A recent case from the Conseil d’Etat (French Supreme Court) has been seized upon by some mayors as a green light to start snowmobile operations in the mountains. A spokesman for the Mayor’s association said “snowmobiles are now authorized on any public road that has snow’. Despite some tolerance of the activity by courts, the new ruling is nothing of the sort.
The Green movement in France is somewhat less developed than those in northern Europe but nowhere is its voice stronger than amongst people with a passion for the mountains and nothing gets it motivated like motorised sport. Last year ski tourists caught the French helicopter company SAF in an illegal heliski drop well within French borders and the pressure group Mountain Wilderness lost no time lodging a complaint with the Grenoble courts.
Snowmobiles are another source of irritation. On the 15th of February Mountain Wilderness organised a protest at the Col de Larche on the French/Italian border and at Tessin in Switzerland.
Effectively banned in France since 1991 except on limited, defined trails the ruling by the Conseil d’Etat has confirmed the conditions in which snowmobiles may be used. The litigation was initiated by two different plaintiffs, the National Syndicate of Snowmobile Professionals and the Association of the Mayors of Ski Resorts (ANMSM).
In support of their claim, the two plaintiffs sought an order that a circular letter issued by the Ministry of Territory Organisation on 30th November 2000 be declared null and void. In that circular letter, the Ministry sets out, in compliance with a statute relating to “the circulation of motor vehicles in natural areas” and which came into force on 3rd January 1991, the conditions in which more specifically, snowmobiles may be used.
The relevant provisions of the January 1991 statute were integrated a few years ago in the French Environmental Code and state as follows:
“ art.1: in order to ensure the protection of natural areas, it is forbidden to drive motor vehicles other than on the state’s public roads as well as on the counties’]and towns’ public roads, or on rural lanes and private roads where the public is allowed to drive motor vehicles”.
“art.2: the prohibition set out in art.1 does not apply to vehicles which are used to fulfil a duty of general interest… The prohibition does not apply to vehicles used for professional research reasons, exploitation or maintenance of natural areas and this prohibition is not binding on people who wish to drive motor vehicles for private reasons on land which they own.... The use of land for the exercise of motorised sports is submitted to the provisions of article L442-1 of the Environmental Code”.
“art.3: the use, for leisure, of motor vehicles designed to drive snow is forbidden”.
“art.4: the above mentioned prohibition does not apply to land referred to in the third paragraph of art.2”.
Clearly speaking, the use of snowmobiles in ski resorts is strictly restricted by the 1991 statute and the circular letter of 2000 (the aim of which was supposed to clarify the statute...). This is of course a major drawback for ski resorts who hoped to derive a good income from a popular activity. Who has never dreamt of riding a snowmobile in a lovely forest covered in snow?
The important issues raised by the Conseil d’Etat are as follows:
- local authorities, the state’s representative (Préfèt), mayors or a county’s representative (Président de conseils généraux) do not have authority to depart from the application of the 1991 statute and 2000 circular letter. Therefore, they do not have authority to - either generally or exceptionally - allow people to drive snowmobiles in circumstances that contravene the texts applicable.
- if it is possible (for mayors) to allow the use for leisure purposes of snowmobiles, the area where that sport will be exercised must be strictly and precisely defined. It must be a closed area, far from any housing, with its own access road and car park. Should the area cover more than 4 hectares, the formalities are even stricter.
- if art. 2.5 of the circular letter allows snowmobiles to convey food or equipment to refuges, it excludes the right to transport clients to the refuge. The plaintiffs alleged that such a service serves the general interest but the Conseil d’Etat did not agree. It seems that the Conseil d’Etat may have been of the opinion that transporting people served a commercial purpose more than a general interest.
- however and last but not least! - the Conseil d’Etat did declare null and void the provisions of art.1.1.1 of the circular letter of 2000 according to which “a road which is temporarily closed by a local or police authority loses its status of ‘road opened to public driving’ and is thus submitted to the general prohibition edicted by art.1 of the 1991 statute”.
The cancellation of this particular provision means that if a local or police authority closes down a state, county or local road to the public (because for instance the weather conditions make it too dangerous to ordinary motor vehicles), the authority in charge may still allow “motor vehicles designed to drive on snow” on this road.
For economic/financial reasons, this court decision is of course very disappointing for ski resorts who nevertheless tried to put a positive spin on matters by invoking the principle of free movement set out in the provisions of the European Covention on Human Rights.
The cancellation by the Conseil d’Etat of one of the provisions of the circular letter has been interpreted by ANMSM as meaning that snowmobile operators can carry passengers to mountain refuges over public roads closed by snow. However this appears to be in contradiction with the provisions of article 2.5 of the circular which they were unsuccessful in getting declared null and void. This article clearly states that snowmobiles can take food to refuges but excludes that they are used to carry passengers, such usage being considered as leisure.
-- Geraldine Gadbin
Geraldine Gabin is qualified as a French and English lawyer.
PisteHors.com is a member of Mountain Wilderness, France