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Guest column…One spectator’s view of the negotiated rulemaking process

By VIRGINIA LUIZER

Few people are aware of the fact that the negotiated rulemaking committee meetings are not only open to the public, but that the public is provided an opportunity to speak at each meeting.

Since the Southern Environmental Law Center, representing Defenders of Wildlife and the National Audubon Society, has asked a federal judge to declare portions of the Cape Hatteras National Seashore off limits to off-road vehicles and that the February 26-27 committee meeting in Nags Head was scheduled as the first meeting for actual negotiation on the components of an ORV rule, I decided to attend the Feb. 26 meeting of the committee.

While a variety of topics were addressed, the bulk of the discussions were devoted to the legal actions taken by SELC and setting a speed limit for the park’s beaches.

The first question you may have is why speed limits took the spotlight for the day. The second question might be why it took the bulk of the day to attempt to come to agreement on speed limits. The summary presented below will give you answers to these questions. It will also give you some feel for the prospects for beach access this year and the potential for the committee’s actually completing the task of writing an ORV rule/regulation as required by law.

I tried to keep the summary short but couldn't -- even though I left most of the events out.

SELC Litigation

Derb Carter from Southern Environmental Law Center stated that the request for a temporary injunction against driving on many popular areas of seashore beaches addressed concerns about species management and not concerns about the ORV process currently underway.

Carter also noted that the current complaint was filed prior to the beginning of the negotiated rulemaking deliberations. He advised the committee that the request for the temporary injunction is simply a part of the process that began before the RegNeg rulemaking process. Based upon these facts, Carter stated that SELC actions cannot be construed as demonstrating a lack of commitment to the negotiation process.

The comments offered by committee members clearly demonstrated that the rest of the committee just didn't buy Carter’s explanation. Most questioned the timing and intent. In my comments, I acknowledged that the letter of intent was indeed filed prior to notice of intent to use the negotiated rulemaking process in June of 2007. That said, contrary to Carter’s claim, the actual complaint was not filed until December, 2007. I found out later that it was filed in October, but that is still 10 months after the original 60-day letter of intent, and, as such, demonstrates the refusal by SELC, DOW, and the National Audubon to accept anything other than restrictions on night-time use and closures of Cape Point and the inlets.

I further noted that the fact that the injunction requests not just seasonal closures but year-round closures means the requested action has the effect of attempting to bully committee members into accepting SELC, DOW, and Audubon’s demands. Finally, I stated that such blatant attempts to influence the process cannot be ignored.

A bystander’s view of negotiated rulemaking

In the beginning of the meeting, the facilitators seemed to be doing a good job. A list of ORV issues was distributed. (I think gleaned from the workbooks that the National Park Service collected as part of the National Environmental Policy Act.) The strategy was to rank them in terms of importance.

Here is the first place the facilitators dropped the ball. After taking a tally of the rankings for the first issue (access), a committee member asked for a definition of importance -- was it “Yes, I want it” or “No, I don't want it?” The answer was that importance means you feel strongly either way or you feel the issue may be contentious. Well, that just about covers everything on the list!

On to the next step. The facilitator suggested that a low-importance item be selected so that the committee could focus on the implementation of the negotiation strategy—practice, if you will. After some discussion as to whether it might be more appropriate to address a high-importance issue first, it was agreed to address a low importance issue, but only if the committee addressed closures before the end of the February session. The logic for discussing closures was that if the injunction is granted, it could become necessary to adjust safety and seasonal closures to make room for displaced visitors.

As a side note, a retired U.S. Fish and Wildlife Service employee stated that he was of the opinion that even the most incompetent of judges would be slow to grant the injunction--for political reasons. We found out later that federal Judge Terrence Boyle, who will be hearing the request for the temporary injunction, has already been advised that his appointment to the federal Court of Appeals will not be pursued by the Bush administration. At that point, the retired USFWS employee rolled his eyes and simply said, "I take it back." That is, we have a judge with a highly questionable record who has nothing to lose. Watch out, folks.

Back to negotiations, the topic chosen was speed limits. The facilitators did a good job of tracking/listing the issues. At some point, someone suggested that a 10 mph speed limit should be implemented near resource closures. Walker Golder of North Carolina Audubon took this opportunity to state that speed limits are not a substitute for resource closures and went into a long diatribe about how difficult it is to see a chick in a tire rut, at any speed.

This is where, in my opinion, the facilitators dropped the ball a second time. Despite the fact that the committee ground rules do not permit a committee member to change the topic in this fashion, the facilitators did absolutely nothing. At the very least, they could have noted the diversion, then let the committee decide if Walker’s comments were, in fact, a departure from the topic at hand.

Anyhow, discussion continued with a wide variety of speed limits proposed, and all the possible exceptions to any general speed limit started snowballing. Only a few attempts were made to focus on any one exception listed. The one thing seashore superintendent Mike Murray made clear is that the greater the number of speed limits, the more difficult it would be to implement the rule.

The response from the facilitators was to attempt to get the committee to set the issue aside and move to another related topic, such as signage. After a committee member called for a procedure that involves breaking out into smaller groups (caucus) and then reconvening, it was decided that there was not that much of a difference in opinion and that the committee should proceed with the exceptions one at a time and reach a conclusion on speed limits.

The first exception was ramp speed limits. The issues were that reducing the 25 mph speed limit to 10 or 15 could result in users slowing down to the point where they can't make it over steep ramps. On the other side of the coin was the concern that 25 mph is too fast, especially with pedestrians and people stopped to air down. The solution was to add a caution sign at ramp entrances. Someone asked the facilitators to take a poll for consensus.

Once again, I feel the facilitators dropped the ball in that they insisted on gathering other options first. The second option was a ramp speed limit of 15 mph. Finally, someone actually got the facilitators to take the poll on the caution sign. There was agreement from all but one committee member – Mike Murray. Murray’s concern was the number of signs required (aesthetics and maintenance issues).

Apparently there is another ground rule--if there are one or two dissenters, an effort should be made to find some way of making the proposal acceptable to that person.

Did the facilitators make even the weakest attempt to find out if there was a way to mitigate this concern? No, they did not. Meanwhile, we lowly observers were sitting there saying, “Wow, just put the caution sign on the ramp number sign, maybe even with a reminder of tire pressure.”

What did the facilitators do? They immediately polled the second alternative -- 25 mph generally, and 15 for ramps. Interestingly, Murray did not object based upon the need for another sign. In all the confusion, one person abstained without realizing what the committee members were agreeing to and then took back the abstention, and off we went again.

This time, the facilitators changed the focus to analyzing the process itself. At some point, Patrick Paquette of the Recreational Fishing Alliance objected, pointing out that he came here to write a rule not to take a course in facilitation techniques.

According to the retired USFWS employee that I was sitting next to, this type of pain and suffering is part of the learning curve and can be expected on a first attempt to come to consensus on an issue. I get that, and I can see that it makes sense that the committee members have a bit of learning to do. I still think, however, that the paid-for, experienced facilitators could have done a much better job directing the deliberations, and I really feel that, in many cases, the facilitators did more to impede progress than they did to help. Question: Do they get paid by the hour?

For those who want to know, the decision was 25 mph generally with 15 mph on ramps, interdunal roads, soundside, and one other location, with a variety of exceptions to be discussed later when the relevant topics come to the table, such as ORV use in front of the villages, safety closures, etc. Oh, this is only a tentative rule. The committee is to sleep on it and decide the next day whether or not to write it up in a more formal manner. Right now, the various options are on a series of white papers plastered all over the walls of the room.

I stayed awhile longer and listened to Carla Boucher, the representative for United Four Wheel Drive Associations, press Derb Carter from SELC for a yes/no answer to her question regarding whether SELC would consider negotiating on anything less than the moderate USGS protocols. After at least a half dozen repetitions of the question, Carter stated that it was not appropriate to ask him to detail what he is or is not willing to negotiate on. Boucher simply pointed out that for any other committee member that would be true, but that SELC had set itself apart from the committee at large by way of its legal action.

I left at 4 p.m., but it is my understanding that the committee did address closures shortly after that. The word is that one group decided that the park documents do not provide for ORV use per se and that the starting point would be to assume the entire park is closed to ORVs, and then decide what to open to ORV access. The other group felt that ORV use is, in fact, one of the appropriate forms of recreational use referenced in the park’s documents and that the starting point should be to assume the entire park is open to ORV use, then decide what to close to ORV use. The end result was that the whole issue of closures was tabled until the upcoming March meetings.

What is interesting here is that a decision had been made to separate ORV planning from species management and to defer species management until the end. The reason for this is abundantly clear from the results of the attempt to discuss closures. My initial appraisal of the situation was that, at the very least, the park might get a feel for the type of ORV rule acceptable to all parties, but that the process would crash and burn on species management. Based upon the observations detailed above, I am no longer certain the committee will get that far.

(Virginia Luizer is a retired professor of computer applications and accounting. She and her husband, Jim, found Hatteras Island in 1980. She says that as they started to learn the ins and outs of surf fishing, it became apparent that success depended being able to traverse large sections of the beach in search of their quarry—in other words, ORV access to the beaches. They retired to their home in Frisco in 2002 and spend much of their time fishing from the surf and in their boat, crabbing, clamming, oystering, gardening, and processing the fruits of their labor.)