Blast from the Past: Dirt Rag’s 2005 Interview with Theodore Stroll

Originally posted on December 17, 2015 at 7:00 am


Editor’s note: In 2005, Philip Keyes interviewed Theodore Stroll for an article on the legal issues surrounding Wilderness access that ran in Dirt Rag Issue #112. Stroll is the author of the law review article: “Congress’s Intent in Banning Mechanical Transport in the Wilderness Act of 1964.” Theodore J. Stroll; Penn State Environmental Law Review (Volume 12, Autumn 2004, Number 3: 459-484).

Last year Stroll and others started the Sustainable Trails Coalition (STC) to lobby Congress to allow mountain biking in Wilderness, and this interview foretells of that development and where Stroll’s thinking lies. We are currently working on a story to help you understand this issue by talking to the STC, IMBA and other involved partners. Look for a comprehensive overview in the next few days.

What’s the significance of your study?

Probably the most significant finding is what Congress meant when they referred to “no other form of mechanical transport” in the Wilderness Act. It’s ambiguous because they don’t mean just the mechanical transport of humans; so even a fishing reel is technically implicated by the statute. But when you go into the legislative history, which nobody has ever done before, you find that all Congress meant in the original language was no “mechanical transport or delivery of persons or supplies.” Both House and Senate used that language originally and what they’re really talking about is large, load-bearing conveyances that would either carry humans or cargo, and this is what the prohibition on mechanical transport means. It means no horse carts, no wagons, no trailers, no tankers—things that, though they’re not motorized, probably were propelled behind a motorized vehicle or mule train and would impact the landscape.

Based on your study’s finding, do you think that bikes should be allowed in current Wilderness areas or should only be accommodated in future Wilderness?

I think it’s essential that bikes be allowed in current Wilderness because that was Congress’s intent. Congress intended that human-powered transport should be allowed in Wilderness unless it required some major infrastructure, like a dock or an airstrip. Basically, Congress’s view in 1964 when they passed the Wilderness Act was that if you can buy it at REI, you can use it in Wilderness. There is no reason in law or in policy to keep bikes out of current Wilderness, and I really hope that the mountain bike community will not just push for access into future Wilderness but access to current Wilderness as well.

What do you recommend as the strategy to change the current statutes banning bikes from Wilderness?

This is complicated. If you sue the Forest Service or the National Park Service you’re probably going to lose because under a recent federal court opinion, as long as the agency interpretations are not arbitrary, capricious or manifestly contrary to the statute, the courts are going to uphold them. The “no mechanical transport” prohibition is ambiguous, so the agencies can at least make a colorable argument that they have correctly interpreted the Wilderness Act to mean “no mountain bikes.”

It’s not a correct legal argument, but it is not an absurd argument either. Therefore, if you just go to court and sue the agency, the courts are going say that maybe the agency is wrong but their position is not frivolous, so we’re not going to require them to change the regulation.

The best strategy would be to cooperatively approach the Forest Service, the National Park Service and the Bureau of Land Management, and persuade them through my law review article that they have simply misunderstood the Wilderness Act, and they themselves should re-write the regulations.

In the case of the Forest Service, their original 1966 regulation permits mountain biking in National Forest Wilderness and this is the correct interpretation of the Act. All they have to do is get rid of their incorrect 1977 regulation and enforce the one they have on the books from 1966.

Probably the most foolish thing would be for some mountain biker to simply get on a Wilderness trail and get himself arrested by a forest or park ranger and then go to a federal judge and wave my law review article in his face.

What is your strongest evidence that Congress approved of human-powered recreation?

The congressional record for the Wilderness Act is extensive; they debated the Wilderness Act for years (since the 1950s) before it eventually passed. During all of this, nobody had any problem with healthy, unobtrusive, human-powered transport in Wilderness. People thought that Wilderness was meant for physical fitness or rugged outdoor experiences, for hard earned individual efforts. They didn’t talk about bicycling specifically since rugged mountain biking simply wasn’t around then, but when you look at what they did talk about (mountain climbing, skiing and the like), [it’s clear that] they intended for Wilderness to be used for solitary, self-powered experience, and this is probably the most compelling evidence.

The author the House version of the Wilderness bill and one or two of the principle Senate sponsors of the Wilderness Act were very invested in the idea of fitness, and they even mention their regret of the loss of the traditional bike ride to school by young people. Though mountain biking was not even on the horizon in 1964, the fact is that some of the main backers of the Wilderness Act were very concerned with physical fitness issues and keeping Americans fit. They quoted John F. Kennedy about it, and they even mention the loss of bicycling as an example of the decline of physical fitness that they were concerned about when they were putting forth versions of the Wilderness Act. Later, the 1980 Rattlesnake Wilderness Act specifically authorized and approved of bicycling in the Rattlesnake Wilderness.

Have you thought of approaching the federal agencies to ask them to allow mountain biking in Wilderness?

The more my research showed there was a strong legal argument to reconsider the regulations, the more intent I became on submitting a petition to the Forest Service asking it to reconsider its 1977 no-bikes-in-Wilderness rule. I approached a couple of organizations with the idea, namely Access4Bikes and, of course, IMBA. I also considered submitting it under my own name, without any organizational backing. IMBA looked at early drafts and decided to create a Wilderness committee to consider the petition idea. I joined that committee and discussed my ideas with its other members. I also discussed the petition idea with Access4Bikes board members. Eventually, however, I decided to write a law review article before petitioning any federal agency in order to gauge reaction in the legal community and among the interested public. I told Access4Bikes and IMBA of my new approach. How the legal arguments will be presented formally to the federal agencies is up in the air. Maybe IMBA will do it, maybe another organization will do it, or maybe I’ll do it myself.

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