Hey IMBA: Go Home, You're Drunk.

[jono]

Not sure if serious. Read the previous post?

[mtngirl79]

I think people are scared for public land right now, and justifiably, so.

I think if the bill was more specific, it would get more support.

For one thing, a motorized wheel chair could be damn near a 4 wheeler with a 500lb person on it. And it's a huge slippery slope with the ADA. A mobility aid is a mobility aid if someone says it is.

I would like a more specific loop hole for mountain bikes like the ability to open a small corridor for connector trails or a way to grandfather existing use.

The broadness of this scares me.

[Empty Beer]

You clearly don't even understand the purpose of wilderness. Here's a hint: it is NOT about people. That's teh fundamental flaw in most of (not all) the pro-bike arguments. Wilderness is about preserving wild places, recreation is secondary or tertiary.

[jono]

Fear is a powerful currency, no arguing that. Particularly so for those conditioned to it, of which we have so many these days that the opportunity to collaborate is lost. I don't think the fear you refer to is warranted if you read the bill, though. If anything it's so weak that it changes nothing.

Sorry for the non-reply earlier; I heard someplace that powder days beat work days and I was in a rush to test the theory. The crux element on that language I quoted is that the ownership of mining claims and such are left intact and, in theory, if there's ever a way to use them that actually is compatible with wilderness (no, I don't think so, either) they could be utilized. The value of that comes from the fact that the WA subjects itself to the Mining Act.

Welcome back!

[jono]

HR 1349 as amended 12/13/17:

« Section 4 of the Wilderness Act (16 U.S.C. 1133(c)) is amended by adding at the end of subsection (d) the following: “(8) Allowable uses. Each agency administering any area designated as wilderness may allow the use of motorized wheelchairs, non-motorized wheelchairs, non-motorized adaptive cycles, non-motorized bicycles, non-motorized strollers, non-motorized wheelbarrows, non-motorized survey wheels, non-motorized measuring wheels, or non-motorized game carts within any wilderness area. For the purposes of this paragraph, 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.”. »

[mtngirl79]

Define suitable for indoor use...

[jono]

Define suitable for indoor use...

It's a fair point but for better or worse it's also moot since the ADA is already in a superior position to the Wilderness Act and the last revision of the ADA (2008?) already contains basically the same language.

[mtngirl79]

So it's legal to take a power chair into the wilderness? If so, why list them on the amendment?

[jono]

Yup. 100%...although you might wind up arguing with someone about that suitability thing, depending on who you run into out there.

[mtngirl79]

Also, the amendment doesn't restrict the chairs to disabled people. It just says the device must be designed for disabled people...

[TahoeJ]

Who cares? Seriously, giant horses that get spooked by their own shadow are allowed...

[LeeLau]

Just writing this frame some thoughts. I don't understand the US legislative process enough. The proposed amendment as its currently worded is really narrow in scope. It just says that local land managers can now decide on a case-by-case basis whether or not mountainbiking is allowed in Wilderness.

Previously land managers had zero discretion. If the land was Wilderness; biking wasn't allowed.

Compare with Canada where the presumption in Crown Land is that biking is allowed unless expressly prohibited (for the feds, that means National Parks; for the province, that means provincial parks.). This means that even this move by the US biking advocates gives the US mountainbikers LESS access then what we currently have in Canada.

Anyhow bunch of questions on the US process and I'm going to try to work with Vernon Felton on some issues. Also am planning on doing a piece on the impact to WA, ID and MT advocates They're the ones most hardhit because a large portion of their trails close to where they live is proposed Wilderness and they'll lose a metric ton of amazing alpine riding circa 2020

So the questions

1. The current amendment to the Wilderness Act is narrow in its scope and is very targeted towards allowing local decisions about biking acces on a case-by-case basis. How hard/easy is it to piggyback other things onto the proposed legislation?

Current bill as of 171222

« Section 4 of the Wilderness Act (16 U.S.C. 1133(c)) is amended by adding at the end of subsection (d) the following: “(8) Allowable uses. Each agency administering any area designated as wilderness may allow the use of motorized wheelchairs, non-motorized wheelchairs, non-motorized adaptive cycles, non-motorized bicycles, non-motorized strollers, non-motorized wheelbarrows, non-motorized survey wheels, non-motorized measuring wheels, or non-motorized game carts within any wilderness area. For the purposes of this paragraph, 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.”. »

2. If the proposed legislation passes and biking is allowed on case-by-case basis what process do the land managers have to follow? Is there public consultation; NEPA considerations, EA, CATEX, 10 year plan amendments?

I got this feedback from another person on question 2

"So if the law passes, the current regs and FS manual policies will be outdated. The agencies would have the opportunity to – and would need to – review their regs and policies and update them to comply. But my read is that the default management wouldn't instantly change.

My strong guess is that in the interim, the agencies would have discretion to leave the regs unchanged while they start the new regulatory process. The alternative would be for them to suspend the existing policies administratively, pending review and promulgation of new regs. This could be problematic since the agency won’t have had the opportunity to exercise discretion yet through notice and comment rulemaking revising the old rule, and the suspension of existing rules could be seen as short-cutting administrative process. My quick assessment is that the legal risk to the federal agencies is much higher from suspending the current rules, in my view, than from maintaining the status quo until they make a change.

So I think the agency will have a reasonable period of time to revise the regs. And I don't think it reverses the presumption that bikes aren’t allowed - though it certainly changes the current law, which says they're never allowed. The use of “may” in the statute implies that it’s ok for an agency to keep the ban, or to decide otherwise - or (most likely, if the decisionmaking is science-based) to do it case by case in particular wilderness areas or on specific trails, depending on the sensitivity of resources and projected impacts of biking.

In the end, I’m not sure how much discretion the use of “may allow… within any wilderness area” gives the agency. It seems to me to be poor drafting. I think the better argument is that the law requires the agencies to exercise case by case discretion based on findings the agency would make, based on analysis of impacts on resources and determination that the values protected by the Wilderness Act wouldn't be impaired in each case. If that's true, a decision to allow biking without going through an analytical process (subject to NEPA review) would likely be arbitrary and contrary to law. But I suppose the law leaves open the possible contrary argument that it confers complete, unconstrained discretion that would not require findings.

I should make clear: this isn't a deep legal analysis, but just my quick thoughts. I haven’t done any research to see how, or if, similar language has been interpreted by courts in analogous contexts. If the administration really takes the position that they have unfettered discretion just to open up trails to biking, they might use a shortcut process (but enviro orgs likely would sue).

Beyond that, this will require new rulemaking, and eventually also integration, ultimately, into forest plans/land and resource management plans. (The laws governing Forest Service and BLM lands require land use planning processes that include developing these land use plans that include standards and guidelines for all their lands, which would include standards to ensure that wilderness areas are managed properly and according to law, incorporating science into the decisions.)

[jono]

1. The current amendment to the Wilderness Act is narrow in its scope and is very targeted towards allowing local decisions about biking acces on a case-by-case basis. How hard/easy is it to piggyback other things onto the proposed legislation?

2. If the proposed legislation passes and biking is allowed on case-by-case basis what process do the land managers have to follow? Is there public consultation; NEPA considerations, EA, CATEX, 10 year plan amendments?

I got this feedback from another person on question 2

"....So I think the agency will have a reasonable period of time to revise the regs. And I don't think it reverses the presumption that bikes aren’t allowed - though it certainly changes the current law, which says they're never allowed. The use of “may” in the statute implies that it’s ok for an agency to keep the ban, or to decide otherwise - or (most likely, if the decisionmaking is science-based) to do it case by case in particular wilderness areas or on specific trails, depending on the sensitivity of resources and projected impacts of biking.

In the end, I’m not sure how much discretion the use of “may allow… within any wilderness area” gives the agency. It seems to me to be poor drafting. I think the better argument is that the law requires the agencies to exercise case by case discretion based on findings the agency would make, based on analysis of impacts on resources and determination that the values protected by the Wilderness Act wouldn't be impaired in each case. If that's true, a decision to allow biking without going through an analytical process (subject to NEPA review) would likely be arbitrary and contrary to law. But I suppose the law leaves open the possible contrary argument that it confers complete, unconstrained discretion that would not require findings.

The answer to 1 is purely political: do they have the votes in the legislature? If so, amending a bill easier, and if not it's impossible. So it's kind of unknown, but given the third rail nature of the Wilderness Act, it would be pretty tough to see anyone trying to dismantle it through amendments to a bill that only just made it to the floor. That would be unpopular and give ammunition to critics at a time when many GOP members of Congress are about to be looking for ways to distance themselves from an unpopular president going into mid-term elections. And no Democrat could do that without being virtually kicked out of the party. Remember, two years ago there was not a single person in the entire government who stood up and called for amendments to the bill that designated the wilderness areas in the SNRA, let alone voted against it. The House hasn't turned over so much in one election and all seats face elections in 2018.

2 is probably even muddier, especially given the situation in USFS Region 1, which has basically shown itself willing to violate the law in order to set a policy for land managers without public comment. (See Bike article, below.) This applies to recommended rather than statutory wilderness, but if the USFS is determined to put their own definition of wilderness ahead of NEPA's procedural requirements, it seems like discretion would just mean more of the same. They would probably have to be sued. And the fact is R1 should be sued now for violating NEPA by hiding from public comments and for expanding their role from having a responsibility to look out for "social" impacts of mixed uses to the outright political approach of trying to modify the constituency on the ground by banning certain uses.

A couple of references on the Montana/Idaho front:

https://www.bikemag.com/lines-in-the...ontana-access/

http://www.bitterrootbackcountrycycl...restplanletter

I agree with your 'anonymous' responder that "may" is a weak word that doesn't define the criteria very well. Whatever discretion is available might be used to exclude bikes on the basis that their presence and the sight of them has a negative impact on the experience of hikers. Science won't support exclusion, but the "social" impact is not well defined without another trip to court. Unless the bill is amended on the floor. Maybe it should require the land managers to consider all uses on their environmental merits and only block mixed use when there is a compelling alternative that doesn't unduly damage one user group (like providing a mixture of trails for different users or setting schedules). The previous senate bill last year did that but was not nearly as simple as this one.

But perhaps we're both being too cynical--or not enough. The USFS doesn't have a huge budget for fighting in court--bigger than STC's at the moment, but still not big. The cheaper alternative would be for the USFS to try to avoid all of that by letting the different user groups come to an agreement (presumably including that they won't sue the USFS for implementing it) and turn the whole thing over to negotiations. They do this already and the reason bikes always lose in these negotiations is at least partly because we haven't shown ourselves willing and able to go to court. If the negotiations are predicated on finding ways to avoid suits, the emphasis is obviously going to shift to those parties most willing to sue. The SC and WS have done so and, contrary to IMBA's explanations, the real reason they don't want to go down that road is purely money: they don't have it and can't raise it because no one trusts them to use it. So they say they are being nice to be nice, and hope that the opposition buys it. Because if they don't buy it, IMBA loses their seat at the table when everybody sees they won't do anything about it. That's where they really do need to be working with STC, who might be able to play the bad cop for them going forward.

10 year revamps of travel plans are pretty optimistic, BTW. Lately they've been taking a lot longer and in many cases that was comforting because the new ones are always worse. So without any specific requirement to act I actually doubt we'd be allowed back into the B-WC or anywhere else within my lifetime. Without going to court, anyway.

The only thing this bill seems really likely to accomplish in its present form is to invalidate the USFS R1 policy of citing the desire to kick out specific users that might otherwise object to Wilderness designation in the future. Obviously that only applies to recommended wilderness and WSA's. Still important because most of the trail mileage we've lost is in those areas.

[toast2266]

Aside from wilderness study areas and recommended wilderness, I think the big thing this bill will do is open up the discussion on new Wilderness.

If something like BWC happened after this bill passed, the conversation regarding bikes would be an awful lot easier. And realistically, that could result in bikers supporting a new Wilderness designation.

But yes, agreed that regaining lost access will still be an uphill battle with this bill.

Sent from my SM-G950U using Tapatalk

[jono]

I know I'd support most any future Wilderness designation that includes this bill's language--assuming there is also some way to hold land managers accountable to make decisions scientifically. Politically, having some legislators familiar with the issue seems helpful to that end if this fails (or stalls, as seems more likely).

On the accountability question, if this passed, other laws could handle accountability. Bills like the Recreation not Red Tape Act (if they apply to the BLM and USFS--the current overview does not mention them) could further modify how discretion is used, right?

[jm2e]

https://nsmb.com/articles/dear-uncle...-all-about-me/

[smmokan]

Funny.... "it's all about me" is the reason that the Sierra Club got mountain bikers kicked out of Wilderness in the first place.

[Spats]

Just posted for the first time in months to say:

IMBA, you are cowardly backstabbing weasels who have set our cause back ten years. Fuck all of you, individually and collectively. Not only do you never get another dime of my money, I will make sure that others know that you've stabbed the entire mountain bike community in the back.

Learn from the successes of the anti-bicycle zealots. The Sierra Club never appeases or compromises. It fights, tooth and nail, with every weapon at its disposal including constantly threatening lawsuits.

[Canada1]

But perhaps we're both being too cynical--or not enough. The USFS doesn't have a huge budget for fighting in court--bigger than STC's at the moment, but still not big. The cheaper alternative would be for the USFS to try to avoid all of that by letting the different user groups come to an agreement (presumably including that they won't sue the USFS for implementing it) and turn the whole thing over to negotiations.

The US government has an unlimited budget. When one of my super rich or institutional clients gets under the focus of a governmental agency, I immediately tell them they have met a foe with deeper pockets than themselves. I have seen the government spend years and probably seven figures in their attorneys time
(fees) to achieve a small fine. I've seen the government bankrupt individuals trying to clear their name as a matter of principle. They have dedicated attorneys and those attorney's can be focused on an issue by a lobbyist, senior bureaucrat, or cynically I believe a personal interest. So just letting it go may work, or it may create a precedent that is very hard to overturn. My advice when working with a governmental agency is find someone who understands your argument and attempt to reach a compromise. If the Sierra club has a politician who becomes focused, at their request on this, you've lost.

[Bunion 2020]

The US government has an unlimited budget. When one of my super rich or institutional clients gets under the focus of a governmental agency, I immediately tell them they have met a foe with deeper pockets than themselves. I have seen the government spend years and probably seven figures in their attorneys time
(fees) to achieve a small fine. I've seen the government bankrupt individuals trying to clear their name as a matter of principle. They have dedicated attorneys and those attorney's can be focused on an issue by a lobbyist, senior bureaucrat, or cynically I believe a personal interest. So just letting it go may work, or it may create a precedent that is very hard to overturn. My advice when working with a governmental agency is find someone who understands your argument and attempt to reach a compromise. If the Sierra club has a politician who becomes focused, at their request on this, you've lost.

Unfortunately, a lot of truth here. The way to work the system is to work within the system. If that means finding our own politicians then that is what it will take.

[NorCalNomad]

IMBA is garbage and it's bullshit that horses are allowed even though they create more erosion and water pollution

[jono]

The US government has an unlimited budget. When one of my super rich or institutional clients gets under the focus of a governmental agency, I immediately tell them they have met a foe with deeper pockets than themselves. I have seen the government spend years and probably seven figures in their attorneys time
(fees) to achieve a small fine. I've seen the government bankrupt individuals trying to clear their name as a matter of principle. They have dedicated attorneys and those attorney's can be focused on an issue by a lobbyist, senior bureaucrat, or cynically I believe a personal interest. So just letting it go may work, or it may create a precedent that is very hard to overturn. My advice when working with a governmental agency is find someone who understands your argument and attempt to reach a compromise. If the Sierra club has a politician who becomes focused, at their request on this, you've lost.

Fines and enforcement are a totally different ballgame since the strategy you describe serves as a deterrent that saves the government future court costs. In policy challenges that objective is achieved by appeasing/settling with those groups that are likely to sue, then empowering them in future negotiation processes so that they won't have a reason to sue when the negotiated plans are implemented.

My post was referring to the SOP of the USFS in trying to get consensus from interested parties before drafting a decision.
The point I think IMBA and mountain bikers in general miss is that if the USFS designates interested parties to negotiate something like a travel plan and some parties have a history of filing suit, their representatives get the upper hand in the negotiations. As long as we're totally unwilling to assert our rights we can be effectively ignored at that table.

In northern Idaho we lost hundreds of miles of trails (by the USFS calculations) when the last travel plan was issued and one particular sticking point in the preceding negotiations was the hiker groups coming to the table saying: 'we have to see x trail closed to bikes or we're going to get x and y both closed.' The trail they got closed is literally along the border of the (now) proposed wilderness, so it needed no cherry stem or gerrymandering to keep it open, just a will to negotiate in recognition that a 30 year old bike trail isn't harming the wilderness character of the land. But the objective was to close bike trails, presumably because that's what their bases wanted. The bikers laid down and kept the peace and we lost one epic trail and two hundred odd miles of others. I believe this will continue until we're equipped and willing to go to court. The Sierra Club goes to court all the time and it has absolutely not hurt their ability to work with the USFS--quite the opposite.

But I absolutely agree that politicians are the first place to start. I just doubt it can possibly end there because I just don't see the USFS turning themselves around on bikes unless forced by a court. I'd love to be wrong.

[goldenboy]

The Sierra Club goes to court all the time and it has absolutely not hurt their ability to work with the USFS--quite the opposite.

Take the assholes at Winter Wildlands Alliance- by far their big win was suing the USFS over winter travel management plans.

[Empty Beer]

Yeti Cycles president, Chris Conroy, is Chair of the IMBA Board of Directors. He's probably a super cool dude. But he's front and center on the opposition IMBA has for HR 1349. And the BOD made this policy decision without input from their membership chapters. Weak.

Yeti seems like a revered brand in Sprocket Rockets. Does anyone have any ideas for Yeti riders/owners to put some collective heat on Conroy? Not a few calls/emails... hundreds. The word is if IMBA doesn't back down from opposing and move to neutral or supportive, the bill won't go to the House floor. McClintock doesn't want to push on if the mtb community can't agree. Looking for a hail mary here...

[goldenboy]

The word is if IMBA doesn't back down from opposing and move to neutral or supportive, the bill won't go to the House floor. McClintock doesn't want to push on if the mtb community can't agree. Looking for a hail mary here...

Wow, if that's the case, IMBA really needs to die a slow and miserable death.