New law changes trail management for accommodation of persons with handicaps

The information below is excerpted from the Land Trust Alliance Conservation Defense Network. Check back as we will provide more links and information in the future.

A new regulation starts on March 15, 2011 affecting land trusts, governments and landowners that permit public recreation access.  The issue troubling land trusts is the expansion of motor vehicles allowed in the new “other power-driven mobility devices” definition.  Anything that has a motor, of any size, from motor scooters to large trucks is included. The OPDMD definition doesn’t limit the width, weight, horsepower, or power source of a device when used by a person who has a mobility disability. It allows ATV’s, Segways and golf carts.  Land trust personnel and land owners with public access clauses in their conservation easements may ask a person for their authorization card to drive a mobility device, but cannot ask them about their disability. If they say they have a disability and thus need the motor vehicle, you cannot contradict them, unless it’s evident that they are not disabled.

The regulation does not change the previous standards of reasonable accommodation or require that trails, existing or new, be constructed for ADA compliance including back country trails.  But to exclude any OPDMD from any trail, a land trust or land owner must follow the DOJ Assessment Factors:

(a) “The type, size, weight, dimensions, and speed of the device;

(b) The volume of pedestrian traffic (which may vary at different times);
(c) The design and operational characteristics (e.g., whether its service, program, or activity is conducted indoors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user);
(d) Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and
(e) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.”

As a practical matter, the last criterion may be the most fruitful in evaluating trails with respect to upholding conservation purposes and protecting natural values.  Experts advise a memo to the file and changes in signs on the ground if a land trust wants to ban vehicles provided that you can document a sufficient reason under the DOJ Assessment Factors.  Doing nothing is an option – in which case OPDMD are by default permitted, and ADA compliance is assured.

The key to the new regulation is that a land trust, government or landowner cannot stop a vehicle operated by a disabled person from accessing any trail, unless you follow the DOJ assessment and publicize that vehicles are prohibited for one of the several criteria. It’s a matter of publicity, more than trail design.  The public notice should advise the public what is allowed and what is not. The regulation doesn’t address what happens if a land trust implements the assessment and public notice after March 15th.  Presumably the protection against vehicles would start at the point of compliance with the new regulation.    As of March 15th, in the absence of notification to the public and compliance with the DOJ assessment factors, all vehicles are permitted on any trail.   So without the public notice, you have a gap in protection. As a practical matter, it may affect ADA trail design because a land trust may have to remove some barriers that would allow a conventional wheelchair to pass, but would block a wider vehicle such as an ATV or golf cart.

See American Trails “Questions & Answers” web page:  http://www.americantrails.org/resources/accessible/power-mobility-questions-answers.html.

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