Opinion: Issue Of Ebikes On Federal Lands Far From Over [reprinted with permission from cyclevolta.com 4-20]
[reprinted with permission from www.cyclevolta.com April 2020; direct link to original article here]
Current rulemaking to raise more questions around access, attorney says.
Editor’s note: Steven W. Hansen
is an attorney who represents product manufacturers, distributors, and
retailers in product liability and other lawsuits and provides
consultation on all matters related to the manufacture and distribution
of ebikes and other consumer products. For further questions, visit swhlaw.com or send an email to legal.inquiry@swhlaw.com.
As
some of you may recall, back in 2003 the Consumer Product Safety
Commission decided to regulate ebikes in much the same as they did
“non-powered” bicycles by adding a provision to federal law defining a
bicycle as “a two- or three-wheeled vehicle with fully operable pedals
and an electric motor of less than 750 watts (1 horsepower), whose
maximum speed on a paved level surface, when powered solely by such a
motor while ridden by an operator who weighs 170 pounds, is less than 20
mph.” Now fast-forward to early 2015. At that point the then-titled
Bicycle Products Suppliers Association—now merged with
PeopleForBikes—decided to expand on the CPSC law and create three
“classes” of ebikes, implicitly understanding that one day at least one
or more classes would also be used off road.
The initial push with the three ebike classes
was into large states like California, which adopted the framework in
the fall of 2015. The idea was to start with a few key states and then
see if all state legislatures would adopt the three-class structure. At
that point the three classes could be relied upon by manufacturers
nationwide.
But
off-road use was a little less clear. The California state law (AB
1096), for example, specifically excluded Class 3 ebikes from being used
on off-road “trails” (on state land) but did allow Class 1 and 2 to be
used off road unless the “local authority or governing body of a public
agency” decided to prohibit them “by ordinance.” This is still a very
murky area of the state law. But even if we assume that the California
state law applies to all “off-road trails” at state parks (public land)
and county and city parks, it still does not apply to federal land of
any type or land owned by nongovernmental entities (private property).
Now
fast-forward again to August 2019. More than 20 states had adopted some
form of the BPSA model legislation. The US Secretary of the Interior
signed an order directing the Fish and Wildlife Service, National Park
Service, Bureau of Land Management, and the Bureau of Reclamation to
develop proposed rules to revise their own regulations to be consistent
with the three classes of ebikes defined in the order. The “appropriate
public guidance regarding the use of ebikes on public lands” was to be
issued within 30 days.
In
September 2019 the NPS did issue a four-page “policy memorandum” on the
regulation of ebikes, outlining the three classes, prohibiting anything
outside of those three classes, and also disallowing the use of ebikes
where the motor was being used exclusively (like Class 2 bikes allow) or
of course anything beyond the CPSC regulations. The memo encouraged
park superintendents to not make park regulations more restrictive than
the state’s laws where the national park was located—pointing out that
many states had already adopted the three-class approach. Some 380 parks
(out of a total of 419) within the national park system have already
implemented their ebike policy as of today.
Now
the four agencies above have posted their proposed official regulations
(in the Code of Federal Regulations) to take the place of the
“memorandums” put in place informally in late 2019. To read more detail
on each as well as links for directly commenting on each regulation use
the following links: NPS, BLM, FWS, BOR.
Much
of this access being outlined is academic right now due to the COVID-19
pandemic, but the comment period for these proposed CFR rules is open now and expires in early June.
What is not known is if this comment period will be extended or if,
after the first comment period, the proposed rules are revised again and
rereleased for comment. Also, it is not known at this time how many
comments there will be, from who or what groups, and how long it will
take for the government to review them and make changes, if any, to
those proposed. If history is a guide, I would not expect significant
changes to what has been “proposed” unless groups opposed to ebikes take
control of the narrative or the 750-watt limit itself is challenged.
Focusing
again just on the NPS proposal, the three classes of bikes are
explicitly adopted and ebikes would be allowed on administrative roads
and trails where bicycles are allowed without the need to undertake
further action. But the proposed rules would also give park
superintendents the authority to limit or restrict ebike use after
taking into consideration public health and safety, natural and cultural
resource protection, and other management activities and objectives and
then manage ebikes, or particular classes of ebikes, differently than
traditional bicycles in particular locations. Every restriction or
closure that limits the use of ebikes would have to be supported by a
written record explaining the basis for such action.
The
proposed rule seeks to restrict Class 2 ebikes to park roads or places
motor vehicles can travel. It seeks comment on the workability of this
restriction or suggests park superintendents deal with this in a
location-by-location fashion.
Again
the Fish and Wildlife Service, Bureau of Land Management, and the
Bureau of Reclamation—the last of which primarily oversees federal dams
and reservoirs west of the Mississippi River—have proposed similar
regulations with some variations.
Much
the same way we have local access issues and unanswered questions
arising from the California state law, we will have local federal access
issues under federal law. Park superintendents overseeing specific
parks and national forest areas will have to deal with specific issues
with Class 1, 2, and 3 bikes as they arise. So this is long from over.
We also still have a small population of ebikes and users who don’t
comply with the three classes. Additionally, there is lots of non-public
land and a huge gap that will need to be filled to create correct
signage for all these thousands of trails and spaces and effectively
policing them so that renegade users/ebikes do not ruin access for the
law-abiding users.
The
information in this column is subject to change and may not be
applicable in your state or country. It is intended as a
thought-provoking discussion of general legal principles and does not
constitute legal advice. Any opinions expressed herein are solely those
of the author.
Law Offices of Steven W. Hansen | www.swhlaw.com | 562 866 6228
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