February 16,  2009




The regulatory negotiation process to develop an off-road vehicle management plan for the Cape Hatteras National Seashore Recreational Area is in its final stage. The last two public meetings will be held February 26 and 27 at the Wright Brothers National Memorial in Kill Devil Hills.

Citizens who care about the future of public access to the seashore are encouraged to invest some time to understand the current proposals of the ORV planning process. The current Reg-Neg discussion is as much about the future purpose of the park -- public access and use -- as it is about reasonable ORV management.

BACKGROUND

In 1937, during the Great Depression, a period of public malaise, not too much different from what we are currently experiencing, Congress established the Cape Hatteras National Seashore Recreational Area. The enabling legislation for the National Seashore states: “said area shall be, and is, established, dedicated, and set apart as a national seashore recreational area for the benefit and enjoyment of the people and shall be known as the Cape Hatteras National Seashore Recreational Area.”  A primary purpose of the national seashore was to lift the spirit of economically distressed citizens who could not otherwise afford other forms of recreation.

Management of the Cape Hatteras National Seashore Recreational Area falls under the jurisdiction of the National Park Service (NPS). The National Seashore is subject to the same management regulations and polices as all other national parks. In 1972, Executive Order 11644 directed all national parks to prepare an ORV management plan to ensure environmental sustainability and enjoyable use for future generations of Americans (1).  Readers should note, that the Executive Order does not direct that ORVs be banned, but that they be managed to ensure the intended purpose of the Park Service facility.

REGULATION NEGOTIATION

After more than three decades of non-compliance with the Executive Order at Cape Hatteras National Seashore Recreational Area, the National Park Service launched a planning process about 18 months ago.  In an effort to diffuse multiple stakeholder conflicts, NPS chose to use a process know in government as “regulation negotiation,” or “Reg-Neg.”

Thirty stakeholder groups were commissioned in late 2007 to provide the National Park Service with information and ideas on how to structure a final ORV management plan.

The purpose of any regulation negotiation process carried out by the federal government is to avoid costly litigation and to provide the government with useful information for formulating a regulation or policy.  In many instances, the “good faith negotiation” process has been shown to establish respectful and trustful interactions and produce constructive and equitable regulations. The process tends to function well when the government agency is “dialoguing” with a single or a small number of similar stakeholders.

As with all federal Reg-Neg processes, it was initially understood and agreed that all stakeholders in the ORV management planning effort would refrain from litigation and attacking each other in the media. Also it was agreed that the purpose of ORV Reg-Neg process was to arrive at 100 percent agreement, or consensus, on an ORV management strategy.

The NPS decision to use a regulation negotiation process to implement the Executive Order was not wise. Had NPS policymakers reviewed the 20-year success record of Reg-Neg, they would have found that Reg-Neg processes tend not to work when there is such a high number of diverse stakeholders as are currently taking part in the Cape Hatteras National Seashore Recreational Area ORV management planning process.

Committee members negotiating rulemaking on the seashore include ORV access groups that want as much of the beach open to ORVs as possible, environmental groups that want as much of the beach closed to ORVs as possible to protect birds and sea turtles, a pedestrian-only group that wants more of the seashore reserved for walkers, and several village and homeowner associations that vary in their goals – from closing beaches in villages to ORVs year-round to seasonal closures.

From the start, the 100 percent consensus ground rule was not realistic with such a large and diverse committee.  Reg-Neg facilitators should have known that many Reg-Neg processes produce majority and minority recommendations. 

Any chance of reasonable agreement was completely lost after two environmental organization stakeholders, represented by a third environmental stakeholder, launched litigation early in the process.  That litigation denied significant public access to the national seashore during 2008 and created enormous public outrage and tension. This unnecessary litigation all but destroyed the good faith negotiation process. NPS allowed the environmental stakeholder litigants to remain a part of the Reg-Neg committee, even though every aspect of trust and respect was breached.

MANAGEMENT ALTERNATIVES

In this final stage of the regulation negotiation process, there are four distinct stakeholder groups: National Park Service; pro-access stakeholders; pedestrian stakeholders; and environmental activist stakeholders.

As of the 12th Reg-Neg meeting on February 3, each of these stakeholder groups has indicated or presented draft access and use alternatives.

In October 2008, the National Park Service took the lead and proposed five management alternatives for consideration by the committee. NPS outlined a general rationale and description for each of the five alternatives. The NPS alternatives serve a useful purpose of stimulating conversation and establishing legal parameters for additional proposals.  The NPS alternatives were listed and discussed by The Island Free Press on Nov. 9, 2008 (2). 

The pro-access, pedestrian, and environmental stakeholder groups have also proposed draft access and closure alternatives.  These are represented by colored lines on the maps published by The Island Free Press on Feb. 9 (3).

PRO-ACCESS ALTERNATIVE X

Despite the fact that there will likely be no consensus recommendation coming out of the regulation negotiation process, there has emerged a majority recommendation put forth by the pro-access stakeholder group.  Pro-access stakeholders call this majority backed proposal Alternative X.

Alternative X is represented by line No. 1 on the maps referenced above.

With the exception of the reasoning presented by NPS for the five alternatives presented in October, Alternative X is the only proposal that has been explained in some reasoned detail by any of the non-governmental stakeholder groups.

From my perspective as an environmental manager seeking compliance with the Executive Order, a reasonable scientific basis of resource protection and management, equity in public access and use of the park, economic efficiency, and cost effectiveness, Alternative X is recommended as a well-crafted proposal.

Alternative X deserves serious consideration as a viable management strategy for the following reasons:

• Alternative X complies with the requirements of the Executive Order to promulgate an ORV management plan.
• Alternative X is based on the in-depth knowledge of the national seashore environment and its natural processes, acquired over a lifetime of day-to-day and year-to-year exposure and observation by many of the pro-access stakeholders.
• Alternative X provides justification, agreement, and general enhancement to NPS Alternative E, which is the most reasonable, equitable and flexible management strategy of the of the five NPS alternatives.
• Alternative X is fully consistent with the proactive environmental performance record of the pro-access stakeholders. Pro-access stakeholders, time and again over many years, have demonstrated and established a record of responsible management of natural resources in the Cape Hatteras National Seashore Recreational Area.   Pro-access stakeholders have been visibly proactive in cleaning beaches, protecting vegetation and wildlife, and educating the public about safe access and use of the environment so that seashore users and species can co-exist.
• Alternative X recognizes that an environment as dynamic as the national seashore is a set of continuously changing conditions that affect the life of organisms.  Alternative X, like NPS Alternative E, is an effective resource protection strategy that utilizes to the fullest extent the professional judgment and technical capabilities of NPS to respond to specific or changing conditions that require resource management attention.
• Alternative X allows the National Park Service to do the job for which it was created and accents the needs for professional judgments and discretionary decision-making on the part of NPS officials for the purpose of effective resource management.
• Alternative X recognizes that closures for resource management may be required, based on judgments of NPS.
• Alternative X recognizes the limitations of available science and data and does not misrepresent science with unsubstantiated or exaggerated science claims or demands for non-existent or impossible scientific proof.
• Alternative X provides for reasonable access and use by all the traditional recreational users of the National Seashore Recreational Area. 
• Alternative X is fully accommodating to pedestrians and those citizens who seek solitude.
• Alternative X provides that ORV users have access to about half of the shoreline.  Pedestrians have access to all of the shoreline.
• Alternative X is the only alternative that has addressed and responded to the access needs of the physically disabled, the elderly, and those citizens of all ages incapable trekking to the shoreline through sand, over dunes, and otherwise difficult terrain.
• Alternative X has addressed public safety concerns to a greater extent than other alternatives. It has addressed speed limits, vehicle safety characteristics, ORV corridor safety boundaries, emergency equipment, and safety education for visitors to the national seashore.
• Alternative X reduces access uncertainties on a seasonal basis and will produce less public anxiety than other proposals. 
• Alternative X does not deter visitations, access, and recreational use of the National Seashore and does not have an adverse effect on the Outer Banks economy to extent the other proposals have.
• Compared to all other stakeholder alternatives, Alternative X has a well-reasoned and equitable basis that can be explained to the public to gain public support for the management plan.

PEDESTRIANS

The pedestrian access proposal is represented by line No. 2 in the maps referenced above.

The pedestrian proposal is without a clear explanation or justification. There is no transparent motive behind the pedestrian proposal.  The pedestrian stakeholder proposal seeks extensive ORV denial, especially on Ocracoke Island, where it proposes a “pedestrian area” that can only be reasonably accessed by ORVs.  The proposal totally disregards the infrastructure of the recreational area.

The maps indicate that the pedestrian proposal sets aside miles of shoreline near villages for what one can only assume to be the exclusive benefit of private property owners and dwellers, and pedestrians physically capable of walking the sands.

This alternative, as some others, fails to address the Americans with Disabilities Act, especially as that act applies to federal facilities such as the national seashore.

In the absence of a clearly stated purpose, the pedestrian proposal appears to be an attempt to extend individual use preferences and personal private property rights into public property--the national park shoreline-- without regard to equitable use or seasonal resource management considerations.

ENVIRONMENTAL ACTIVISTS’ ALTERNATIVE AND SCIENCE CLAIMS

The environmental activists’ proposal is represented by line No. 3 on the maps.

For the most part, the environmental activists’ proposal is a long red line that denies ORV access to the majority of shoreline and allows only pedestrian access, but then only with highly regulated uses.

The environmental stakeholders appear to want to permanently turn a major part of Cape Hatteras National Seashore Recreational Area into a “bird use area” far more extensive than the public experienced this past year under the infamous consent decree.

The environmental alternative calls for permanent, year-round closures to ORV traffic and traditional recreation uses in many of the most popular locations within the national seashore—to include Cape Point, South Beach, and a major part of Ocracoke Island.  Most of these areas are currently accessed primarily by ORV vehicle.  A large number of citizens who use this national seashore for recreation would, for all practical purposes, no longer be able to frequent the area. These areas are impossible to get to by disabled citizens.

In analyzing the access and use implications suggested by the maps, one can reasonably calculate and conclude that should the NPS accept and implement this environmental activists’ proposal, future ORV access will be, on average, less that 20 percent of traditional ORV access.

One can also conclude that, should this alternative be implemented, the Cape Hatteras National Seashore Recreational Area would contain one of the largest bird-use areas in the country under the jurisdiction of the National Park Service.

The main reason given for permanent closures to ORVs is a sweeping generalized claim that “historically” bird activity has been observed on the shore in that area of the national seashore.  If you accept this reason, ORVs would be disallowed everywhere in the park.

There is little chance there will be any further significant agreement between the pro-access and environmental stakeholders. The environmental organizations have insisted they will not budge from their current position.

The environmental stakeholders have stated time and again, the “law and science” is on their side.

Before accepting this claim, readers should consider the following:

With regards to law: The law will be determined in a federal court by a federal judge, and not by environmental lawyers sitting at the Reg-Neg table representing national environmental activist organizations.

With regards to science: During the past 13 months of Reg-Neg, there has been no presentation of data, formal and substantive scientific presentation and discussion, let alone independent verification and validation. After 13 months of requests for data from individual Reg-Neg members and the public, there has been no scientific data presented that indicates ORV access to beaches of the park is threatening environmental sustainability. A cause-and-effect relationship-- ORVs and harmed species-- has not been established. There has not been a single peer-reviewed, published study presented this past year that indicates ORV access to the shoreline is threatening environmental sustainability.

THE SEASHORE IS A HEALTHY ECOSYSTEM

Cape Hatteras National Recreational Area Seashore is by definition a healthy ecosystem, given its diversity of interactive plant and animal species. In the face of literally several thousand ORVs that allow the public to access the beaches of the Seashore every year, the National Park Service and the U.S. Fish and Wildlife Service pamphlet, titled “Birds of the Outer Banks,” opens with following sentence:

“Nearly 400 species of birds have been sighted within the Outer Banks of North Carolina.”

Such a large number of observed bird species is hardly an indication of a threatened ecosystem and bird population damage as claimed by the environmental activist stakeholders. In fact, this verifiable bird species statistic is a measurable tribute to the resource management competency of the National Park Service and the cooperative efforts of other government agencies, non-governmental organizations, and the concerned public throughout the 70-year history of the Cape Hatteras National Seashore Recreational Area.

PEER REVIEW DEFICIENCIES
 
All substantive and responsible environmental management and policy formulations begin with a basic understanding of how the environment works. Science-related statements for government regulation must be fully referenced and clearly indicated as actual observations, hypothesis, speculation, or personal judgment.

Science is a body of knowledge that answers the question “How?” Science is the only discipline that subjects itself to disproof. Credible scientists are always open and responsive to questions and accepting of disproof, should that occur. 

In all sciences, particularly wildlife science, there are many uncertainties, data gaps, and limited observations.  These limitations always need to be disclosed, especially when the "fuzzy science" is being used to regulate the public.

For the past 40 years, it has been the policy of the federal government to have in-depth, open science review of the basis for regulations that affect the public and the environment (4). The ORV management plan is such a regulation. Its science basis must be sound and disclosed honestly. The mere personal opinions and even professional judgments of a scientist do not constitute “best available science” or a demonstration of the Hard Look Doctrine, which is required in government decision-making.

The NPS Policy Manual (August 31, 2006, page 195) clearly states the policy of peer review and journal publication of science.  In recognizing the importance of science, the newly appointed Secretary of Interior, Ken Salazar, reconfirmed the NPS policy several weeks ago when he made it clear that the Interior Department would base all decisions on sound science.  Up to now, in the development of the final ORV management plan, there has been no such open review of science. 

A good example of why science claims need a in-depth review can be found in the unquestioned acceptance of the restrictive buffer distances tables in what is commonly called the USGS Protocols (5). 

Without review and explanation, these highly restrictive boundary distances were accepted as credible science by a federal judge last April. These boundary distances have closed down the beaches and have turned them into bird-use areas.  They have denied thousands of citizens ORV and foot access to many of the most popular beaches in the national seashore. They have caused substantial economic loss for the Outer Banks community. 

Since their release, the protocols have been touted by environmental organization as the “best available science.”  However, there is no public record that the protocols and boundary distances and closures have been officially peer reviewed following USGS Peer Review Policy (6), so as to even begin to accept them as being “best available science.”

The protocols are not dated. There is no USGS document or publication number. There is no indication that the protocols were ever published in the Federal Register and made known to the public other than in local press releases   Nowhere in the public record is there an explanation of how scientists used studies and their science to calculate/arrive at various closure distances and protective boundaries that have now denied the public access to the shoreline.

The following questions have yet to be answered:  What is the specific basis in science for the boundary distances? What was the analytical methods/rationale the authors used to arrive at the buffer distances?

The boundary distances are not science. The USGS Protocols that contain the boundary distance are management guidelines which should be applied as they were originally intended--with professional management judgment and experience, balanced reason, and flexibility to changing conditions.

As stated in the notice of their availability, the protocols “…represent the professional opinions of scientists that analyzed and interpreted the scientific data associated with protected species found at the Seashore.”

The notice also states, “The information provided in the Protocols can be used by park managers as a tool to assist in the development of management plans and conservation strategies for species protection and public use. In addition to science, many other factors such as federal laws and mandates, National Park Service (NPS) policies, public input, practical field experience, and other scientific information are also considered in the development of plans and strategies.”

There is nothing in law that requires the application the USGS Protocols.  It is strictly at the discretion of the NPS as to how the protocols will be considered and used in resource management. 

Most importantly now, in the final days of Reg-Neg, these access restrictive boundary distances are being written into the various ORV management alternatives.  If not properly applied with professional management judgment, these boundary distances will cause significant denial of public access in the days and years to come.

RECENT LITERATURE IDENTIFICATION

The absence of a scientific literature review and objective assessment of data is one of the most blatant failures of the current regulation negotiation process. 

In the absence of a literature review and assessment that should have been carried out by the National Park Service nearly a year ago, a 96-page list of scientific citations and a literature review was provided to the Reg-Neg committee by the Audubon Society shortly after the Feb. 3 public meeting. The environmentalist stakeholders contend that the list of citations justify the ORV access denial to the seashore.

Such a literature list drawn up by the NPS should have been a starting point for discussion a year ago.  Even in accepting the literature list provided by the Audubon Society as being free of significant bias, the long literature list comes on the wrong end of the Reg-Neg process.  Without an in-depth examination of key papers and a well referenced assessment of the data in the papers, it is impossible to conclude anything about ORVs and natural processes and resources.  It is impossible at this juncture to locate hard copies of papers to give them the in-depth look that is necessary so as to draw any useful conclusion for ORV management on the national seashore.

One can at best invest a few hours and read the abstracts of papers in the 96-page Audubon Society handout.  In general, the abstracts indicate many unknowns, speculation, non-validated models, and the need for more research. Some papers even conclude ORVs have no significant effect on birds. Some papers encourage reasonable informed judgments and support the Interim Strategy that was overturned, without open review, by the consent decree.

Some well understood risks are found in the abstracts. For example, birds are at greatest risk because of natural predators. Pedestrians and pets increase the risk of bird loss. Bird populations are adversely affected by commercial and residential development and lost habitat. Bird counts go down after severe storms and during drought periods. These facts have been known for many years.

However, in reading the abstracts carefully, one will find not a single document that supports the position that one needs to permanently restrict ORVs at the national seashore to protect birds.

The environmental representatives at the Feb. 3 Reg-Neg meeting made a point to say that four new pieces of science were uncovered that support the case for ORV access denial. These papers were posted on an NPS website and made available for review on Feb. 6. They are referenced as: Barbee, 1994; Harrinton, 2008; Tar, 2008; Callazo, 1995.

In examining these documents, one finds that Tar, 2008 and Barbee, 1994 are unpublished master degree theses.  Harrinton, 2008 is a “Technical Note”, and Callazo, 1995 is an unpublished research report. None of these documents comply with federal government guidelines for peer review.

The project officer for the Callazo research report is Dr Theodore Simon a well known, highly respected scientist who presented his opinions in an interesting informal background talk to Reg-Neg six months ago.  Dr. Simon and Dr. Callazo are colleagues at North Carolina State University and both of them also signed off on the Tar thesis as reviewing professors. Their research bias is apparent. Also their research affiliation with Audubon Society has never been disclosed.

The public should know that dissertations or theses are academic exercises and degree requirements. Their purpose is to demonstrate some appropriate level of research skill on the part of the student. However, many are biased when the student interprets data. Students often write to satisfy the professor so as to graduate. That being a common case, a good dissertation or thesis is universally recognized as one that produces a refereed publication after its academic review. Neither of the two cited theses has accompanying refereed publications. Readers should also know that a dissertation or thesis by itself is never used as the basis for environmental policy or regulation in any federal agency. At best, they serve as buttressing information. (I know, because I helped develop the multi-federal agency science review policy with the help of the National Academy of Sciences and the U.S. Environmental Protection Agency’s Science Advisory Board in 1980.)

Even though these “new science finds” were presented on Feb. 3 as demonstrating that ORVs should be banned from a large portion of the national seashore,  Callazo, 1995 pages 8-9 states:

“….. we recommend that ORV traffic be allowed in such key colony sites as Cape Point, Hatteras Inlet, Power Squadron Spit, and the west end of Shackleford Island during the fall and winter to assist in maintaining the bare or nearly bare upper beach habitat necessary for nesting terns and skimmers.”

Perhaps the environmental stakeholders should take an in-depth look at the documents they are referencing before making sweeping claims that ORV access must be disallowed at the Cape Hatteras National Seashore Recreational Area because there is science that supports the position.

WHAT THE PUBLIC CAN DO NOW

As this Reg-Neg process comes to an end, citizens are encouraged to stay involved and continue to learn facts and voice their concerns and opinions to the National Park Service. After all, if citizens fail to take part in the processes of government decision-making, they have nothing to complain about at a later date if they are delivered an ORV management plan they do not like.

The public will have an opportunity to comment on the final plan when it is proposed by the National Park Service as makes it way through the formal rulemaking process in the months to come. The National Park Service must present for public review a proposed management plan that complies with the Executive Order, an economic analysis, an environmental impact analysis, and an opinion from the U.S. Fish and Wildlife Service.  Citizens should be prepared to submit written comments during that period.

Citizens are encouraged to request meaningful public hearings on the content of the final plan. Public hearings are to collect useful information and data, and not be glorified public venting events

 Citizens should request a detailed explanation from the National Park Service for the various aspects of the plan to include the legal basis. These explanations should be published in the Federal Register.

Keeping in mind that we cannot manage our environment effectively and efficiently until we understand how it works, citizens are encouraged to demand formal, open, independent review of all science associated with the final plan.  The National Academy of Sciences can conduct such a review.

Finally, readers are encouraged to give full consideration to supporting ORV management Alternative X for the reasons presented in this article.  Readers are particularly encouraged to thank those citizens who have stayed at the Reg-Neg table for the purpose of good faith negotiation, as difficult and dysfunctional as the process has been over this past year. Many on the Reg-Neg committee have made a good faith effort to advise the National Park Service on an ORV plan that will work for us all. These hard working citizens represent the very best in our democracy.


FOR MORE INFORMATION

Click here for a matrix comparing NPS management alternatives with Alternative X, designed by access groups.

Click here for ORV routes and areas table compiled by access groups

REFERENCES

1. Title 36, section 4.10 of the Code of Federal Regulations implements the executive orders by providing that routes and areas designated for off-road vehicle use shall be promulgated as special regulations.

2. http://www.islandfreepress.org/2008Archives/11.10.2008-NegotiatorsAndThePublicGetALookAtParkServiceAlternativesForORVmanagement.html
3. http://www.islandfreepress.org/2009Archives/02.09.2009-ShootingTheBreezeTheMeaningOfTheColorPurpleAndOtherNews.html

4. Guidance on peer review selection for "highly influential scientific assessments," as defined by the Office of Management and Budget, is found in OMB, Final Information Quality Bulletin for Peer Review.

5. The USGS Protocols are currently available on the Interim Protected Species Management Strategy website at http://parkplanning.nps.gov/document.cfm?parkID=358&projectId=13331&documentID=12970

The buffer distances are published on page 12, Table 1 of the report Synthesis of Management, Monitoring, and Protection Protocols for Threatened and Endangered Species and Species of Special Concern at Cape Hatteras National Seashore, North Carolina. Jonathan B. Cohen, R. Michael Ermin, John B. French, Jeffrey L. Marion, J.Michael Meyers. US Geological Survey, Patuxent Wildlife Research Center. (Undated Document).

6. USGS Peer Review Policy  http://www.usgs.gov/usgs-manual/500/502-3.html. 





ABOUT THE AUTHOR

Dr. Michael A. Berry served as an Army officer in Vietnam in the 1960s. After returning to civilian life, he earned a doctorate in public health and worked in the U.S. Environmental Protection Agency, where, as a senior manager and scientist, he served as the Deputy Director of National Center for Environmental Assessment at Research Triangle Park, N.C. During his 28-year career with EPA, he had extensive interactions with environmental organizations, local governments, the federal courts, U.S. Congress, universities worldwide, and institutions, such as the National Academy of Sciences, the World Health Organization, and the North Atlantic Treaty Organization. For more than 20 years, Dr. Berry taught public health, environmental science and management, and business and environment courses at the University of North Carolina. He is currently a writer and research adviser, specializing in the evaluation of environmental quality and human health effects, environmental management strategies and policy for small communities.

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