FOREST SERVICE OVER-REGULATION
Wilderness Act Does Not Ban Mountain Biking
By Bill Schneider, 12-15-05
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Editor's Note: Bill's column this week also explores what should be a natural alliance between bikers and wilderness advocates.
More than a year ago an extensive analysis of the Wilderness Act of 1964 and subsequent Forest Service regulations concluded that Congress did not intend to ban mountain biking in designated Wilderness, but the report’s conclusion has apparently been lost in the wind. It has done nothing to change the current policy banning fat-tired bicycles; nor has it done anything to cool off the debate between hikers and mountain bikers.
The treatise authored by Theodore J Stroll, a staff attorney at the Supreme Court of California, examines in the greatest detail every word in the Wilderness Act, congressional testimony on the Act, and a series of regulations written by the Forest Service, the federal agency charged with management and enforcement of the Act. At the end of the report, Stoll concludes: “The regulations appear to run counter to congressional intent.� In other words, Congress did not intend to ban mountain bikes from Wilderness trails.
This report is not the ramblings of a hammerhead mountain biker feeling over-regulated. Instead, it’s professional, top-of-the-line legal research, which makes it sort of amazing it hasn’t gotten more traction in the debate between hikers and mountain bikers over Wilderness proposals. If the Forest Service read this report carefully, the agency would already be revising its regulations, reversing the flawed assumption that bicycles violate Wilderness principles. Then, presto, we would no longer have the conflict over the use of bicycles in Wilderness because they’d be a legal form of transportation no different than horses or rubber rafts.
Stroll chronicles the early days of the debate, back when bicycles had white-walled balloon tires and plastic streamers coming out of the handlebars. The first FS regulations written in 1966 did not ban bicycles, but in later years when the modern mountain bike emerged and cyclists started venturing onto single-tracks, the agency revised its regs to specifically disallow bicycles.
The author points out significant inconsistencies in the current regs. For example, rubber rafts have mechanical parts like oarlocks that facilitate transportation on Wilderness rivers, and they’re no different than bicycles with mechanical parts that make travel easier. He also points out to a new form of kayak propelled with propellers, asserting that it’s no different than a bicycle propelled with wheels—except, of course, the kayak is allowed and the bicycle is not. He goes on to give details on several more glaring inconsistencies in the regulations. The regs do not, for example, exclude wheelchairs from Wilderness.
“Congress did not intend for the Act to prohibit human-powered transportation that leaves no permanent trace but is capable of operating on trails or bodies of water found in Wilderness,� Stroll writes. “Accordingly, the regulations…prohibiting mountain bike use in Wilderness require reevaluation.�
Stroll also notes that Congress intended to keep out modes of transportation requiring motors and roads or other “permanent improvements� that would make maintenance of Wilderness character impossible. He even details how Congress came close to officially declaring bicycling as a “proper activity� and implies that it was only pure happenstance that bicycling isn’t written into the Act. Stroll also maintains that mountain biking should be allowed because it meets the major benchmark of the Act that requires “the imprint of man’s work� to be “substantially unnoticeable.�
“Had the ability to explore the outdoors by rugged bicycle travel existed in the 1960s, it seems unlikely that the forefathers of the Act would have thought it unsuitable for Wilderness,� concludes the author of this definitive work that should be required reading at Forest Service offices.
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Comments
Mr. Stroll concludes that Congress never intended to ban mountain bikes. Well, mountain bikes did not exist in 1964, so I doubt Congress made any statement regarding them. But they did approve the words "no other form of mechanical transport." That's certainly a clear writing of the intent of Congress.
Wheelchairs are not mentioned in the Wilderness Act of 1964. The Americans with Disabilities Act of 1990 specifically allows wheelchairs in wilderness areas, provided they are wheelchairs suitable for use in an indoor pedestrian area.
I see your point of view, but interestingly, Stroll uses the fact that mountain bikes had not been invented yet to support his contention i.e. they would have been allowed if they had existed in 1964.
Incidentally, I neglected to say that Stroll's article was published in the Penn State Environmental Law Review.
Bill Schneider
Jim Eaton raises the objection to my conclusions that I hear most often: the 1964 Wilderness Act's blanket prohibition of any "other form of mechanical transport" in Wilderness areas is clear and plainly encompasses bicycles, whether or not people were riding mountain bikes in 1964.
The way lawyers look at ambiguity in statutes is, however, somewhat different from the usual approach. Precisely because the "no other form of mechanical transport" language is so absolute and so broad, it becomes ambiguous, because Congress could never have meant it to apply to everything that it encompasses. The clause doesn't forbid just the mechanical transport of humans, but of anything. If the prohibition were absolute, it would apply to fishing reels, and arguably even shovels (they're a lever, a form of simple machine that transports dirt), but Congress didn't mean for the prohibition to go that far.
Once lawyers agree that there's ambiguity in a statutory text, we look up the statute's history to see what the lawmakers meant. It became clear to me that Congress would not have meant to ban mountain biking. First, the prohibition is simply a shortening of the phrase "nor any other mechanical transport or delivery of persons or supplies," which Congress used in prior drafts of the Act. This provides the key to understanding what Congress meant to prohibit: the passive transport of passengers, but not physically demanding recreation under one's own power, even if mechanically assisted. The Congressional Record and a contemporary blue-ribbon report are both full of references that confirm this interpretation.
Also, Congress appears to have authorized mountain biking in the Rattlesnake Wilderness, located near Missoula, by a separate law it enacted in 1980 (although I've heard you can't ride a bike there, because Forest Service rules prohibit it despite the statutory language). Assuming Congress did authorize bicycle access to the Rattlesnake Wilderness, it's unlikely it would have done so if it thought the 1964 Wilderness Act prohibited it.
I have no idea whether the Forest Service keeps out mountain bikes as part of a divide-and-conquer strategy to reduce the pressure for new Wilderness areas. I've always thought it does so for another reason: allowing bikes would raise objections from public-lands restrictionists, and no bureaucracy wants to create problems for itself by generating controversy. The Forest Service might be forced to reconsider the issue if mountain bikers acted in a united manner to demand access to existing Wilderness, but so far the mountain bike community has confined itself to opposing new Wilderness designations that might cause mountain bikers to lose access to existing trails. So it's a stalemate.
Horses are a bit different. Although I don't support the use of animals as vehicles, horses are descendants of the horses that first evolved in North America, and thus in some sense have a right to be in natural areas. Some biologists have even recommended restoring the closest relatives (e.g. elephants) of the large mammals that humans wiped out in the Pleistocene.
Concerning the issue of the Rattlesnake Wilderness Area being an exception where mountain biking is legislatively allowed in Wilderness, well, that is technically incorrect. The Rattlesnake is a combination of Wilderness and National Recreation Area, with the NRA jutting deeply into the Wilderness. Mountain biking is allowed only on the NRA section, not within the Wilderness boundary. There is no exception in the Act that created the Rattlesnake Wilderness and Recreation Area to allow mountain biking in designated Wilderness.
Having said that, I will also say the area is an "exception" because it serves as a great example of where hikers and mountain bikers worked together to protect aa critical landscape and then could both enjoy it. The same model is currently being used in a Virginia bill that enjoys support of both wilderness groups and IMBA.
Bill Schneider
Your comments allow me to explicate a part of my law review article that may be condensed to the point of sacrificing ideal clarity. Thus I appreciate your questioning my interpretation that Congress meant to allow bicycling in all parts of the Rattlesnake, including the Wilderness section.
I am aware that the Rattlesnake portion of the Lolo National Forest contains both the Rattlesnake National Recreation Area and the Rattlesnake Wilderness. I could have made that clearer when I wrote the article, but that treatise is lengthy and complicated as it is, and I concluded it wasn't necessary to elaborate at length on the formal makeup of the Rattlesnake areas, i.e., the NRA and the Wilderness.
For the reasons stated on pages 478-479 of my article (which readers can examine by clicking on the link in your article), I believe that the relevant statutes do show that Congress intended to allow bicycling in the Rattlesnake Wilderness. Congress created both the Rattlesnake NRA and the Rattlesnake Wilderness on the same date (Oct. 19, 1980), in Public Law 96-476. In subdivision (1) of 16 U.S.C. § 460LL, one of the statutes that resulted from Public Law 96-476, Congress describes "bicycling," along with such traditional Wilderness activities as "hiking, camping, backpacking, hunting, fishing, [and] horse riding," as a form of "primitive recreation," and strongly implies that bicycling is suitable for the Wilderness portion of the Rattlesnake. Compare subdivision (1) to subdivision (2), which appears to be describe the portion to be designated as the NRA. Two following statutes, 16 U.S.C. § 460LL-1 and 16 U.S.C. § 460LL-2, both part of Public Law 96-476, set up the Wilderness and the NRA portions of the Rattlesnake.
(I'm sorry this explanation is so technical, but readers need only read the statutory language itself and the two pages of my law review article to make up their own minds.)
It is true that nowhere in those statutes does one find a *definitive* statement by Congress that mountain biking is allowed in the Rattlesnake Wilderness. My article proposes that the better interpretation of the law is that Congress did intend to allow mountain biking in the Wilderness portion of the Rattlesnake, even though Congress did not make its intent as clear as would have been desirable.
(Incidentally, the capital L's I show in citing the statutes in this blog entry appear as lower-case italic L's in the statutes, but I don't know how to italicize in this blog and I don't want the L's to be confused with the numeral 1.)
I'm glad to hear that everyone worked together to protect the Rattlesnake area, and I hope that it's an example of harmony to this day. I don't want to propose anything that would upset that harmony, but if there are areas of the Wilderness portion that local mountain bikers would like to ride, I suggest that they show the relevant statutes and my law review article to the Forest Service employee in charge there and ask him or her to ask the Forest Service's legal counsel if Congress intended to allow mountain biking in the Wilderness. As stated, I believe it did. And there shouldn't be anything to worry about even if mountain biking is someday allowed in the Rattlesnake Wilderness. Bicycling can be regulated along with other Wilderness activities so that it takes place in conformance with the important aesthetic, environmental, and social norms that define Wilderness and the experience of visiting Wilderness. (See page 480 of my article and the footnotes on that page.)
Sarah Chisholm
I appreciate your skepticism about the slanted law review, and i wish Bill Schneider's web article had provided a more balanced treatment of this issue (as opposed to swallowing and presenting Ted Stoll's highly questionable opinions as fact). Those of us familiar with the Wilderness Act and its legislative history know that Stoll's law review puts forward only one side of the story, and Schneider's piece misses the boat by failing to research the rest of the story (i.e., other legal scholars and wilderness advocates believe that Stoll's writings on the subject of bikes in wilderness are weak and largely off-base).
But i'm writing mainly to correct one statement that you made: "...horses are descendants of the horses that first evolved in North America, and thus in some sense have a right to be in natural areas." The truth is that the first modern horses were brought to North America by Cortez, who landed on the coast of Mexico on March 4, 1519 -- with 18 horses. It scared the hell out of the natives, who had never seen such a beast.
Only later did modern horses arrive in the U.S. For example, there were no horses (or mules either) in California until the Portolà expedition of 1769, which founded the mission at San Diego and trekked up the coast to "discover" San Francisco Bay in November of that year.
Long ago (in the Pleistocene Era) there were a line of native "horses" in North America. (These were small horses -- about the size of a very large dog.) They all died out. So the horses that exist in North America today are NOT native animals. They are descendants of horses that were introduced by Europeans.
So why are horses allowed to continually trample and overgraze our natural/wilderness areas in America? Probably due to mis-information, cowboy mistique, lobbying, compromise, etc. FYI, other countries (such as Australia) do not allow horses in wilderness at all.
Jim Carlson
But, of course, by far the worst invasive species in the world is Homo sapiens. See http://home.pacbell.net/mjvande/scb4. And one of the most invasive types of human are mountain bikers, who think that all land is theirs to abuse -- proven by their frequent trespassing, riding where bikes are banned, and even illegally building their own trails.
I'd like to respond to a couple of the posts. Jim Carlson wrote on Jan. 1, "Schneider's piece misses the boat by failing to research the rest of the story (i.e., other legal scholars and wilderness advocates believe that [Stroll's] writings on the subject of bikes in wilderness are weak and largely off-base)." But you can't miss what doesn't exist. I have seen no scholarly response to the article I published in the "Penn State Environmental Law Review" on the history of the Wilderness Act. For all I know there may be flurries of e-mails on the subject that vilify my conclusions as "weak and largely off-base," but I haven't seen them either. Perhaps Jim or others can direct me to places where I can find the critical analyses he refers to. I would be happy to read them. In the same vein, I would be happy to consider addressing critical audiences on this topic. The Sierra Club held a conference in San Francisco last year that included a session on Wilderness. If it's mutually convenient I'd be pleased to discuss my research in any similar forum, even if it means doing so before a skeptical audience.
I appreciate Craig Allin's thoughtful post of Jan. 24. He states, "One particularly strong intent that has animated wilderness advocacy since Aldo Leopold is the view that wilderness preserves a particular historical landscape: the one the first Europeans saw. . . . This historical notion . . . argues for allowing horses and disallowing mountain bikes." From what I've read, in particular "Driven Wild: How the Fight Against Automobiles Launched the Modern Wilderness Movement," by Paul S. Sutter (2002), that ethic did motivate early advocates of wilderness preservation. But it's the intent of Congress in passing a law, and not the intent of private citizens who urge its passage, that counts legally. The views of, e.g., Aldo Leopold, Howard Zahniser, and Bob Marshall count legally only to the extent that they were ratified in comments made by senators and representatives in committee debate or on the floors of their respective chambers. I've read the record and believe, as I stated in my law review article, that there was strong support for physically demanding human-powered activities in Wilderness. Moreover, the legislative history satisfies me that the great majority of senators and representatives saw no conflict between Wilderness preservation and management of Wilderness to permit forms of human-powered recreation that left no permanent trace and did not require the building of roads or other jarring permanent installations. Mountain biking fits those criteria to a T.
We're not reacting to the original 1964 Wilderness Act...we simply are in a dynamic new environment with the proposal to designate land formerly open to mountain bike traffic. Creating a designated recreation area would be best with selective restricitons of hike/horse-only, bike/hike/horse trails and hike-only trails is the best option to protect the land and the rights of recreation users.
On one more note, it is well documented that horses do more damage than hikers and bikers, and the fact that horses are easily spooked by sudden arrving bikers, we should seriously consider the right trails in the new recreation areas in regard to soil erosion and safety. I can imagine bike/hike trails, horse/hike trails, and hike-only trails. But in the overall design, the land should be fairly managed to include all users.
Don Welch
I think most everybody would favor a new land designation option that allowed only nonmotorized recreation, including mountain bikes. Regrettably, we do not have this option, and any such alternative designation would be purely administrative and could be changed at the whim of the administration.
Right now, realistically, we are faced with a hard choice: letting our wild lands gradually disappear or designated roadless lands as Wilderness, which does not allow mountain biking. I am a very avid cyclist, both road and mountain. I'm sure there are people who like to ride as much as I do, but I seriously doubt if there is anybody who enjoys it more than I do. Yet, if I had to choose between never riding a bicycle again the rest of my life and saving our last roadless lands by designating them as Wilderness, I would easily opt for saving Wilderness for my grandkids to enjoy.
I also know that if every acre of roadless land was designated as Wilderness, there would still be plenty of places to ride bicycles, not as many as we now have, but enough, and we would have our wild heritage preserved.
I would welcome Congress amending the Wilderness Act of 1964 to allow bicycles, but I don't think we dare let this administration open the Act for fear of what might happen. Instead, I think we should look at the completely arbitrary administrative rules put in place by the Forest Service. If the agency revised the rules to allow nonmotorized, two-wheeled vehicles, this controversy would go away. Right now, it is a major factor in preventing us from saving our wild land, and mountain bikers are in league ATVs and motorcyclists and the Blue Ribbon Coalition. In fact, I wonder if mountain bikers aren't being used by the motorheads and Forest Service as a tool to stop the process of saving wild land.
Bill
Separate trails for bikers is not a solution, because that doubles the destruction of habitat. Separate times for bikers and hikers is not a solution, because it isn't fair to hikers. The only equitable solution is to restrict bikes to pavement, where they can't do any harm. That is good enough for Yosemite National Park, and it is good enough for any other place as well.
If anyone can come up with a good reason for allowing BIKES on trails, I would sure like to hear it, but I have been waiting 12 years for such a reason, and doubt that anyone can come up with one.
There is one good reason. It will remove a major barrier to Wilderness designation and we protect our roadless lands from gradual destruction.
Bill
So far, I haven't seen mountain bikers, who are a TINY minority of the population, be "a major barrier to Wilderness designation". Besides, if you truly cared about "protecting our roadless lands from gradual destruction", you wouldn't be mountain biking there in the first place! The only thing mountain bikers care about protecting is access for their bicycles -- a sentiment unlikely to ever gain them any allies (except among the ATV crowd).