Lawsuit filed to Restore e-Bikes Ban in National Parks

Steve Wilent posted about the Trump administration allowing motorized electronic e-bikes on nonmotorized trails back in August. Here’s that post and discussion/debate.

Today, Public Employees for Environmental Responsibility (PEER) and a coalition of conservation groups and affected individuals filed a lawsuit to restore the ban on e-bikes in National Parks. Here’s the PEER press release:

Washington, DC — The recent National Park Service (NPS) order allowing electric bicycles on park trails violates several federal laws and should be rescinded, according to a lawsuit filed today by Public Employees for Environmental Responsibility (PEER) and a coalition of conservation groups and affected individuals. Nearly 25 National Park System units have acted to implement the e-bikes order.

Following a Secretarial Order by Interior Secretary David Bernhardt directing that all Interior Department agencies, including the NPS, immediately allow e-bikes “where other types of bicycles are allowed,” on August 30, 2019, Deputy NPS Director P. Daniel Smith issued a “Policy Memorandum” ordering all park superintendents to now allow e-bikes on trails where the parks currently allow bicycles.

The PEER suit cites several legal impediments to the NPS order, including that it:

• Violated NPS’s own regulations that may not be set aside by administrative fiat;

• Improperly evaded legally-required environmental reviews; and

• Came from an official, Smith, who lacked the authority to issue such an order.

“This e-bikes order illustrates an improper and destructive way to manage our National Parks,” stated PEER Executive Director Tim Whitehouse, a former enforcement attorney with the U.S. Environmental Protection Agency. “Concerned groups and individuals are joining PEER in demanding that the Park Service follow the normal regulatory processes and assess the additional impacts that higher speed e-bike riders pose both to other trail users and to wildlife in the parks.”

It also turns out that Bernhardt and Smith’s staffs have been regularly meeting behind closed doors with an industry-dominated advisory committee called the “E-bike Partner & Agency Group” at Interior Headquarters and through teleconferences. E-bike vendors stand to profit from the NPS move. The PEER suit demands a halt to these meetings because they violate the Federal Advisory Committee Act, which requires transparency to prevent such clandestine lobbying.

“The impetus from industry is not surprising given that, as a former industry lobbyist himself, Secretary Bernhardt is known for hearing industry concerns and not public concerns,” added Whitehouse, noting that other Bernhardt moves, such as forbidding parks from trying to limit plastic bottle sales, are a form of creeping commercialization affecting park policies. “E-bikes represent another inroad of commercialized recreation into our National Parks.”

Joining PEER in the suit as co-plaintiffs are Wilderness Watch, Marin Conservation League, Environmental Action Committee of West Marin, Save Our Seashore, and three impacted individuals.

Read the PEER suit

See partial list of National Park units moving to allow e-bikes

Find out more about the issue

19 thoughts on “Lawsuit filed to Restore e-Bikes Ban in National Parks”

  1. I support a ban on e-bikes in National Parks on roads, trails, and other places where motorized vehicles are banned. E-bikes are motorized vehicles.

      • Matthew, thank you. It seems the secretarial order augments definition 27 (a) on page 12 of the lawsuit, adding ebikes as equivalent to human power bikes for purposes of management. The order seems thoughtfully written in light of this definition. I haven’t found a conflict yet but will continue reading the lawsuit.

        Ebikes are of course different than human powered bikes. There is a potential for abuse. But class 1, 2 and 3 ebikes aren’t motorcycles by any stretch. I would hope that manufacturers would eventually adopt the European power standards. I’m not sure what those actually are, but seem to be less than 500 watts. Taking ebike power down a notch would lessen the potential for abuse, and perhaps shift public perception a bit.

        I’d like to ride a few NPS pathways next summer with my wife. (she has an ebike) She rides slowly and cautiously using the lowest settings.

        Yes I was lazy and didn’t read the lawsuit, but I stand by my words.

  2. I’m for each Park figuring it out. Not for global pronouncements.

    What’s interesting to me is looking at it from the “good industry, bad industry” perspective.

    “It also turns out that Bernhardt and Smith’s staffs have been regularly meeting behind closed doors with an industry-dominated advisory committee called the “E-bike Partner & Agency Group” at Interior Headquarters and through teleconferences. E-bike vendors stand to profit from the NPS move. The PEER suit demands a halt to these meetings because they violate the Federal Advisory Committee Act, which requires transparency to prevent such clandestine lobbying.”

    Does meeting with people “behind closed doors” violate FACA? Because every administration meets with groups behind closed doors… including environmental groups. I guess it’s about how organized the groups are? What makes a group a group that should really be a FACA committee?

    The Outdoor Recreation industry as a whole has been very active politically. Would it be OK for some future administration to meet with them, but just not the e-bike segment?

    Former Secretary of the Interior, Sally Jewell was the CEO of REI, which.. you guessed it.. sells ebikes (now).

    “E-bikes represent another inroad of commercialized recreation into our National Parks.”

    Why would e-bikes be more “commercialized” than regular bikes? What does that even mean? I’m thinking of Yellowstone here.. there are commercial guides and non-commercial opportunities. Aren’t they separate things?

    • Well, it is a National Park System that the National Park Service runs, so any policy impacting the National Park System really isn’t a “global pronouncement.”

      Yes, Former Interior Secretary Sally Jewell was the CEO of REI. Jewell also worked for Mobil Oil Corporation from 1978 through 1981 as an oil engineer. Jewell then spent about 20 years working in the banking industry. So what’s really the point of saying that REI sells e-bikes? Couldn’t we also say that e-bikes are made out of some oil-based products? Or that e-bikes companies sometimes get loans from banks? Does that mean the National Park Service (with zero public input and zero environmental analysis) should start allowed motorized bikes that can travel up to 20 miles per hour on non-motorized trails that are full of hikers, bikers and horse riders? That seems to be the crux of the PEER et al lawsuit.

      Also, the quote “E-bikes represent another inroad of commercialized recreation into our National Parks” does not necessarily equate to e-bikes being “more ‘commercialized’ than regular bikes, as you ask in your question. However, one has to assume that e-bike companies are chomping at the bit to get their commercial kiosks in our National Parks for e-bike rentals (and future e-bike sales).

      • I meant global pronouncements either way.. like “let them in everywhere” or “keep them out everywhere”. NPS has a wide variety of ownership/partnership efforts from urban to rural.

  3. I read the complaint. It’s a slam-dunk for the plaintiffs IMO, though I’m not sure what remedies are available on some of the claims, like the claimed Federal Advisory Committee Act (FACA) violation.

    The main point is that DOI Secretarial Order No. 3376 of August 29, 2019, authorized e-biking in the national parks only “To the extent existing regulations allow,” yet the NPS, literally overnight as the complaint accurately recites, opened all of its bicycle-accessible routes to e-bikes. The existing regulations don’t allow for motor vehicles on all of those routes, and an e-bike is unquestionably a motor vehicle, as the complaint explains.

    Please understand that some of us mountain bikers, whatever feelings we may have about e-bikes themselves—those opinions range from total acceptance to complete loathing—are very cynical about the e-bike industry, including its manufacturers, retailers, trade associations, and/or public-relations flacks.

    Does anyone have a theory as to why the NPS would jump to implement the order in a way that the order itself doesn’t authorize? I’m baffled.

  4. I don’t know. How can a relatively small industry get so much attention and deference from the Interior department that the Secretary was willing to issue this order? Didn’t any attorney in the DOI tell the Secretary that the order won’t withstand judicial review?

    Maybe the human-powered mountain biking community should hire the e-bike industry’s lobbyists, though we probably can’t afford them.

    I went back to the complaint’s prayer for relief. I see that, regarding the Federal Advisory Committee Act (FACA) claim, it asks the court to “Enjoin any further meetings by the Defendants or their staff with the E-bike Partner and Agency Group absent full compliance with FACA’s requirements for advisory committees.”

    If that’s the extent of relief available for FACA violations, it’s piddling. It wouldn’t surprise me if FACA is often ignored, if that is the only remedy for an infringement.

    • OK, I perhaps I spent too long in DC… but there are two parts to this “write a reg” which will take longer than the next election, so no movement. Also “add e-bikes before you change the regs” which of course is not OK legally.

      Perhaps the E-Bike people were so pushy that they irritated the “powers that be Interior” enough that they decided to act to rouse the anti-EB troops and let them all (pro and anti-EB) duke it out in the courts, while the Department can claim it gave the EB people what they wanted. Meanwhile a reg will take us past the next election (as everyone is very aware) and perhaps someone else then can deal with the controversy in the reg-writing.

      On a more reasonable note, I’ve contacted a couple of journalists to see if they are interested in interviewing some folks and finding out more.

    • My impression is that it is hard to prove a violation of FACA and the available relief would be hard to enforce – basically a hand-slap. I don’t think there have been very many adverse rulings against the government on FACA, but here’s an example of one (involving disease transmission between domestic and bighorn sheep):

      “For the foregoing reasons, it is HEREBY ORDERED that Plaintiffs’ Motion for Summary Judgment (Docket No. 23) is GRANTED insofar as the RADT Committee and the Payette Principles Committee are advisory committees subject to the procedural mandates of FACA and NFMA. Moreover, the Committees’ findings and/or conclusions are not to be relied upon by the Forest Service with respect to any future agency decisions. Any agency decisions reached in reliance upon the Committees’ reports prior to the date of this Order are expressly not affected by this Order.”
      (Idaho Wool Growers Assoc. v. Schafer, 637 F. Supp. 2d 868, 880, D. Idaho 2009)

    • Greg,

      I looked at RMNP and it looked like no bikes are allowed on trails anyway, so if you think of e-bikes as bikes, they wouldn’t be allowed. I think the same about Yellowstone (but as always I could be wrong), no bikes, therefore no e-bikes. And why does the lawsuit cover Parks and not BLM? Conceivably the FACA issue would cover the entire Interior order. Maybe you could call PEER and ask (1) why only the Park Service and (2) which 25 Parks? and report back.

      • Hi, Sharon,

        A comment and three answers . . . .

        1. “Perhaps the E-Bike people were so pushy that they irritated the powers that be [at] Interior enough that they decided to act to rouse the anti-[bicycle] troops and let them all (pro and anti EB) duke it out in the courts, while the Department can claim it gave the EB people what they wanted.”

        That would be quite ingenious! It shows that your time in Washington was not wasted. You learned to identify the Machiavellian arts practiced there. That would not have occurred to me.

        2. Yellowstone National Park hands out a bicycle map at its entrances. It informs cyclists that they are allowed to go anywhere a giant RV can, and nowhere else. Since there are miles-long processions of motor vehicles in Yellowstone, bicyclists can enjoy breathing their exhaust for hours.

        Moreover, no fat-biking is allowed, even on Yellowstone’s roads. IIRC, the park reasoned that the human-powered bicycle interlopers could get in the way of the park’s snowcoaches, which are giant SUVs.

        This is why people are cynical about federal regulations.

        3. AFAIK, the usual fanatics managed to delay a timid NPS plan to allow mountain biking on a couple of miles of singletrack at Rocky Mountain National Park. There too, you can ride your bicycle alongside lines of Ford Excursions, Nissan Armadas, and other battlewagons all day long … but nowhere else.

        4. The lawsuit names the whole Interior department, not just the NPS. However, one reason to redundantly identify the NPS as a defendant, if the federal civil procedure and local court rules permit this (they probably shouldn’t), is that NPS issued its e-bikes all-access policy one day after Secretary Bernhardt issued his order, thus making it a less sympathetic defendant, one obviously in violation of the Administrative Procedure Act and, indeed, the secretarial order itself.

        • As to 4) it could also be that some at NPS thought the order was a Bad Idea and decided to immediately “over-comply” to draw attention to its Badness and get court relief- in some possible ongoing power struggle with the Administration.

          Note that the FS has been accused of that (over-complying) vis a vis court orders, but I don’t see those that way. For example, Andy Stahl, who often participates in The Smokey Wire, wrote to a forest to make sure that they didn’t allow a bike race shortly after a court decision. Folks on both “sides” are carefully watching agency compliance with court orders.

          IMHO, government lawyers just want agencies to be very careful to not be in contempt. Judges being human, and being around for a long time, can make that a very bad move with potentially endless repercussions.
          But back to e-bikes.
          Another possibility would be for the order, with or without overcompliance, to draw public attention to the e-bike controversy as a distraction in order to do something perhaps more unpopular and hope it wouldn’t be noticed. This seems hard for me to imagine, as there seem to be hundreds of well-funded folks looking for Bernhardt lapses every day. But who knows?

      • I’m somewhat familiar with Yellowstone Park bicycle opportunities. While none of these are considered traditional singletrack, there are quite a number of bike routes available. I’d like to have more, and more primitive opportunities but access isn’t a barren waste as far as bikes are concerned. Most of these routes have little to no pedestrian traffic. I simply can’t imagine any pedestrian conflict with bicycles or electrically assisted bicycles. These off pavement routes are mostly little used service roads, lacking adequate signage or safe connectivity to parking areas. I don’t know the sum of mileage for the off pavement routes, but there are 12 roads, 6 trails available for bicycles. These are administrative routes, mostly unpaved, that have been converted or deteriorated to semi-trail status. Bicycles are allowed on the Park paved roads, which have high volumes of vehicular traffic. There are also Spring and Fall road riding seasons on half of the paved roads. These seasons only have light administrative traffic. One other route available for bike access (not listed in the Compendium) is the one-way Blacktail Plateau road, which bicycles can travel in both directions. I’d of course like to see more, such as allowances for fatbikes on some of the snowmobile routes. Adapting for fatbikes should be an easy adjustment, but the Park has refused to even initiate an approval process. So much for adaptive management. Wenk only tolerated bicycles, so I’m glad he has moved on.

        • Thanks, Greg! I’ve been on the Blacktail Plateau road many times but have not seen bikes, so didn’t know. Actually I didn’t know any of this.

  5. Arches has some roads not traveled much by cars, but still you have to fight traffic to get to them. I think it’s pretty much a non issue in the parks, there are few single tracks. I wish other agencies took the same general outlook towards machines as Parks, as in they are ok on roads that are used by 4wd anyway. It would cut down on damage about 99%.


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