue – in a way that all of the stakeholders involved might find acceptable. And, he says, it allows for more interactive dialogue and creative input on possible solutions to conflicts among user groups. The alternative, he noted, is for the Park Service to devise a plan and then put it out for public comment in the traditional manner that allows less opportunity for dialogue. “I think we have to move forward,” said Jason Rylander of Defenders of Wildlife, “and we can do it together or the courts and the Park Service can do it.” Park Service also moves ahead with Environmental Impact Statement Negotiated rulemaking, assuming it finally gets underway, will be accompanied by the parallel process of developing an Environmental Impact Statement (EIS) on ORV use on the beach, as is required by the National Environmental Policy Act. Superintendent Mike Murray said that seashore staff members are moving ahead to develop preliminary alternatives, based on earlier scoping public meetings on the EIS. He said the alternatives would reflect a wide range of options acceptable to the Park Service and could be used by the negotiated rulemaking committee as a starting point. These preliminary alternatives will be ready for public review in January. Public comment meetings on the alternatives are scheduled for Jan. 14 in Buxton, Jan. 15 at Wright Brothers National Monument, Jan. 16 in Raleigh, and Jan. 17 in Richmond. Details on times and locations will be available later. For more information on negotiated rulemaking or the development of the Environmental Impact Statement on ORV use on the seashore beaches, go to http://parkplanning.nps.gov/CAHA
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