from the Sharing the PCT Facebook page.
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Last Thursday, PCTRI sent a letter to the Forest Service's regional forester in charge of the PCT, replying to the agency's initial rejection of our request to cancel or reconsider the no-bikes policy. The reply is long and has a lot of legal stuff in it, but perhaps a few people will be interested to read it. Those who are may want to copy it into a Word or pdf document; it'll be easier to read.
Here's the text:
We received your letter of February 6, 2013, declining to rescind or reconsider the 1988 order closing bicycle access to the Pacific Crest Trail (PCT).
We hereby request that you reconsider the decision. In addition, we would like to meet with you and your staff to discuss this controversy.
We offer the following reasons for our request, which are in
answer to items communicated in the letter.
I. Federal statutes and regulations
The letter notes the existence of 36 C.F.R. § 212.21, in which the Forest Service declared that the PCT is "primarily a footpath and horseback riding trail." The regulation was, however, promulgated in 1978, when the only alternative to foot and horse travel was by motorcycle or other motor vehicle. In the context of its time, it is essentially a declaration that the PCT is off-limits to motorized travel.
In addition, the regulation arguably was superseded by act of Congress, because in 1983 Congress amended the National Trails System Act, which governs the PCT, to declare that "bicycling," including specifically "trail biking"-i.e., mountain biking-is a suitable "[p]otential" trail use on national trails. (16 U.S.C. § 1246(j).) In addition, as the letter observes, "[o]ther uses along the trail, which will not substantially interfere with the nature and purposes of the trail, may be permitted . . . ." (16 U.S.C. § 1246(c).) This is what allows bicycle use on the Continental Divide National Scenic Trail (CDNST) despite a Forest Service declaration that the CDNST is primarily dedicated to foot and horse travel (see the next paragraph).
Furthermore, primary (36 C.F.R. § 212.21) does not mean exclusive. The 2009 CDNST Comprehensive Plan declares that "ackpacking, nature walking, day hiking, [and] horseback riding, . . . are compatible with the nature and purposes of the CDNST." Mountain biking is not mentioned. Yet the same plan also declares that "icycle use may be allowed on the CDNST (16 U.S.C. § 1246(c)) if the use is consistent is consistent with the applicable . . . management plan and will not substantially interfere with the nature and the purposes of the CDNST." As is well known, lots of mountain biking takes place on the CDNST and there are few if any problems.
Finally, we note the letter's reference to 16 U.S.C. § 1244(e), which provides in relevant part that "within two complete fiscal years of November 10, 1978, for the Pacific Crest and Appalachian Trails, the responsible Secretary shall . . . submit . . . a comprehensive plan for the . . . use of the trail, including but not limited to, the following items: [¶] "(1) specific objectives and practices to be observed in the management of the trail, including . . . an identified carrying capacity of the trail and a plan for its implementation."
Since the Forest Service believes the PCT Comprehensive Plan must be revised to allow for bicycle use, then, in fairness, it should also have revised it in 1988, when three employees signed the document closing the PCT to bicycles. We are not aware that any such effort was made, and we observe that the 1988 closure order does not appear in the appendices to the plan. In addition, the statute does not call for a plan revision each time there is a change in trail management practices. Finally, within the PCT Comprehensive Plan, language exists that allows for bicycle use. It is found on page 1 of the original version and consists of President Johnson's embryonic 1965 statement that led to his signing the National Trails System Act of 1968: "The forgotten outdoorsmen of today are those who like to walk, hike, ride, horseback, or bicycle. For them, we must have trails . . . ."
In sum, we doubt that the enormous undertaking of a PCT Comprehensive Plan revision is required in order to repeal or reconsider the informally created 1988 PCT bicycle closure.
Although we have asked for rulemaking in the alternative to rescinding the closure order, we also disagree with the letter's statement that rulemaking, along with a Comprehensive Plan amendment, is required. No rulemaking accompanied the order and none is required to rescind it. It is simply a typed declaration of what should have been a short-term, temporary policy as the Forest Service worked out mountain biking management on the PCT in 1988, as it has since done successfully on the tens of thousands of miles of other trail to which the letter refers.
II. Public input following the described PCT Advisory Council decision
The letter mentions that the closure was unanimously supported by the then-existing PCT Advisory Council. We are not aware that any mountain bikers were on that body. More to the point, we know of no evidence that mountain bikers or the public at large were informed about this drastic change in policy.
The lack of public notice and of an opportunity for public comment are central to our position that the policy must be reconsidered to comply with the Administrative Procedure Act, as well as 36 C.F.R. § 261.70, the Forest Service regulation that provides:
"(a) Pursuant to 7 CFR 2.60, the Chief, and each Regional Forester, to whom the Chief has delegated authority, may issue regulations prohibiting acts or omissions within all or any part of the area over which he has jurisdiction, for one or more of the following purposes:
[¶] . . . [¶]
(3) Protection of property, roads, or trails.
[¶] . . . [¶]
(7) Public safety.
[¶] . . . [¶]
(9) Establishing reasonable rules of public conduct.
[¶] . . . [¶]
(c) In issuing any regulations under paragraph (a) of this section, the issuing officer shall follow 5 U.S.C. 553.
(d) In a situation when the issuing officer determines that a notice of proposed rule making and public participation thereon is impracticable, unnecessary, or contrary to the public interest, he shall issue, with the concurrence of the Chief, an interim regulation containing an expiration date.
(e) No interim regulation issued under paragraph (d) of this section will be effective for more than 90 days unless readopted as a permanent rule after a notice of proposed rule making under 5 U.S.C. 553 (b) and (c)."
In other words, the 1988 bicycle closure became invalid 90 days after its promulgation, because there was no rulemaking pursuant to the Administrative Procedure Act (APA). Its effect may have been revived by the Forest Service's decision of February 6, 2013. But in our view that decision will become ineffective on May 7, 2013, for want of the followup procedures required by 36 C.F.R. § 261.70. We understand that there may be an APA exception for so-called interpretative rules, but in our view a blanket ban on bicycles on the PCT cannot be merely interpretative given its far-reaching substantive nature and the requirement that the policy be harmonized with 16 U.S.C. § 1246(j)'s allowance for mountain biking.
III. Questions of fairness and policy considerations
The letter informs us that there are many miles of national forest trail managed specifically for mountain biking. Overall, however, Forest Service policy toward mountain biking is unfair and unjustifiably exclusionary. In California, Oregon, and Washington, the great majority of the most beautiful and remote Forest Service trails are off-limits to cyclists because they lie in Wilderness areas. The non-Wilderness PCT would be one of the few exceptions were it not for the separate closure order that forbids bicycle use on it too.
The letter mentions the PCT's problems with "ecological restoration and the backlog of maintenance." (P. 2.) The Pacific Crest Trail Association (PCTA) has acknowledged that it cannot sustain the entirety of the trail. Presumably this is a PCTA appeal for yet more taxpayer funding. At the same time, the PCTA wants to preserve the restrictionist status quo. Mountain bikers have an established history of doing restoration and maintenance work on trails. It seems incongruous to us that the PCTA and the Forest Service would look askance at a source of volunteer labor, to be provided by a nonmotorized and environmentally benign user group, only to turn to the federal government for more money to fund the PCT for the relatively few people who currently use it. In this latter regard, our research has disclosed that much of the PCT sits virtually unused year-round except for a few weeks during which a smattering of through-hikers may walk a section.
One continuing problem with the current policy is the manner in which it divides the trail community. On the Internet, PCT purists have been threatening to assault any mountain bikers they find on the PCT. The threats have been coming from hikers who, thanks to the 1988 closure order, regard the PCT as their taxpayer-funded private preserve and retreat. This is a management problem for the Forest Service that a fair policy will alleviate.
IV. Unbalanced input from interest groups preceding this decision
Finally, we wish to observe that after the Forest Service communicated to us that a review of the closure order might occur in March of 2013, we asked our supporters not to bother your staff or the PCTA before any review occurred. The PCT traditionalists were not so considerate, however, and bombarded both your office and the PCTA with hostile, pleading, and frantic e-mails. In addition, despite our request, your office has never been willing to meet with us, at the same time that we have the impression it was consulting with the PCTA regarding our request. This strikes us as unfair. Our offer to meet with you and your staff remains open.
Again, we ask you to rescind or reconsider the 1988 order.
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so awesome...so very, very awesome....