American Hiking Society, Back Country Horsemen of America, Backcountry Hunters and Anglers, California Wilderness Coalition, Coalition to Protect America’s National Parks, Colorado Mountain Club, Colorado Wildlands Project, Conservation Lands Foundation, Conservation Northwest, Environmental Action Committee of West Marin, Friends of the Bitterroot, Great Old Broads for Wilderness, High Country Conservation Advocates, Idaho Conservation League, Keep Routt Wild, Marin Conservation League, Oregon Natural Desert Association, National Parks Conservation Association, New Mexico Wild, Oregon Wild, Pacific Crest Trail Association, Public Employees for Environmental Responsibility, Quiet Use Coalition, Rocky Mountain Recreation Initiative, Rocky Mountain Wild, San Juan Citizens Alliance, San Luis Valley Ecosystem Council, Save Our Seashores, Sierra Club, Soda Mountain Wilderness Council, Southern Utah Wilderness Alliance, Teton Back Country Horsemen Chapter of BCHA, The Wilderness Society, Wild Connections, Wilderness Watch, Wilderness Workshop
October 12, 2022
The Honorable Deb Haaland, Secretary of the Interior U.S. Department of the Interior
1849 C Street NW,
Washington, DC 20240
Re: Electric motorized bicycles on Interior lands
Dear Madam Secretary,
We write to you with several requests regarding the Department of the Interior’s (DOI) treatment of electric motorized bicycles (e-bikes) and related matters. First, we request that you promptly rescind David Bernhardt’s Aug. 29, 2019, Secretarial Order (SO) 3376, on e-bikes, which directs that e-bikes must be allowed wherever traditional bikes are allowed Interior-wide. Specifically, the SO states, under “Sec. 4 Policy”:1At: https://www.doi.gov/sites/doi.gov/files/elips/documents/so_3376_- _increasing_recreational_opportunities_through_the_use_of_electric_bikes_-508_0.pdf
b) E-bikes shall be allowed where other types of bicycles are allowed;
As outlined in the Appendix to this letter, each of the formal e-bike regulations adopted in 2020 by the Bureau of Land Management (BLM), Bureau of Reclamation (BOR), Fish and Wildlife Service Refuges Division (FWS), and National Park Service (NPS), provides that Superintendents or other local managers “may” allow e-bikes where traditional bicycles are allowed, at their discretion and only after making certain required findings, rather than that they “shall” allow them. The mandatory “shall” language in SO 3369 conflicts with all four adopted Interior regulations, which are permissive. For example, the Federal Register notice approving the BLM’s e-bike regulations states:
While SO 3376 directs the BLM to exclude all e-bikes from the definition of ORV, the BLM, in coordination with DOI, ultimately decided that it would be more appropriate for authorized officers to analyze site-specific factors and determine where Class 1, 2, and 3 e-bike use is appropriate on an individual basis.
85 Fed. Reg. 69215 (Nov. 2, 2020). Because of this conflict and the fact that the SO has no legal effect, there is no reason to keep the SO in place.2Sec. 6 of the SO contains this standard provision that indicates it must be disregarded to the extent that it is inconsistent with any DOI regulations: Sec. 6 Effect of the Order. This Order is intended to improve the internal management of the Department. This Order and any resulting reports or recommendations are not intended to, and do not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers or employees, or any other person. To the extent there is any inconsistency between the provisions of this Order and any Federal laws or regulations, the laws or regulations will control.
Indeed, the continued existence of the SO is causing confusion and is improperly influencing agencies to allow e-bike use on non-motorized trails without the proper analysis and public participation under the National Environmental Policy Act (NEPA) and consideration of site- specific factors. Despite being replaced by more permissive regulations, federal agencies such as the BLM and NPS are relying on the mandate in the SO for authorizing the use of e-bikes, including on new trails and networks proposed by local stakeholders for mechanized mountain bike use only.3Some examples from BLM Colorado citing SO 3376 when authorizing e-bikes on trails: North Fruita Desert Trails Master Plan – decision April 2022 Here BLM authorized Class 1 e-bikes on all mountain bike trails. The decision rationale specifically cites “the BLM e-bike policy” as informing the decision. The Environmental Assessment (EA) discusses SO 3376 and rulemaking in detail, and concludes that the EA “follows the policy guidance of DOI Secretarial Order 3376 and the Final BLM E-bike Rule which directs the BLM to consider allowing e-bikes on mountain bike trails.” Grand Hogback Trail System – decision May 2020 Here BLM issued a modified decision that allowed Class 1 e-bikes on all trails. The rationale for the decision states: “As set forth in SO 3376, the use of low-speed e-bikes in the pedal assist mode should be treated generally in the same manner as traditional bicycles without an electric pedal assist.” Similarly, for the NPS, the Glen Canyon National Recreation Area, in its Letter of Compliance Completion of October 7, 2021, stated: “At the time of this documentation, Glen Canyon NRA does not have any trails where bicycles, traditional or E-bike, are authorized, however, if the park does authorize the use of bicycles along trails in the future, E-bikes as defined in 36 CFR 1.4 and 4.30(i), will be allowed up on these trails.” That misstates what the new NPS regulation requires. Instead, it assumes e-bikes must be allowed, as the SO provided. This is creating unnecessary conflict and frustrating efforts by local communities to develop quality recreation experiences on their local public lands.
As to the BLM, it is essential that the agency provide formal guidance to its Field Offices through an Instruction Memorandum (IM) on e-bike authorizations and complying with the NEPA. This IM must state that the agency shall not rely on the SO, and clarify that the e-bike regulations are permissive and do not require the agency to exclude e-bikes from the definition of off-road vehicle (ORV), and identify the site-specific factors that the agency must consider in an Environmental Assessment or Environmental Impact Statement when determining whether e-bike use is appropriate in a specific location.
Specifically, the IM should clarify:
- The e-bike regulations at 43 C.F.R. § 8340 et seq. require the BLM to consider e-bikes as ORVs;
- As such, when providing opportunities for e-bike use, the BLM should limit existing motorized trails to e-bikes, or e-bikes and mountain bikes over opening non-motorized trails to motorized bicycles. This would preserve non-motorized recreation opportunities, address user conflicts and safety concerns, and provide quiet recreation opportunities for e-bike users.
- The BLM may exempt e-bikes from the definition of ORV, and thus allow e-bikes on roads and trails where mechanized, non-motorized use is allowed, only after the agency conducts the proper analysis of site-specific factors and makes the required determination;
- This analysis must be done in an EA or EIS with full public participation opportunities;
- The site-specific factors that the BLM must analyze include all applicable minimization criteria (43 C.F.R. § 8342.1) and impacts as required by the agency’s Off-Road Vehicles regulations at 43 C.F.R. § 8340 et. seq., NEPA, and all other environmental laws and regulations;
- The analysis of the minimization criteria and impacts must be based on the best available science and data relevant to the site-specific location;
- Pursuant to 43 C.F.R. § 8341.2(a), where the authorized officer determines that e-bikes are causing or will cause considerable adverse effects upon soil, vegetation, wildlife, wildlife habitat, cultural resources, historical resources, threatened or endangered species, wilderness suitability, other authorized uses, or other resources, the authorized officer shall immediately close the affected areas to e-bikes until the adverse effects are eliminated and measures implemented to prevent recurrence. Such closures will not prevent designation in accordance with procedures in subpart 8342 of this part, but these lands shall not be re- opened to e-bike use unless and until the authorized officer determines that the adverse effects have been eliminated and measures implemented to prevent recurrence.
- If the BLM’s site-specific analysis determines that e-bikes are causing or will cause considerable adverse effects, including user conflicts, then the agency may not exempt e- bikes from the definition of ORV and may not authorize e-bikes on non-motorized roads and trails where mechanized, non-motorized use is allowed.
We further recommend that the BLM’s guidance address management of various “classes” of e- bikes. Current practice is for the BLM to designate trails as open to specific classes of e-bikes, such as Class 1 only. This type of management approach is proving difficult to enforce, and challenging to analyze for NEPA purposes and to communicate to trail users. This is another reason why the agency should limit existing motorized roads and trails for e-bikes only, or e-bikes and traditional mountain bikes, over authorizing the use of motorized bicycles on non-motorized trails.
For the NPS, the NEPA obligation is mandatory under a recent D.C. District Court decision addressing e-bikes NPS-wide.4Pub. Emps. for Env’t Responsibility v. Nat’l Park Serv., Civil Action No. 19-3629 (RC), 2022 U.S. Dist. LEXIS 93204 (D.D.C. May 24, 2022). No appeal of the ruling has been maintained by either side. Judge Rudolph Contreras ruled that the NPS must assess the environmental impacts of its E-bikes Final Rule, which it improperly failed to do prior to issuing the Rule, stating: The agency is required to take a hard look at them, and that analysis could potentially alter the outcome of the Final Rule.5Id., p. *71 Further that:
On remand, the agency will need to determine the proper level of NEPA compliance for the Final Rule, adequately document its reasoning, and provide opportunity for public input as appropriate.6Id., p. *72
We urge you to ensure that the NPS complies promptly and fully, at least in the form of an Environmental Assessment and possibly a commitment to do a full Environmental Impact Statement. Whichever path is chosen, the NPS plainly must document its steps and allow for public input under the ruling. The ruling was issued well more than four months ago, on May 24th; the compliance process should be initiated straightaway.
We also remind you that Judge Contreras determined the “E-bike Partner & Agency Group,” which was convened and hosted by DOI from 2017 to 2019, was a violation of the Federal Advisory Committee Act (FACA).7Judge Contreras wrote: p. *52, “….the Court believes that the E-bike Group was an advisory committee within the meaning of FACA.” and p. *53, “…. a technical FACA violation occurred…..”. Note that this FACA violation was found by Judge Contreras to be effectively moot because of later action by the NPS in adopting its Final Rule. The egregious violation carried out mostly under the prior Administration left each of the undersigned groups excluded from a policy development process that directly led to the deregulation of e-bikes across the DOI. DOI staff at that time convened and hosted a long series of non-public meetings with private industry groups, but they did not include a representative range of affected interests, such as the environmental community and other trail user groups. The result was the very sort of unbalanced and secret advisory committee that Congress intended to guard against when it passed FACA. The end result, sanctioned by David Bernhardt in his SO 3776, was that the e-bike industry convinced the DOI to do its bidding. We ask that the DOI commit to not convening any similar improper advisory committees in the future.
Thank you for considering these requests. We will look forward to your response.*
Sincerely,
| Judi Brawer Wildlands Attorney Southern Utah Wilderness Alliance judi@suwa.org (435) 355-0716 Tyler Ray Senior Director of Programs and Advocacy American Hiking Society tray@americahiking.org Tim Brass State Policy and Field Operations Director Backcountry Hunters and Anglers tim@backcountryhunters.org (651) 206-4669 Michael Murray Chair Coalition to Protect America’s National Parks editor@protectnps.org (202) 819-8622 Julie Mach Conservation Director Colorado Mountain Club uliemach@cmc.org (303) 996-2764 Danielle Murray Senior Legal and Policy Director Conservation Lands Foundation danielle@conservationlands.org 302-367- 8076 Morgan Patton Executive Director Environmental Action Committee of West Marin morgan@eacmarin.org Sara Husby Executive Director Great Old Broads for Wilderness sara@greatoldbroads.org (970) 385-9577 John Robison Public Lands Director Idaho Conservation League jrobison@idahoconservation.org (208) 345- 6933 Nona Dennis Director Marin Conservation League nbdennis@sbcglobal.net Tucker Johnson Program Manager - Visitor Experience National Parks Conservation Association tjohnson@npca.org (202) 875- 9448 Erik Fernandez Wilderness Program Manager Oregon Wild ef@oregonwild.org (541) 382- 2616 Tom Sobal Director quietuse@gmail.com Quiet Use Coalition (719) 539-4112 Alison Gallensky Principal Conservation Geographer Rocky Mountain Wild alison@rockymountainwild.org (303) 546- 0214 x 9 Christine Canaly Director San Luis Valley Ecosystem Council info@slvec.org (719) 589-1518 Jim Catlin Sierra Club jim@wildutahproject.org Connie Burke Chairman Teton Back Country Horsemen Chapter of BCHA connie_burke@yahoo.com James Lockhart President Wild Connections jlock@datawest.net (719) 385-0045 | Peter T. Jenkins Senior Counsel Public Employees for Environmental Responsibility (PEER) pjenkins@peer.org (202) 265-4189 Randy Rasmussen Director Public Lands and Recreation Back Country Horsemen of America wildernessadvisor@BCHA.org Linda Castro Assistant Policy Director California Wilderness Coalition lcastro@calwild.org 760-221-4895 Scott Braden Director Colorado Wildlands Project scott@cowildlands.org (970) 236- 6270 Kurt Hellmann Advocacy Associate Conservation Northwest kurt@conservationnw.org Jim Miller President Friends of the Bitterroot millerfobmt@gmail.com Matt Reed Public Lands Director High Country Conservation Advocates matt@hccacb.org (866) 349-7104 Larry Desjardin Keep Routt Wild larrydesjardin@yahoo.com Mark Salvo Program Director Oregon Natural Desert Association msalvo@onda.org (541) 330-2638 Sally Paez Attorney New Mexico Wild sally@nmwild.org (505) 216-9719 Mark Larabee Advocacy Director Pacific Crest Trail Association mlarabee@pcta.org (503) 880-5987 Rosalind McClellan Director Rocky Mountain Recreation Initiative rozmclellan@gmail.com 303-447-9409 John Rader San Juan Citizens Alliance john@sanjuancitizens.org (970) 259-3583 ext. 2 Gordon Bennett President Save Our Seashores gbatmuirb@aol.com, Dave Willis Chair Soda Mountain Wilderness Council sodamtn@mind.net Alison Flint Senior Legal Director The Wilderness Society alison_flint@tws.org (720) 647-9491 Dana Johnson Attorney Wilderness Watch danajohnson@wildernesswatch.org (208) 310-7003 Juli Slivka Wilderness Workshop juli@wildernessworkshop.org |
*Lead contacts for responding to this letter:
Peter T. Jenkins
Senior Counsel
PEER 962 Wayne Ave.
Suite 610
Silver Spring, MD 20910
tel: 202.265.4189
email: pj******@pe**.org
Judi Brawer
Wildlands Attorney
Southern Utah Wilderness Alliance
P.O. Box 968
Moab, UT 84532
tel: 435.355.0716
email: ju**@su**.org
CC:
Tracy Stone-Manning
Director
BLM
ts***********@bl*.gov
Nada Culver
Deputy Director
BLM
nc*****@bl*.gov
Chuck Sams
Director
NPS
ch**********@np*.org
Michael Reynolds
Deputy Director
NPS
mi**************@np*.org
Appendix – Excerpts from DOI Final Rules on E-bikes and Rule Preambles
Note: all emphasis is added.
BLM Final Rule, Federal Register Vol. 85, No. 212 / Monday, November 2, 2020, pp. 69206 – 69223
https://www.govinfo.gov/content/pkg/FR-2020-11-02/pdf/2020-22239.pdf
Subpart 8342—Designation of Areas and Trails
3. Amend § 8342.2 by adding paragraph (d) to read as follows:
PART 8340—OFF-ROAD VEHICLES
§ 8342.2 Designation procedures. * * * * * (d) E-bikes. (1) Authorized officers may allow, as part of a land-use planning or implementation-level decision, e-bikes, or certain classes of ebikes, whose motorized features are not being used exclusively to propel the ebike for an extended period of time on roads and trails upon which mechanized, non-motorized use is allowed;
Preamble: (p. 69215)
Comment: Some comments asserted that the rule is inconsistent with the direction of SO 3376.
Response: This rule is consistent with the general direction in SO 3376 that the BLM treat e-bikes similarly to traditional, non-motorized bicycles; however, SO 3376 is a policy document that was not “intended to, and d[id] not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States.” While SO 3376 directs the BLM to exclude all e-bikes from the definition of ORV, the BLM, in coordination with DOI, ultimately decided that it would be more appropriate for authorized officers to analyze site-specific factors and determine where Class 1, 2, or 3 e-bike use is appropriate on an individual basis. Because of potential resource impacts, user conflicts, and other relevant considerations, Class 1, 2, or 3 e-bike use may not be appropriate on certain public lands where traditional, non-motorized bicycles are allowed.
NPS Final Rule, Federal Register / Vol. 85, No. 212 / Monday, November 2, 2020, pp. 69175 – 69188
https://www.govinfo.gov/content/pkg/FR-2020-11-02/pdf/2020-22129.pdf
36 CFR Part 4 National parks, Traffic regulations.
4. Amend § 4.30 by adding paragraph (i) to read as follows:
§ 4.30 Bicycles
* * * * *
(i) Electric bicycles. (1) The use of an electric bicycle may be allowed on park roads, parking areas, and administrative roads and trails that are otherwise open to bicycles.
Preamble: (p. 69180)
9. Comment: Many commenters raised concerns about the potential impacts ebikes would have on park resources and the visitor experience. Several commenters stated that e- bikes would cause greater cumulative impacts to the natural environment than are caused by traditional bicycles due to their ability to travel longer distances with more gear into more remote and undisturbed areas …..
NPS Response: The NPS agrees that park resources must be protected and user conflicts should be avoided where e-bikes are allowed. However, this rule does not mandate the use of e-bikes in any park area……. The addition of e-bikes on roads or any of these trails is subject to the discretion of the superintendent who is required by policy to consider the impacts that a new park use such as e-bikes would have on park resources and visitor experience
BOR Final Rule, Federal Register Vol. 85, No. 205 / Thursday, October 22, 2020, pp. 67294 – 67299
https://www.govinfo.gov/content/pkg/FR-2020-10-22/pdf/2020-22108.pdf
43 CFR PART 420—OFF-ROAD VEHICLE USE
******
2. Amend § 420.5 by revising paragraph (a) and adding paragraph (h) to read as follows: § 420.5 – Definitions.
(a) Off-road vehicle means any motorized vehicle (including standard automobile) designed for or capable of cross-country travel on or immediately over land, water, sand, snow, ice, marsh, swampland, or natural terrain. The term includes:
******
(7) Electric bikes as defined by § 420.5(h): while being used on roads and trails upon which mechanized, non-motorized use is allowed, that are not being used in a manner where the motor is being used exclusively to propel the E-bike for an extended period of time, and where the Regional Director has expressly determined, as part of a land-use planning or implementation level decision, that E-bikes should be treated the same as non-motorized bicycles.
Preamble: (p. 67296)
Comment: The use of E-bikes on non-motorized trails will create user conflicts and safety concerns for hikers, traditional bikers, and equestrians.
Response: Reclamation acknowledges concerns regarding potential user conflicts and safety concerns on trails that have previously been designated for non-motorized use such as hiking and equestrian trails. As such, the rule allows the flexibility in accordance with 43 CFR 420.5(a)(7) whereby Reclamation’s Regional Directors may expressly determine, as part of a land-use planning or implementation-level decision, that E-bikes should be treated the same as non-motorized bicycles and will not create unmitigated user conflicts.
FWS Final Rule, Federal Register Vol. 85, No. 212 / Monday, November 2, 2020, pp. 69223 – 69235
https://www.govinfo.gov/content/pkg/FR-2020-11-02/pdf/2020-22107.pdf
50 CFR Part 27 Wildlife refuges.
PROHIBITED ACTS
******
2. Amend § 27.31 by redesignating paragraph (m) as paragraph (n) and adding a new paragraph (m) to read as follows:
§ 27.31 General provisions regarding vehicles.
* * * * *
(m) If the refuge manager determines that electric bicycle (also known as ebike) use is a compatible use on roads or trails, any person using an e-bike where the motor is not used exclusively to propel the rider for an extended period of time shall be afforded all of the rights and privileges, and be subject to all of the duties, of the operators of nonmotorized bicycles on roads and trails.
Preamble: (p. 69227)
Comment (10): Many commenters requested that the FWS should limit or restrict where e-bikes may be used on a national wildlife refuge. Many commenters stated that e-bikes should be allowed only where motor vehicles are allowed. Some commenters stated that e-bikes should be allowed wherever traditional bicycles are allowed. Some commenters stated that some trails were not appropriate for e-bike use due to design or topography issues.
Our Response: ……..Allowing e-bikes on nonmotorized, natural surface, nonpaved, multiuse, or other types of roads or trails is subject to the discretion of the refuge manager, who is required to consider the anticipated impacts that a new use such as e-bikes would have on refuge resources and visitor experience…….If the refuge manager determines that e-bike use will significantly impact public safety on a certain nonmotorized trail where other types of bicycles are allowed, this rule and the Administration Act permit the manager to limit or restrict where all or certain e-bike classes may be allowed on a site-specific basis.