Electric bikes no longer defined as motor vehicles by Department of Interior

People may soon be allowed to ride their electric bikes on Animas Mountain or Grandview Ridge Bureau of Land Management trails following an Order issued by the U.S. Secretary of the Interior that excludes e-bikes from the definition of “motorized vehicles” and “off-road vehicles.”

The Order
–issued by Interior Secretary David Bernhardt on August 29, 2019–was intended to simplify and unify the regulation of e-bikes on Federal lands that are managed by the Department of the Interior. It was also intended to decrease regulatory burden, the Order says.

While the Order may simplify the regulation of e-bikes on local BLM lands, trail users may be confused by the conflicting rules that are implemented on the City of Durango’s adjoining natural surface trails, where e-bikes are prohibited.

As defined by the Order, a low-speed electric bicycle is a two or three-wheeled vehicle with fully operable pedals and an electric motor of less than 750 watts (1 h.p.), whose maximum speed on a paved level surface, when powered solely by such a motor while ridden by an operator who weighs 170 pounds, is less than 20 m.p.h.

Implementation timeline for electric bikes on BLM lands unclear

Language in the Order from the Interior Secretary does not specify exactly when the new e-bike policy will be implemented.

For the BLM, the Order says in long-winded form that,

“Within 14 days of the date of this Order, unless otherwise prohibited by law or regulation vi) Instruct the Commissioner, Bureau of Land Management (BLM) to develop a proposed rule to revise 43 CFR section 8340.0-5 and any associated regulations to be consistent with this Order, add a definition for e-bikes consistent with 15 U.S.C. section 2085, and expressly exempt all e-bikes as defined in Sec. 4a from the definition of off-road vehicles or motorized vehicles;”

“Within 30 days of the date of this Order, submit a report to the Secretary including: i) A summary of the policy changes enacted in response to this Order; ii) A summary of any laws or regulations that prohibit the full adoption of the policy described by this Order; and iii) A timeline to seek public comment on changing any regulation described above. c) Within 30 days of the date of this Order, provide appropriate public guidance regarding the use of e-bikes on public lands within units of the National Park System, National Wildlife Refuge System, lands managed by the BLM, and lands managed  by BOR.”

To learn more about the technicalities of implementing this Order, I called up Jeff Christenson, the Outdoor Recreation Planner for the BLM’s Tres Rios Field Office.

After leaving a message on his voicemail where I said my name and identified myself as a member of the news media and requested an interview about the Order, Christenson failed to call me back.

BLM officials have been non-transparent and unwilling to talk to me as a member of the news media in the past, so this was not surprising.

Image borrowed from a Forest Service newsletter.

As a get around to his government secrecy, I called him from a different phone number, using a different name, and sure enough, he was willing to talk.

Christenson talked to me about the timeline for implementing the new DOI order on BLM lands.

“The 14 days is for the Director of the BLM to start the rule-making change process,” said Christenson. “That’s altering the definition through the Code of Federal Regulations as to what a motorized vehicle is. Until that process happens, then it’s still status quo. That 14 days is for the BLM at the Washington level to initiate the rule-changing process.”

“We don’t do anything at this level. That public comment level will be through that rule-changing process which doesn’t happen at the field-office level. That happens at the national level.”

“If you were to submit a comment you would be submitting it to an announcement for the Code of Federal Regulations change, which I know right now sounds like a bunch of government gobbledy-gook,” Christenson said.

“Things that are in the Code of Regulations are the things that we can implement as far as what’s a cite-able offense, and what isn’t. The Code of Federal Regulations has things like “though shall not litter,” and “though shall not deface public property.” From a transportation side of the world, for what is enforceable and not enforceable, for the BLM and the Code of Federal Regulations is the section that talks about motorized use being limited to designated routes, and here’s what a motorized vehicle is,” said Christenson.

In contrast to the DOI’s exclusion of electric assisted bicycles from the definition of “motor vehicle,” the City of Durango includes electric assisted bicycles under the definition of a “motor vehicle.”

City Attorney explains Ordinance language on electric bikes

In December of 2018, the Durango City Council passed an Ordinance that allows e-bikes on some hard-surface trails such as the Animas River Trail, Florida Road Trail, Goeglein Gulch Road Trail, the Three Springs Trail, as well as on the SMART 160 Trail.

In that Ordinance, under Sec. 18-34 Prohibited Acts,
the language states that electric assisted bicycles are included under the term “motor vehicle.”

City Attorney Dirk Nelson clarified what was being communicated in the Ordinance language.

“The definition of “motor vehicle” in the 2018 Ordinance was not intended to mirror the state definition of the same term.  Rather, a review of the vehicles to be prohibited on trails was made, and a list of prohibited vehicles was created for the Ordinance.  The definitions section of 42-1-102, which is referred to in the Ordinance,  includes specific definitions for each of the categories generally prohibited on the trails in the Ordinance,” said Nelson.

“Then, a specific exception was made in the Ordinance to allow the use of Class I and Class II electrical assisted bicycles as defined in 42-1-102 on hard surface trails within the City.   There should be no confusion about what is allowed on the trails under the current Ordinance,” Nelson said.

Contrary to the City’s Ordinance, the term “motor vehicle” is defined by state law, C.R.S. 42-1-102, as to exclude electrical assisted bicycles:

“(58) “Motor vehicle” means any self-propelled vehicle that is designed primarily for travel on the public highways and that is generally and commonly used to transport persons and property over the public highways or a low-speed electric vehicle; except that the term does not include electrical assisted bicycles, low-power scooters, wheelchairs, or vehicles moved solely  by human power.”

As such, the City has a different definition of “motor vehicle,” from how the State and DOI defines it.

Under the current scenario, if and when the BLM adopts the new definitions, an electric bike rider would be allowed on BLM trails right up to where they adjoin City of Durango trails. At this intersection of trail between the two separately managed public lands, e-bike riders will suddenly be prohibited by law when they enter City open space lands.

Will riders of electric bikes on soft surface trails simply turn around to comply with the City’s Ordinance? And how are electric assisted bicycles classified, so that people will know whether their e-bike is allowed on the trails?

Three classes of electric bikes

The city, state and federal government all classify electric assisted bicycles similarly, but their use is somewhat unregulated due to e-bike manufacturer’s not consistently labeling the classifications of e-bikes and some e-bike configurations not conforming to common classifications.

Three classes of electric assisted bicycles are defined by Colorado Revised Statute, C.R.S. 42-1-102 #28.5. “Electric Assisted Bicycle” means a vehicle having two or three wheels, fully operable pedals, and an electric motor not exceeding seven hundred fifty watts of power, according to the state definition.

Compare this State definition with the American Heritage College Dictionary definition of a bicycle:

“A vehicle consisting of a light frame mounted on two wheels one behind the other and having a seat, handlebars for steering, brakes, and two pedals or a small motor by which it is driven.”

Regular bicycles are not required to conform to specific classifications in order to be allowed on public trails and roadways.

While electric bikes are “required” to conform to one of three classes, those classifications are easily obfuscated.

For instance, electrical assisted bicycles can be lawfully built or obtained in any number of different configurations from local or international sources.

The following are excerpts of the three classes under the definition of “electrical assisted bicycles” under C.R.S. 42-1-101 (28.5):

Electric bike manufacturer’s like Trek and Yuba are labeling their e-bike frames, while Kona is not.

(a) “Class 1 electrical assisted bicycle” means an electrical assisted bicycle equipped with a motor that provides assistance only when the rider is pedaling and that ceases to provide assistance when the bicycle reaches a speed of twenty miles per hour. (Pedelec bike)

(b) “Class 2 electrical assisted bicycle” means an electrical assisted bicycle equipped with a motor that provides assistance regardless of whether the rider is pedaling but ceases to provide assistance when the bicycle reaches a speed of twenty miles per hour.

(c) “Class 3 electrical assisted bicycle” means an electrical assisted bicycle equipped with a motor that provides assistance only when the rider is pedaling and that ceases to provide assistance when the bicycle reaches a speed of twenty-eight miles per hour.

What COPMOBA thinks about the DOI Order

“As a member supported trail advocacy group, we support a public lands management process that includes structured public outreach and user group engagement as a part of the decision making process.  The recent DOI rule does not meet that standard.  COPMOBA does not support any action that preemptively omits a public process and comment period, does not consult with user groups (non-motorized and motorized) before making such decisions, and makes sweeping changes that affect all non-motorized federally managed trails without an evaluation to determine specific areas or aspects of impact or management strategy.  There are many trails that are open to e-bike use in our region, and COPMOBA supports the continued use of those trails.”  –Tisha McCombs, COPMOBA

Adam Howell is a writer who is on the city of Durango’s Natural Lands Preservation Advisory Board. He can be reached by clicking on this link to the contact page.