DOI need not ban cycling on Rock Creek Parkway

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.)

Comments

[Greenbelt]

I don't live in the area, but it seems to me that a "park"way on National "Park" Service land set aside for public use should be as "park"like as possible, which means that the desires of anonymous Capitol Hill staffers to speed home in their douchemobiles without the hassle of slowing down for bikes should be a lower priority than maintaining as much of a "park" feel as possible. The Secretary should lower the speed limit to 25 and remove any ambiguity.

[bajin]

Aside from the busyness of the trail, it is simply unridable in many places with a road bike due to cracks, potholes and such.

[T]

1) I really never noticed much of a problem on RCP. Traffic there is because it's a narrow road with low speed limits and sometimes lost tourists. Particularly downhill, cyclists are often flirting with what would be speeding tickets ourselves.

2) Several T&I staffers cycle themselves so I would be surprised if they were out to play gotcha.

[Turtleshell]

The trail next to Rock Creek Parkway past about 200 meters North of P street is in very poor shape and I learned the hard way cheap rims can't handle all the cracks.

The road has two lanes of traffic in each direction so cars easily pass cyclists. Drivers have a tougher time passing cyclists in Rock Creek farther North on roads like Beach Drive where passing bikes on a one lane road can take a bit longer, but those roads max at 25 MPH so they are exempt from the restrictions.

Few cyclists ride on Rock Creek Parkway. I'm guessing its less than 5% of the bike traffic on the trail.

Drivers can reach high speeds on the winding road and I have seen a number of accidents along that stretch over the years (none involving bikes). I ride other parts of my commute in the street, but I don't think that stretch is worth the risk.

Of course cyclists should be allowed to ride on the street if they want, but I'm more concerned with NPS hurrying up and getting the trail upgraded.

I don't think banning bikes on that road would make much difference since it would not affect many bikes, but there are probably other roads in the nation where banning bikes would be a bigger issue.

[Tara]

I use Rock Creek Parkway from the Md/DC border up to Sherrill Drive (the steep hill that brings you up to 16th St at Walter Reed). The speed limit there is 25 MPH and for the most part, cars are pretty considerate of cyclists, probably because bikes are a common sight on this stretch. (This is not to say that I don't sometimes get passed a little too close or that cars are actually driving 25 MPH).

Personally, I would use a multi-use path on weekdays if I had the option, but there's not that option on this stretch of the parkway. And, as has been amply documented, the condition of the side path on some parts of the parkway is narrow and in very poor condition. I would like to think that we're moving in the direction of more accommodation and recognition of cycling, both as a legitimate transportation method and as a recreational activity.

[SJE]

I have not read all the details of the bill, but it is likely that the DOI will have to hold a period of notice and comment to enact the relevant regulations that interpret the law. Cyclists MUST add their voice to that process because it forms the basis not only to guide the regulations, but in case we ever need to challenge it in court.

At that stage, we should ask that "adjacent paved path for use by bicycles" be defined as something more like a 12 ft MUP, and that the determination of "for use" may be modified if path is in poor condition.

[T]

We could have some fun and post signs on parts of these trails advocating for better conditions. It sounds silly, but I noticed two congressman jogging along the MVT in the last two weeks. You would be surprised who all uses the trails that you may not realize does. Another gets around town by bike half the time (not from Utah).

[charlie]

"I use Rock Creek Parkway from the Md/DC border up to Sherrill Drive (the steep hill that brings you up to 16th St at Walter Reed)"

I'd love to use that Parkway, because in my world the Parkway stops at Woodley Park and turns into Beach Drive.

Never -- or extrely rarely see -- bikes on the actual Parkway. Does the trail suck -- absolutely. Should bikes be on that section of the road -- no.

Wasn't this bill about the GW Parkway south of Alexandria.

[SJE]

"A district court construing a state law might not have the ability to read the word "safe" into "paved path for use by bicycles." "

If you mean a Federal District Court, yes, they would have very little leeway in interpreting a state law because of separation of powers. If we are talking about the Federal laws, the District Court must give significant deference to the DOI's interpretation of the rule. If the DOI does not construe "safety" in the rule, and because the statute is silent on the subject, it will be necessary to show that the agency violates the administrative procedures act, or some OTHER statute.

For all these reasons, it is important that we get the DOI's regulations to reflect common sense and the needs of cyclists.

[Jim Titus]

@all. I'll can provide some more detailed thoughts later today, but just as a quick clarification: The only part of "Rock Creek Parkway" where the new law would apply is the portion south of Mass Ave, where we have 2 general travel lanes and the trail is relatively good. But I'm unclear whether "relatively godd" is good enough. As some have pointed out, few people ride that road, except on weekends. But would putting those cyclists--who ride the fastes--onto the trail there be safe?

@Charlie: Recall I am from PG. Are bikes allowed on some part of the section you refer to?

[SJE]

Jim: I believe that there is a 30+mph limit on the section from Conn. Ave just after the tunnel.

Another thing to consider is what happens if the DOI changes the speed limit from 25 to 30 in some other areas? What about outside RCP? Hence, it is key to ensure that "for use by bicycles" has some flexibility that recognizes that side paths etc may not be safe. More importantly, it puts the onus back on the DOI to create a safe path.

[Tara]

Charlie:

You are right--brain freeze today. The portion I am talking about is Beach Drive, not the Parkway. Still under NPS control, and still many of the same concerns and considerations.

[charlie]

@Tara: brain-freeze? Where? Sign me up? Mine is melting....

anyway, yes similar isue except that 30 MPH hour thing exempts beach Drive.

[Jim Titus]

Thanks to all for commenting. The over-riding point here is that we need to get DOI to issue safety-based guidance for how to implement the new legislation, or many facilities probably will prohibit bikes from roads in favor of a sidepath that is less safe or actually dangerous.

@SJE: My impression is that the speed limit changed about where the road becomes a divided 4-lane road, which is a bit north of MA but still south of CT. If I construe you correctly, you think that it is 35 mph until after the split?

@SJE: Just to clarify my comment about district courts. I am trying to distinguish how state courts might have to construe the mandatory sidepath rules that were common in state law a few decades ago, with how the Secretary might construe the new federal statute which, on its face looks just as bad if not worse. The key difference is that the old state laws banned bicycling on roads with a sidepath, while the new federal law does not: it merely instructs the Secretary to do so.

My view is that a technically-sound safety-based guidance would survive a challenge from someone who (for example) wanted all bikes banned, regardless of safety. Conversely, I doubt that cyclists could successfully challenge a less safety-based interpretation of the new law. DOI is already allowed to ban bikes even where there is no sidepath so it hardly need rely on this statute to ban bikes where there is a sidepath.

@charlie: Your comments on Rock Creek Parkway seem correct to me. But that still leaves us with the question about whether actually banning bikes on that road helps or hurts safety. If virtually the only bikes on that road are fairly fast cyclists and/or weekend cyclists, is the hazard from those cyclists today small compared with what the hazard would be if bikes were banned and they ride the parallel trail?

[SJE]

Jim:
Speeds: Next time I drive down RCP I will check.

Construction: CAn you explain the DOI's ability to ban bikes under other rules? If it is based on trail maintenance (e.g. Appalachian Trail), it would not apply to RCP.

[Joe]

The trail along the 4 lane sections of RCP tend to be very busy during the weekend. I often just ride through the grass instead of riding at running and walking pace on the weekends.

The problem with segegating bicycles off roads and on to the trails is that it forces fit cyclists to break the speed limits on the trails or get no workout. If people thing it does not matter that cyclists can not long ride at a speed to get a good workout then they are just promoting obesity.

Then again, if the rules of the trails are rarely inforced on cyclists & peds as the rules of the road are rarely inforced on drivers, cyclists and peds then the speed of cyclists on the trails shouldn't be an issue.

[Jim Titus]

@Joe, Turtleshell, T: Thanks for your site-specific observations of road conditions. Maybe over the next few weeks someone might ride the relevant sections of trails with the issue in mind, and provide even more site-specific info.

@SJE: I have not researched the specific question you raise, so I'll just give you the default assumptions from the law we all know.

1. Road agencies always have the authority to regulate traffic, and that authority tends to be very broad.

2. On federal lands, the particular entity that owns the land is generally the road agency, though there are some exceptions.

3. The authority of road agencies to regulate traffic is subject to rules of the road enacted by the legislature, such as the state-specific mandatory sidepath rules that a few states still have, as well as laws that explicitly provide bikes with all the rights of vehicles except where otherwise stated, and laws that do in fact state otherwise, such as Maryland's law against bikes on expressways or in the roadway when the speed limit is greater than 50 mph.

4. Under the supremacy clause, the federal land manager/road agency is not subject to these state laws (though they govern if the federal agency does nothing.)

5. There is no federal law giving bikes the same status as vehicles.

6. While there are some federal statutes with state consistency requirements (e.g. coastal zone management) there is no consistency provision for rules of the road.

Aside: Maybe cyclists and the tea party should jointly push federal deference to state traffic rules.

[Joe]

What other countries ban bikes on roads 30mph to 45mph? I'm not sure what the speeds are but I know China recently started banning bikes from some roads.

The federal rules are just not logical. Until recently (this year I think) mountain bikes (bicycles) were considered the same as motorcycles, therefore bicycles should never have been banned from any federal roads.

[blondie d.]

the nps will do what it wants -- and it will (unreflectively) advance the use and privilege of the car.

IF the bicycle can be slid in, they will allow that. they won't treat bikes with respect as equal transportation technology.

now, two years from now when the trail by the zoo is still [poor] and the pavement around gravelly point STILL has not been repaved....and the exit off the 14th street bridge is still as it is now...maybe someone will recall my comments here, and give up trying to work with the nps or ddot.

bicyclists need to go the courts

[Turtleshell]

@ Jim, Road the trail this morning.

Rock Creek Parkway, begins just south of the Massachusetts bridge where the road becomes 2 lanes in each direction. Just south of the road expansion there is a 25MPH sign for south bound drivers. I did not see another south bound sign until after the ramp from Massacheutts Ave., which is a good 700 yeards from Beach Drive. That sign raised he speed to 35 MPH. The next sign is 25 MPH right after the intersection at Virginia Ave.

I did not see the North bound signs, but I'm guessing they are similar.

Beach Drive, the one lane road in each direction north of Rock Creek Parkway is 25MPH up into MD.

These speed limits are very unlikely to rise. Can't imagine that happening

Wash Cycle has all kinds of info on the trail and its pending (hopefully) upgrade here: http://www.thewashcycle.com/rock_creek_park_trail/

[Jim Titus]

@Turtleshell. Thanks for reporting on your ride. But can you describe the trail condition between Mass and VA avenues, which is the part of the trail that is potentially mandatory use? Most discussions of the Rock Creek Trail, including the ones you mention, focus on parts of the trail north of Mass. Ave.

PS: Are you sure about the road names in your account? I could have sworn that Rock Creek Parkway starts just south of the Connecticut Avenue bridge, with 4 lanes (not divided) and a 25 mph speed limit, and that the divide and 35 mph speed limit is just north of the Mass Ave bridge.

[Geof Gee]

@Jim

It appears to me that we've simply exposed ourselves to the arbitrary decisions of the Secretary of the Interior or similar. From your own text, the word "discretion" is used often and, fundamentally, it is far from certain that cyclists' best interests will be served judging from decisions on GW Pkwy and Clara Barton Pkwy. In fact, the tone here seems somewhat "pollyannish" given the NPS position in these two locations.

More fundamentally, what does BLOS have to do with safety? From what I gather it is largely a comfort index ... please see the link below. This is a fundamental problem with the legislation and the Secretary/Superintendent's discretion ... comfort and safety are wildly confused for each other.

http://www.bikelib.org/roads/blos/blosform.htm

That written, you are correct that the legislation is passed so we might as well move on and deal with it instead of complaining about it.

[John Boyle]

Federal lands also means military bases and government office complexes such a National Laboratories, NASA etc.

[Jim Titus]

@John Boyle: Welcome to Washington. Your blog post on bicyclecoalition.org
about the implications for the Philadelphia area emphasized the McGuire AFB in north-central Burlington County NJ, about halfway between Philadelphia and Bay Head (Barnegat Bay).

In the DC area, NASA does not have sidepaths, and as far as I know, the military bases have few if any sidepaths. But as with the parks, one must hope that DOD gives good legal advice to the base commanders on this issue. Bases that are closed to the public often have relatively light traffic except maybe rush hour, so the BLOS of B or better may apply.

If DOD decided adopts a safe-cycling interpretation of the statute, it will almost certainly withstand any court challenge. Aside from the great deference courts show the military, what soldier or civilian is going to sue her base commander over that commander's refusal to ban bikes?

@Geof Gee: The secretary is never allowed to make arbitary decisions. Discretion in this context merely means that the Secretary need not apply the statute so as to force cyclists off the relative safety of a road onto a hazardous sidepath. What is wrong with that?

I'm not sure what you find "pollyanish" (unduly optimistic) about an analysis of what the new law means--I have not even made any predictions. Though perhaps with all the gloomy characterizations of the National Park Service, perhaps the failure to include a sentence predicting they will do the wrong thing is pollyanish by comparison.

As far as I know, the NPS superintendants do not wake up each day thinking about how to make cyclists life more miserable. I think that they balance alot of factors, and often that balancing leads them to make the kinds of decisions that many directors of public works would make if it were up to them. Fortunately, state law already describes cyclist rights, so banning bikes is not an option for the public works director. But state law does not apply on federal lands, there is no federal right to bike law, so that same guy as superintendant can ban bikes.

If suspect if you asked them, they would say that they have banned bikes were safety requires it, and have not banned bikes on the road where safety favors bikes on the road. You may not agree with how they strike that balance, but recognize that they think they have already struck that balance. If that is so, then the new law would be an excuse to cut off discussions about lifting bans on bikes, but not necessarily a reason to add new bans, provided they get the right guidance.

Regarding BLOS, I think it is pretty clear that Congress was trying to make a safety-based limit to the ban. Since I am merely arguing that the Secretary has the discretion to only ban bikes where doing so enhances safety, what BLOS actually is matters less than what Congress evidently thought it was. The heading of the provision was Bicycle Safety.

[SJE]

Jim:
As usual, you are a fount of knowledge. Glad to have you on our side.
SJE

[Geof Gee]

@Jim

If the concept and metrics of safety are poorly defined then a priori the Secretary's decision is almost certainly arbitrary ... no?

What I thought somewhat pollyanish -- I think the qualifier is important -- is that superintendents' decisions are likely weighed down by many of the same biases that surfaced in the recent Fairfax Times article you shared elsewhere. All things equal, people's decisions are heavily anchored by their prior beliefs. In large, the preconceived notions of what is and is not "safe" are biased against the person in the human-powered-vehicle having full access. (I'm not riding a trike yet ... but why exclude them?)

I rarely go for conspiracy theories and I really doubt that people are going around trying to screw cyclists. But do I think that someone else -- particularly someone without a lot of cycling experience -- will make a better decision than me regarding the most convenient/safe route for me in the scenario described by the legislation? No. Do I think that a random well-intentioned person could easily come up with rules -- in this case the choice between sidepath and road -- for my safety that could be perverse? Yes. Do I think that same well-intentioned person could conflate safety with all sorts of things and rationalize it? Absolutely. Given my earlier point, I'm somewhat gloomy on the outcomes.

My other prior is that NPS superintendents probably respond to complaints like everyone else. I think the dynamics of superintendents responding to driver complaints of cyclists obstructing them rather than design roads/facilities that better accommodate everyone also lead me to a somewhat gloomy conclusion.

Anyway, I agree that (1) this isn't the apocalypse and (2) we had better start talking to the Secretary and more NPS superintendents or change the law than simply b!tch and complain.

[Jim Titus]

No, the lack of clear metrics of safety does not automatically make decisions arbitary. Something that is roughly on the right track is good enough, as long as there is some reasonable basis for what one does. Ascertaining whether the trail meets AASHTO standards before banning bikes from the road, for example, is not arbitrary, though it lacks a good metric of safety.

I appreciate your attempt to elaborate on what is Pollyanish, but since I predicted neither what you are calling Pollyanish nor that opposite (which I think you really meant), I guess I'll just have to infer that you inferred that I was making a prediction about what would happen, when all I was trying to do is state what the Secretary could do, for the purpose of defining what advocates should advocate.

Your doubts about Park Superintendants in paragrahps 3 and 4 mainly illustrate why guidance is necessary. Are you suggesting that--even with with the correct guidance--a Superintendant would ban bikes on account of the new law. If so, why hasn't that Superintendent already banned bikes on whatever road we are discussing? This law provides no new authority.

The Secretary was at the opening of the PG Anacostia trail. Set your alerts to notify if he comes to any other trail openings. Ditto for the director of NPS.

[washcycle]

If Park Police is going to enforce a mandatory sidepath rule as aggressively as they do speeding then I don't see any reason why people shouldn't just keep biking in the road.

[Jim Titus]

If that happens, I may live to regret everything I said on this post, at least until contributory negligence is repealed.

In the even of an accident, if the cyclist was not on the road legally, the question would arise: is the cyclist negligent per se for breaking the law. The answer hinges on the purpose of the law. If the purpose is safety, and the cyclist breaks the law, then there is a good chance the cyclist will be negligent per se.

If the purpose of the law is to let cars drive faster rather than safety, then the cyclist would not be negligent per se in a suit over her injuries.

If the Secretary does not issue true safety-based guidance, I guess the next best thing would be for the Secretary to state (in effect) that the rumor is true, and the purpose of the statute is to accelerate the movement of traffic on Rock Creek Parkway. Then the victim of the inevitable injury will not be negligent per se for merely being on that road.

[Nancy]

It's heinous for NPS to enforce a mandatory sidepath rule (whether the paths in question are up to standards or not, WHICH THEY AREN'T) when the jurisdiction the park is in does not have mandatory sidepath laws. I don't see how any cyclist could ever agree to a mandatory sidepath law, even if said cyclist prefers to ride on a sidepath. Why are we rolling over and playing dead? Or am I missing something? Leaving where I ride up to the discretion of the park superintendent seems ridiculous to me. Am I crazy?

[Froggie]

Jim, jumping in way late here so I hope you see this, but I wasn't thinking of Rock Creek Park when I saw this...I was thinking instead of GW Pkwy, where we already have a situation where bikes are banned from the road and instead are relegated to the side path. And some (including the GWPkwy unit of NPS) have used that "bicycle safety" argument to keep it that way.

[Jim T]

This subject will probably be revisited as the cycling organizations move forward with their response. A number of comments sent to me privately pushed me to better justify my assertion that DOI has flexibility to not prohibit bikes on roads with substandard trails. There are 4 possible interpretations of the statute, but the most plausible interpretation is that Congress enacted a mandate to prohibit bikes subject to all the other mandates that land managers must consider (e.g. safety), rather than that Congress intended this latest mandate to supercede every other mandate that land managers have.

@Nacny. Yes, I think you probably are missing something, especially when you say that cyclists agreed to the mandatory sidepath rule. The law was passed. The only question is whether the law requires NPS to ban bikes on all roads with speed limits >29mph and any sidepath, or whether NPS has some discretion to not do so in some cases. Your argument against NPS discretion implies banning bikes on all the roads.

@Froggie. You are correct that the new provision would also tend to thwart any effort to lift bans that are currently in place. The current focus has to be on Rock Creek Parkway, since we have a good argument that the statute does not require banning bikes there and NPS otherwise did not choose to do so.

It would be very hard to argue that the new provision implies that NPS should lift the ban on bikes along the southern GW Parkway. It is possible, however, that the new provision could lead to creation of a consistent policy on when to ban bikes on NPS parkways that might imply lifting the ban in some places, even while it is instituted in others.

A related question, is whether some of these bans have to be all-or-nothing. Cars are banned on Beach Drive weekends only. A similar logic might be to lift the existing ban on G-W Parkway on weekends, or other times where the siderpaths are heavily used by pedestrians.