The inevitable bike legalization of the JMT

[Anonymous]

"That will put some hair on your chest."

It'll more likely scrape at least as much off. ;)

[David Chenault]

Come on Tom. That two page essay has nice publishing and footnotes, but it also has quite a few holes. There are plenty of good arguments against bikes in US Wilderness, any maybe even some strictly legal ones, but the debate deserves better than this perfunctory obfuscation.

For instance, the time gap for the FS to "perfect" it's official interpretation of the Wilderness Act is at least two decades. The author glosses over the details of the debate here, to put it mildly.

There's also a fair bit of intellectual dishonesty in the opening paragraphs. Zahniser may well have objected to making a section of the AT bike-friendly (he spent much more time fighting that road, and lost), but sticking that right in front of some rather vague innuendo that other influential figures were thinking the same specific thing when the author has no specific evidence in hand is just cheap.

More broadly, the author is implicitly advocating a sort of bizarrely Scalia-esque originalist interpretation of the law. It's historically interesting to know what the founders of Wilderness were thinking three decades before the law was signed, but it doesn't really have any relevance to how it ought to be interpreted today. That has to do with what the actual text means in a contemporary context. Which is what we got to ~two weeks ago in the initial discussion.

[Roger Caffin]

> Scalia-esque originalist interpretation of the law. It's historically interesting to
> know what the founders of Wilderness were thinking three decades before the law was
> signed, but it doesn't really have any relevance to how it ought to be interpreted
> today.

Ah, but there you (Dave) are at odds with the whole legal system and the Constitution. Neither the Constitution nor the black letter laws are subject to 'post-modern reinterpretation'. You can NOT go around reinterpreting either of them to suit any current political fashion. Why not? Because you will get slammed very hard and fast in the High Court at the hands of a Constituional lawyer – and rightly so. Do you want the laws of the land to be flipped upside down with every change in government and political fashion? That way lies chaos.

I'm sorry to be so blunt, but 'how it ought to be interpreted' has absolutely ZERO meaning, relevance or validity.

Cheers

[Steve M]

Roger nicely stated. It's good to see at least some of the BPL "Staff" members are looking at this logically.

[Anonymous]

"I'm sorry to be so blunt, but 'how it ought to be interpreted' has absolutely ZERO meaning, relevance or validity."

Thank you for saving me the trouble, Roger. Dave is nothing if not persistent, I'll give him that, but the law is the law, and pretty clear in its intent. That said, I wish I shared your apparent faith in the "High Court" If a case testing the right of MTB'ers to destroy wilderness areas ever makes it to The Supremes, Dave's point of view may yet carry the day. As long is there is some influential business interest which stands to benefit from such access lurking in the background, the current crop of justices are liable to exercise considerable discretion in interpreting the law. All in the name of applying the Constitution to modern circumstances, of course.

Edited: It might be well to contemplate the fate of the near sacred legal principle of habeas corpus, and the First, Second, Fourth, and, so far, Eight Amendments to The Constitution before advocating interpretation of law according to modern conditions.

[Anonymous]

" It's historically interesting to know what the founders of Wilderness were thinking three decades before the law was signed, but it doesn't really have any relevance to how it ought to be interpreted today. That has to do with what the actual text means in a contemporary context."

I find it hard to believe you really mean this, Dave. If I were to take you at your word, I would have to ask, "why bother to have a wilderness act at all?".

[David Chenault]

Tom and Roger, I'd encourage you both to be more precise in your reading. The article Susan linked to cited quotations (from the founders of Wilderness as a concept) from the 1930s. The Wilderness Act was written and passed in 1964. What the later document meant by terms like mechanized is of course highly relevant, what one of the guys who contributed to writing it meant by the same term 30 years before is a historical curiosity.

Due respect Roger, but I think your portrayal of the vicissitudes of judicial interpretation is a little simplistic.

[Anonymous]

"Tom and Roger, I'd encourage you both to be more precise in your reading."

Nobody will henceforth accuse you of lacking a sense of humor. :)

"The article Susan linked to cited quotations (from the founders of Wilderness as a concept) from the 1930s. The Wilderness Act was written and passed in 1964. What the later document meant by terms like mechanized is of course highly relevant, what one of the guys who contributed to writing it meant by the same term 30 years before is a historical curiosity."

Sort of like the framers of The Constitution? And here I thought it was the mandate of the courts to ascertain the intent of those who conceive and write our laws.

In any case, to introduce further precision into the discussion:

From Wikipedia. I'll root around for the exact legislation signed by none other than "If you've seen one tree, you've seen 'me all" Ronald Reagan, if you insist.

'The Wilderness Act will be chosen from existing federal land and by determining which areas are considered to have the following criteria: (1) minimal human imprint, (2) opportunities for unconfined recreation, (3) at least five thousand acres, and (4) to have educational, scientific, or historical value. Additionally, areas considered as Wilderness should have no enterprises within them or any motorized/mechanized devices (e.g.; vehicles, motorbikes, or bicycles).

When Congress designates each wilderness area, it includes a very specific boundary line—in statutory law. Once a wilderness area has been added to the System, its protection and boundary can only be altered by another act of Congress. That places a heavy burden on anyone who, all through the future, may propose some change.'

'The Wilderness Act was reinterpreted by the Administration in 1986 to ban bicycles from Wilderness areas, which led to the current vocal opposition from mountain bikers to the opening of new Wilderness areas.'

[David Chenault]

The '84 mountain bike rule was a Forest Service administrative one; in statute easily reversed. But I think I said that a few pages ago. Some bedtime reading to complicate matters: https://www.govtrack.us/congress/bills/96/s3072/text#

In short I think we agree on more than we disagree. As I've been at pains to state for some time, my own mind is far from made up on the matter. More than anything, the demagoguery which so often pops up in discussion it what has thus far kept me interested.

Two pages articles with selective historiography and wikipedia articles with one citation (that is not especially relevant, albeit a good book) don't do the discussion good service.

[Roger Caffin]

> your portrayal of the vicissitudes of judicial interpretation is a little simplistic.
Oh, very likely.

I studied (commercial) law for only 6 months, but I did get the impression that it could be hard to interpret 'X is banned' to mean 'X is permitted'.

Cheers

[Anonymous]

"The '84 mountain bike rule was a Forest Service administrative one; in statute easily reversed. But I think I said that a few pages ago. Some bedtime reading to complicate matters: https://www.govtrack.us/congress/bills/96/s3072/text#"

Applying to a very specific wilderness/national recreation area in MT. So, here's a counter complication from the regulations for the Frank Church River of No Return Wilderness Area, e: "Wilderness Regulations:
All Wilderness areas have a number of regulations in place which are designed to protect the resource. Mechanized and motorized equipment is not allowed in Wilderness, this includes bicycles, carts and boat motors. Hangliders are prohibited in order to preserve the aesthetic value of wilderness." Here's the Forest Service link to the source document: http://www.fs.usda.gov/detail/scnf/specialplaces/?cid=stelprdb5360033

Which leaves us with the umbrella Wilderness Act of 1964, which cannot be overturned without an act of Congress. The relevant text is included below, with link to source.

http://www.wilderness.net/nwps/legisact#5

"PROHIBITION OF CERTAIN USES

(c) Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area."

I don't know how much clearer it can be expressed than "no other form of mechanical transport".

"In short I think we agree on more than we disagree. As I've been at pains to state for some time, my own mind is far from made up on the matter."

I would very much like to think so, Dave, but to tell you the truth I don't have a clue as to what is your actual position. You've been all over the map so far, from advocating for MTB's on the JMT(tongue in cheek demagoguery lite?) to saying that your mind is far from made up, to admitting that there are solid reasons for not allowing MTB's in NP's/wilderness areas, just not the ones offered by those you seem to so cavalierly dismiss. So what I am going to propose is that you come out and tell us what your position actually is, and I will do the same, to get the ball rolling. I think that would not only clarify the outstanding issues but also turn the thread in a more productive direction. As things stand, the general tenor of your posts have generally been mildly inflammatory and condescending. No serious reactions so far, because I think most of us find it sort of amusing, but as the days grow darker and cabin fever reaches near epidemic proportions that may not last. So, what say? Can we get down to brass tacks and stop the verbal jousting? It is becoming tedious.

[Anonymous]

"but I did get the impression that it could be hard to interpret 'X is banned' to mean 'X is permitted'."

Not in the B.S.A. Our lawyers operate according to the same basic assumption as accounts, best exemplified by a simple hypothetical question put to every accountant in their first year of accounting studies: Q. What is 2 = 2? A. What do you want it to be?

[David Chenault]

You'll have to take me at my word that I don't have a single, short, two sentence position on this matter. It's been an enjoyable exchange insofar as I've been given lots to think about, and sad insofar as many folks (yourself not included) seem to have their minds made up and are not interested in opening them. I'll not ask for forgiveness if I've been inflammatory in such an environment.

"I don't know how much clearer it can be expressed than "no other form of mechanical transport"."

Therein lies the first problem, and if we want to reboot the discussion we can probably start and end there and save a lot of bother.

There's the portion of the Wilderness Act which has been quoted on multiple occasions in this exchange concerning the prohibition against mechanical transport.

There's a smidge of vague evidence in the early writings of Zahniser and Marshall which goes both ways on whether bicycles might be considered mechanical transport. I'm not a Zahniser scholar, but I've read a lot on Marshall, enough to convince me that an appeal to these sources will not obtain much clarity, either specifically as bikes are concerned or more generally in nailed down what "mechanical" might be construed as meaning.

There's an article (https://www.imba.com/resources/land-protection/legal-analysis; made available by IMBA, so not necessarily an unbiased source) which suggests that at the very least the access to and promulgation of physical fitness was on the minds of the various members of Congress who shaped the actual bill. Whether this is relevant to the bike debate is unclear. I've not yet been successful in tracking down text of the house deliberations here, so we'll have to rely on said article for the moment.

There's the act establishing the Rattlesnake Wilderness in 1980, linked to in a previous post, which explicitly allowed bikes in the Wilderness. This is the only piece of legislation after the passage of the original act and before the much-discussed FS rule of 1984 (prohibiting bikes in Wilderness) which specifically addresses mountain bikes in Wilderness, in any capacity, of which I am aware.

Every reference to the explicit prohibition of bike in Wilderness (ex the Salmon website linked above) uses the language of that 1984 rule. That rule is a piece of executive branch enactment of the law, not enshrined in legislation itself.

Based on the above it seems obvious to me that (among other things), there is ambiguity or at least confusion about the extent to which bikes count as mechanized transport. I also maintain that distinction between (for example) skis and bikes, with the former not counting as mechanical for these particular purposes, is arbitrary. Not necessarily without grounds, but certainly illuminating the extent to which there is room for debate here.

If one denies this room for debate, than the talk stops and the shouting begins.

If one admits room for debate on the question of WHY bikes should or should not count as mechanized, we can move forward.

I can for example cede Andrew's point from a number of pages ago that since skis do not travel on the ground itself, their impact is very minimal and thus that bit of mechanical transport is ok. A counter argument would be that skis allow people to get into places they wouldn't be able to otherwise, or at least much much faster, thus effectively shrinking the size of a given Wilderness during the snowy season. One could also argue that skiers might have a greater impact than hikers, insofar as they might get into and disturb animals in their winter range, during the most taxing time of the year.

In summary, my research long ago led me to believe that with most of the above being axiomatic, the obvious terms of the debate are the values and utility based ones to which I immediately jumped early in the discussion. Perhaps that was confusing.

[Art …]

" I'm sorry to be so blunt, but 'how it ought to be interpreted' has absolutely ZERO meaning, relevance or validity "

the law (from the Constitution on down) is nothing but grayness,
a grayness that constantly resides a decade or more behind the social fabric that binds us together.
the courts owe their existence to this fact.

and with that, its not a far stretch to take the "no motorized equipment" phrase and extend it to ALL electronic equipment.

skis of course are exempt because they are simply large shoes, and there is no current ban on clothing.

[HkNewman]

My initial point is unchanged and that's mountain bikers needs their own trails due to safety.

One can say get off trail but in my observation, mtn bikers make their own trails. Disclosure: I also mountain-bike on non-hike weekends on my mtb local trails and can see the numerous branches as bikers avoid standing water etc…. When cruising downhill it's easy to misjudge how fast one can pass a hiking party where they do not feel threatened and that's in the desert foothills where there's at least 50 yards distance to see. There's been cases of walkers retaliating with booby traps and I'd just as soon my backcountry experience be devoid of people reenacting the war movie the Dirty Dozen. Now I do not mind sharing a summit, but for the interest of some solitude and safety, I'd prefer keeping bike and hike trails going up to it as separate as possible.

Add; every collision between bike rider and pedestrian/hiker has been bad or even fatal for the walker due to the momentum of the bike+rider.

Ed: add and delete

[Roger Caffin]

To quote Wikipedia:
Machines employ power to achieve desired forces and movement (motion).

Running through most discussions of machines is the idea that a machine has a flow of power through it, and that the machine may 'convert' that power from form or one sort of motion to another sort of motion. If it has any sort of rotary motion it is undoubtedly a 'machine'.

I suggest that a bicycle cannot avoid being classified as a machine, or a mechanical form of transport. And mechnical forms of transport are banned by Act of Congress.

Now, skis. Can these be seen as machines? There is a continuum of concept from shoes to snowshoes to split boards to skis, and none of these do anything more than act as a form of footwear suited to the terrain being traversed. I cannot see any of them as being a machine. If you want to classify skis as machines, then logically you would have to classify split boards, snowshoes and boots as machines as well. That would be absurd, so the starting point must be wrong.

Cheers

[David Chenault]

:)

Roger, you may use another example of the degress of mechanization in human powered transport, if you like. Paragliders v. oar rafts, for instance.

Regardless, I will maintain that you are wrong with respect to skis, and you may of course do the same right back.

[J-L]

A bike is a machine. They're allowed on roadways and are considered vehicles by law.

Vehicles should not be allowed on wilderness trails. Therefore, no bikes

[Anonymous]

I have to agree with Roger, bikes are more technically machines, and skies, etc are not.

[Anonymous]

"You'll have to take me at my word that I don't have a single, short, two sentence position on this matter. "

I wasn't looking for a simplistic answer, Dave. You are not alone in having nuanced feelings that are difficult to articulate. What I was hoping to do is elicit some highlights of your thinking to overlay on mine and others as they express them, in an effort to establish common ground where it exists, and bring the areas where we disagree into focus. At least then we would have points to discuss, negotiate, and perhaps narrow the differences. Not that anything decided here will have much impact on the actual policy/legal outcome, but it might help clear the air and strengthen mutual respect and understanding. Corny, huh?

"Therein lies the first problem, and if we want to reboot the discussion we can probably start and end there and save a lot of bother.

There's the portion of the Wilderness Act which has been quoted on multiple occasions in this exchange concerning the prohibition against mechanical transport.

There's a smidge of vague evidence in the early writings of Zahniser and Marshall which goes both ways on whether bicycles might be considered mechanical transport. I'm not a Zahniser scholar, but I've read a lot on Marshall, enough to convince me that an appeal to these sources will not obtain much clarity, either specifically as bikes are concerned or more generally in nailed down what "mechanical" might be construed as meaning."

I don't think the definition of mechanical is unclear to 99.9999999% of the population, Marshall and Zahniser included. The words machines and mechanical have been in general use for a very long time now. The intent of Marshall, Zahniser, et al, is difficult to discern, as you yourself admit, but the relevant phrase in the Wilderness Act is pretty clear, especially in the context of prohibited non human(engine) powered machines that precedes "and other mechanical means of transport". Why else would they have made such a distinction? What I am getting around to is that, in the absence of a social consensus as to what should be permitted in wilderness areas, all we have left to fall back on is the law. For me, it follows that the only way to get beyond a solely legalistic approach to regulating what is permissible in wilderness areas is to develop a social consensus that will make it possible to change the law to make it more reflect the will of the people. Further, the only was I can see to make that happen is to engage in discussion with those who disagree with you, in an attempt to narrow differences to the point where the vast majority can support a system of regulation that they feel ensures their interests are protected. This would certainly require compromise, and nobody would get everything they want, but hopefully it would be something that most interests could live with. The recently established Big Sky Wilderness out here in WA offers hope in that regard. Even the IMBA endorsed it. Anyway, that was the intent of my most recent post before this one. The discussion has to start somewhere. Why not here?

"If one admits room for debate on the question of WHY bikes should or should not count as mechanized, we can move forward."

You'd very likely be the only one arguing they should not count as mechanized, so I doubt that would be a very productive discussion. Maybe better to discuss why MTB's should, or should not be permitted in wilderness areas, NP's, NRA's, etc., or perhaps how and where their access might be permitted, i.e. shared trails, separate trails, around the periphery where they have a historical use pattern as opposed to in the relatively pristine interior, to name a few points I think are worth discussion.

Worth a try?

[Roger Caffin]

> The intent of Marshall, Zahniser, et al, is difficult to discern, as you yourself
> admit, but the relevant phrase in the Wilderness Act is pretty clear,

This is why the courts pay very little attention to what the authors of any Act might or might not have intended. After all, who really knows? That is a rabbit hole they simply will not go down. All that matters are the actual words of the Act.

The same applies to the creation of new laws. If a new (often State) law violates some provision in the Constitution ("Congress shall make no laws …"), then that new law is simply invalid. No ifs, buts or maybes. Love that First Amendment!

Mind you, I have seen Constitutional lawyers spend hours on the difference between 'may' and 'shall' or similar. But that's for another day.

Cheers

[Anonymous]

"But that's for another day."

Wait a minute, do you mean "day" as in, a period of 24 hours, a rough period of about 8 hours of a "work day", the time the Sun is visible and we visually perceive light… Shall we be more specific if i may say?

Lordy, thank goodness i'm not a lawyer….

[Roger Caffin]

> Shall we be more specific
No.

Cheers
:-)

[Hiking Malto]

"Maybe better to discuss why MTB's should, or should not be permitted in wilderness areas, NP's, NRA's, etc., or perhaps how and where their access might be permitted, i.e. shared trails, separate trails, around the periphery where they have a historical use pattern as opposed to in the relatively pristine interior, to name a few points I think are worth discussion."

This seems to be a very reasonable middle ground. I have nothing philosophical against MTB in wilderness areas vs. Hikers, horses etc. But I do have a problem with sharing trails with bikes after almost getting run over near Big Bear on the PCT. Given that experience I would also have some concern with how you keep bikes off hiking trails once access is gained. I have had more than enough experiences with bikes on both the AT and PCT to know that there are enough bad apples in the MTB to make this a potential issue. (I know that 99% of MTB would follow the rules.)

Allowing access to bikes on separate trails would not infringe on my experience in the wilderness any more than other hikers, horse people of groups of either. If I want a wilderness area to myself then I will go off season and have the place to myself.

[W I S N E R !]

Skis vs. bikes seem a strange comparison, the primary difference in my mind being that skiers are typically not sharing the same trails/areas with non-ski users during the same seasons. Mountain bikers do, primarily creating the issue of incompatible speeds.

You don't hear too many stories of hikers getting run over on singletrack by skiers. With mountain bikes, at least where I live, it's a serious concern, to the point that there are areas I wouldn't even hike, especially with my kids, due to mountain biking dangers.

For anyone that knows the front range of the San Gabriels in southern CA, try hiking up the El Prieto singletrack above JPL on a Saturday or Sunday morning without having to dodge a steady stream of MTBs at high speed. Many people learn not to hike there the hard way; not necessarily by getting hit, but by having a negative experience.

I'm not anti-bike, I ride MTBs and used to race. The greatest issue at hand that I can see, however, is the incompatibility of speed on many shared trails. It's a legitimate safety concern in many places. The impact argument is questionable; a skilled MTB rider will cause very little damage whereas careless hikers can quickly destroy trail systems but cutting switchbacks.

[Author]

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