January 29, 2020
National Park Service, Attn: Compendiums
Alaska Regional Office
240 West 5th Avenue
Anchorage, AK 99501
Dear Alaska Regional Office:
I am writing to you on behalf of over 1,700 members of the Coalition to Protect America’s National Parks (Coalition).The Coalition is a non-profit organization composed of retired, former, or current employees of the National Park Service (NPS). The Coalition studies, educates, speaks, and acts for the preservation of America’s National Park System. As a group we collectively represent nearly 40,000 years of experience managing and protecting America’s most precious and important natural and historic resources. Among our members are former directors, regional directors, superintendents, resource specialists, rangers, maintenance and administrative staff, and a full array of other former employees, volunteers, and supporters.
We are very concerned about the NPS proposal to allow the use of electrical bicycles (“ebikes”) on designated bike trails at the following units of the National Park System in Alaska: Bering Land Bridge National Preserve; Denali National Park and Preserve; Gates of the Arctic National Park and Preserve; Glacier Bay National Park and Preserve; Katmai National Park and Preserve (including Aniakchak National Monument and Preserve, and Alagnak Wild River); Kenai Fjords National Park; Klondike Gold Rush National Historical Park; Lake Clark National Park and Preserve; Sitka National Historical Park; Western Arctic National Parklands (Cape Krusenstern National Monument, Kobuk Valley National Park, Noatak National Preserve); Wrangell-St. Elias National Park; and Preserve Yukon-Charley Rivers National Preserve.
The proposal is in direct conflict with existing NPS regulations at 36 CFR § 1.4. We will limit our comments below to this threshold issue.
In the hierarchy of authorities followed by NPS, a “policy” such as a Secretarial Order does NOT supersede a “regulation” – As described in the respective compendiums under 36 CFR 13.50 Closures and restrictions, National Park System Units in Alaska: “The reason for this proposed addition is as follows: On August 30, 2019, the National Park Service published an e-bike policy” (emphasis added).
While we understand that NPS issued a new “policy” on ebike use, NPS did so improperly WITHOUT undertaking the rulemaking necessary to amend existing NPS “regulations” that define bicycle use in parks. As indicated on the “NPS Fundamentals: Law and Policy” website under the heading of “General Hierarchy of Authorities,” NPS and Interior Department Policies (such as Secretarial Order 3376, which the NPS policy is based upon), have a lower level of authority than a regulation. In plain terms, a “policy” does not and cannot trump a “regulation”; yet NPS is proposing to implement a new ebike “policy” that is in conflict with its own “regulations.”
Because ebikes do NOT meet the NPS regulatory definition of “bicycle,” ebikes can NOT legally be allowed on designated bicycle trails in parks unless NPS amends that definition through the rulemaking process – NPS general regulation 36 CFR § 1.4, which applies to ALL units of the National Park System, including those in Alaska, states: “Bicyclemeans every device propelled solely by human power(emphasis added) upon which a person or persons may ride on land, having one, two, or more wheels, except a manual wheelchair.” Obviously, ebikes are NOT “propelled solely by human power” as required under the definition. As a result, even the so-called “pedal assist” (Class 1) ebikes involve motor-assisted propulsion and are therefore precluded on “bicycle” trails by virtue of the above NPS definition. It simply is not appropriate for NPS to attempt to authorize an activity (ebike use) via superintendent compendiums when that activity is clearly in conflict with existing NPS regulations (i.e., the definition of “bicycle” in the CFR).
The NPS, in general, and the Alaska Regional Office, specifically, should suspend implementation of its ebike policy until NPS completes the rulemaking process necessary to amend its service-wide definition of “bicycle” – In our opinion NPS has no legitimate defense for not complying with its own definition of “bicycle” in the CFR. It is not surprising that NPS has already been sued over its premature implementation of the new ebike policy. We urge NPS to suspend implementation of the policy on a service-wide basis until NPS has completed the proper rulemaking process necessary to amend the general regulations. The process should include opportunities for public comment and an appropriate level of National Environmental Policy Act (NEPA) compliance. Continued implementation of the legally questionable policy will only invite further legal action.