For Immediate Release: Sep 16, 2019
Contact: Kirsten Stade (202) 265-7337
New Park Service E-bike Order Invalid
NPS Edict Violates Federal Laws and Misinterprets Interior Directive
Washington, DC — A new National Park Service order allowing electric bicycles on park trails violates several federal laws, according to Public Employees for Environmental Responsibility (PEER) which is threatening to sue any park that implements it. Significantly, the acting NPS Director, who issued the order, did not follow the instructions given by the Secretary of Interior.
On August 29, 2019 Interior Secretary David Bernhardt issued a Secretarial Order directing that all Interior Department agencies, including NPS, take steps allowing e-bikes “where other types of bicycles are allowed.” The specific instruction for NPS was to develop a proposed change in the federal regulation (36 CFR § 1.4) to “expressly exempt all e-bikes… from the definition of motor vehicles.” That proposed regulation is supposed to be promulgated pursuant to the Administrative Procedure Act, which requires public notice and comment.
NPS did not do what Secretary Bernhardt ordered, however. Instead, on the next day, August 30th, acting NPS Director P. Daniel Smith issued a “Policy Memorandum” telling all park superintendents to now allow the use of e-bikes on trails where parks currently allow the use of bicycles. Smith’s memo creates several legal problems, including that Smith –
- Cannot overturn a federal regulation by fiat, meaning that any park allowing e-bikes on trails where motorized vehicles are now prohibited would be vulnerable to a lawsuit;
- Counseled park superintendents to evade legally required environmental reviews by declaring e-bike openings to be “minor changes” that are categorially exempt from further analysis regardless of actual impacts; and
- Lacks authority to issue any such order because he occupies his position in violation of the Federal Vacancies Reform Act which provides that any action by non-compliant officials, such as Smith, have no force or effect.
“Despite this botched attempt, no park may allow e-bikes on backcountry trails or areas outside of developed zones,” stated PEER Executive Director Tim Whitehouse, a former enforcement attorney with the U.S. Environmental Protection Agency, noting that the Park Service did no analysis of the effects of allowing e-bikes on trails. “PEER is prepared to go to court to ensure that e-bikes stay off any park trail where they were previously not allowed.”
On top of its legal infirmities, Smith’s order contains some troublesome provisions, such as that riders may only use the electric motor if they are also pedaling; motors may not be more powerful than 1 horsepower; and e-bikes may go no faster than 20 mph. In addition, Smith directed national parks to incorporate state and local e-bike rules.
“This ill-advised order would force overworked park rangers to also serve as bicycle cops,” added Whitehouse, pointing to shrinking park ranger force levels even with record visitation. “Smith’s action only underlines the bankrupt state of today’s Park Service leadership.”