Blast From the Past: By Law, Mountain Bikes in Wilderness

Originally posted on December 3, 2015 at 7:00 am
“The above photo was taken in 2003 at 11,000 feet above sea level, while mountain biking on the jeep road to Gunsight Pass (near Crested Butte, Colorado). It was when I saw this abandoned trailer that I concretely grasped what Congress had in mind in prohibiting mechanical transport that was not motorized but needed roads or other installations to be operable. Readers may have a hard time conceptualizing what kind of transport could be mechanical and yet not be motorized—this photo may be worth 1,000 words in illustrating the concept.” —Theodore Stroll
“The above photo was taken in 2003 at 11,000 feet above sea level, while mountain biking on the jeep road to Gunsight Pass (near Crested Butte, Colorado). It was when I saw this abandoned trailer that I concretely grasped what Congress had in mind in prohibiting mechanical transport that was not motorized but needed roads or other installations to be operable. Readers may have a hard time conceptualizing what kind of transport could be mechanical and yet not be motorized—this photo may be worth 1,000 words in illustrating the concept.” —Theodore Stroll

Editor’s note:  It’s been over 50 years since the Wilderness Act was enacted, 30 years since mountain bikers were banned from Wilderness, and over 10 years since Ted Stroll wrote his article in the Penn State Environmental Law Review showing that the original congressional act had no intention to kick bikes out.

Last year Stroll and others started the Sustainable Trails Coalition to lobby Congress to allow mountain biking in Wilderness, so now seems a good time to share Philip Keyes’ Access Action column from Dirt Rag Issue 112, published in February 2005.

If I had to take a wild stab in the dark, I’d say 99% of mountain bikers would support expanding Wilderness areas except for one pesky detail—you can’t ride there.

As far as current Wilderness policy goes, a bike might as well be a bulldozer, logging skidder or Hummer. Bikes are banned—no ifs, ands or buts. This is especially frustrating for the hundreds of thousands of cyclists who believe in the Leave No Trace backcountry ethos and regard themselves as part of the expanding environmental movement to protect wild areas for future generations.

For their part, Wilderness advocates tend to see the ban of bicycles from Wilderness simply as “collateral damage” in a more pressing war against the commercial development and destruction of the few remaining tracts of pristine American landscape. They hope mountain bikers support their cause for a higher good and back Wilderness proposals despite this one pesky detail. It’s a tough sell.

But what if Congress, through the original Wilderness Act, never intended to ban bikes in the first place? What if the regulations that emanated from the 1964 Wilderness Act were misinterpretations and could be reversed, allowing for backcountry Wilderness mountain biking? It would be a huge boost for the Wilderness movement.

Over the last decade, mountain bikers have become some of the nation’s most sophisticated and savvy outdoors advocates, forming organizations that represent the interests of 45 million cyclists through more that 450 local advocacy organizations. Think of all of the energy currently harnessed to limit the impact of Wilderness on cycling if it could be used to fight for expanding Wilderness areas. The natural alliance between mountain bikers and groups like the Sierra Club and Wilderness Society would open up a whole new realm of lobbying for Wilderness support. It would be a new ball game and Team Wilderness would be stronger than ever.

But there’s that pesky detail.

However, according to Theodore Stroll, maybe this detail can go away. Stroll recently published an important article in a legal journal that offers groundbreaking evidence that Congress did not intend for bicycling to be banned in Wilderness areas. Rather, Congress wanted to preserve these areas for human-powered forms of recreation that nurtured and developed the American spirit through adventuresome outdoors experiences in a landscape that was unblemished from the impacts of civilization.

A Judicial Staff Attorney for the Supreme Court of California, Stroll wrote his article in his spare time and published it in the Penn State Environmental Law Review (Volume 12, Autumn 2004, Number 3: 459-484) with the title, “Congress’s Intent in Banning Mechanical Transport in the Wilderness Act of 1964.” His study delves into the archival record and Congress’s legislative history to try to make sense of inconsistencies that result from including bicycles (and other forms of mechanically aided human-powered recreation) in the prohibition of any form of “mechanical transport.”

Since many readers don’t have ready access to this professional journal, it’s important to review Stroll’s article in detail.

Stroll argues that the four decades of evolution in recreation technology and the expansion of Wilderness as a tool for resource protection since the Act was passed necessitate that we re-evaluate what Congress meant by prohibiting “all forms of mechanical transport.”

Read strictly, this term could be applied to numerous forms of transport: alpine and mountaineering skis, rowboats with oarlocks, antishock hiking poles and gear. Pushed even further, the term could even prohibit the mechanical transport of anything, thus banning fishing reels, wheelbarrows and game carts. We already have high tech kayaks that utilize human-powered propellers, making them more akin to bicycles in their transmission system, and who knows what other forms of human-powered recreational devices might be down the pike.

Stroll’s investigation into Congress’s intent shows that the legislators’ concern was to protect Wilderness areas as natural areas by prohibiting the transport and delivery of persons and supplies for development purposes. It was not their intent to prohibit human-powered recreation. Stroll’s research into the congressional debates shows that:

… key House and Senate backers of the Act thought that Wilderness was meant to “develop physical fitness and adventurous habits of mind” and they quoted President Kennedy regarding the virtues of the “traditional bike to school that helped to build young bodies.” Had the ability to explore the outdoors by rugged bicycle travel existed in the 1960s, it seems unlikely that the forefathers of the Act would have thought it unsuitable for Wilderness. (470)

In the early versions of both the House and Senate bills, “mechanical transport” was always linked to the transport of persons and supplies. The original legislative text read “nor any other mechanical transport or delivery of persons or supplies, nor any temporary road, nor any structure or installation, in excess of the minimum required …” This linkage is important, according to Stroll, since Congress was seeking to prevent lasting impacts on the landscape by human activity, such as roads and the infrastructure of development and human habitation. He writes:

This is not language that would be employed to describe exploring Wilderness under one’s own power. It connotes the carrying of human beings as passengers, or the conveyance of supplies as cargo, on a road in a mechanical conveyance like a wagon or by water on a barge. Congress intended to prohibit the passive transport of passengers. It did not intend to prohibit simple forms of human-powered transport, such as bicycles, snowshoes, skis, kayaks, rowboats, or climbing equipment, that can be used quietly on narrow trails or natural features. These devices do not require roads, nor do they leave any permanent trace. The House wanted to preclude mechanical transport, whether or not motorized, that would require artificial infrastructure and permanent alteration of the physical environment.(471)

So, why did the final 1964 version only refer to “any form of mechanical transport” and not link this phrase directly with moving passengers and supplies? Ironically, it was edited in the name of clarity. According to one member of Congress at the time, the House of Representatives removed the reference to the delivery of persons and supplies in June of 1964, in his words, “solely for the purpose of clarification. The substance and intent of the original language and of the substitute language are the same.” As a result of this “clarity,” bikes have been thrown out with the bathwater.

Not only did Congress seek to prevent lasting human impact on the environment by prohibiting the means by which development could occur—the transport of persons and supplies—they also wanted to foster human-powered recreation and improve the hardiness of the American mind and body. Congress was concerned with the physical decline of Americans due to the creature comforts of modern civilization. Americans would rather drive than exercise; they’d rather stay in hotels than pitch tents. Americans were becoming lazy, and in the Cold War politics of the time, this could affect the global axis of power.

In the discussions about a primitive ski area called San Gorgonio, in the San Bernadino Mountains of southern California, the debate didn’t focus on whether skiing was an appropriate form of recreation—all presumed that it was—but rather, they wished to prevent the area from becoming a commercial operation with the necessary infrastructure. According to a congressman, the skiers “must also climb the slopes rather than be transported on tows. Is not this the mark of a true sportsman?” Mountain bikers aren’t much different: they must earn an exhilarating downhill with an arduous climb.

According to Stroll, the 1964 Congress placed a great deal of emphasis and framed their Wilderness deliberations on a 300-page report by the Outdoor Recreation Resources Review Commission (ORRRC). This report uses “mechanized” to refer exclusively to motorized transport. Stroll quotes the Commission, “In our judgment, Wilderness recreation will be available in areas having the following characteristics: Not open to auto, jeep, truck, motorcycle, motorboat, airplane, helicopter or other means of mechanized travel.”

For the ORRRC, mechanized travel meant travel by motorized transport. The authors thought that Wilderness should offer different experiences: adventure, challenge, tolerable discomfort, solitude and a difficult-to-achieve sensory experience. In their words, “wilderness travel” should be “hard work and often uncomfortable,” requiring “good physical conditioning … and confidence in one’s own resourcefulness … There is a fascination in this persistent challenge to the will.” Mountain biking would have fit in nicely.

Congress’s concern was to prevent the development of human infrastructure that would mar the landscape, thus “Congress intended to exclude from Wilderness only heavy, load-bearing rolling stock or watercraft that would require roads, rail tracks, docks or other obtrusive infrastructure, or that would have an undue physical or visual impact on the landscape. Congress never desired to prohibit healthful human-powered exploration of federal wildlands with devices that have none of the foregoing deleterious effects.”

According to Stroll’s investigation, there is only one time that Congress has directly addressed bicycle travel in Wilderness, and it approved and authorized bicycling. The Rattlesnake Wilderness Act of 1980 created the Rattlesnake Wilderness in Lolo National Forest in Montana, and the Act specifically describes bicycling as a form of “primitive recreation” appropriate in Wilderness. Stroll quotes the statute:

[t]he Congress finds that—(1) certain lands on the Lolo National Forest in Montana have high value [as Wilderness]. This national forest area has long been used as a wilderness … as a source of solitude … and primitive recreation, to include such activities as hiking, camping, backpacking, hunting, fishing, horse riding, and bicycling … (478)
The Congress viewed the 1980 Act as completely in harmony with the 1964 Wilderness Act, and allowing bicycling in this Wilderness was not seen in any way as contradictory. By extension, bicycling should be a form of primitive recreation in any Wilderness, regulated by the appropriate agency, as would any other form of legitimate Wilderness experience.

Yet, the ambiguity resulting from the simplified reference solely to “mechanized transport” in the Wilderness Act has created conflicting regulations. A 1966 federal regulation allowed for human-powered transportation, making biking a legitimate Wilderness activity. The regulation reads, in part:

there shall be in National Forest Wilderness … no use of motor vehicles, motorized equipment, motorboats or other forms of mechanical transport … (a) Mechanical Transport, as herein used, shall include any contrivance which travels over ground, snow, or water on wheels, tracks, skids or by floatation and is propelled by a nonliving power source contained or carried on or within the device. (464)

But while the 1966 regulation was favorable to bikes, a 1977 federal regulation specifically prohibits bicycles (and hang gliders) from National Forest Wilderness. Further muddling things, a 1981 regulation allowed individual land managers to permit or deny bicycling on a case-by-case basis.

Finally in 1984, the more flexible 1981 regulation was rescinded, and bicycles were forever eliminated from National Forest Wildernesses. The National Park Service and Bureau of Land Management quickly followed suit, and mountain biking was conclusively prohibited in all Wilderness areas.

According to Stroll, these regulations misconstrue Congress’s intent to allow for primitive, albeit mechanically aided, recreation. Congress always intended to prevent transport that would be used to carry people or material, requiring an artificial infrastructure or that would cause damaging alteration to the environment. “It does not mean,” according to Stroll, “that exploring Wilderness by mechanically aided human-powered transport is prohibited.”

Indeed, for mountain biking to return to the wilds, the Wilderness Act would not need to be altered or amended. All that needs to change is the subsequent regulation created by the managing agencies who oversee Wilderness lands: the U.S. Forest Service, the National Park Service, the Bureau of Land Management, and to a lesser extent, U.S. Fish & Wildlife.

With a bit of solid diplomacy and politicking, let’s get rid of this detail so we can have our Wilderness and ride it too.

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