Friday, January 31, 2014

Non-Running Streak

I last ran on December 10.  I am really trying to view this as an accomplishment, rather than a failure.  I last exercised eleven days ago. I'm trying to view this as therapeutic rather than catastrophic.  I keep looking for progress on the various inflammations that are supposed to be heeling.  I'm also trying to take the long view.  However, as we all know, in the long term  . . .

Saturday, January 25, 2014

I ran so I can ...

A Classic set up for tee shirts and hats sported by runners.  The answers usually are "eat anything" and "drink beer".  For me, the obvious answer is "nap".

Just woke up from a stunning 2 1/2 hour nap following the F3 Chicago Winter Half-Marathon.  This was probably the worse conditions I have ever run in.  18 degrees tops, 20 plus MPH mostly cross winds the whole way, although at one point there appeared to be cross-winds coming from the east and west at the same time.  Terrible course conditions which F3 isn't responsible for including way too much ice, thick snow elsewhere on the path, tons of slush (from salting), and heavy mud in one key stretch where some elite runners were tumbling all over the place. 

F3 is responsible for the fact that they can't seem to figure out how to place mile markers or timers on a course in bad weather.  Once again, whatever mile marker they use could not be placed on the course because of the wind. Fair enough, but spray painting the snow in random places is not a reasonably effective substitute. 

I don't know why they can't just bring 10-13 large pieces of cardboard and some sharpies and make signs to give to some of the (very cold) volunteers at the intersections and drink stations or at least tell them what mile they are working at.

I couldn't feel my hands for the first 3 miles or my very wet feet for the last 2.  Finished in an unimpressive 2:20 (but roughly my marathon pace).  While I wasn't going to win any awards, I also don't understand why the organizers would move the awards ceremony from the comfy pub for the after party to the frigid race site.

F3 is 0-2 in my book.  Willing to give them a chance for warm weather races but they seem to specialize in winter races.

Congrats to my Loyola colleague Matt Sag who came in under 2 hours in these dreadful conditions.

It's happening . . .

US Airways bought American Airlines in a 363(b) sale conducted by the bankruptcy court.  Many, myself included, opined widely and loudly that this was a bridge too far in airline consolidation.  Evidence disseminated by AAI demonstrates the unsurprising result that past airline mergers have been followed by price increases and capacity reductions (a necessary corollary of the increases).  My own experience from the Delta-Northwest merger was that Northwest flights from IND-DCA, my commuting route, ceased, and the competitive $187 round-trip fare on which I used to count increased dramatically.

But then industry maverick US Airways, while charging me $300 at the minimum for my flights, took the salutary step of putting first class cabins in all of its regional jets except for the very smallest.  The Embraer 170s that populated the IND-DCA route all had cabin upgrade capability.  Now that my weekly flying was limited to US Airways, I amassed enough cred. with the airline to be upgraded on perhaps 90% of my flights.  It may seem like a luxury, but after 8 1/2 years of commuting for work it has become something of a necessity.

I've been waiting for the other shoe to drop.  After buying American, US Airways (now American) surely would have more profitable routes for its nicely accoutered aircraft.  DFW-LAX?  ORD-LGA?  And sure enough, for the first time in years, my pre-flight e-mail tells me "no upgrades available on this flight", which is not the same as the "you didn't make the cut" e-mail.  It means instead planes with no first-class cabin will be serving my route.

$300 for the pleasure of an annoying trip without the pre-take-off coffee and human-sized seating is a tad rich.  If the price drops closer to the competitive level, I'll deal with cattle car service -- but I'm not holding my breath.

Monday, January 20, 2014

Ready to rumble

Did an icy slushy 8.5 yesterday in very nice 35 degree sunny weather.  The Polar half is this coming Saturday.  Weather conditions look ok, but worried about the ground conditions. The Oak Street curve is a sheet of bumpy ice and part of the course in both conditions.  With sub zero predicted for Tuesday through Thursday, yesterdays slush will add a nice layer of permafrost to the current ice field. Since there is no real alternative wondering what race organizers are going to do.  I don't have lots of confidence in them based on their performance in he December 8K where high winds simply baffled them. 

Wednesday, January 15, 2014


So, I haven't really run since just before Christmas.  I've barely cycled.  I am spending more time with doctors than at the gym, but at least, for the last four days I've managed to put in some quality time in the pool.  I also did a little bit of work on the stair master (works the glutes and hamstring without loading the heel) and some weights.  Can't tell if it's helping . . .

Monday, January 13, 2014

Can't Believe I am the Healthy One

So there is nothing actually wrong with me at the moment except a thumb injury which doesn't affect running and the fact I am old and don't have a good winter base established.  But I do have a half marathon coming up on January 25th.  I plan to run as long as the wind chill doesn't fall below 12-15 (above zero).  Today was around 40 and partially sunny so I got out for 7.5 miler going north in Lincoln Park.  The main problem was left over ice and giant puddles of slush which I avoided all but two times.  The problem is that this is my longest run since forever.  I plan to do one more longish run of 8.5 or so if the weather holds the next few days.  What do you all think about then doing a half with that as my longest training run?  I sure I can finish but I think its going to be ugly.  Ugly I can take, but not interested in ugly, not fun, and injured as the result.


Friday, January 10, 2014


Okay, so I finally broke down and went to the doctor.  Diagnosis: "your heel is pretty inflamed."  That's actually good news.  The x-ray didn't show anything. Next week, I'll get an ultrasound, to look at soft tissue. In the meantime, she suggested and we're now trying a "homeopathic injection."  Apparently, it's injectable "Traumeel".  I've used Traumeel before, and it seemed to help, so here's hoping that injecting it in about 8 places (ouch, ouch, ouch) will help even more.

No running until after the ultra-sound, but they seem to have a menu of treatments to try.  Woohoo!!

Tuesday, January 7, 2014

Viaduct Trail 100

My buddy J__ just signed up for this race up in NE Pennsylvania scheduled for late July.  I'm on board to provide food, snacks, and, in the second 50 miles, pacing assistance.  My own one attempt at the 100-mile distance in October 2009 ended with a whimper not long past half-way.  Unlike me, J__ has a pretty good ultrarunning background with four JFK 50-mile completions.  Here's hoping he finds more success than did I.

Monday, January 6, 2014

Below Zero

Trusting that such a paltry bounty will not tempt anybody to do something he/she should not, I'm offering a libation of choice to any co-blogger who can post about a run with an average temperature of below zero!

Friday, January 3, 2014

Not what I wanted to hear

I think today was foretold when I slipped on ice in the parking lot walking into PT this morning. (We didn't get as much snow as NY, Chicago, etc. but it was the kind of cold that makes headlines in Washington.) I fell onto the outside of my knee and I think I probably just bruised it, but knowing my luck, it'll hurt for a year.)

So I finally made it inside, but things kind of went downhill from there. I hadn't been to PT since Dec. 16 and I think both of us knew that if I hadn't seen any improvement since then, we were going to be at a crossroads. (This is the PT that feels pretty strongly that if treatment doesn't work within a month to six weeks, it's time to seek another opinion.) He wasn't totally negative, but urged me to make an appointment to see an orthopedist who could order me an MRI. Apparently he is worried about something called peroneal subluxation which is best explained by someone other than me (Google it). The weird thing is that it's usually caused by a severe ankle sprain, and as far as I know, that hasn't happened to me, and I've had peroneal pain since last February.) If I get a clean MRI, he said, it might mean that my chronic pain is "self-limiting."


In any case, I of course now have to get an MRI and am imagining all sorts of havoc going on in my foot. While not convenient, I am going to see a well-respected foot and ankle ortho at Georgetown next Thursday. Georgetown is where I had my knee surgery 6 years ago and I trust those guys. So...onto the next.

Racing in Death Valley

Picture pulled from the Death Valley National Park website.
Our occasional commenter D__ pointed out the Death Valley moratorium on organized events pending the outcome of a safety study.  I was utterly naive about the topic, so I did a little digging before analyzing it at and I thought I'd repost that analysis here.

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.