Planning for regulating off-road-vehicles on the Cape Hatteras National Seashore really is underway after more than three years of talking about the process.

However, we need to understand that there are two concurrent processes happening now that will lead to final regulations on ORV use on seashore beaches. There are opportunities for public comment in both processes, and it is very important that all of us are involved in what happens over the next few years.


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The concurrent processes are:

• An ORV Management Plan and Environmental Impact Statement (EIS). The Plan/EIS will guide the management of ORV use at Cape Hatteras for the next 10 to 15 years and is required by the National Environmental Policy Act.   The first public scoping meetings were last year, and now the National Park Service has developed a list of preliminary options for ORV management. The Park Service will host a series of public information meetings next week to answer questions about the options and will accept public comment on the alternative options until Feb. 15. This is a major opportunity for Hatteras and Ocracoke residents, business owners, off-island property owners, and visitors to have something to say about the future of driving on the beach.
• A negotiated rulemaking advisory committee, which had its first meetings on Jan. 3 and 4 at the Avon Fire Hall. There is also an opportunity for public comment in these meetings.  This committee is appointed under federal law by the Secretary of the Interior to assist the Park Service in developing rules for operating ORVs on the seashore.

While the two processes will proceed at the same time, Park Service officials are banking on the final ORV rules coming from the negotiated rulemaking committee, but the committee’s recommendations will have to be consistent with the Plan and EIS.

It may be confusing to follow what is happening, but the outcome will be crucial to the future of beach driving on the seashore and will have serious implications for the lifestyle of islanders and visitors and the economic health of local businesses.

NEGOTIATED RULEMAKING

The Cape Hatteras National Seashore has been required to have an ORV management plan to protect natural resources under executive orders issued in 1972 and 1977 and other federal regulations.  However, a formal plan was never adopted.

Currently, natural resource protection and ORV use are managed under an Interim Protected Species Plan, which is being challenged in federal court by several environmental groups.

About three years ago, Park Service officials said that they hoped to formulate an ORV management plan through negotiated rulemaking. 

Negotiated rulemaking is a process by which park officials and an advisory committee of representatives from groups that have a stake in the outcome sit down together to negotiate and achieve a consensus on what the rules should be.  It is based on the principle that agencies can make better rules by working with the people who are affected.  The alternative is that the Park Service officials develop the plan internally and then submit it for public comment. 

In early 2005, the park began working with the U.S. Institute for Environmental Conflict Resolution, which in turn hired two contractors to conduct meetings to determine if negotiated rulemaking would work at the Cape Hatteras National Seashore.

The contractors interviewed stakeholders in the spring of 2005 to determine if negotiated rulemaking was a feasible approach.  In December, 2005, they issued a report that the process could work at the seashore and proposed 25 committee members.  They included representatives of the federal, state, and local governments, civic and homeowner associations, tourism officials, ORV access and recreational fishing groups, commercial fishermen, and environmental and conservation groups.

Also, in December, 2006, the Park Service published in the Federal Register its intent to develop a long-term management plan and environmental impact statement, which is required by the National Environmental Policy Act and the initial public scoping for that plan was completed during 2007.

Finally, after many months of getting public comment on the makeup of the negotiated rulemaking committee and then tinkering with the membership, the Park Service published a notice of intent to proceed with the process and a final proposed list of committee members in the Federal Register in late June, 2007.

After a public comment period on that notice and committee members, the final notice of the establishment of the negotiated rulemaking advisory committee was published in The Federal Register on Dec. 20, 2007.

The committee is now 30 members from groups that have a stake in the outcome of the ORV rulemaking.  (A list of the members and their alternates is at the end of this article.)

The committee is established under federal law and members are appointed by the Secretary of the Department of the Interior.

So this is a very official committee whose members will sit around a table and hammer out the fine points of a beach driving plan.

The 30 members come from diverse groups with missions and goals that are very different.  There are environmental and conservation groups whose members think beach driving is out of control.  There are beach access groups whose members think natural resource protection on the beaches is out of control.  And there are groups with viewpoints in between that represent not only people who use the beach but also folks whose livelihood depends on beach access.

These folks came together on a cold and windy morning at the Avon Fire Station for their first official meeting.

The meeting was convened by Mike Murray, superintendent of the Cape Hatteras National Seashore and the designated federal official – or chairman -- of the committee.

“I call this meeting to order,” Murray said. “And I’ve waited a long time to say that.”

Murray noted that after looking at his e-mails over the holidays, he thought that the meetings were going to be a challenge.

“The problems are glaring,” he said. “For me, the focus is finding solutions.”

Mike Eng of the U.S. Institute for Environmental Conflict Resolution asked the committee members if they accepted the facilitators, Patrick Field of The Consensus Building Institute in Cambridge, Mass., and Robert Fisher of Fisher Collaborative Services in Alexandria, Va. In their first action as a committee, all agreed.

The meetings over two days were amazingly well led and civil, though members seemed at times a bit tense or tentative. This was not your usual raucous committee meeting.  Members did not interrupt each other.  They turned their name cards on end to be recognized to speak.

Over the two days, the members approved their charter and ground rules.  They were filled in on the National Environmental Policy Act (NEPA) planning and Environmental Impact Statement and how that process will interface with negotiated rulemaking.

The biggest surprise of the two days came in negotiations for the ground rules.  The committee operates by consensus, and in one of the most important decisions of the first meetings, the members had to decide what would be defined as consensus.

The facilitators suggested that consensus might be all but two members – meaning it would take at least three dissenters to defeat agreements.  Other recommendations were made – from up to five dissenters to 75 percent, or 23 members of the committee, concurring.  Finally on Friday, after a caucus by beach driving advocates and their allies, the members came to the rather surprising agreement that consensus would be unanimous. Either all members agree or there is no consensus.

Other contentious points were hammered out during the two days – including the wording on the purpose and enabling statement of the committee and the list of recreational activities to be included in its objectives.  Two subcommittees were appointed – one on agendas and one to work with the Park Service and a subcontractor on an economic analysis that will be used for both the EIS and negotiated rulemaking work.

The committee members met in several workshops last year, but the first official meeting of the group was interesting and serious, with most members trying their best to work with their adversaries on the beach driving issue.  The committee has a long list of contentious points to get hammered out during its meetings over the next year or two.  The charter lasts for two years but can be extended.

The meetings are sure to be engaging, and they are open to the public.  I suggest that you attend one or two to see conflict resolution in action – or not, depending on what happens.   There is time set aside each day of the two-day meetings for public comment.  Members of the public can speak or submit their comments in writing.

Schedules, agendas, meeting summaries, and other details will be public and will be posted on the Park Service’s planning Web site, http://parkplanning.nps.gov/caha under Cape Hatteras National Seashore Off-Road Vehicle Negotiated Rulemaking and Management Plan/EIS.

The next meeting of the committee will be on Tuesday, Feb. 26, from 8:30 a.m. until 5:30 p.m. and Wednesday, Feb. 27, from 8:30 a.m. until 3:30 p.m. at the Ramada Plaza in Nags Head.  Other meetings are tentatively scheduled for March, May, June, and late August or early September. The meetings will alternate between Hatteras Island and the area north of Oregon Inlet. 

MANAGEMENT PLAN AND ENVIRONMENTAL IMPACT STATEMENT

While the members of the negotiated rulemaking committee are at work on ORV regulations, the Park Service will move ahead with its management plan and Environmental Impact Statement, which is required by law.

Meetings are scheduled next week, Jan 14-17, for the public to get information on the alternative options that the Park Service developed after last year’s public scoping meetings.

The Park Service has also developed an ORV Preliminary Alternative Options Workbook, describing a variety of off-road vehicle (ORV) management elements and options to facilitate public comment on the preliminary alternatives plan and EIS.


According to the Park Service, “The workbook alternative options are not intended to be all-inclusive, nor necessarily always compatible or mutually exclusive. Multiple compatible elements can be considered in combination later to develop a diverse range of management alternatives for evaluation in the Draft EIS.”

Mike Murray, in a news meeting last month, described the workbook in more user-friendly terms “as a menu of options” that might be chosen to regulate ORVs. You pick and choose when you fill out the workbook.

The task of filling out the workbook is just that – a task.  It’s not for anyone who wants to get it done in 10 minutes or less.  It is about 84 pages long with maps and is extremely detailed about resource protection, education and outreach, beach driving permits, and much more.

However, if you are concerned about the future of beach driving and what it means for our lifestyle and businesses here, you need to fill it out.  Visitors, too, who enjoy the seashore beaches should fill it out.

After complaints about the format of the workbook on the NPS Web site, park officials have tried to make it more user friendly, with a Microsoft Word version that can be downloaded, completed, and returned by e-mail or printed out and mailed in hard copy. A limited number of hard copy versions will be available at next week’s meetings.

More details about submitting comments can be found on the Web site, and the Park Service has extended the deadline for comment to Feb. 15. 

The schedule for public meetings is:
 
Buxton
Monday, Jan.14, from 5 until 8 p.m. at the Fessenden Center on Highway 12 in Buxton.  The presentation will be from 6 until 6:20 with an open house before and after.

Kill Devil Hills
Tuesday, Jan. 15, from 5 until 8 p.m. at Wright Brothers National Memorial First Flight Centennial Pavilion, 8 1/2 Milepost Highway 158, Kill Devil Hills. The presentation will be from 6 until 6:20 with an open house before and after.


Raleigh
Wednesday, Jan. 16, from 5 until 8 p.m. at McKimmon Center on the North Carolina State University campus, 1101 Gorman Street, Raleigh.  The presentation will be from 6 until 6:20 with an open house before and after.


Richmond, Virginia
Thursday, Jan. 17, from 5 until 8 p.m. at the Comfort Inn Conference Center Midtown
3200 W. Broad St. The presentation will be from 6 until 6:20 with an open house before and after.

Keeping up with these two concurrent processes for regulating beach driving is going to be a task, but it’s one in which all of us need to participate.   And it’s going to take some time.  The Park Service doesn’t expect to get the negotiated rulemaking committee’s recommended consensus until next winter. A final management plan on ORV rules on the seashore is not expected before winter of 2010.

We must get involved now and not wait until it’s all over to start complaining about the ORV regulations we will live with for a decade or more.




MEMBERS OF THE NEGOTIATED RULEMAKING COMMITTEE


The Secretary of the Interior has appointed the following primary and alternate members to the Committee:

Civic and Homeowner Associations

1. Rodanthe-Waves-Salvo Civic Association, member C.A. Duke, alternate Pat Weston (Greater Kinnakeet Shores Homeowners, Inc., and Rodanthe-Waves-Salvo Civic
Association).

2. Avon Property Owners Association, member Frank Folb, alternate Pat
Weston (Greater Kinnakeet Shores Homeowners, Inc., and Rodanthe-
Waves-Salvo Civic Association).

3. Hatteras Island Homeowners Coalition, member Steven Kayota,
alternate Vincenzo Sanguineti (Hatteras Island Homeowners Coalition).
 
4. Hatteras Village Civic Association, member Roy Kingery.
 
5. Hatteras Landing Homeowners Association, Inc., member Jeffrey Wells.

Commercial Fishermen
 
6. North Carolina Fisheries Association, Michael Peele, alternate
William Foster (North Carolina Fisheries Association).
 
Environmental and Natural Resource Conservation Groups, State/Regional/Local:

7. Southern Environmental Law Center, member Derb Carter, alternate
Michelle Nowlin (Southern Environmental Law Center).
 
8. North Carolina Audubon, member Walker Golder, alternate Sidney
Maddock (National Audubon Society).

Environmental and Natural Resource Conservation Groups, National

9. Coalition of National Park Service Retirees, member Robert Milne,
alternate Dwight Rettie (Coalition of National Park Service Retirees).
 
10. Defenders of Wildlife, member Jason Rylander, alternate Andrew
Hawley (Defenders of Wildlife).

11. Natural Resources Defense Council and The Wilderness Society,
member Destry Jarvis, alternate Leslie Jones (The Wilderness Society).
 
12. The Nature Conservancy, member Sam Pearsall, alternate Aaron McCall
(The Nature Conservancy).

County Government
 
13. Dare County, member Warren Judge, alternate Lee Wrenn (Dare
County).

14. Hyde County, member David Scott Esham, alternate Eugene Ballance (Hyde
County).

Federal Government

15. Cape Hatteras National Seashore, member Michael Murray, alternate
Thayer Broili (Cape Hatteras National Seashore).
 
16. U.S. Fish and Wildlife Service, member Pete Benjamin, alternate David
Rabon (U.S. Fish and Wildlife Service).
 
State Government
 
17. North Carolina Marine Fisheries Commission, member Wayne Mathis, alternate Sara Winslow (North Carolina Marine Fisheries Commission).

18. North Carolina Wildlife Resources Commission, member David Allen, alternate Susan Cameron (North Carolina Wildlife Resources Commission).
 
Tourism, Visitation, and Business organizations
 
19. Cape Hatteras Business Allies, member Judy Swartwood, alternate
David Goodwin (Cape Hatteras Business Allies).
 
20. Outer Banks Chamber of Commerce, member Scott Leggat, alternate Sam Hagedon (Outer Banks Chamber of Commerce).

21. Outer Banks Visitors Bureau, member Carolyn McCormick, alternate
Renee Cahoon (Outer Banks Chamber of Commerce).

User Groups, OVR Use

22. North Carolina Beach Buggy Association, member Jim Keene, alternate David Joyner (North Carolina Beach Buggy Association).

23. United Four Wheel Drive Associations, member Carla Boucher, alternate Lyle Piner (United Four Wheel Drive Associations).

User Groups, Open Access

24. Outer Banks Preservation Association, member John Alley,
alternate John Couch (Outer Banks Preservation Association).

User Groups, Other Users:

25. Cape Hatteras Bird Club, member Ricky Davis, alternate Raymond Moore
(Cape Hatteras Bird Club).

26. Cape Hatteras Recreational Alliance, member Jim Lyons, alternate
Burnham Gould, Jr. (Cape Hatteras Recreational Alliance).
 
27. Water Sports Industry Association, member Trip Forman, alternate Matt Nuzzo (Water Sports Industry Association).
 
User Groups, Recreational Fishing
 
28. American Sportfishing Association, member Bob Eakes, alternate Patricia Doerr (American Sportfishing Association).
 
29. Cape Hatteras Anglers Club, member Larry Hardham, alternate
Robert Davis (Cape Hatteras Anglers Club).
 
30. Recreational Fishing Alliance, member Patrick Paquette, alternate
Ronald Bounds (Recreational Fishing Alliance).



COMMENTS FROM NOTICE OF ESTABLISHMENT IN FEDERAL REGISTER

The following is from the Notice of Establishment of the Negotiated Rulemaking Advisory Committee in the Federal Register of Dec. 20.


The Committee’s function is to assist directly in the development of special regulations for management of off-road vehicles (ORVs) at Cape Hatteras
National Seashore (Seashore). Executive Order 11644, as amended by Executive
Order 11989, requires certain Federal agencies to publish regulations that provide for administrative designation of the specific areas and trails on which ORV use may be permitted. In response, the NPS published a general regulation at 36 CFR 4.10, which provides that each park that designates routes and areas for ORV use must do so by promulgating a special regulation specific to that park. It also provides that the designation of routes and areas shall comply with Executive Order
11644, and 36 CFR 1.5 regarding closures. Members of the Committee will negotiate to reach consensus on concepts and language to be used as the basis for a proposed special regulation, to be published by the NPS in the Federal Register, governing ORV use at the Seashore. The duties of the Committee are solely advisory.

In accordance with the Negotiated Rulemaking Act, 5 U.S.C. 561–570, a
Notice of Intent to Establish a Negotiated Rulemaking Advisory Committee was published in the Federal Register on June 28, 2007, providing a 30-day public comment
period which concluded July 30, 2007.

The NPS received 143 comment letters or comment entries in the NPS Planning, Environment, and Public Comment (PEPC) on-line system during the comment period.

Responses to Comments Suggesting Additions to the Committee

The NPS received comments from a number of nonresident owners and renters of vacation homes asking that representatives of the Hatteras Landing Homeowners Association, Inc., and the Hatteras Island Homeowners Coalition be appointed as members of the Committee to represent their interests (nonresident property owners/renters and pedestrian and safety issues respectively) and to better balance the representation of interests on the Committee. One commenter noted that Hatteras Island is a premier surfing destination on the East Coast, and asked that NPS consider appointing a local resident from the Eastern Surfers Association or a representative from the Surfrider Foundation to represent interests of surfers.
 
Response

The NPS is aware that a balanced Committee is necessary for discussions to be meaningful and fair. The Negotiated Rulemaking Act states that a Federal agency considering negotiated rulemaking must determine that there are a limited number of identifiable interests that will be significantly affected by the rule, and that there is a reasonable likelihood that a committee can be convened with a balanced representation of persons who can adequately represent the interests identified. The Act also states that a
Federal agency can use the services of a ‘‘convener’’ to make these determinations. The NPS, working through the U.S. Institute for Environmental Conflict Resolution, contracted with the Consensus Building Institute and Fisher Collaborative Services, which subsequently assisted in identifying interests that would be significantly affected by a proposed rule, and representatives of those interests. The Cape Hatteras National
Seashore: Negotiated Rulemaking Feasibility Report (Feasibility Report) noted that there is no Outer Banks-wide organization that represents nonresident property owners and that there is no known, local or regional organized group whose primary interest is pedestrian beach use and public safety.

The NPS agrees that nonresident homeowner and pedestrian-only areas interests are underrepresented in its initial proposal. Accordingly, NPS has recommended that the Hatteras Landing Homeowners Association be given a seat on the Committee with its president, Jeffrey Wells, appointed as a member to represent the interests of nonresident
homeowners. The NPS has further recommended that the Hatteras Island Homeowners Coalition be given a seat on the Committee with its president, Stephen Kayota, appointed as a member to represent pedestrian and safety interests.
 
The Surfrider Foundation and the Eastern Surfing Association promote conservation and protection of ocean and coastal environments from pollution. Because the conservation and environmental protection interest is represented by other groups with similar perspectives, NPS determined that the interests of surfers would be represented adequately by the other conservation/environmental groups and that the access and experience interests, which are also important to surfers, would be represented adequately by other groups in the user category such as the Cape Hatteras Recreational
Alliance and the Watersports Industry Association.
 
Comments Suggesting Restructuring the Committee

Several comments stated that the Committee was not balanced, citing the overlapping group memberships of a number of the ORV and recreational fishing proponent members. One comment suggested that a smaller and more balanced Committee should be created. Some comments suggested removing proposed members perceived
as argumentative, biased, and not willing to look for consensus.

A Commenter also suggested that the two proposed representatives from the
Watersports Industry Association be replaced by representatives from the Eastern Surfing Association or the Surfrider Foundation to represent interests of surfers. This comment questioned the appropriateness of appointing individuals with vested business interests in access to the beach for business purposes and stated that the Watersports Industry Association does not have a broad base of support for the sports enjoyed on Hatteras and Ocracoke.

Response

The NPS understands that a number of representatives have overlapping memberships in different groups. The Feasibility Report also noted this overlap while recognizing that, even though there are common interests, each member also represents a different perspective and interest that needs to be represented for the Committee to negotiate a proposed rule that will consider all interests. All interest groups significantly affected by the ORV regulation must be involved in any meaningful negotiation. Moreover, the final membership proposed must represent a balance of interests. The NPS believes that the final composition of the Committee will accomplish these purposes.
 
The NPS has been advised by the Department of the Interior ethics office that appointment to a negotiated rulemaking committee of individuals with interests in access to the beach for business purposes is acceptable. Further, ethics rules relating to advisory committees will be discussed at an early meeting of the Committee to ensure that members understand them. Finally, NPS agrees that the Watersports Industry Association is concerned with a broader spectrum of activities than are enjoyed at Cape Hatteras National Seashore, but notes that those activities, such as surfing, enjoyed on Hatteras and Ocracoke are included within its interests.
 
Comments on Committee Purpose and Process
 
Comments were received on additional factors surrounding the establishment of the Committee. Broadly categorized, these comments addressed: the willingness of members to negotiate and reach consensus, and proposed procedures and guidelines for the Committee.

Response

Committee members are required to negotiate in good faith, including considering others’ perspectives and approaching negotiations with an open mind. Every proposed Committee member has agreed to do this. Also, to police itself, the Committee will adopt ground rules to enhance its ability to negotiate and reach consensus. Finally, the NPS Designated Federal Official for the Committee has the authority to recommend to the Secretary that a member who is not negotiating in good faith be removed from the Committee.

The procedures and guidelines for the Committee that one commenter proposed are similar to those recommended by the Feasibility Report with which the NPS has concurred. The NPS expects that the Committee will consider these procedures and
guidelines when it adopts its ground rules.
 
Additional Comments

A number of comments were received that did not address the establishment, scope or membership of the negotiated rulemaking Committee, but did address the general issue of ORVs at Cape Hatteras National Seashore. Those comments fell into the following categories: Support or opposition for different levels of ORV access; options for specific elements of an ORV management plan; opinions on the meaning of the Seashore’s enabling legislation; support for strict enforcement and penalties for violations of ORV regulations; concerns about visitor safety and beach driving; park values, including recreational surf fishing, enjoyment of wildlife and nature, opportunity for family bonding, and enjoyment of the park’s beaches; potential impacts of ORV management on socioeconomics, visitor use and experience, wildlife and wildlife habitat, and topographic conditions; the recent U.S. District Court Order; the Interim Protected Species Management Strategy/Environmental Assessment; and the proposed critical habitat designation.

The NPS is preparing an ORV Management Plan and associated environmental impact statement that will evaluate a full range of reasonable alternatives for ORV management at Cape Hatteras National Seashore. The NPS will take these comments into consideration when preparing the plan.





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