A lawsuit has been filed to overturn a policy that expanded e-Bike use in the National Park System/NPS file

A lawsuit filed to overturn the Interior Department's move to expand e-Bike access in the National Park System also takes aim at the Trump administration's preference for appointing "acting" officials rather than submitting nominees for Senate confirmation.

The 31-page filing, made by Public Employees for Environmental Responsibility with three other conservation groups, also charges that an advisory committee comprised of industry friendly representatives met regularly with Interior officials to lobby for the increased access and helped develop the new policy.

The Federal Advisory Committee Act requires the committee meetings to be publicized in the Federal Register and open to the public, neither of which occurred, the lawsuit alleges. Additionally, the committee "was not fairly representative of the range of private or public interests affected by e-Bike use on NPS land," the lawsuit said.

Filed Thursday in U.S. District Court for the District of Columbia, the lawsuit charges the Interior Department, National Park Service, former Park Service Deputy Director P. Daniel Smith, and current Park Service Deputy Director David Vela with ignoring a number of laws, including the National Environmental Policy Act, as well as the National Park Service Organic Act to push through e-Bike access. It asks the court to toss out the rules that allowed the motorized bikes to travel on park trails that are open to muscle-powered bikes.

"This e-Bikes order illustrates an improper and destructive way to manage our national parks,” said PEER Executive Director Tim Whitehouse in a press release. “Concerned groups and individuals are joining PEER in demanding that the Park Service follow the normal regulatory processes and assess the additional impacts that higher speed e-Bike riders pose both to other trail users and to wildlife in the parks.”

As for the advisory committee meetings, Whitehouse said, "The impetus from industry is not surprising given that, as a former industry lobbyist himself, Secretary Bernhardt is known for hearing industry concerns and not public concerns. ...E-Bikes represent another inroad of commercialized recreation into our national parks.”  

Interior Secretary David Bernhardt on the evening of August 29 issued the order to expand e-Bike access in the park system. "E-bikes shall be allowed where other types of bicycles are allowed; and E-bikes shall not be allowed where other types of bicycles are prohibited," read the order.

The policy change came without public disclosure and without an opportunity for the public to comment on it before it was implemented, moves that appear in conflict with the Code of Federal Regulations. The secretarial order called for the policy to be adopted "unless otherwise prohibited by law or regulation" within two weeks. It also called for public comment, after the fact, some time in the future.

The policy change does not give e-Bike users full access to trails in the national parks, only those where muscle-powered bikes already are permitted. For example, they can ride the trail down to Lone Star Geyser in Yellowstone National Park, the Mammoth Cave Railroad Bike and Hike Trail at Mammoth Cave National Park, and the multi-use pathway at Grand Teton National Park.

The PEER lawsuit (attached below), which was joined by Wilderness Watch, the Marin Conservation League, and the Environmental Action Committee of West Marin, challenges the process Bernhardt, Smith, and Vela followed in expanding the motorized access, pointing out NPS regulations clearly define bikes as muscle-powered and so e-Bikes should be blocked from trails where muscle-powered bikes can travel, unless there was formal rule-making to change the existing biking regulations.

"No reasonable interpretation of the NPS regulations would allow" park superintendents to ignore existing Code of Federal Regulation provisions that define bikes for trail use, the filing claims. As a result, the lawsuit went on, Smith acted arbitrarily and capriciously when he directed park superintendents to expand e-Bike access onto trails were bikes were allowed.

"The effect of the defendants’ actions has been to harm plaintiffs everywhere within the National Park System where e-Bikes are newly allowed and no longer prohibited as motor vehicles," reads the lawsuit.

The lawsuit also questions the authority of either Smith or Vela to act, in effect, as de facto directors of the National Park Service, pointing out that the National Park Service Organic Act specifically states that the director "shall be appointed by the President, by and with the advice and consent of the Senate." Deputy directors, the Organic Act adds, are responsible for agency operations and agency programs.

PEER claimed the actions by Smith and Vela regarding the e-Bike policy were inappropriate because deputy directors don't have the authority to change the Park Service regulation pertaining to bikes. While the Trump administration long has appointed acting directors, PEER contends the practice at the National Park Service is in violation of the Federal Vacancies Reform Act.

"PEER has done a ton of stuff in general on Interior's vacancy problems, and this is the first time we've sued over one specific action," Peter Jenkins, PEER's legal counsel, said during a phone call Thursday. "The problem with the Interior vacancies is you have to bring it in in a specific context, you just can't sue generally. This is a specific context. We think the arguments have been valid all the way along, and now we have a chance to see it possibly applied."

At the Coalition to Protect America's National Parks, Chair Phil Francis was anxious to see whether the court addressed the issue of deputy directors essentially wielding the authority of the director.

"We've felt for years that those positions should be filled with full-time professionals so there's more certainty in the agency in terms of leadership," he said Thursday afternoon. "And that people would know where they're going (from an agency standpoint) over the next few years. So we continue to support that idea and hopefully even though David (Vela) is an acting director, he is in the deputy position on a full-time basis and so that gives us a little more comfort than it normally would under these circumstances."

As for the focus of the lawsuit, to reverse the e-Bike access ruling, Francis said the coalition supports the effort.

"The Code of Federal Regulations indicate that motorized vehicles shall not be used in certain circumstances," he said. "And so in order for that to be changed, the Park Service does need to go through the rule-making process to make those changes. With regard to using e-Bikes on many trails in the National Park System, we think that's a bad idea. We're concerned that once the camel's nose is under the tent that we may see the entire camel inside one day, and so we're very concerned that these processes be followed and that a wide array of public input is sought and listened to.

"I think the public in general, at least from my experience, would like to see some places on this Earth where there aren't motorized, mechanized, devices," Francis added. "In certain parks, conflicting uses is also a concern. Maybe in some urban parks e-Bikes might make sense. In Shenandoah National Park, in Great Smoky Mountains National Park, in the Blue Ridge Parkway, on backcountry trails, we think it's a bad idea. We have horseback riders and hikers, fallen trees, and reduced law enforcement staff, reduced capacity to handle accidents and injuries. There's a whole host of reasons why we think e-Bikes are inappropriate in many of our parks."

As for those with physical limitations who argue that e-Bikes enable them to get more enjoyment from the parks, the coalition leader pointed out that there are some visitors who can't even ride an e-Bike.

"That is not going to guarantee access," he continued. "It may allow for some people to have access, but I don't think that the National Park Service can afford to provide access to every place for every one. I think they've done a great job providing access for people who have limitations, whether it's age or some other limitation."

So far, according to PEER, "nearly 25 National Park System units have acted to implement the e-Bikes order."