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Hikers concerned about potential for ATVs gaining free access to backcountry areas

Appalachian Trail Conservancy comments on Department of Justice Rulemaking, Americans with Disabilities Act, on proposed use of "other power-driven mobility devices."

ARROW View recorded Webinar with audio in wmv format presented by American Trails on the DOJ Rule on "Other Power-Driven Mobility Devices," Feb. 23, 2011

ARROW See QUESTIONS and ANSWERS on power-driven mobility devices

See aditional information and comments on the “power-driven mobility device" issue:

From the Appalachian Trail Conservancy - July 22, 2008

"The Appalachian Trail and other traditional backcountry areas in our national parks and forests may be opened to All Terrain Vehicles."

The Appalachian Trail and other traditional backcountry areas in our national parks and forests may be opened to All Terrain Vehicles (ATVs) and other “power-driven mobility devices.” We face imminent danger of a fundamental alteration to our backcountry trails including the A.T.

On June 17, 2008, the Department of Justice (DOJ) announced a Notice of Proposed Rule Making (NPRM) for the Americans with Disabilities Act (ADA). We are writing our clubs and partnering agencies to urge that you respond to the NRPM by August 18.

While the proposed rule will apply to state and local governments (Title II of ADA) and to businesses open to the public (Title III), it does include a broad—and we believe precedent-setting—new category of “other power-driven mobility devices.”

ATC will prepare comments to the Department of Justice by its deadline of August 18, and urges A.T. Clubs, Partner Organizations and individuals to write their own responses. We feel that personal, well-reasoned and persuasive comments are better than “cookie cutter” responses duplicated
from one source.

Reading the Rule, one can see that these people are very well meaning but, for the most part, unfamiliar with the commitment of the silent “self-propelled” users, as citizens, to a conservation land ethic on our nation’s national forests and parks particularly in primitive, backcountry settings like the Appalachian Trail.

If you worry about ATVs being used as mobility devices (see question #18 below), you will pull out the stops on this one and let DOJ know there are real problems with an overly broad definition of “other power-driven mobility devices.”

Be sure to point out that we would never want the Department of Justice or others to misconstrue our opposition to other-powered devices as opposition to persons with disabilities. In fact, we encourage and have been stirred by the historic thru-hikes of blind thru-hiker Bill Irwin and his service-dog Orient (celebrated in the book Blind Courage) and by a thru-hiker who was a double amputee, another who was an amputee, and also by a three-time thru-hiker with multiple sclerosis using crutches. Indeed, they inspire us to appreciate the challenge of an Appalachian Trail that is not compromised by All Terrain Vehicles or by machinery that will compromise the A.T.’s silent, challenging and primitive values.

All comments must be received by August 18, 2008. When submitting comments electronically, you must include CRT Docket No. 105 in the subject box, and you must include your full name and address. Submit electronic comments and other data to

The Department of Justice is proposing:

§ 35.104 - Definitions
“Other power driven mobility device means any of a large range of devicespowered by batteries, fuel, or other engines—whether or not designed solely for use by individuals with mobility impairments—that are used by individuals with mobility impairments for the purpose of locomotion, including golf carts, bicycles, electronic personal assistance mobility devices (EPAMDs), or any mobility aid designed to operate in areas without defined pedestrian routes.”

[ATC Comment: The example of an EPAMD that the rule cites is the distinctive Segway®—the stand-up, two-wheeled, gyroscopically balanced, 12.5 maximum-mph transport device that is growing in popularity among those with and without disabilities. See Disabled Embrace Segway for more information.]

“Wheelchair means a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas. A wheelchair may be manually operated or power-driven.”

[ATC Comment: Wheelchairs, long accepted as extensions of the person, certainly remain acceptable on the A.T. and in wilderness areas nationwide.]

The Proposed Regulation:

§ 35.137 Mobility devices
(a) Use of wheelchairs, scooters, and manually powered mobility aids. A public entity shall permit individuals with mobility impairments to use wheelchairs, scooters, walkers, crutches, canes, braces, or
other similar devices designed for use by individuals with mobility impairments in any areas open to pedestrian use.
(b) Other power-driven mobility devices. A public entity shall make reasonable modifications in its policies, practices, and procedures to permit the use of other power-driven mobility devices by
individuals with disabilities, unless the public entity can demonstrate that the use of the device is not reasonable or that its use will result in a fundamental alteration of the public entity’s
service, program, or activity.

(c) Development of policies permitting the use of other power-driven mobility devices. A public entity shall establish policies to permit the use of other power-driven mobility devices by individuals with
disabilities when it is reasonable to allow an individual with a disability to participate in a service, program, or activity. Whether a modification is reasonable to allow the use of a class of power-driven mobility device by an individual with a disability in specific venues (e.g., parks, courthouses, office buildings, etc.) shall be determined based on:

(1) The dimensions, weight, and operating speed of the mobility device in relation to a wheelchair;
(2) The risk of potential harm to others by the operation of the mobility device;
(3) The risk of harm to the environment or natural or cultural resources or conflict with Federal land management laws and regulations; and
(4) The ability of the public entity to stow the mobility device when not in use, if requested by the user.

(d) Inquiry into use of power-driven mobility device. A public entity may ask a person using a power-driven mobility device if the mobility device is needed due to the person’s disability. A public entity shall not ask a person using a mobility device questions about the nature and extent of the person’s disability.

ATC Analysis: From the point of view of a backcountry or wilderness trail hiker, this new definition of “other power-drive mobility devices” constitutes a broad new license, indeed, an “anything that goes, can go” definition. If it is adopted, we will suffer erosion of traditional norms for appropriate use of our public lands and have more user conflicts. Indeed, these lands are held in trust by and for all citizens. Introducing new or relaxed standards will open the door to any and all users, and create conflict where none exists now.

Presuming adoption of the rule, the manager must prove that “use of the device is not reasonable or that its use will result in a fundamental alteration of the public entity’s service, program, or activity.” Furthermore, the land manager and cooperating managers such as ATC and its trail clubs, “shall not ask a person using a mobility device questions about the nature and extent of the person’s disability.” While this is understandable and desirable in regard to persons with disabilities, what is to prevent anyone who wants to use a "power-driven mobility device" on a trail intended for foot travel from doing so?

The Appalachian Trail was built by volunteers over decades and the route is narrow, steep and rough for the most part. It is in no way suitable for wheeled vehicles, particularly motorized vehicles that compromise primitive backcountry values. Wheelchairs, long accepted as extensions of the person, certainly remain acceptable on the A.T.

ATC believes DOJ’s broad definition could have an appalling impact on the Appalachian Trail, on other hiking trails and on pedestrian users and trails more broadly. Why? Because we’ve learned through bitter experience from trespass by all-terrain vehicles (ATVs), 4-wheel-drive vehicles and motorcycles that people will not restrain themselves, but must be restrained by their peers, and by overt and explicit restrictions in law and regulation.

Definition of Wheelchair:

“Wheelchair means a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas. A wheelchair may be manually operated or power-driven.”

ATC Analysis

The preamble of the NPRM DOJ states “The Department believes that while this definition (of a wheelchair per the ADA Title V section 507c, the same as that one proposed above) is appropriate in the limited context of federal wilderness areas…” it goes on to explain that it is too limited for Title II. While it is true that Title II is applicable only to state and local governments, and Title III only to businesses open to the public, the Courts may find that the proposed ADA definition is applicable much more broadly due to the DOJ’s obligation to litigate in behalf of the USA. The Department of Justice may necessarily find that, under Section 504 of the Rehabilitation Act, the definition does indeed apply to the federal government. In the end, the definition will likely become universal, and apply to the federal government.

§ 35.137(a) will permit wheelchairs anywhere pedestrians are allowed. This is unchanged from existing policy. However, § 35.137(b)(c) is new language that seeks to also allow "other power-driven mobility devices," a much broader category of devices that includes things like Segways. The language does allow restrictions to be placed on "other power-driven mobility devices," but development, implementation, and enforcement of any restrictions would be variable between jurisdictions, complex and burdensome, and placed on top of already overburdened public resource agency personnel. Given the A.T.’s patchwork of jurisdictions, we can see the ATVs and others taking advantage of liberal access through a state forest or gamelands unit to access the A.T.

It also seems evident that the proposed definition will not exclude "other power-driven mobility devices" from use in proposed or designated federal Wilderness areas, which will erode the norms for Wilderness use. The broad new definition of “other power-driven mobility devices” will affect us in the following ways:

1. Jeopardize quiet recreational opportunities;
2. Increase user conflict and risk to public safety;
3. Cause damage to the trail treadway and increase the burden on our volunteer work-base.
4. Establish precedents and user expectations that have the potential to dramatically change traditional park and forest environments, create a confusing new array of expectations among the public and managers, and more sorely deplete already strained public resources.

ATC Proposed additional language is suggested:

§ 35.137 Mobility devices
“(e) Device use in restricted areas. Department of Justice reaffirms that in federally designated wilderness, the only wheelchairs or mobility devices acceptable must comply with the definition in the ADA Title V Section 507c for federally designated wilderness: “Wheelchair (or Mobility Device). A device designed solely for use by a mobility impaired person for locomotion that is suitable for use in an indoor pedestrian area.”

(f) The Department of Justice further affirms that a wheelchair or mobility device that meets this definition may be used anywhere foot travel is allowed, and that this definition also applies in areas with equivalent, non-motorized, land-use designations in national forests and parks.”

DOJ is also requesting comments on the following nine questions:

ATC will prepare answers to these questions for sharing with clubs and interest groups and make them available soon. The Conservancy suggests respondents answer these questions with their own opinions and using their own language and experiences.

Question 8: “Please comment on the proposed definition of other power-driven mobility devices. Is the definition overly inclusive of power-driven mobility devices that may be used by individuals with disabilities? The Department’s proposed regulatory text on accommodating wheelchairs and other power-driven mobility devices is discussed in § 35.137 of the section-by-section analysis.”

Question 12: “As explained above, the definition of "wheelchair" is intended to be tailored so that it includes many styles of traditional wheeled mobility devices (e.g., wheelchairs and mobility scooters). Does the definition appear to exclude some types of wheelchairs, mobility scooters, or other traditional wheeled mobility devices? Please cite specific examples if possible.”

Question 13: “Should the Department expand its definition of wheelchair to include Segways®?”

Question 14: “Are there better ways to define different classes of mobility devices, such as the weight and size of the device that is used by the Department of Transportation in the definition of “common wheelchair”?

Question 15: “Should the Department maintain the non-exhaustive list of examples as the definitional approach to the term "manually powered mobility aids"? If so, please indicate whether there are any other non-powered or manually powered mobility devices that should be considered for specific inclusion in the definition, a description of those devices, and an explanation of the reasons they should be included.”

Question 16: “Should the Department adopt a definition of the term "manually powered mobility aids"? If so, please provide suggested language and an explanation of the reasons such a definition would better serve the public. The proposed regulation regarding mobility devices, including wheelchairs, is discussed in the section-by-section analysis for § 35.137.

Question 17: “Are there types of personal mobility devices that must be accommodated under nearly all circumstances? Conversely, are there types ofmobility devices that almost always will require an assessment to determine whether they should be accommodated? Please provide examples of devices and circumstances in your responses.”

Question 18: “Should motorized devices that use fuel or internal-combustion engines (e.g., all-terrain vehicles) be considered personal mobility devices that are covered by the ADA? Are there specific circumstances in which accommodating these devices would result in a fundamental alteration?”

Question 19: “Should personal mobility devices used by individuals with disabilities be categorized by intended purpose or function, by indoor or outdoor use, or by some other factor? Why or why not?”

The Appalachian Trail Conservancy is a volunteer-based nonprofit organization dedicated to the conservation of the 2,175-mile Appalachian National Scenic Trail, a 250,000-acre greenway extending from Maine to Georgia. Our mission is to ensure that future generations will enjoy the clean air and water, scenic vistas, wildlife and opportunities for recreation and renewal along the entire Trail corridor.

For more information on the ATC comments, please contact Robert Proudman, Director of Conservation Operations, Appalachian Trail Conservancy
799 Washington St., P.O. Box 807, Harpers Ferry, WV 25425-0807
Phone: 304.535.6331 x103 - Fax: 304.535.2667.

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