While most people focussed on the substantial cuts to bicycle and pedestrian infrastructure, the new Transportation Bill also contained a provision that could potentially reduce cyclists right to the road on federal lands.
(d) BICYCLE SAFETY.—The Secretary of the appropriate Federal land management agency shall prohibit the use of bicycles on each federally owned road that has a speed limit of 30 miles per hour or greater and an adjacent paved path for use by bicycles within 100 yards of the road unless the Secretary determines that the bicycle level of service on that roadway is rated B or higher.
At first glance, that sounds like Rock Creek Parkway.
When the US Senate first started considering this provision, cycling advocates pointed out that its language tracked the mandatory sidepath rules that have been gradually eliminated from state laws since the 1970s, because they do not promote safety. John S. Allen worried suggested that "it would ban bicycles on a road even if the path is unusable."
The provision survived in the final bill. There is no evidence that Congress even considered the possiblity that banning bikes on roads with trails would make cyclists less safe, and that's a good thing. Here's why.
The Secretary of Interior (and other land management agencies) have a lot more discretion than the typical police officer or district court judge to decide what a statute like this means, especially if there is no clear legislative intent. This statute does not even ban bikes from certain roads, but rather directs the Secretary to do so. So it's up to the Secretary to decide what that law should mean.
We've heard rumors that legislative staffers were mad at cyclists holding up traffic on Rock Creek Parkway, and that they did not care whether the bill would compromise safety; they just wanted bikes off the road. But rumors about what staffers wanted do not equal statutory intent. The Secretary has the duty to determine what the statute means, and move forward on that basis.
Because the heading of the provision says "Bicycle Safety", the Secretary should conclude that the entire intent of Congress was to increase bicycle safety. The exclusion for especially safe roads (level service of B) further shows that the intent was safety. The bill says nothing about holding up traffic. So that objective has no place in the Secretary's evaluation of what Congress intended.
Therefore, the Secretary need only ban bicycling on roads where doing so enhances safety. Requiring cyclists to ride on narrow paths or paths with sharp turns or poor pavement would clearly not help safety. Nor would requiring cyclists to ride on paths with heavy pedestrian use. If pedestrian use is extremely high (e.g. Rock Creek Trail), then the path is not really a "paved path for use by bicycles" but rather a pedestrian walkway, or perhaps a hiker-biker trail. Conversely, a path designed for the exclusive use of cyclists would be a paved path for use by bicycles. The Secretary would also have the discretion to decide that if a path does not meet AASHTO standards for safety at the prevailing (85-percentile) speed of cyclists, that it is not a "paved path for use by bicycles"
Summarizing: When this "mandatory sidepath" provision was under consideration, cycling activists worried, reasonably enough, that the provision could force cyclists off many federal roads and onto poorly designed and maintained sidepaths. But now that the bill has passed, we need to stop suggesting that this was what Congress actully did, and instead push for a safety-based policy by the Department of Interior (DOI), which would hopefully be adopted by other agencies).
A district court construing a state law might not have the ability to read the word "safe" into "paved path for use by bicycles." Had the federal statute simply banned bikes rather than direct the Secretary to do so, there might be little discretion, But here we have a Congressional charge to an agency head to prohibit cycling from certain roadways, which inherently vests the Secretary with more discretion, as long as the Secretary is being reasobable. And who would argue that optimizing safety on federal lands is not reasonable?
Individual park superintendants are generally not lawyers, and they may read the statute narrowly without being aware of the context in which provisions like this apply. So let's hope that DOI or National Park Service headquarters provides guidance to the parks, to avoid unnecessarily cramped interpretations of the new law.
I have not had occasion to ride the trail along Rock Creek Parkway between Massachusetts and Virginia avenues in several years. What do you think? Would banning bikes on that part of the parkway create a safety problem on weekends?
(Jim Titus represents Prince Georges County on Maryland's Bicycle and Pedestrian Advisory Committee (MBAPC) and is on WABA's board of directors. The opinions here do not reflect the official views of either WABA or MBPAC.)