Wheelchair accessibility in wilderness areas: the nexus between the ADA and the Wilderness Act.

• Author: Bricker, Jennie
• Position: Americans with Disabilities Act of 1990

The Americans with Disabilities Act of 1990 (ADA) extended the civil rights of access and integration to those with mobility impairments, including wheelchair users. The Wilderness Act of 1964 promised to preserve the wilderness for the American people's "use and enjoyment." This Comment questions whether extending "use and enjoyment" to wheelchair users is required by the ADA or other federal law, and if so, whether compliance would conflict with the preservation doctrine of the Wilderness Act. The author concludes that the two laws are not wholly incompatible and that wilderness areas could be made more accessible without compromising their preservation.

1. INTRODUCTION

   The American's with Disabilities Act of 1990 (ADA),(1) along with its predecessor, the. Rehabilitation Act of 1973,(2) extended civil rights and remedies to persons with physical and mental disabilities. These rights include the right to participate in services, programs, and activities without discrimination based on disability.(3) Section 504 of the Rehabilitation Act, for example, guarantees Americans with disabilities the right to the same recreational activities enjoyed by able-bodied citizens on public lands, including access to lands designated as wilderness areas under the Wilderness Act of 1964.(4) However, the practicalities of providing access for those with mobility disabilities may not be wholly compatible with the goal of maintaining the "wilderness character" of lands governed by the Wilderness Act.(5) Thus, the ADA specifically exempts wilderness area managers from making modifications necessary to provide wheelchair accessibility,(6) the proposed regulations that address accessibility in outdoor recreation areas would codify the exemption by making accessibility guidelines inapplicable to "primitive" areas.(7) Nevertheless, the spirit if not the letter of the ADA should encourage wilderness managers to enhance the accessibility of the areas; the position taken in this Comment is that they can do so without jeopardizing the intent of the Wilderness Act.

   "Access" can have at least two meanings. Wheelchair users, for example, are free to enter wilderness areas, so wilderness areas are, in a sense, "accessible." This type of "theoretical access"--the mere absence of prohibition--may be meaningless if the only trail available to the wheelchair user is too narrow to navigate, or if fallen trees make trail passage impossible. To correct these conditions, wilderness managers would have to act affirmatively and effect "practical access." The difference between these two types of access will be the focal point of much of the discussion in this Comment.(8) However, the discussion of what forms accessibility might take within wilderness areas assumes that practical access is the type at issue, as well as the type envisioned by the ADA. This Comment focuses solely on access for those with mobility impairments, and wheelchair users in particular, because accommodations for those users are most likely to conflict with the land use requirements of the Wilderness Act. Additionally, although this Comment considers the conflict that has arisen in Minnesota's Boundary Waters Canoe Area between proponents and opponents of motorboat use, its focus remains primarily on land rather than water travel.

   Part II of this Comment provides an overview of current accessibility levels in wilderness areas, present use of the areas by visitors with disabilities, and the modifications that might be necessary to provide practical access. Part III addresses the question of whether, and in what forms, access is required under the Rehabilitation Act and the ADA. Part IV examines whether, and in what forms, access is possible under the Wilderness Act. This Comment concludes with an examination of the new set of accessibility guidelines for outdoor recreation areas, promulgated by the Advisory Committee to the Architectural and Transportation Barriers Compliance Board.(9) Although these guidelines offer a sound new approach to "information access," they fall short when it comes to accessibility in wilderness areas.

2. ACCESS TO WILDERNESS AREAS BY PEOPLE WITH DISABILITIES: AN OVERVIEW

   1. Current Levels of Accessibility

      Four federal agencies presently manage wilderness areas: the National Park Service (NPS), which manages more wilderness acreage than any other agency; the U.S. Forest Service (Forest Service), which manages more individual wilderness areas, or "units," than any other agency; the Bureau of Land Management (BLM); and the U.S. Fish and Wildlife Service FWS).(10) Under current agency management, wheelchairs are not excluded from wilderness areas, so theoretical access to wilderness areas is available to wheelchair users. Practical access, however, is not available in most designated wildernesses. For example, most NPS-managed areas are inaccessible because the trails are too steep or rugged for wheelchair use.(11) Additionally, otherwise accessible trails in national parks and wilderness areas may simply be too narrow for wheelchair passage.(12) In national parks, trails may be paved yet still inaccessible because of steps or stairs,(13) cross slope,(14) or other barriers.(15) Under Forest Service wilderness management policy, trails within wilderness areas are to be no more than two feet wide, yet wheelchair users require a minimum of thirty-two inches clearance.(16) Of Course, accessibility would not be an issue if there were no people with disabilities visiting Wilderness areas. This is not the case, however, according to the National Council on Disability's report on use levels.(17)

   2. Levels of Use: The Disability Council's Report

      In compliance with section 507 of the ADA,(18) the National Council on Disability furnished a report to Congress on the effect of wilderness area management on the use and enjoyment of wilderness areas by users with disabilities.(19) In evaluating use of wilderness areas by visitors with disabilities, the Council cautioned that its data were limited and unverifiable. However, a survey of federal land managers estimated that nearly seventeen thousand persons with disabilities visit wilderness areas each year.(20) Based on survey responses from eighty wilderness area users with disabilities,(21) the Council concluded that those with disabilities visit the wilderness for the same reasons as all other visitors do, and in many of the same ways.(22)

      Most of the eighty respondents, on at least one occasion, used canoes for transportation, and another fifty-eight percent used kayaks or rafts. Thirty-nine percent hiked, and twenty-one percent rode horses. Only five percent ever used a mechanized form of transport (excluding wheelchairs) in a wilderness area.(23) The majority of the respondents used art assistive device in their wilderness recreation; half used manual wheel-chairs and another thirty-three percent used crutches or a cane. Twenty-four percent responded that the trails and/or the terrain were too rugged, and another thirteen percent complained about "poor access at [the] entry point."(24)

      The narrative comments in the survey demonstrate a divergence of views about whether access is currently sufficient and, if so, what additional measures might be appropriate. More respondents were in favor of maintaining current levels of accessibility versus increasing access inside wilderness areas(25) though Most agreed that trailheads and entry points should be completely accessible).(26) About three quarters of the respondents were against allowing mechanized devices in wilderness areas. Of the twenty-one percent that did favor such use, comments primarily suggested the use of all-terrain vehicles.(27) These comments bring the tension between greater access and wilderness values sharply into focus. A characteristic statement against greater accessibility read: "I don't want to lose the wilderness; rather than having the wilderness adapt, I'd rather see the persons with disabilities adapt."(28) Other users took the opposite stance: "Widen and reroute the grade of trails. People with disabilities have a right to visit their forests."(29) Despite the polarization of these views, it may be that greater accessibility is possible without compromising the wilderness. That possibility depends on the specific needs of wheelchair users, delineated below.(30)

   3. Necessary Modifications Under the ADAAG

      Assuming that absolute practical accessibility were a goal of wilderness land managers, what modifications would such access require? The ADA Accessibility Guidelines (ADAAG), developed by the Architectural and Transportation Barriers Compliance Board and published in 1991, provide the specific standards that define "accessibility" under the ADA.(31) The ADAAG evaluate wheelchair access according to four categories: width, surface, cross-slope, and grade.(32)

      The width required under federal regulations for the passage of one wheelchair is thirty-six inches, with an absolute minimum required width of thirty-two inches.(33) The minimum width for the passage of two wheel-chairs is sixty inches; this is also the amount of space a wheelchair requires to execute a 180-degree turn.(34) Thus, an accessible trail could be three feet wide, with an occasional narrowing to thirty-two inches. A trail of this type would need to include either a sixty-inch diameter passing space or a T-intersection at intervals of no more than two hundred feet.(35)

      Creating an accessible surface for a wilderness trail is a slightly more daunting proposition. The ADAAG require walkway surfaces to be "stable, firm, [and] slip-resistant"(36) with "Changes in level" no higher than half an inch without a ramp.(37) The best surface materials for wheelchair use are asphalt, concrete, mortared tile, or brick.(38) A hardened-dirt trail free of rocks and fallen logs might meet the minimum requirements for an accessible surface, at least in dry weather seasons.

      The ADAAG...