Thursday, January 23, 2014

Review: Gravity Dropper Seatpost

Go to any popular mountain bike trailhead these days, and you'll see a new fixture on bikes: the dropper seatpost. If you're accustomed to road riding, it may seem an odd invention. We all know that your leg should approach, but not quite reach, straight on the downstroke of your pedal. Why would you want your seatpost to drop 2, or 3, or 4, or even 5 inches?

It may seem like an unnecessary luxury, until you've done 10 runs down a 30 second trail. Each time stopping at the bottom, hopping off your bike, wrenching the seatpost clamp loose and raising the seastpost, reclamping, then readjusting and reclamping again. Then after riding/walking (widing perhaps?) to the top, reversing the process to lower the seatpost again.

The general mechanism is that when you're climbing, you push a button and the seatpost rises to its highest level. When you're riding on flat ground, you drop the seatpost to an intermediate level. When descending, you can slam the post all the way down. Well, not all the way. But a lot of the way.

Picking A Dropper Seatpost

After many years with only one or two options for dropper seatposts, there are now seemingly dozens. Every major component maker has their own dropper seatpost available. There are a lot of variations to consider. Expensive or cheap? Hydraulic or mechanical? Ugly or pretty? Reliable or flaky?

I went with cheap, mechanical, ugly, and reliable.

Gravity Dropper is one of the oldest names in droppers, or so I read on the internet. The company is based in the small town of Polson, MT and their products are made in the USA (not that I care too much about that).

What I do care about is they are widely considered to be the most reliable dropper seatpost. In a category filled with complicated hydraulic systems that freeze up, Gravity Dropper sticks with old-fashioned mechanical actuation. From what I can tell their design hasn't changed much over the last 10 years. Where most makers have sexy svelte seatposts, Gravity Dropper sticks an ugly rubber dust boot that resembles the shock from a 1990s hybrid bike. You know what? Mountain bikes are ugly. An ugly seatpost fits right in.

Their customer service is considered to be excellent. Their price is among the lowest for a quality seatpost. What's not to like?

There are a couple things missing from the Gravity Dropper. High-end hydraulic seatposts have infinite adjustment while the gravity dropper has high, medium, and low. As with hydraulic brakes, hydraulic seatposts have silky-smooth action. The gravity dropper is a bit jerky. Blah blah blah who cares? It costs half as much, works better, and if you have a problem, which you probably won't, they'll take care of you. In 5 years if you want you can pay them a small fee to overhaul it for you. But it probably won't need it.


Installation could have hardly been easier.

Insert Gravity Dropper into seat-tube

First remove your old seat post and insert the Gravity Dropper seatpost. I got the variation that has 5 inches of drop available, but really you need to consider how much your seatpost sticks out of your frame when picking your gravity dropper.

The actuation cable runs behind the seatpost. It's a bit ugly. Hydraulic seatposts usually have vertical housing that looks a lot nicer.

Fasten lever to handlebars

Next fasten the lever to the handlebars. Caution: it's easy to over-torque the bolts and snap the retaining collar. Fortunately they thoughtfully include a spare collar. It would be even more thoughtful for it to not break in the first place!

Attach cable to frame with jagwire thingys.

Gravity Dropper includes some jagwire cable routing thingys. Stick those on the frame and run the cable through them.

Attach the seat and you are done!

High Position
Push the lever with some weight on the seat to drop to the medium position. With the 5" drop you can choose between a 1" drop for the medium setting, and a 2.5" drop. I went with the 1" drop, since my knees really complain if my seat is too low.

Medium Position
Keep on going to get to the low position. You won't want to pedal too much from here, but it's great for going downhill!

Low Position


I'll be honest, I think this thing is great.  It's easy to spend a couple hundred bucks on useless doo-dads or lighter spokes. This is a couple hundred dollars that actually makes a substantive difference when riding the bike. Money well spent.

I'm really looking forward to heading out this weekend to break it in.

Sunday, January 19, 2014

Budget Ti Frames

I'll admit to a Ti frame bias. No doubt some of it results from reverse-snobbery; now that everyone and his (or her) mother is on a Carbon Fiber frame, Titanium has suddenly become the young retro-grouch's alternative to steel. But part of it too is about longevity. When I was culling the bike herd last summer, I had to pick between my Kestrel CF frame and my Habanero Ti frame. Honestly it was no contest. I can easily see myself riding my Ti frame for the next decade. Not so the CF.

Back when Ti bikes were the Next Big Thing, frames from the big makers (Litespeed, Seven, etc...) ran into the multiple thousands of dollars. A Litespeed frame still costs North of $3K, but the difference is now nobody rides them. Seriously. You used to see them all over the place. Now maybe occasionally at a triathlon, but that's it.

But a funny thing happened on the way to the carbon fiber revolution; we seem to have entered a renaissance of Ti frames. There are quite a few custom and semi-custom Ti builders, from out-of-my-price-range (Moots and Independent Fabrication come to mind) to well within my price range.

This, then, is a very brief tour of a few of the options available in the budget Titanium world.


When I bought my first Ti frame (Summer 2004), the main options seemed to be Habanero and Airborne. Habanero is still going strong, despite a website that hasn't changed appreciably in at least a decade. That alone should tell you that the word-of-mouth is good. Airborne, meanwhile, appears to be defunct. Interestingly Habanero shows up on the first page of google results for 'titanium bike frame'. A remarkable feat for a small shop, and no doubt in part thanks to Sheldon Brown's "Century Special".

The owner, Mark, is a really cool guy. Very helpful and friendly. He doesn't have a huge selection of frame styles available, but what he does have tick most of the boxes. A couple notable frames he is missing, however, are the full-suspension MTB and fat bike.

Generally a standard frame is around $1K, and a custom frame is probably in the neighborhood of $1500. But in my experience he's willing to make minor modifications to a 'standard' frame for a small up-charge.

Here are a couple habanero builds from my stable:
Road Bike

Rando Bike

Carver Bikes

I had not previously heard of Carver, and I'm not sure why. They seem to specialize in mountain bikes, with a some very interesting frames, such as a full suspension fat-bike (the Trans-Fat). A couple that I find very intriguing:

Ti 99'er: A 29er front and back for $1200. What's not to like?

Ti O'Beast: Fat-bikes are cool. Titanium fat-bikes, therefore, are very cool. At $1400 the frame is getting a little pricey when a Pugsley frame + fork can be had for $600.

Better, Carver seems to have a complete lineup of components. While Moots charges premium prices for their components, you can get a Carver fat-tire fork for $300, either CF or Ti! Remarkable. Though to be honest the Ti rotors are a bit.. unnecessary.


Lynskey isn't really a 'budget' option, as complete builds tend to be $4000+. But right now they've got a 30% off sale (though even then, they're still not 'budget'). But they do occasionally have great deals on lightly used merchandise in their "loft". Right now, that means you can get an XL hard-tail for $2300.

That's a bargain no matter how you slice it. If only they had a similar deal on a 29er...


I almost wasn't going to bother including this, but here it is anyway.. Motobecane (yes, that Motobecane, of bikesdirect fame) is selling a Ti 29er. Either as a frame + fork for the amazing price of $1099 (thank goodness they are sold out) or fully built from $2199 and on up. Those prices are great, but to be honest if I'm going frame + fork, I'll pay a bit extra to get a brand I trust a bit more. If I'm going fully built, that Lynskey for a couple hundred more seems like a better deal, even if it does have tiny tricycle-sized wheels.

That said, props to Motobecane for putting together a really affordable Ti 29er.

Other Options

Honestly any inexpensive Ti frame is coming from China. It's possible to order direct from China (or this, or this) but I suspect the opportunities for problems are legion. In my opinion paying a premium to Habanero or Carver is a small price to pay for someone who knows how to navigate the Chinese system, and separate the wheat from the chaff.

Anyway, So What's The Point

I'm not in the market for a Ti bike today. The next bike I've been thinking about is a 29er, and until today I would have assumed it would be a Habanero. But to be honest Carver has me intrigued. They seem so be a little more pricey than Habanero though, and I suspect they don't offer minor customizations as Mark does.

Monday, January 6, 2014

Neuvation is Closed

Neuvation Cycling is closing.  According to John Neugent's daily missive,

  • 2014
  • Neuvation Cycling has shut its doors.  I am not at liberty to discuss the details but do plan on opening up another wheel business by early spring.  At that time, all the elements willing, I will be able to honor warranties and wheel protection plans from Neuvation Cycling.
  • If you are in need of a Neuvation specific part in the mean time, please feel free to contact me at  and I will do whatever I can to help out.
  • Any orders placed after Friday, Dec ember 20th have not been processed nor the credit cards run.  All attempts have been made to get any warranties completed and I am not aware of any credits due customers
  • It’s been a lot of fun and I expect to be back up to full steam in the early spring.  I will be doing occasional newsletters just to stay in touch.
  • I fully expect to get literally hundreds of e-mails in response to this announcement (I have lots of truly great customers) so please be a little bit patient if it takes a few days to get back to you.  I am personally doing great and really looking forward to 2014 and lots of new opportunities.
  • Thanks very much for all of your support – John Neugent

Not sure yet whether my Christmas carbon fork and bib shorts order made it in in time to be shipped or did not.

I say shucks.  I have been a fan of John's black-label bicycle hardware business, selling gear comparable to high-end branded gear for a fraction of the cost.  After years of buying small things here and there, I finally last year splurged on a fully built semi-custom bike for P__, a beautiful Neuvation FC600 with Ultegra 6800 and blue accents on the bike and wheels.  I have had in the back of my mind the plan to do so for myself but never got around to it.

One wonders what was the final straw.  The missive is ambiguous -- "I'm not at liberty to discuss the details" could refer to the decision to close or could refer to the plans to open a new shop focussing on wheel-building.  My guess, based largely on his own frequent commentary, is that John's business plan, which relied on arbitraging the spread between cost and retail price that branded bikes enjoy, could not keep up with online discounting, and he was unable to convince enough customers that a word like "Cervelo," "Trek," or "Cannondale" printed 17 times on a frameset in bling fonts added precisely zero tangible value.  I don't know how much John actually took home on the $2100 carbon monocoque with Ultegra 11-speed that I bought P__, but it couldn't be much -- and he had rent to cover, two employees to compensate, and the other business expenses that can't be trivial.  For example, insurance expenses for small bike/parts manufacturers must be a bear.  Of those expenses, rent is the only one that scales very well.

Thus, I feel a certain regret that I only shopped Neuvation's fire sales.  We all talk about supporting the LBS, but the same might be said for hidden gems that are in no sense local.  (Neuvation was based in San Luis Obispo, California.  I only once made it to the shop, over Thanksgiving week 2013.)  In my experience most LBSs are annoying; one isn't quite worth their time unless planning to spend at least $5000 on a bike.  I never got that vibe from John, who happily shipped me a gorgeous $250 frameset and even took the time to compliment me on my build job after I sent him a picture.  

On the upside, this will save me a solid 15' daily surfing his website for bargains.

Friday, January 3, 2014

A few doo-dads that tempt me . . .

Showers Pass Veleau.  This is a water bladder in a seat-mount pack with a little additional room for accessories.   I have brainstormed, tried, and brainstormed again the perfect combination of water and gear packaging for longer rides.  The Veleau is basically two full water bottles carried out of the way, leaving both cages for coffee and powdered drink and tools in the out-of-the-way underside cage.  On the other hand, it's 3 1/2 pounds of water mounted way up high, which might be annoying when climbing.

Tool rolls.  They're certainly pretty!
EH Works Tool Rolls/Seat Bags.  These are designed by Erica from Seattle who, as best as I can tell, is selling exactly one product.  I do wish she'd branch out, because the design factor on this product would translate well to a handlebar roll bag.  The Mopha is a nice tool roll with room for two tubes, a patch kit, allen wrenches, a tire lever, a chain tool and a spoke wrench.  It's got a classic look and is frankly much more user friendly than a seat bag, which I'm always able to load while at home before a ride and never able to reload after half-emptying it while changing a tube.  EH works bags aren't cheap, but I bought two nonetheless.  One for the Gunnar and one for the Neuvation.  I'll probably get a third for the Cervelo fixie that's coming on line this winter.  (Thankfully, Erica offered me half-off after I made a positive testimonial on her site.)

Schwalbe One 28c Tubeless Clinchers.  I love the look of the Schwalbe tires.  Their reputation for nice rolling and fair durability is well established.  And I've been considering going tubeless for some time now (as I've written here before).  Why not do it all at once and get the new Schwalbe One Tubeless Clinchers?

Schwalbe One Tubeless Clincher, coming 2014.

Chain keeper.  I can't make a real case for this jobbie, which attaches around the seat-post and prevents the chain from dropping to the inside of the small ring, but I'm a sucker for just how elegant a solution it is.  The problem, of course, is that so long as I keep my bike tuned this is a solution looking for a problem.  I can see it on a cyclocross rig or a mountain bike being used aggressively but I can't see using it on a road bike under normal use conditions.

Kuat NV Hitch Rack.  This is a high design factor tray-style hitch rack that holds two bikes and can be extended to hold four.  The reviews are glowing, including from buyers who switched from the Thule T2 and preferred the Kuat's anti-rattle mechanism.  It appears to be a tad lighter than the comparable offerings from Thule and Yakima -- Kuat lists an assembled weight of 49 lbs.  That sounds about like what I've read for the T2 (~50 lbs.), although this forum has one poster noting a 20# advantage for Kuat.  (I doubt that assertion.)  My problems with hitch racks:  (1) I need a trailer hitch.  Not for the new car, I think.  (2) Hanging 50 lbs. plus bike (plus hitch) off the back end of the car is a big negative for weight balance.  Silly, I know, as one is not motoring for enjoyment when carrying bikes.  (3) They cost a lot.  The cheapest I can find the Kuat at Amazon is $523.  I did find one on eBay for $419.  

Revelate Tangle Bag.  Pretty sure Damon has one of these.  I have the original version of the road-biking frame bag, the Jandd Frame Pack, and I'm very pleased with it.  What always amazes me about the Jandd, though, is how quickly 188 cubic inches fills up.  Revelate's large Tangle bag offers 350 cubic inches, easily enough for food and emergency clothing for a full night with no services.  On the other hand, going for Jandd is (1) the packing discipline that comes from having less space to fill (and the consequent weight advantage) and (2) the price -- a mere $30, versus $60 for the Revelate offering.

King Cage Kargo.  Another design to help fill that wasted space in the main triangle, King Cage offers this elegant water-bottle plus tool carrier. At $40 it is not out of whack with other water bottle cages.  I like that it keeps the weight of metal tools down low (relative to a seat bag or a trunk rack) and centered.  I'm annoyed by the clips, which apparently permit one to support the tool carrier with a strap over the top tube.  Why not just a small shelf at the bottom?

King Cage Titanium.  This is an easier sell.  At $60, which isn't cheap but isn't crazy, it's lighter (28g) and much better looking than most carbon cages on the market.  My only concern:  how will titanium match the Ultegra silver color and my new silver headset?  Yes, I've actually descended to the point of asking whether it matches.

Wednesday, January 1, 2014

Analyzing the DV Moratorium

Picture pulled from the Death Valley National Park website.
Damon pointed out the Death Valley moratorium on organized events pending the outcome of a safety study.  Here from the Death Valley National Park website:

  • Sporting Event—Bicycle or Running - Effective immediately Death Valley National Park will temporarily discontinue issuance of running and bicycling event permits. Future event permits will not be considered until a thorough safety evaluation of this type of activity has been completed. Activities that already have a fully-executed permit will go on as planned. Our website will be updated once we have completed this safety evaluation.
This obviously includes Badwater and Furnace Creek 508, as well as other events organized by the same promoter (Adventure Corps), and, one must assume, other promoters as well.  When Sam and I were there last March we chatted with a couple who were on a van-supported tour, which may have been this REI tour, run six times in consecutive fall and winter months.  If REI is having permit trouble it is not yet advertising that reality on its adventure travel website, which as of December 25 continues to allows scheduling of 2014 Death Valley bike tours.

I was curious whether the park would tell me anything more, so I sent this e-mail to the contact person for special use permits in Death Valley:
  • Dear Ms. Wehmeyer:
  • I am investigating the possibility of a permit for a long-distance duathlon race in Death Valley in late 2014.  I see the restriction on running and biking events.  Would Park management apply that restriction to a multi-sport event like duathlon (running, cycling, running) as well?
  • Many thanks for your assistance.
  • Max
Perhaps obviously, my assertion of a planned new event was a complete fabrication.  Debbie Wehmeyer's reply:
  • Max,
  • If you have checked our website recently you will see that we are now accepting applications for sporting events that will occur after October 2014.  Please feel free to submit an application, however, since we have not completed our safety evaluation of these types of events, I am not able to tell you what conditions might apply to your event.
  • Debbie Wehmeyer
  • Office of Special Park Use
  • Death Valley National Park - Park Headquarters
  • PO Box 579 or 271 Highway 190
  • Death Valley, CA  92328
  • 760-786-3241
  • Web:
What does all this mean?  How can it be explained?  Is it justifiable?  In short, what does a lawyer say about this?  Based on a morning's digging, here's my tentative analysis.

Park Governance

Under federal law (16 USC ss. 1-__), National Parks are mini-kingdoms run by Park Superintendents, who are themselves hired and subject to termination at will by the Director of the National Park Service.  The NPS Director is a presidential appointee who appears to answer directly to the Secretary of the Interior and who has ultimate "supervision, management, and control" of the parks.  (16 USC s. 2.)

Death Valley National Park is, as of 1994, a National Park subject to the above governance structure.  It has been a federally protected area and part of the park system since being named a national monument in 1933.  According to the Desert Protection Act:
  • The Congress hereby finds that--
  • (1) proclamations by Presidents Herbert Hoover in 1933 and Franklin Roosevelt in 1937 established and expanded the Death Valley National Monument for the preservation of the unusual features of scenic, scientific, and educational interest therein contained;
  • (2) Death Valley National Monument is today recognized as a major unit of the National Park System, having extraordinary values enjoyed by millions of visitors;
  • (3) the monument boundaries established in the 1930's exclude and thereby expose to incompatible development and inconsistent management, contiguous Federal lands of essential and superlative natural, ecological, geological, archeological, paleontological, cultural, historical ad [sic] wilderness values;
  • (4) Death Valley National Monument should be substantially enlarged by the addition of all contiguous Federal lands of national park caliber and afforded full recognition and statutory protection as a National Park; and
  • (5) the wilderness within Death Valley should receive maximum statutory protection by designation pursuant to the Wilderness Act.
(16 USC 410aaa (error in original).)

It is not unambiguous how plenary is a Superintendent's derived power.  In some places Congress legislated with incredible specificity in the manner of a Congress regulating federal real property assets before the modern regulatory state was born.  For example:  16 USC s. 17e, passed in 1930, titled "Care and removal of indigents; disposition of dead persons," instructs: 
  • The Secretary of the Interior is authorized, in his discretion, to provide, out of moneys appropriated for the general expenses of the several national parks, for the temporary care and removal from the park of indigents, and in case of death to provide for their burial in those national parks not under local jurisdiction for these purposes, this section in no case to authorize transportation of such indigent or dead for a distance of more than fifty miles from the national park.
The image of a Park Service van dumping a load of dead -- or indigent -- Badwater runners 50 miles outside the DVNP boundary is amusing if macabre!  Section 15 of Title 16 permits the purchase of waterproof footwear and considering it to be Park Service equipment.  A few other amusing hyptechnical examples are spread throughout Chapter 1 of Title 16.

At least one such specific instruction is not irrelevant.  According to section 18 of Title 16, the Secretary of Commerce "shall encourage, promote, and develop travel within the United States, including any Commonwealth, territory, and possession thereof, through activities which are in the public interest and which do not compete with activities of any State, city, or private agency."  Legislative history of the section indicates the Commerce Secretary in 1940 received power that had previously belonged to the Secretary of the Interior.  "Shall" is a word frequently used in federal legislation meaning "does not have discretion not to."  My quick and dirty analysis of that amendment:  Congress instructed in unambiguous terms that National Park resources were to be marketed and sold to enhance nationwide tourism.  (One wonders, though it is beyond my scope here, who were the lobbyists pushing such a legislative provision.  Railroads?  Oil companies?  Even airlines?)

Despite specific statutory commands and consistent with regulatory authority granted under section 3, the National Park Service has promulgated a healthy set of regulations, contained with Title 36 of the Code of Federal Regulations, with this purpose:

  • §1.1   Purpose.
  • (a) The regulations in this chapter provide for the proper use, management, government, and protection of persons, property, and natural and cultural resources within areas under the jurisdiction of the National Park Service.
  • (b) These regulations will be utilized to fulfill the statutory purposes of units of the National Park System: to conserve scenery, natural and historic objects, and wildlife, and to provide for the enjoyment of those resources in a manner that will leave them unimpaired for the enjoyment of future generations.

Permitting Races

The regulations also make clear that races like Badwater and Furnace Creek require a Superintendent-issued permit, which may be issued subject to a handful of vague limitations.  The Park Service calls these "Special Use Permits," or "SUP"s.

Park Service regulations define the "special events" for which permits may be issued to include "sporting events."  Limits on permits for special events include the necessity that there be "a meaningful association between the park area and the events."  Permits may not be issued if the special event "would . . . present a clear and present danger to the public health and safety."

  • §2.50   Special events.
  • (a) Sports events, pageants, regattas, public spectator attractions, entertainments, ceremonies, and similar events are allowed: Provided, however, There is a meaningful association between the park area and the events, and the observance contributes to visitor understanding of the significance of the park area, and a permit therefor has been issued by the superintendent. A permit shall be denied if such activities would:
  • (1) Cause injury or damage to park resources; or
  • (2) Be contrary to the purposes for which the natural, historic, development and special use zones were established; or unreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic, or commemorative zones.
  • (3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the administrative activities of the National Park Service; or
  • (4) Substantially impair the operation of public use facilities or services of National Park Service concessioners or contractors; or
  • (5) Present a clear and present danger to the public health and safety; or
  • (6) Result in significant conflict with other existing uses.

(Bolded language mine.)  As written, the regulation leaves substantial discretion to the Superintendent.

Authority to Impose Moratorium

The governing portions of the CFR expressly grant the park Superintendent the power to impose a closure for, among other things, the protection of public health and safety.  36 CFR s. 1.5 reads in pertinent part:

  • §1.5   Closures and public use limits.
  • (a) Consistent with applicable legislation and Federal administrative policies, and based upon a determination that such action is necessary for the maintenance of public health and equitable allocation and use of facilities, safety, protection of environmental or scenic values, protection of natural or cultural resources, aid to scientific research, implementation of management responsibilities, or the avoidance of conflict among visitor use activities, the superintendent may:
  • (1) Establish, for all or a portion of a park area, a reasonable schedule of visiting hours, impose public use limits, or close all or a portion of a park area to all public use or to a specific use or activity.
  • (2) Designate areas for a specific use or activity, or impose conditions or restrictions on a use or activity.
  • (3) Terminate a restriction, limit, closure, designation, condition, or visiting hour restriction imposed under paragraph (a)(1) or (2) of this section.

(Bolded language mine.)  The permitting regulation, section 2.50, is more directly on point.  Because special events require a permit and a permit "shall be denied" if one of the six listed bases exists, the Death Valley National Park Superintendent need not rely on the closure regulation and may simply deny special event permits outright.

Whether a Superintendent's discretion exercised under Sections 1.5 and 2.50 is defensible depends on (1) whether the regulations are consistent with the Park Service's legislative authority, under the Supreme Court's famous Chevron v. Natural Resources Defense Counsel authority, (2) whether the closure is "consistent with applicable legislation and Federal administrative policies," (3) whether the closure meets one of the bases for imposing a use restriction under section 1.5, and (4) whether the closure is free from one of the required bases for permit denial under section 2.50.

An aggressive challenge to the closure attacks it on all four grounds.  As discussed below, my quick conclusion is that such a challenge would be difficult to mount but might be pursued both politically and on narrow legal grounds.


The Supreme Court's 1984 decision in Chevron v. Natural Resources Defense Council, 467 U.S. 837, addressed the issue of how much a court should defer to an agency regulation promulgated under statutory authority.  Per Chevron:
  • When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.  If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation.  [Second], if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute. 
(Notes omitted, bolded language mine.)  Chevron argument would assert that Congress spoke unambiguously to outline the extent of the Director's, thus the Superintendent's, administrative authority, and actions beyond that express outline exceed congressionally granted authority.  The argument would hold that "clear congressional intent" limits the Park Service's regulatory authority to narrow areas like disposing of dead bodies and buying waterproof footwear.

Played out that far, the argument is demonstrably pretty lame.  Particularly one must recognize Congress's broad grant of regulatory authority in 16 USC s. 3.  In pertinent part:
  • The Secretary of the Interior shall make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks, monuments, and reservations under the jurisdiction of the National Park Service . . . .
The Park Service does not stretch that language to set closures and public use limits as allowed by 36 CFR s. 1.5.

Consistency with Applicable Legislation and Federal Administrative Policies

The Park Service's own regulations limit any closures or use limitations to those "consistent with applicable legislation and Federal administrative policies."  Actions by the DVNP superintendent that exceeded her charge would violate the regulation.

It is difficult to see how this regulatory provision adds anything to the rule of federal law announced in Chevron and discussed above.  If an action was inconsistent with applicable legislation but was permitted by regulation, it would be impermissible as exceeding the Parks Director's statutory mandate.

The only seemingly obvious basis for inconsistency with federal law is the instruction that the Secretary of Commerce promote tourism.  A moratorium on races is the antithesis of such a requirement.  Unfortunately, the Park Superintendent does not report to the Secretary of Commerce.  Nothing about failing to issue certain Special Use Permits undermines the Secretary of Commerce's tourism-promotion obligations.  That said, one seeking to challenge the Death Valley race moratorium might gain from petitioning the Secretary of Commerce under its tourism-promotion authority.  A jurisdictional squabble at the Cabinet level between Secretary Penny Pritzger (Commerce) and Sally Jewell (Interior) might raise this issue from the weeds of wacky ultra-endurance athletes to decision-makers' eye level.

Regulatory Provisions

Finally, the moratorium must be consistent with section 1.5 and not be required by section 2.50 of 36 CFR.

Section 1.5 allows closures and limits "for the maintenance of public health" and "safety." The closure or limit may include closing the park to an activity or otherwise imposing conditions on the activity.  Consistent with that, Section 2.50 requires that permits be denied if the activity would "[p]resent a clear and present danger to the public health and safety."

One obvious challenge is to assert that the race in no way implicates "public health and safety," impacting instead only the participants in the race.  Entry into Adventure Corps events is tightly controlled.  "The Badwater 135 is, and always has been, an invitational race."  As an example, I am capable-enough marathoner to be able to run Boston pretty much whenever I choose, but I do not even approach the minimal entry standards for Adventure Corps' flagship race, the Badwater 135 ultramarathon.  Adventure Corps is pretty -- make that very -- hard-nosed about this:

  • Those submitting an application to compete in the 2014 Badwater Ultramarathon must meet at least ONE or more of the following THREE Qualifying Standards. Please review these Qualifying Standards to determine which standard(s) describes you, if any. You will be required to select at least one of these when you submit your race application. Those who do not meet at least one of these standards MAY NOT apply.
  • Let us be more clear on that last point:
  • To protect the integrity of the event and the safety of those involved, as well as be fair and consistent in the enforcement of all rules and regulations, we don't make exceptions for anybody. If you do not meet one of the Minimum Qualifying Standards, DO NOT APPLY and please do not ask us for permission to apply.

(Emphasis theirs.)  Yowza.  Entry into the Furnace Creek 508 is not quite as challenging but nor is it trivial.  With this kind of entry control, can these in any way be called "public" races?  A far-reaching analogy immediately jumps to mind:  one loophole to drinking and smoking in places of public accommodation laws in localities that had them used to be to establish "private clubs," such that by paying a $5 entry fee I could drink, or smoke, in private.  (Clarification:  drinking clubs in Salt Lake City, the example most prominent in my mind, are described in the linked page as "a think of the past."  Too bad, too.  One used to feel like he or she was frequenting a speak-easy.)

Consistent with my tentative interpretation of the phrase "public heath and safety" to exclude private events, at a few places in the U.S. Code the phrase is used to mean something other than harm to a particular individual.  Example one:  there is a Sentencing Guideline enhancement for a "threat to health and safety, or injury to any person," under the Cyber Security Enhancement Act of 2002 (6 USC 145(b)(2)(B)(viii)).  It's a real stretch to learn much from a Cyber Security law and even more to import meaning from the United States Code into the Code of Federal Regulations, but courts do tend to interpret legislative phrases consistently.  Example two: in 10 USC s. 1034, protected communications by members of the armed forces (whistleblowers) include those made to an Inspector General relating to threats to the public health and safety as well as those that threaten the life of a person.  (10 USC 1034(c)(2)(B), (C)).  And in example three, potential paydirt:  in Title 16 itself, "public health and safety" is at least once used in conjunction with "protect[ing] the interests of individuals living in the general area."  (16 USC 3167(a)(4)(C), (5).)  This example still is not perfect -- it's a US Code section, not a Code of Federal Regulations section, and it seems specifically targeted to parks near or coincident with Native Alaskan subsistence lands -- but it does continue to suggest that "public health and safety" does not mean private uses.  (A similar search in the CFR, with particular attention to Title 36, would be valuable.)


Adventure Corps seems to have moved on for 2014, scheduling a new Badwater route (which looks, if anything, harder than the original) and "a brand new race route" for the FC508.  We won't know until the completion of the safety study whether organized competitive events will return to Death Valley in 2015.  Should it be necessary to challenge a permanent or semi-permanent moratorium, strategies and legal arguments do exist.  To my view two approaches are the strongest:  first is to petition the Commerce Department based on the tourist impact of Adventure Corps event and second is to challenge, both administratively and in court, the Superintendent's authority to limit park use to such closely controlled events as those Adventure Corps is promoting.

Why do I care?  I'm just now 40.  The new five-year plan definitely includes a crack at both of these signature races.