PEER Says New Park Service E-Bike Order Invalid: NPS Edict Violates Federal Laws and Misinterprets Interior Directive

According to Public Employees for Environmental Responsibility:

Washington, DC — A new National Park Service order allowing electric bicycles on park trails violates several federal laws, according to Public Employees for Environmental Responsibility (PEER) which is threatening to sue any park that implements it. Significantly, the acting NPS Director, who issued the order, did not follow the instructions given by the Secretary of Interior.

On August 29, 2019 Interior Secretary David Bernhardt issued a Secretarial Order directing that all Interior Department agencies, including NPS, take steps allowing e-bikes “where other types of bicycles are allowed.” The specific instruction for NPS was to develop a proposed change in the federal regulation (36 CFR § 1.4) to “expressly exempt all e-bikes… from the definition of motor vehicles.” That proposed regulation is supposed to be promulgated pursuant to the Administrative Procedure Act, which requires public notice and comment.

NPS did not do what Secretary Bernhardt ordered, however. Instead, on the next day, August 30th, acting NPS Director P. Daniel Smith issued a “Policy Memorandum” telling all park superintendents to now allow the use of e-bikes on trails where parks currently allow the use of bicycles. Smith’s memo creates several legal problems, including that Smith –

Cannot overturn a federal regulation by fiat, meaning that any park allowing e-bikes on trails where motorized vehicles are now prohibited would be vulnerable to a lawsuit;
Counseled park superintendents to evade legally required environmental reviews by declaring e-bike openings to be “minor changes” that are categorially exempt from further analysis regardless of actual impacts; and
Lacks authority to issue any such order because he occupies his position in violation of the Federal Vacancies Reform Act which provides that any action by non-compliant officials, such as Smith, have no force or effect.
“Despite this botched attempt, no park may allow e-bikes on backcountry trails or areas outside of developed zones,” stated PEER Executive Director Tim Whitehouse, a former enforcement attorney with the U.S. Environmental Protection Agency, noting that the Park Service did no analysis of the effects of allowing e-bikes on trails. “PEER is prepared to go to court to ensure that e-bikes stay off any park trail where they were previously not allowed.”

On top of its legal infirmities, Smith’s order contains some troublesome provisions, such as that riders may only use the electric motor if they are also pedaling; motors may not be more powerful than 1 horsepower; and e-bikes may go no faster than 20 mph. In addition, Smith directed national parks to incorporate state and local e-bike rules.

“This ill-advised order would force overworked park rangers to also serve as bicycle cops,” added Whitehouse, pointing to shrinking park ranger force levels even with record visitation. “Smith’s action only underlines the bankrupt state of today’s Park Service leadership.”

4 thoughts on “PEER Says New Park Service E-Bike Order Invalid: NPS Edict Violates Federal Laws and Misinterprets Interior Directive”

  1. “On August 29, 2019 Interior Secretary David Bernhardt issued a Secretarial Order directing that all Interior Department agencies, including NPS, take steps allowing e-bikes “where other types of bicycles are allowed.” The specific instruction for NPS was to develop a proposed change in the federal regulation (36 CFR § 1.4) to “expressly exempt all e-bikes… from the definition of motor vehicles.” That proposed regulation is supposed to be promulgated pursuant to the Administrative Procedure Act, which requires public notice and comment.”

    But the NPS did something other than develop a change in the CFR? I bet there’s an interesting story behind this.

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  2. I doubt the story is very interesting, just another example of this administration cutting corners to remove resource protections as largesse to niche industries/interest groups.

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  3. My Gosh! How is that something as simple as this could be is being made so confusing, convoluted, maybe even deceptive.
    I am simply a frequent visitor to our national parks and our wilderness areas. I have no degrees in ecology, environment, botany, zoology or biology, just an ordinary citizen that loves the opportunity to visit the wild and scenic national parks and wilderness areas of this great country. I would like very much for all future generations to have the exact same opportunities that I have had in my 70+ years with out the possibility of having to share Indian Henrys Hunting ground with mechanized equipment such as E bikes.
    I understand that this issue is regarding the National Park Service and not Wilderness. However I believe that the “foot in the door” axiom fits in this case. I am completely and totally opposed to ANY mechanical device being introduced into our beautiful wilderness areas and in my opinion this type of rule loosening is merely a threshold for the bicycle lobby.
    If bicycles are currently allowed in /on some areas of our National parks then I see no harm in allowing e bikes in those same areas. I would be very saddened to see any expansion of these areas however.

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  4. Tom writes: “I am completely and totally opposed to ANY mechanical device…” Oar locks? Ski bindings? Climbing equipment? Crampons? Stoves? GPS? There are many of technologies, mechanical and otherwise, that we seem to welcome on even our most protected public lands. But maybe you believe they were all just a “foot in the door” for the shoe lobby, the backpack lobby, the boating lobby, etc., all of which dwarf the bicycle lobby. You say that you’d like future generations to have the “exact same opportunities that [you] have had,” but bicycles (human powered ones) apparently don’t alter the backcountry because new Wilderness designations have been swallowing up – and then banning – former bicycle routes for years. The mere presence of a human-powered bicycle doesn’t need to ruin your Wilderness or backcountry experience any more than the presence of all the other many technologies mentioned above.

    You seem to be far more generous than me when it comes to E-bikes, however. You wrote: “If bicycles are currently allowed in/on some areas of our National parks then I see no harm in allowing e bikes in those same areas.” While bicycle access to NPS trails may be very limited currently, the idea that new, motorized users should have a blanket inclusion on those same trails makes no more sense to me than the blanket exclusions that human-powered bicycles have been subject to – in Wilderness and elsewhere. With various classes of E-bikes, and with widely varying conditions and circumstances across NPS and other lands, wouldn’t it be much smarter to make such access decisions based on local conditions?

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