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Georgia Appalachian Train Club, Inc. logo
P.O Box 654
Atlanta, GA 30301
404-643-6495

August 4,2008
 
ADA NPRM 

P.O. Box 2845 
Fairfax, VA 22031-0846
 
Dear Sir or Madam, 

On June 17, 2008, the Department of Justice (DOJ) issued its Notice of Proposed Rulemaking (NPRM) pertaining to accessibility standards under the Americans with Disabilities Act, inviting public comment by August 18, 2008. The proposed rules would apply to state, local government and commercial entities, and there has been some concern expressed that the rules would eventually and by indirection be imposed on federal entities as well. Please find below the comments of the Georgia Appalachian Trail Club, Inc. (hereinafter referred to as "GATC" or "the Club") to the subject NPRM.
 
GATC manages, maintains, and protects the Appalachian National Scenic Trail ("AT" or "Trail") in Georgia under agreements with the USDA Forest Service, the National Park Service and the Appalachian Trail Conservancy. In addition to the approximately 70 miles of AT in Georgia (the majority of which is in federally designated wilderness areas) GATC maintains 50 miles of side and approach trails. The Club comprises over 700 members who share a dedication to and sense of stewardship of the AT and its environs, which include the Chattahoochee-Oconee National Forests (C-ONF) and state lands. In 2007 alone, GATC members volunteered over 18,000 hours, the overwhelming majority of which was spent doing physical labor on and along the AT. 

The Club appreciates and supports the general intent of the NPRM, which we understand to be the enhancement of accessibility by individuals with disabilities to certain facilities and activities. However, we are deeply concerned that the proposed rule, in its present form, has potential to permit or mandate the use of off-highway vehicles (OHV's) in areas where they are currently prohibited, creating public safety issues and unleashing an uncontrollable torrent of environmental destruction. ("OHV" is the term used by the U.S. Forest Service in the C-ONF to describe motorized vehicles that travel off paved roads for recreational purposes, such as motorbikes, four-wheel drive vehicles, all-terrain vehicles and dune buggies.) Indeed, the use and misuse of OHVs on public land is one of the most contentious and consequential environmental issues of our time. 

The OHV Threat 

In his March 13, 2008, testimony before the House Subcommittee on National Parks, Forests and Public Lands, Jack Gregory (retired Special Agent in Charge, Southern Region, U.S. Forest Service) characterized irresponsible OHV use on public lands "as such a menace that it is now the single greatest threat to American landscapes. In the C-ONF the US Forest Service has published a position paper describing the "unauthorized creation of roads and trails [itself a violation of federal regulations] and the associated erosion, water quality degradation, and habitat destruction" resulting from unmanaged OHV use. Because of the speed, range and destructive potential of such vehicles, their effects are said to be "disproportionate to the number of users" and there exists concern that "OHV users may displace other recreational users." 

A11 this is occurring on state and private land and in the C-ONF, and it would be folly to suggest that unrestricted use of OHVs in one jurisdiction, state lands for example, would not spill over to adjacent private and federal lands. In the C-ONF, the U.S. Forest Service has published rules confining OHVs to specific areas dedicated to their use. The problem is enforcing those rules, given the budget and manpower constraints under which the Forest Service currently operates. Indeed, citing rampant illegal OHV activity and consequent environmental havoc in and around its Anderson Creek OHV Trail System, the Forest Service was forced to close permanently and decommission that system earlier this year. Unable to enforce rules concerning OHVs in discrete areas designated for OHV use, the Forest Service cannot be expected to enforce OW rules on a forest-wide basis where use of certain types of OHVs by certain people may be permissible under certain circumstances. The same is, of course, true of state and local entities.
 
Other Power-driven Mobility Devices (OPDMDs) are OHVs 

Proposed Section 35.104 defines OPDMDs as "[a]ny of a large range of devices powered 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..." This definition makes clear that any mobility device or vehicle, including all manner of OHVs powered by internal combustion engines, will be considered OPDMDs so long as they are used by persons with mobility impairments. Consequently, in administering the proposed rules, governmental and commercial entities to which the rules apply will be required in the first instance either to: (I) distinguish from among a potential multitude of individual OPDMDIOHV users, those who are mobility impaired (although the proposed rule would prohibit any inquiry as to the nature and extent of the person's disability) and those who are not, or (2) permit indiscriminate use of OPDMDs/OHVs by anyone in those situations to which the rule is intended to apply. Option (1) would be an unreasonable burden and restraint to place on commercial and or law enforcement entities and would make likely the de facto, if not official, adoption of option (2). 

Compounding the problem, proposed Section 35.137(b) requires each public entity to which the rule applies to "make reasonable modifications in its policies, practices and procedures to permit the use of [OPDMDS] 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." This language would require public entities to guess, at their peril, what uses of what devices are '"reasonable" or what constitutes a "fundamental alteration" of those entities' services, etc.-with the knowledge that the burden will always be on them to make the required "demonstration." It is hard to imagine a more prolific incubator of litigation. 
Of course, in the light of such extraordinary ambiguity, the threat of endless litigation and its attendant expense and disruptive effects, public entities will be incented to err on the side of caution. That has potential to result in economically indefensible decisions which will drain public coffers and discourage volunteers from performing work they consider wasteful or unreasonable. 

OPDMDs/OHVs and the AT 

Section 5(a)(l) of the National Trails Systems Act, 16 USC 1242(a)(l) (2008), makes clear that the Appalachian Trail is to be administered primarily as a footpath. The US Forest Service's Land and Resource Management Plan (2004) for the C-ONF restricts use of the Trail to foot travel, has as its objective the preservation of "the most primitive and natural recreation setting possible" and seeks to protect the AT from "social, aural and other impacts." Needless to say, opening the AT to OPDMDs, as that term is defined in the NPRM, would be wholly inconsistent with the letter and spirit of the National Trails Systems Act and the panoply of rules, regulations and local customs that have been promulgated and observed over many decades. It would expose the Trail and the surrounding environs to the destructive effects described above and would likely drive hikers off the Trail altogether. Moreover, to the extent that the proposed rules, if adopted, permit or encourage the use of motor vehicles or motorized equipment in federally designated wilderness areas, they would m afoul of Section 4(c) of the Wilderness Act, 16 USC 1133(c) (2008). 

Conclusion 

GATC believes that the proposed rule is too broadly worded and that it will open the door to environmental destruction and loss of quality of the experience along the Appalachian Trail and other areas that currently enjoy protection from OHVs. We believe that the only types of mobility devices, including wheelchairs, to which the rule should apply are those designed exclusively for use by persons with disabilities and which are suitable for use in indoor pedestrian areas. This would mirror the provisions of Section 507(c) of the ADA and would protect the legitimate interests of all parties. 
We wish to emphasize that persons with various disabilities have always been welcome on the AT, some of them having "thru-hiked" the entire Trail from Georgia to Maine. However, the rugged, sometimes unforgiving, nature of the AT does not lend itself to use by persons with severe mobility limitations. Permitting use of OHVs (by whatever name) on and adjacent to the Trail would not change that circumstance; it would simply ruin the AT experience for all those who are fortunate enough and privileged to enjoy it presently. 

Very truly yours, 

Kenneth E. Estes 
Conservation Director 
Georgia Appalachian Trail Club, Inc. 
P.O. Box 654 Atlanta, GA 30301

Ours is a friendship of the trails which lead to far away places