Shooting the Breeze
December 15, 2008


What you can and cannot find out about
harassment of negotiated rulemaking committee

By IRENE NOLAN



Mike Murray, superintendent of the Cape Hatteras National Seashore, announced in September that the National Park Service was moving all meetings of the negotiated rulemaking committee to the Wright Brothers National Memorial in Kill Devil Hills.   There would be no more meetings, he said, on Hatteras Island or in private locations on the northern beaches.

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 had 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.

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. We called committee members to ask them about threats and harassment but most did not want to talk on the record because they feared it would only worsen the situation.

On Oct. 2, The Island Free Press filed a request under the Freedom of Information Act, asking for copies of all and any e-mails that passed among Murray and his staff, committee members and alternates, and committee facilitators or solicitors for the National Park Service.

We received an answer, dated Nov. 17, from David Vela, regional director of the Park Service’s Southeast Region in Atlanta.

We were sent two e-mails – with the name of the sender redacted (blacked out).

One is obviously from Burnham Gould, an alternate for the Cape Hatteras Recreational Alliance, which advocates reserving some of the park’s beaches for pedestrians only. He was one of the few members who did speak to us on the record about threats.  He said that at a September meeting, a member of an “open access” group told him that he needed to careful because there could be a bomb in his car.

The other was dated March 31, and the sender’s name was redacted, but is probably from an off-island property owner who represents a homeowners’ association on the island.

“I very much want to attend the next meeting,” he wrote, “but I am getting more and more concerned about the issues of safety of certain committee members at this meeting.”

He noted that his house was rented during the dates of the next meeting, so he would have to stay at some other place.

“I am beginning to feel that there needs to be some security provided for those who are not from the island and perhaps do not share the doctrine of the various beach driving advocates,” he wrote.  “Although I have never spoken against limiting beach driving, I believe certain groups have identified me as an opponent.”

The writer said he did not want to be an “alarmist” and said that he had received no threats or warnings, but he wrote that, “I feel the real danger of something bad happening.”

He urged Murray to institute “well planned security measures.”

In addition, to the two e-mails, we received the map to the Buxton home of Sidney Maddock, an alternate on the committee for the National Audubon Society.  The map was posted around the island last winter by ORV advocates, who oppose the Audubon Society’s stance on beach driving issues.

That was all we received.

A four-page letter from Regional Director Vela explained why we could not see another 26 e-mails that were identified in our request.

The reasons include:

•    Exemption 3 “protects from disclosure matters that are specifically exempted from disclosure by statute, provided that the statute requires, among other things, that the matters be withheld from the public in such a manner as to leave no discretion.”  This, Vela said, exempts “numerous responsive documents or parts of documents” under the Alternative Dispute Resolution Act of 1990.” Basically, this exemption says that unless a communication was available to all parties in the process, it is exempt.

•    Exemption 5, Vela wrote, “protects from disclosure intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency…. Examples of the types of communication that courts have held are protected include suggestions or recommendation on a matter, discussions of the merits of a particular course of action, or subjective, personal thoughts or comments on a matter….”

•    Exemption 6 protects from disclosure “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

•    Exemption 7(A) protects from disclosure “records or information compiled for law enforcement purposes whose release could reasonably be expected to interfere with pending or prospective law enforcement proceedings…Here the documents are being withheld under Exemption 7(A) because they are communications involving law enforcement officials, both within NPS and between NPS and state or local law enforcement agencies; they relate to the investigation of reported harassment and mistreatment of committee members, an investigation that is ongoing, and their release at this stage my interfere with such investigation.

Vela noted that in addition to him, the person responsible for withholding the e-mails is Michael Stevens, attorney/advisor, in the Office of the Regional Solicitor in Atlanta.

Given all of those roadblocks to getting information about threats to and harassment of committee members, it amazed us that we did receive two emails to Mike Murray.  We received the map to Maddock’s house, according to the letter, because it had been viewed by the public.

However, the regional director and the solicitor were kind enough to include a chart of the two redacted e-mails we received and the 26 denied communications with the date, type of communication, author/to/from, subject or description, and reason for the exemption.

We thought you might be interested in seeing that list. You can click on the PDF at the end of this story to see it.

You will see that most of the denied communications fall under Exemption 3 – the e-mail was generated by one party to the dispute and provided to the neutral facilitators but withheld from at least one other party -- or Exemption 7(A), the law enforcement connection.

Most of the e-mails denied were to or from Murray, other Park Service staff, and members of the committee who represent environmental and natural resource issues.  Some of the chains include some interesting others – the United States Postal Service, Dare County Sheriff’s Office, the North Carolina Department of Justice, and various Department of Interior solicitors.

There is ample evidence of rude behavior toward committee members -- on message boards, via e-mail, and in person for some members who live on Hatteras Island.

The rude behavior needs to stop.  It hurts only those who advocate for open ORV access.

However, are there threats and harassment that rise to the level of the added security of moving the meetings off Hatteras Island, out of private venues, and to a federally protected site?

We still don’t know the answer to that question.


Click here to see a list of the withheld documents.


FOR MORE INFORMATION

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

http://islandfreepress.org/2008Archives/10.21.2008-ShootingTheBreezeTheProblemsWithTheNegotiatedRulemakingProcess.html




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