Hey IMBA: Go Home, You're Drunk.

[SchralphMacchio]

These links are broken. Here is the current language: https://www.congress.gov/bill/115th-...bill/1349/text

I fixed my links. You need to look at the amendment - what you posted is not the current language, it's the original language.

The difference is tremendous.

The original language implies that no land managers shall restrict access to specific forms of wheeled transport devices within wilderness areas. It's bad because it sounds like a blanket allowance.

The amended language is within the spirit of what STC has been telling people, indicating that land managers MAY allow the use of specific forms of wheeled transport within wilderness areas. This goes along with the "some trails are appropriate, some are not, let the land management districts decide," argument.



I think of particular noteworthiness for discussion is the following:
Would reversal of the blanket ban effectively force land management districts to perform a full evaluation (aka costly and lengthy due process) of their wilderness trail inventory to propose use changes explaining where wheeled transport devices are and are not appropriate, something they don't have the time nor money to do, at risk of each of the various districts being exposed to suits from local user groups (hunters, bikers, people with disabilities, etc) requiring them to post evidence and reason for bans from specific trail areas ...

Or, if the land management districts so choose, can they maintain existing trail access policies (i.e., no wheeled transport allowed on all trails within a designated WA) without evidence or reason, until funding or other special motivation (other than a suit) initiates the review process for specific trail use designations?

Some of my friends fear the worst case, that reversal of the statutory ban could effectively force land managers to open up all trails for wheeled access until otherwise indicated. If anyone knows folks on STC it might be a good one for discussion before this actually hits the house floor. Maybe I'll post the question to their FB page later, but I'd like to hear what any legal or bureaucratic mags have to say about that.

[skaredshtles]

I fixed my links. You need to look at the amendment - what you posted is not the current language, it's the original language.

The difference is tremendous.

Thanks for fixing the links. Yeah - I agree on the amendments being important. I support a *measured* approach to this topic.

I have no issue with local FS/BLM agencies determining a trail is unsuitable for bicycle use. But it has been a long time coming that the arbitrary blanket ban be overturned. It's actually kind of a shame that it apparently is going to take a literal Act of Congress to do it... but so be it.

[jono]

Some of my friends fear the worst case, that reversal of the statutory ban could effectively force land managers to open up all trails for wheeled access until otherwise indicated. If anyone knows folks on STC it might be a good one for discussion before this actually hits the house floor. Maybe I'll post the question to their FB page later, but I'd like to hear what any legal or bureaucratic mags have to say about that.

I want to hear this, too, and I hope someone can include discussion of the existing CFR's (pre-1984) simply becoming the rule of law again if the later ones are invalidated. In the PR discussion this has been raised without discussion of the fact that the old CFR's are unchanged and still on the books, which makes me suspect that the whole line of reasoning originated from speculation on the part of someone who didn't actually know that. IOW, someone unfamiliar with the STC's research or arguments. It may be little more than FUD from WS and friends, but the details would tell thr story.

I'm not sure how concerned I am about the cost of transparency, though. The same set of rules apply to all forms of transportation now and the land managers have to publish updated travel plans for their regions every ten years. When they do they have to consider all constituents, take public comment, and explain their reasoning etc. The travel plans are typically where we lose most of our trails and they're unlikely to get any more complicated than they already are. Whatever that costs, it's not the addition of bicyclists as meaningful constituents for Wilderness trails that's responsible and attempting to put that cost at the feet of bicyclists would be disingenuous. This would just change the land managers' criteria. So how the estimate gets parsed is important.

It's also important to note that the signs telling us all to keep out went up in a matter of weeks at B-WC. The USFS can move awfully fast when they want to. My bigger fear with this law as written is that they'll have no reason to hurry to re-open those (and many more similarly closed) trails. It would be better to waive NEPA for recently-open bike trails and let the rest go through normal channels. Anything that was open to bikes in the last 15 years is probably either impassible from overgrowth or just fine for bikes now. Either way, open those or say why not seems like a good answer, though it probably belongs in a bill like the 'Access not Red Tape' effort, not as a permanent part of the WA.

[SchralphMacchio]

I'm pretty ignorant to environmental and land use law so I've probably grossly mis-represented my friends concerns ...

It seems like what's needed is for additional guiding language to be drafted, before this bill hits the floor, of associated implementation guidelines that should be followed should this thing actually pass - to both guide and protect the various land management agencies so as not to expose them to unnecessary suits, pre- and post- use designation changes. On the surface, it seems like your classification of anything recently open to bikes is a great starting point, and let the other systems update as part of regular land management / travel plan updates.

[rippling over canyons]

it is great to see mountain bikers leading the charge to properly legislate the wilderness act and reclaim public land that has been purposefully and illegally taken from us.

ftfy

[LightRanger]

Jono,

You have a cite handy to the existing CFRs for the lazy? I'd like to look at them. Given the change in law (call it a clarification if you will), the agencies should need to promulgate guidelines explaining the criteria for evaluation of various wilderness areas for the different devices. Otherwise the management units would have no way of consistently applying the new statutory definitions across the country and open themselves up to easy APA/NEPA suits.

Plus, even if the existing CFRs still work, both versions of the bill language would require management unit level NEPA analysis for every single wilderness area in the country. Even if the agency's proposed action is, "Nope. Bikes not appropriate here" they'd still need to do a categorical exclusion and basic notice and comment which requires some analysis and opens the door to APA/NEPA suits. If STC is saying, "Well, no, we don't think this language would do that," I'm telling you as somebody who has a bit of experience with this stuff, they're wrong.

[SchralphMacchio]

it is great to see mountain bikers leading the charge to properly legislate the wilderness act and reclaim public land that has been purposefully and illegally taken from us.

ftfy

^ that's extremely self-righteous.

The land is still there, it still belongs to the public, ergo it wasn't taken. You just currently have to walk on it if you want to enjoy it ... Or if you had mining claims pre-1964, then you could do whatever the F you want on it.

I think the debate over whether "mechanical transport powered by a human living entity" was truly in scope in the original Wilderness Act, and whether such restriction is still valid today, is fair for argument.

I happen to be on the side that thinks wheeled contrivances operated by humans, that can operate in areas no wider than a human footpath, regulated by speed limits, operated on designated and established trails only, are compatible with current uses and preservation of Wilderness Areas. But I wouldn't go so far as to say the current legal interpretation that bicycles are mechanized transport that were originally intended to be in scope of wilderness restrictions is tantamount to "public land illegally taken from us." You can call the current framework for wilderness designation and usage unfair, abitrary, or stupid, but the entire thing is literally defined in law, ergo, not illegal.

[toast2266]

^ that's extremely self-righteous.


...

I don't disagree with you, although I'd say the way bikes were banned in 1984 was a bit shady. If they did that shit today, they'd get sued and they'd lose.

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[jono]

Jono,

You have a cite handy to the existing CFRs for the lazy? I'd like to look at them. Given the change in law (call it a clarification if you will), the agencies should need to promulgate guidelines explaining the criteria for evaluation of various wilderness areas for the different devices. Otherwise the management units would have no way of consistently applying the new statutory definitions across the country and open themselves up to easy APA/NEPA suits.

Plus, even if the existing CFRs still work, both versions of the bill language would require management unit level NEPA analysis for every single wilderness area in the country. Even if the agency's proposed action is, "Nope. Bikes not appropriate here" they'd still need to do a categorical exclusion and basic notice and comment which requires some analysis and opens the door to APA/NEPA suits. If STC is saying, "Well, no, we don't think this language would do that," I'm telling you as somebody who has a bit of experience with this stuff, they're wrong.

I'm not sure if this is everything on the subject but it might be:

https://www.law.cornell.edu/cfr/text/36/293.6

(a)Mechanical transport, as herein used, shall include any contrivance which travels over ground, snow, or water on wheels, tracks, skids, or by floatation and is propelled by a nonliving power source contained or carried on or within the device.

(b)Motorized equipment, as herein used, shall include any machine activated by a nonliving power source, except that small battery-powered, hand-carried devices such as flashlights, shavers, and Geiger counters are not classed as motorized equipment.

Given the environment at the time and the comments from Church and Udall about how the agencies were misinterpreting the Act, I wonder if they didn't leave this on the books against this exact scenario--it just took 30 years longer than expected.

It should be noted that the worst case scenario as you describe seems to be that the USFS decides to do nothing and is then sued for not providing a reason to ban bikes. Is that about right?

If so, who's going to bring that suit? Until the STC there has never been a single instance of mountain bikers paying an organization to even lobby. As noted in the other thread they probably should have sued during the 1980's but that's simply never been a part of the "community ethos." Not to say it shouldn't be, but realistically (assuming passage) the most likely scenario here is that suddenly IMBA looks like geniuses for maintaining such wonderful working relationships and we all let them negotiate like always. I'm not fond of that idea, but I'd bet on that before anything else. Other alternatives mostly include choosing our battles and that starts with recommended areas, WSA's, and the B-WC or a few in CO, before resources and energy run dry and we wait for the next travel plans to be issued. If there's a plan due soon in any given area there would be no reason to fight at all.

I won't argue no suits can be brought: obviously if the USFS continues on the path they have recently preferred of banning bikes by all available means even after passage then suits might be the only possible response. But that's the nature of the law. If they break it they get sued. Hopefully. (But probably not.)

[jono]

I don't disagree with you, although I'd say the way bikes were banned in 1984 was a bit shady. If they did that shit today, they'd get sued and they'd lose.

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As noted in the other thread, the statute of limitations has expired. Whether that makes the previously-illegal legal seems like hair splitting.

[toast2266]

As noted in the other thread, the statute of limitations has expired. Whether that makes the previously-illegal legal seems like hair splitting.

Schralph said that the land wasn't illegally taken from us. I'm saying that there's a pretty good argument that, procedurally, it was.

Either way, no one is talking about bringing suit today on that past illegality. We're just saying that previous wrongs are being righted through the legislative process.

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[jono]

I wasn't quoting you to disagree, it was just quicker. My point was that it's arguable whether or not the term "illegal" applies.

[Empty Beer]

Jono,

Even if the agency's proposed action is, "Nope. Bikes not appropriate here" they'd still need to do a categorical exclusion and basic notice and comment which requires some analysis and opens the door to APA/NEPA suits.

Are such actions taken when bikes are booted from Wilderness, Recommended Wilderness and Wilderness Study Areas... or anywhere else prohibited?

[LightRanger]

Yes. Recreation management in WSAs is subject to NEPA. And, by the way, you can ride in at least some of the WSAs in California. Maybe all? Bodie, for example.

It varies in other places. Particularly in Montana because they're governed by a separate statute (the Montana Wilderness Act of 1976). Edit: Montana Wilderness Study Act of 1977.

If there's a national prohibition (like there is now for Wilderness), then there's no mechanism to do it. But if you remove that, then it's required. Put differently, NEPA analysis may be shaped by other statutes and regs that shape the agencies jurisdiction on certain things. Statutes like, say, the Wilderness Act of 1964 and regs that interpret it. If you change those jurisdictional limitations, then you trigger NEPA analysis or at least notice and comment under the Administrative Procedure Act depending on what the management unit's proposed action is. And then sue when you don't get your way.

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[LightRanger]

J,

Busy with kid shit. Will respond tomorrow. Thanks for that link.

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[LeeLau]

Thanks for the conversation btw. I don't know anything about US law and regs but am learning. I'll be doing a Pinkbike article next summer talking to Mt and ID advocates about the impact the wilderness closures and trail restrictions will have on their bike access.

One question I had about the STC bill is about the issue that the bill rebuts and reverses the presumption that bikes are banned from Wilderness. Which then begs the question - what process do federal land managers have in place to assess how the lands they administer will be used and by what user groups. The conversation is helping frame issues and questions. Vern Felton at PB may also be doing an article on this but from the higher level perspective. ANd this is useful

[Empty Beer]

Which then begs the question - what process do federal land managers have in place to assess how the lands they administer will be used and by what user groups.

Great question.

[smmokan]

I'm assuming the answer to that question will arise from whether or not the bill passes next year. They're not going to spend time dictating a process that they might not need.

That said, this is by far the most civil discussion I've seen anywhere on the internets about bikes in Wilderness. And on TGR, no less.

[toast2266]

If the bill passes, I'm guessing the FS would develop a travel management rule similar to what they use to guide motorized uses. Doesn't seem like they need to reinvent the wheel here (no pun intended); they already do that sort of travel management planning for the whole forest - the only thing they'd be doing differently would be incorporating bikes into the discussion with respect to designated Wilderness.

[jono]

Exactly.

When bikes were kicked out of the Boulder-White Clouds there was no NEPA involvement, just signs. When the managing agency establishes de facto Wilderness unilaterally (absent an act of Congress, bringing us back to the whole "illegal" trigger) they are supposed to consider public comments and science and whatnot.

So acts of Congress are obviously different. Whether they are inherently immune from NEPA in all cases or only when Congress is interpreted as banning something is not clear to me. Perhaps we should sue the USFS for not conducting NEPA/public comment and all before banning bikes from B-WC? After all, Congress laid out a map, they didn't tell the USFS to ban bikes.

I would like to see immunity made explicit for 1349 if possible, both to eliminate the budget uncertainty and to make the process of reopening closed trails quicker. NEPA exemptions are the current administration's favorite thing, right?

[toast2266]

Exactly.



So acts of Congress are obviously different. Whether they are inherently immune from NEPA in all cases or only when Congress is interpreted as banning something is not clear to me. Perhaps we should sue the USFS for not conducting NEPA/public comment and all before banning bikes from B-WC? After all, Congress laid out a map, they didn't tell the USFS to ban bikes.

Acts of Congress aren't subject to NEPA. NEPA is required anytime an agency takes action that might have an impact on the environment. Congress isn't an agency, so they can do whatever they want.

So if Congress passes a bill clarifying that bikes can be allowed in Wilderness, no NEPA process would be required. But if the FS then moves to allow bikes on a particular trail in the Wilderness, that'd require a NEPA process since it's an agency action.

Or, to flip it around, if Congress says bikes are allowed in Wilderness unless explicitly banned, there'd be no NEPA. But if the FS then moved to ban bikes on most (or all) trails in Wilderness, that'd require a NEPA evaluation.

[TahoeJ]

^^ That seems to be the general legal take on it. STC's POV is that they are *restoring* access not changing designation, but that isn't going to prevent various lawsuits (from one side or the other) that then trigger NEPA studies. It's really just a budgetary issue, and who knows what happens then. I wish there was a way they could do this cleaner, but the complex details of it are well beyond my grasp of the situation. Perhaps including a budget allotment in the bill? But it would probably be dead in the water if they did that given that the current administration isn't exactly showering the USFS with cash.

[jono]

So if Congress passes a bill clarifying that bikes can be allowed in Wilderness, no NEPA process would be required. But if the FS then moves to allow bikes on a particular trail in the Wilderness, that'd require a NEPA process since it's an agency action.

This is exactly what I want to see exempted. They should include a NEPA exemption for the agency action of re-opening any trails that have been open to bikes in the last 15 years, then everything else can be handled as travel plans come up at no meaningful cost.

(Some of the rest of my post was a bit facetious, in case that wasn't obvious.)

[BFD]

this has been an informative discussion. Wilderness is important to me and thanks to this discussion I have spent more time understanding the legislation and user viewpoints. The biggest problem i see is micro managing each area individually and how this may change with technology which also brings about more users. Driving through Escalante I kept seeing all the slickrock and thought it would be fun to just head out and ride. I finally stopped somewhere in Bears Ears when I saw a canyon rim that looked good. I found I had to leave the slickrock to reach other sections. I was upset with myself for how much I instantly changed the landscape and ended my ride rather quickly. My point is that with fatter tires better gearing , tubeless tires in many places you do not need trails. I see a huge need for enforcement to prevent abuses of this new legislation.
I respect Jono's opinion and now having read up on Boulder- White Clouds I now better understand some peoples opinions. However one statement he made in the PR thread I think missed the point.
{I think suspension is actually preferable in terms of keeping trails primitive and reducing impact. Keeping the wheels in constant and relatively even contact with the ground helps keep the trails in good shape for everyone, especially on a lot of CCC-era trails that were cut a little too steep. But if the real point is keeping people from bringing DH bikes and ripping the descents, just keep the trails long. Nobody wants to pedal a downhill sled or even a lighter long travel bike for long distances anyway, let alone use pads 20 miles from the nearest help.}
I am pretty sure people will be wearing pads and pedaling downhill sled 20 miles out. it is called progression and it is why we are having this conversation.
anyway good luck hopefully the bill stays simple and does not lead to other users amending the wilderness act. At least mountain bikes are quiet aside from the annoying squeaks.
also I think it is wrong to attack IMBA on their position. I think attacking them acknowledges the important part they have played in getting mountain biking to where it is today. I am not sure but I imagine they had something to do with shitters at Gooseberry Mesa,

[TahoeJ]

FYI - we have some maggot lawyers, some in this thread, providing STC with recommended language changes to the bill as it moves along. The language in the bill that was approved by committee was already improved over what was initially proposed, emphasizing bikes, etc. as a LLM option (i.e. "may allow") instead of the approach that they need to have a reason to be banned.

I still don't think there's ever going to be a clean and tidy version that won't have some shit-show potential, but... baby steps.

Also, still, fuck IMBA. They are clearly all about IMBA.