CPANP Letterhead

 

April 5, 2021

Jonah Chiarenza
Transportation Planner, Transportation Planning Division
Volpe National Transportation Systems Center, U.S. DOT

Subject: Comments on Draft FHWA study proposal regarding “E-bikes on Public Lands”

Dear Mr. Chiarenza:

I am writing to you on behalf of over 1,900 members of the Coalition to Protect America’s National Parks (Coalition), a non-profit organization composed of retired, former, and 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 over 40,000 years of experience managing and protecting America’s most precious and important natural, cultural, and historic resources.

First, we appreciate the Volpe Center’s inclusive approach to studying the issue of e-bike use on public lands. From our perspective as a national parks advocacy group, any time a new form of recreation, especially motor-assisted recreation such as e-bike use, is proposed or introduced in national parks or on other public lands, it often generates strong feelings of support for or opposition to the proposed activity. We applaud the focus of your proposed study methodology on gathering objective information, rather than relying on user group opinions, in order to reach findings and make recommendations about this activity.

With that said, we believe the timing of the study is highly questionable. The four land management agencies involved – the Bureau of Land Management (BLM), the National Park Service (NPS), the U.S. Fish and Wildlife Service (USFWS), and the U.S. Forest Service (USFS) – have already issued regulations or policies authorizing the use of e-bikes on public lands managed by those agencies. BLM1https://www.federalregister.gov/documents/2020/11/02/2020-22239/increasing-recreational-opportunities-through-the-use-of-electric-bikes, NPS2https://www.federalregister.gov/documents/2020/11/02/2020-22129/general-provisions-electric-bicycles, and USFWS3https://www.federalregister.gov/documents/2020/11/02/2020-22107/national-wildlife-refuge-system-use-of-electric-bicycles] issued final rules for e-bikes on November 2, 2020. Unlike the rulemaking conducted by the Interior agencies, the USFS issued proposed changes4https://www.federalregister.gov/documents/2020/09/24/2020-21128/forest-service-manual-7700-travel-management-chapter-7700-zero-code-chapter-7710-travel-planning in Forest Service Manual (FSM) Chapters 7700 and 7710 to serve as policy guidance for managing e-bike use on national forests and national grasslands. In brief, these agencies failed to conduct proper analyses, including literature reviews, to identify and inventory existing and potential impacts before authorizing e-bike use on public lands. While these failures are not the Volpe Center’s responsibility, it would be most appropriate for the Volpe Center to acknowledge the circumstances under which the proposed study is being conducted.

We offer the following comments for your consideration on “The Future of E-Bikes on Public Lands: How to Effectively Manage a Growing Trend”; Draft Memorandum #1: Study Methodology dated March 23, 2021.

COMMENTS

  1. We have proposed edits and made comments in Track Changes in the attached version of the draft study methodology. We have added “CPANP comments” to the file title to distinguish our submission from the original draft.
  2. See Appendix A at the end of this letter for a summary of studies and other information we recommend you consider related to e-bike use.

There are numerous studies indicating that an e-bike’s motor-assisted capabilities will allow a rider to travel faster and farther with less effort than on a conventional bicycle. This enhanced speed capability creates the potential for increased user conflicts on multi-use trails, as well as the potential for increased frequency and severity of accidents.

It is noteworthy that of the studies listed in Appendix A that evaluate the relative speeds and safety concerns associated with e-bikes use, the vast majority were conducted in Europe or Australia, not in the United States. The non-U.S. studies were typically conducted in paved multi-use trail settings, rather than on natural surface trails in locations comparable to a national park or public lands setting. Many of these studies indicate that e-bike riders generally travel at faster average speeds than conventional bicycle riders. While the safety implications of these findings are intuitively obvious (i.e., increased potential for user conflicts and accidents), we are concerned that e-bike advocates in the U.S. often deny there is any significant difference between e-bikes vs. conventional bikes. This simply is not true and is not supported by available empirical studies.

In contrast, most of the e-bike studies that have been conducted in the United States are, in effect, user perception surveys, rather than an empirical analysis of relative speeds, accident rates, and other safety-related factors. Most of these user surveys have focused on the perceptions of e-bike users, rather than the perceptions of other types of users’ towards e-bike use. As a result, such studies provide little meaningful information on the perception of user conflicts if/when e-bikes are introduced onto existing multi-use trails. Moreover, some of these “academic” surveys were actually sponsored by e-bike trade association(s) or e-bike advocacy group(s), which may explain why the focus has typically been on the point of view of people who have already made the choice to use e-bikes. For the purposes of this study proposal, a more useful user survey would evaluate if and to what extent other kinds of trail users feel their experience is negatively impacted by the introduction of e-bike use and what characteristics of e-bikes and e-bike riders contribute to their concerns (e.g., is it speed? rider behavior, etc.?).

In other words, few of the studies we’ve reviewed are entirely a propos to the topic of e-bike use on public lands. It is critical that the Volpe study differentiate between empirical analyses and perception surveys. What is needed is a study (or studies) that not only gathers and considers empirical evidence (such as speeds and accident rates) regarding the differences in e-bike vs. traditional bikes; but also includes a broader survey of a variety of trail user perceptions (not just that of e-bike users) if/when e-bikes are introduced on multi-use trails, especially unpaved trails, in national parks and public lands.

Last, but not least, we believe that the enhanced speed capability of e-bikes (vs. conventional bikes) is indisputable. While that capability should be documented in the study, it should not be the primary focus of the literature review. The real issue that needs to be reviewed is e-bike rider characteristics (e.g., average speed traveled; frequency and severity of accidents, etc.) and whether it differs significantly from that of conventional bicycle users. The literature review should look carefully for (and at) studies, if any can be found, that focus on differences in rider behavior (between e-bikers and conventional bikers), including differences in average travel speed. It should also look carefully at the effectiveness of common sense management strategies (e.g., speed limits, restricting e-bikes to wider or less congested trails, etc.) to mitigate the clear differences in mechanical capability.

  1. There should be a “Forward” section added to the document that acknowledges that each federal land management agency involved has a unique legislative mandate for the areas that they manage. E-bike use may not be universally or equally appropriate in each of the respective federal areas.

Each federal land management agency involved has a unique legislative mandate that differs from that of the other agencies. For example, the Bureau of Land Management has “a mandate of managing public lands for a variety of uses such as energy development, livestock grazing, recreation, and timber harvesting while ensuring natural, cultural, and historic resources are maintained for present and future use.” 5https://www.blm.gov/about/our-mission#:~:text=The%20Bureau%20of%20Land%20Management’s,of%20present%20and%20future%20generations. The mission of the Forest Service is “to sustain the health, diversity, and productivity of the nation’s forests and grasslands to meet the needs of present and future generations.”6https://www.fs.usda.gov/about-agency/meet-forest-service Both of these are generally considered “multiple use mandates”; and “appropriate uses” under such a mandate typically includes recreation along with various commercial and industrial uses, such as grazing, timber harvesting, oil and gas extraction, and mining.

In contrast, the U.S. Fish and Wildlife Service mission is “to work with others to conserve, protect and enhance fish, wildlife and plants and their habitats for the continuing benefit of the American people.”7 https://www.fws.gov/help/about_us.html And under the National Park Service (NPS) Organic Act of 1916, the NPS mission is “to preserve unimpaired the natural and cultural resources and values of the national park system for the enjoyment, education, and inspiration of this and future generations.”8https://www.nps.gov/aboutus/index.htm  These two agencies have what is typically referred to as a “conservation mandate.” While low impact recreation may be allowed in national parks and refuges, such use is typically subservient to the area’s principal mission of resource conservation. To take this a step further, within the national park system there are a variety of park units, each with its own enabling legislation that further defines the specific park’s purpose within the context of the NPS Organic Act. For example, many but not all park unit enabling legislations do not mention the word “recreation” as a purpose of the park. However, some but not most park enabling legislations do specify “recreation” as a purpose or authorized use of the particular park unit. As a result, recreational activities that may be permitted in a park that specifies “recreation” in its enabling legislation may not be as appropriate in a park that does not.

In other words, the different federal agencies involved operate under clearly different statutory missions regarding the prioritization of conservation vs. use (or recreation). As a result, it is critical that the study should not be conducted from the perspective of “one size fits all.” It should be made crystal clear that any e-bike management strategies and recommendations developed as a result of the study may be appropriate in some federal areas but not in others.

Recommendation: We suggest you ask each federal agency involved to provide a mission statement to be included in the “Forward” of each study document, along with a caveat along the lines of: “Caveat: Each federal land management agency involved in this study has its own unique legislative mandates regarding the prioritization of “conservation” vs. “recreation” (or use).  As a result, the findings and recommendations of this study regarding e-bike use on public lands may not necessarily apply to or be appropriate in areas in which conservation is mandated to be predominant over use.”

  1. The “Introduction” section of the study should include an acknowledgement that each of the federal land management agencies has already issued regulations (final rules) or policies authorizing the use of e-bikes on public lands managed by those agencies. This information is necessary to provide context as to why the study is being conducted now and what the land management agencies hope to accomplish from it.

The Introduction section should explain the origin and timing of the study. Who initiated it when, etc.?  It should also be explained that BLM9https://www.federalregister.gov/documents/2020/11/02/2020-22239/increasing-recreational-opportunities-through-the-use-of-electric-bikes, NPS10https://www.federalregister.gov/documents/2020/11/02/2020-22129/general-provisions-electric-bicycles, and USFWS11https://www.federalregister.gov/documents/2020/11/02/2020-22107/national-wildlife-refuge-system-use-of-electric-bicycles have already issued final rules for e-bikes on November 2, 2020. And, unlike the rulemaking conducted by the Interior agencies, the USFS issued proposed changes12https://www.federalregister.gov/documents/2020/09/24/2020-21128/forest-service-manual-7700-travel-management-chapter-7700-zero-code-chapter-7710-travel-planning in the Forest Service Manual (FSM) Chapters 7700 and 7710 that would serve as an internal policy guide for managing e-bikes within national forests and national grasslands. In addition, a copy of the interagency agreement for the study involving the Volpe Center, BLM, NPS, USFWS, and USFS should be included as an appendix at the end of the document.

Recommendation:   In the “Introduction” section of the document, explain the circumstances surrounding the origin and timing of the study to provide context as to why the study is being conducted now and what the land management agencies hope to accomplish from it.

The primary federal law applicable to e-bikes is HB 727, which was enacted by Congress in 2002. That law amended the Consumer Product Safety Act to create a definition of “low-speed electric bicycle”, which is:  “A two- or three-wheeled vehicle with fully operable pedals and an electric motor of less than 750 watts (1 h.p.), whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 mph.”

It is important to note that this federal law applies only to e-bike product standards and safety, not to the regulation of e-bike use. There is no overarching federal law authorizing or regulating the use of e-bikes on public lands. As a result, federal land management agencies typically assimilate state laws and regulations applicable to the use of motor vehicles and bicycles. The same is true for e-bike use on federal lands. However, complicating the management of e-bike use on federal lands is the reality that there are considerable differences in the respective state laws applicable to such use. Such variation should be considered, or at least acknowledged, in the Volpe study.

For example, as summarized on this website (https://peopleforbikes.org/our-work/e-bikes/policies-and-laws/), some of the many differences between state e-bike regulations include the following:

  • In Alaska, an e-bike is defined as a “motor-driven cycle.” As such, e-bikes are subject to the some rules of the road that differ from those that apply to traditional bicycles, including e-bike riders must carry an operator’s license.
  • Florida defines an e-bike as a “bicycle,” so long as it is capable of being propelled by human power and has a maximum speed of 20 mph (which precludes Class 3 e-bikes).
  • Hawaii has explicitly adopted the Consumer Product Safety Act definition of “low speed electric bicycle” whose assisted maximum speed on a paved level surface, when powered solely by such a motor, is less than 20 mph. Electric mountain bikes (eMTBs) are not allowed on natural surface trails.
  • The Illinois Department of Natural Resources Parks and Recreation considers e-bikes to be motorized bicycles and does not allow them on trails.
  • In New Jersey, only Class 1 and 2 e-bikes may ride on bicycle paths; and local government can further restrict where Class 1 and 2 e-bikes are allowed to ride.
  • In New Hampshire, only Class 1 or Class 2 e-bikes may be ridden on bicycle or multi-use paths where bicycles are permitted. Class 3 e-bikes are only allowed on the roadway.
  • In New Mexico, e-bikes are defined as “mopeds” and subject to rules of the road that do not apply to conventional bicycles. For example, e-bikes are subject to the licensing and insurance requirements that apply to motor vehicles; and have a minimum user age of 15 years old.
  • In New York, only Class 1 and Class 2 e-bikes are regulated like bicycles and subject to the same rules of the road as human-powered bicycles. However, the New York State Office of Parks, Recreations & Historic Preservation classifies e-bikes as motorized vehicles and allows eMTB access only on motorized trails (not non-motorized trails) in state parks.
  • In Pennsylvania, the Bureau of State Parks allows e-bikes only where other motorized vehicles are permitted. However, (only) Class 1 e-bikes are allowed on trails open to mountain bikes on State Forest property.
  • In Tennessee, only Class 1 and 2 e-bikes are allowed and Class 3 e-bikes are generally prohibited on bike paths. Tennessee State Parks do allow e-bikes on Park trails.
  • In Texas, you must be 15 or older to operate a Class 3 e-bike. The Texas Parks and Wildlife Department does not currently allow e-bikes on non-motorized trails.
  • In (the State of) Washington, Class 1 and 2 e-bikes are allowed on bike paths and improved trails; while Class 3 e-bikes are not.
  • Many state park systems across the nation restrict e-bikes to park roads and motorized trails. If Class 1and 2 e-bikes are allowed, they are restricted to improved surface bike trails and multi-use paths; and e-bike use is generally prohibited on single-track, unimproved surface trails that are otherwise open to conventional bicycles.
  • In general, because of their higher speed capability Class 3 e-bikes are typically allowed only on roads and on-road bike lanes (“curb to curb” infrastructure); and restricted from bike trails and multi-use paths.

We could continue listing examples of variations in state laws applicable to e-bike use. Our point is that since federal land management agencies typically adopt applicable state laws regarding bicycle and therefore e-bike use, it is critical that the Volpe Center be cautious in how it words its research questions and findings, so as not to create the false impression that the USDOT endorses any particular regulatory strategy for managing e-bike use on federal lands. Doing otherwise could be particularly problematic on Federally-managed lands located in states with relatively restrictive limitations on e-bike use.

To add a dose of reality to this concern, we have already observed instances of e-bike advocates suggesting that, because “electric bicycles” have been defined by the Consumer Product Safety Commission, e-bikes are somehow “legal” for use wherever bicycles are allowed. While we know you know that is not true, we are very concerned that some in the e-bike community will “spin” the outcome of your study as validation that e-bikes are somehow “federally approved” for use on public lands to the same extent that conventional bicycles are. As you know, there is much more involved in terms of planning and public involvement before a federal agency can allow a relatively new use, such as e-bike use, on public lands. This may include NEPA review requirements with public comment opportunities; appropriate use analyses; and potentially federal rulemaking if an agency were to allow e-bike use that is in conflict with applicable state law.

  1. The study should include a thoughtful review of bike trail and multi-use path design guidelines, along with mitigation recommendations for managing e-bike use on multi-use trails that do not meet such guidelines.

The study proposal makes no mention of generally accepted design guidelines for the construction and management of bicycle trails and shared use paths. While the guidelines we are familiar with generally apply to paved multi-use paths, the design principles are adaptable and reasonably applicable to multi-use unpaved trails as well. For example, the American Association of State Highway Transportation Officials (AASHTO) Guide for the Development of Bicycle Facilities13https://njdotlocalaidrc.com/perch/resources/aashto-gbf-4-2012-bicycle.pdf or the American Trails Shared Use Path Design guidelines14https://www.americantrails.org/images/documents/sharedpath14.pdf, both recommend that the paved tread on shared use paths should be at least 10 ft wide, with a graded shoulder at least 2 ft wide on either side of the path. On shared use paths with heavy volumes of users, tread width should be increased to a range from 12 ft to 14 ft. In addition, shared use paths should not exceed a grade of 5%.

Introducing any additional use onto already busy trails, much less e-bikes that can travel faster and farther than conventional bikes with less effort, only elevates the existing safety risks for all users. In terms of natural surface trails, other than an occasional gravel administrative road that some parks open to bicycle use, we are not aware of any unpaved bike trails within the National Park System that come anywhere close to meeting the above referenced design guidelines. While we can imagine that allowing e-bikes on lightly used unpaved trails may create no significant additional safety risk, our observation has been that “lightly used bicycle trails” in national parks are relatively rare, if not non-existent.

Our observation has also been that many of the existing popular paved bike trails within units of the National Park System do not meet AASHTO or American Trails width and grade recommendations for shared use paths. In general, only the most recently constructed NPS paved “bike trails” and multi-use paths look anything like the photos below and are AASHTO-compliant.

Image of AASHTO complaint bike path.

Ideally, the Volpe study should identify and recommend bicycle trail and multi-use path design guidelines that can be adapted to high use as well as low use locations. We are not advocating for unreasonable “over design” of low-use trails; however, we are very concerned about federal agencies allowing e-bike use on substandard, inadequately designed high-use trails.

  1. We support the idea of the study evaluating the differences between the three generally accepted classes of e-bikes. Clearly, their respective mechanical capabilities are different; it stands to reason that rider behavior on each respective class may be different as well.

We offer the following comments regarding Class 1, Class 2, and Class 3 e-bikes:

Class 1 e-bikes: Compared to the other classes of e-bikes, Class 1’s appear to be the most similar in capability to conventional bicycles. In that regard, allowing Class 1 e-bikes on trails on public lands may the less impactful than allowing Class 2 and/or Class 3 e-bikes. A key question to consider is how different is Class 1 e-bike rider behavior and impacts (average speed, accident rate, amount of user conflicts, etc.) compared to that of a conventional bike rider?

Class 2 e-bikes: In the 2020 NPS e-bike rulemaking, NPS prohibited an e-bike operator from using a throttle-controlled electric motor to “move an e-bike without pedaling.” Such a prohibition obviously applies only to Class 2 e-bikes, the only class that can be exclusively propelled by the motor without pedaling. The fact that pedaling has to be required in order for NPS to allow Class 2 e-bikes to use park bicycle trails demonstrates the false narrative that e-bikes are not much different than conventional bicycles and should be managed as if they are the same.

While the throttle control feature is no doubt terrific for commuters and recreationists riding on paved bike lanes or multi-use paths that are AASHTO-compliant, it raises significant concerns about Class 2 use on narrower unpaved trails on public lands. In our view, it is simply unrealistic to think that people, who purchase a Class 2 e-bike for its 100% motor propulsion capability of up to 20 mph and are accustomed to using it, would voluntarily not use their e-bike’s capability simply because they happen to be riding it on a public lands trail.

Effectively enforcing a “must pedal” rule on public lands is impractical and unlikely to occur. For this reason, Class 2 e-bikes should be prohibited on shared use paths and single-track bicycle trails; and permitted only on administrative roads, which tend to be substantially wider than other designated “bike trails.”

Class 3 e-bikes: As described on a well-known national outdoor equipment retailer’s website15https://www.rei.com/learn/expert-advice/how-to-choose-an-ebike.html:

Class 3 e-bikes are popular with commuters and errand runners. Compared to Class 1 bikes, they’re faster and more powerful (and cost more). The payoff with added performance is that you can keep up with traffic better. They also climb better and handle heavier loads. The tradeoff is not being able to ride on most bike paths nor mountain bike trail systems. (emphasis added)

In other words, Class 3 e-bikes are preferred by commuters for riding in motor vehicle traffic because of the bicycle’s capability of traveling up to 28 mph with motor assistance. Class 3’s significantly higher speed capability (which is 40% higher than the maximum motor-assisted speed of a Class 1 or 2 e-bike) is widely recognized and frequently factored into e-bike regulatory decisions. For example, our review of applicable State regulations (described under general comment # 4 above) reveals that Class 3 e-bikes are widely prohibited from improved-surface bicycle trails and shared use paths, as well as single-track bicycle trails. Class 3 e-bikes are typically restricted to motorized routes, such as roads and designated bike lanes along roads. This widespread restriction of Class 3 e-bikes is undoubtedly due to their higher speed capability (up to 28 mph before the motor disengages) compared to Class 1 e-bikes (up to 20 mph before the motor disengages). This feature undeniably accounts for the popularity of Class 3 e-bikes among urban commuters; but raises serious concerns about allowing this class of bike with such a high-end speed capability to operate on mixed-use trails open to bicycles and pedestrians in parks.

For these reasons, we oppose the use of Class 3 e-bikes on any bicycle trails on public lands. We believe that they should be restricted for use only on paved or unpaved roads; and, where applicable, designated off-road vehicle (ORV) routes (i.e., or other “motorized trail” where motor vehicle use by the public is allowed).

Because of the distinctly different capabilities of the three classes of e-bikes, we recommend that Volpe Center consider a graduated approach to managing e-bike use based on their respective differences. Such an approach would be more in keeping with many state e-bike regulations.

Recommendation: A graduated approach to managing e-bike use on public lands could include the following:

    • Class 1 e-bikes would be permitted on administrative roads and improved surface trails that meet AASHTO guidelines for Shared Use Paths; and possibly on single-track natural surface trails open to bicycles, depending upon the respective agency’s mandate with regard to recreation vs. conservation.
    • Class 2 e-bikes would be prohibited on all designated bicycle trails, except for administrative roads open to bicycle use.
    • Class 3 e-bikes should be prohibited on all designated bicycle trails; and permitted only where motor vehicle use by the public is allowed.
  1. It is critical that the study include a review and analysis of whether e-bikes are legally considered “Other Power Driven Mobility Devices” (OPDMD’s) under the Americans with Disabilities Act of 1990 (ADA).

E-bike proponents and manufacturers often claim that e-bikes serve as mobility aids or assistive devices (similar to a motorized wheelchair) for people who are mobility impaired, implying that under the guise of the ADA e-bikes serve as “mobility devices” for individuals with physical limitations and should therefore be allowed wherever conventional bicycles are allowed. Our analysis of the issue reveals considerable ambiguity in applicable guidance and no clear evidence that such claims are valid.

In general, e-bikes clearly do not qualify as mobility devices in the same vein a  motorized wheelchairs, as described in 42 U.S.C. Section 12207 (c)(2), which states: “The term ‘wheelchair’ means a device designed solely for use by a mobility-impaired person for locomotion, that is suitable for use in an indoor pedestrian area.” (emphasis added)  E-bikes are neither designed SOLELY for use for locomotion by a mobility-impaired person; nor are e-bikes suitable for use in an INDOOR pedestrian area such as a park visitor center. Therefore, e-bikes are not considered mobility devices comparable to a wheelchair or motorized wheelchair.

That said, U.S. Department of Justice guidance on “Wheelchairs, Mobility Aids, and Other Power-Driven Mobility Devices 16https://www.ada.gov/opdmd.htm(OPDMDs) under the ADA is sufficiently vague and flexible that it would appear that a variety of power-driven devices (such as Segways, golf carts, and electric scooters and skateboards) could under certain circumstances be claimed as and considered legitimate OPDMDs. The guidance establishes general criteria in deciding whether a particular type of OPDMD can be accommodated, which includes being able to ask the person using the device to provide “credible assurance that the device is used because of a disability.” For example, if the person presents a valid, State-issued disability parking placard or card or a State-issued proof of disability, that must be accepted as “credible assurance” on its face.

To minimize potential conflicts in pedestrian areas, which presumably includes walking trails, DOJ also suggests policies for managing the use of OPDMDs, which includes “requiring the user to operate the device at the speed of pedestrian traffic (emphasis added); and identifying specific locations, terms, or circumstances (if any) where the devices cannot be accommodated.” This guidance (i.e., requiring the user to operate the device at the speed of pedestrian traffic) suggests the clear intent that OPDMDs are to serve as a conveyance for individuals who have difficulty walking (rather than difficulty riding a non-motorized bicycle fast enough and far enough).

Based on the “credible assurance of disability” and “pedestrian speed” guidance described above, it is a huge stretch for e-bike enthusiasts to claim that for a rider with some physical limitation an e-bike is presumptively classified as an OPDMD and, as such, is a protected use under the ADA.

We really hope you do not spend too much time researching this particular topic. However, it is critical that you review and summarize applicable guidance for the sake of policy consistency for the agencies involved. If e-bikes were to be deemed OPDMDs by any of these agencies under any circumstances, then it will not be long before visitors bring their electric scooters and electric skateboards (which are increasingly popular with commuters in urban areas) or their Segways and golf carts to parks and public lands and make the same claim. It is a very slippery slope that Volpe Center and the respective agencies should fully address now through proper consideration and guidance.

  1. There is ongoing litigation challenging the legality and appropriateness of the NPS decision to approve e-bike use within units of the National Park System. Since the BLM and the U.S. Fish and Wildlife Service also followed similar approval processes, these agencies may become subject to litigation as well. As a result, we strongly recommend that the Volpe Center study include a section summarizing e-bike litigation and legal analyses involving any of the four federal land management agencies involved in the study. 

            It should go without saying that federal agencies should not take shortcuts in processes required under the Administrative Procedures Act and the National Environmental Policy Act in an attempt to make the use of e-bikes legal on public lands. Sadly, that doesn’t seem to be the case with the National Park Service and perhaps not with the other Interior agencies as well.

It is important that the Volpe Center study acknowledge the legal uncertainty about the current apparent “approval” of e-bike use within units of the National Park System; and potential uncertainty about the status of “approval” of e-bike use on other public lands. The study should not and cannot create the impression that e-bike use is already generally accepted as a legal use on all public lands, since that clearly is not the case at the moment. Similarly, the report should not and cannot create the impression that e-bike use is generally accepted as an appropriate use of all public lands, particularly given the distinct differences in the respective agencies legislative mandates.

We recommend the study plan add a section that acknowledges the current uncertainty of the legality and appropriateness questions; and creates a list of lawsuits challenging e-bike use on federal lands involving any of the agencies involved in the study.

Here are links to information about cases we are aware of:

https://www.adventure-journal.com/2019/12/lawsuits-stack-up-against-feds-decision-to-allow-e-bikes-on-public-land/

https://eelp.law.harvard.edu/2020/05/interior-rolls-out-controversial-e-bike-rules/

https://www.bikemag.com/news/e-bike-lawsuit-dismissed-in-tahoe-national-forest/

https://www.peer.org/wp-content/uploads/2019/12/12_5_19_Final_e-bikes_Complaint.pdf

https://www.peer.org/wp-content/uploads/2021/03/JUDGES-Memo-Opinion-re-Motions-Mar.-30-21.pdf?eType=EmailBlastContent&eId=1dc85b6b-7fcd-45ef-a0a3-95133446846d

https://eelp.law.harvard.edu/2020/05/interior-rolls-out-controversial-e-bike-rules/

CLOSING COMMENT

In closing, we appreciative that the Volpe Center is proposing what seems to be a well-designed study to gather information applicable to e-bike use on public lands. As described in our comments, we believe there are some relatively minor additions and adjustments needed in the study proposal to ensure the information gathered is portrayed in an objective fashion that does not create the false impression that USDOT “approves” or “endorses” e-bike use as a necessarily legal and appropriate use on federal lands managed by the respective agencies under four different legislative mandates.

Thank you for the opportunity to comment on this important issue.

Sincerely,

Phil Francis Signature

 

 

Philip A. Francis, Jr., Chair

Coalition to Protect America’s National Parks
1346 4th Street SE #908, Washington, DC 20003

cc:        Shawn Benge, Acting Director, National Park Service