If a disabled sportsman asks a North Carolina state agency to let him use a motorized vehicle in an area where the agency's own administrative rules ban motorized vehicles, can the agency just waive the rule for that one person under the ADA, or does it have to go through formal rulemaking?

Plain-English summary

A disabled sportsman wrote the NC Wildlife Resources Commission asking for permission to drive a motorized vehicle on state game lands where motorized vehicles were banned under 15A N.C.A.C. 10D .0002(h). His position was that the ADA required the agency to accommodate him by waiving the rule in his case.

Executive Director Charles R. Fullwood asked the AG whether the WRC could legally do that, that is, waive its administrative rule on a case-by-case basis as an ADA accommodation.

Senior Deputy Attorney General Ann Reed and Assistant Attorney General Melissa L. Trippe said no, but with a path forward.

Their analysis ran in three steps.

Step 1: The ADA does not specify how accommodation must be achieved. Title II of the ADA prohibits public entities from discriminating against qualified individuals with disabilities, with or without "reasonable modifications to rules, policies, or practices" (42 U.S.C. § 12131(2)). But the ADA is silent on the mechanics. It tells agencies they have to accommodate; it does not tell them which procedural form the accommodation must take. When federal law is incomplete in this way, state law fills the gap. Wright v. Manatee County, 717 F. Supp. 1493 (M.D. Fla. 1989).

Step 2: The ADA only preempts state laws that provide less protection to disabled persons than the ADA itself. 42 U.S.C. § 12201. The North Carolina Administrative Procedure Act and the state fish-and-game laws do not "legislate the treatment of persons with disabilities" at all, so they are not preempted. They apply with full force to the question of how an agency must change its rules.

Step 3: The North Carolina APA bans ad hoc waivers. G.S. § 150B-19(6) provides that a rule cannot let an agency waive or modify a regulatory requirement unless the rule "set[s] forth" the "specific guidelines the agency must follow in determining whether to waive or modify the requirement." A blanket "we'll waive our rules when we think we should" is illegal under North Carolina administrative law.

Putting the three together: the WRC could not just hand out individual waivers of its no-motorized-vehicles rule to disabled sportsmen, even with the ADA as the justification. To accommodate the sportsman lawfully, the WRC needed to adopt a rule. The rule could be triggered by a petition for rulemaking (from the sportsman or anyone else) or by WRC initiative.

The rule would have to include explicit guidelines. The AG suggested a non-exclusive list:

• the type of disability the person had
• the environmental sensitivity of the game lands at issue
• the personal safety of all users of the area
• whatever other factors bore on the reasonableness of the accommodation

And the rule should include a dispute-resolution procedure for cases where an applicant disagreed with the agency's accommodation decision.

The opinion did not tell the WRC how to come out on the merits. It told the WRC that any answer had to come through proper rulemaking, not a single-shot waiver.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The North Carolina APA has been amended multiple times; G.S. § 150B-19 has been recodified and partly reworked, with G.S. § 150B-19.3 now addressing waivers in narrower terms. Federal ADA Title II regulations at 28 C.F.R. Part 35 have also been amended, particularly the 2010 revisions that updated mobility-device accommodation standards. The structural rule (that accommodations affecting underlying regulatory requirements proceed through rulemaking, not informal waiver) remains the dominant North Carolina practice.

Background and statutory framework

The North Carolina Administrative Procedure Act is the master script that governs how state agencies make rules. One of its core commitments is hostility to ad hoc waivers. If an agency wants the flexibility to waive a rule in particular cases, the agency must adopt a rule that explicitly spells out (a) the criteria for when waiver is appropriate, (b) the procedure for asking for a waiver, and (c) the standards the agency will apply. The reason is rule-of-law: if any agency staffer can grant or deny waivers based on personal judgment, regulated parties cannot predict the law in advance, similarly-situated people will be treated differently, and the rule itself loses its force.

The ADA layered a new accommodation demand on top of this framework. Title II told public entities they must modify rules, policies, and practices when necessary to allow a qualified individual with a disability to participate, unless doing so would fundamentally alter the program. From the ADA's perspective, the WRC's no-motorized-vehicles rule was potentially modifiable as a reasonable accommodation. But the ADA did not specify whether the modification should be a one-time individual exception or a permanent rule change.

The AG resolved that tension by reading the ADA as a substantive command and the NC APA as a procedural mechanism. The agency had to accommodate; the agency had to use rulemaking to do it. That preserved both the ADA's protective mandate and the NC APA's anti-arbitrariness commitment.

The accommodation considerations the AG flagged are recognizable as a balancing test: the nature of the applicant's disability against the impacts on the area and on other users. Environmental sensitivity of game lands is a real consideration; many game lands include wetlands, sensitive habitat, or terrain where vehicle traffic causes lasting damage. Safety of all users matters because game lands host hunting, hiking, and other activities that can interact poorly with motorized vehicles. A reasonable accommodation rule would have to weigh these factors against the applicant's mobility needs.

Common questions

Could the WRC have just denied the sportsman's request and not done any rulemaking?

The AG opinion did not directly address whether denial without rulemaking would have been a separate ADA violation. The agency's obligation under the ADA is to consider reasonable modifications, not to grant every one. A reasoned denial after consideration is permissible under federal law in many circumstances. But the opinion's clear message was that if the WRC was going to consider accommodating disabled users, the path was through a rule.

What does "petition for rulemaking" mean?

Under the NC APA, any person can ask an agency to adopt a rule by filing a petition that describes the proposed rule and the reasons for it (G.S. § 150B-20). The agency must grant or deny the petition. If granted, the agency starts the rulemaking process. The AG's opinion suggested this would be a workable channel for the sportsman to initiate the rule change.

Did the ADA require the WRC to allow motorized vehicles on game lands?

The AG opinion did not reach that question. The ADA requires reasonable modifications, not all modifications. Whether allowing motorized vehicles would have been required (or only permitted) under the ADA was a question for the rule itself to address through its substantive guidelines. The 2010 federal ADA regulations on "other power-driven mobility devices" subsequently provided more detailed federal guidance on this exact issue.

How long did it usually take an agency to adopt a new rule?

Under the NC APA at the time, rulemaking typically took six to twelve months from petition or initiation to adoption, including notice, comment, hearings, and Rules Review Commission review. Emergency or temporary rule procedures could compress that.

Source

• Landing page: https://ncdoj.gov/opinions/accommodating-a-person-under-the-americans-with-disabilities-act/

Citations

• 42 U.S.C.S. § 12131(2) (ADA Title II qualified individuals with disabilities)
• 42 U.S.C.S. § 12132 (ADA Title II discrimination prohibition)
• 42 U.S.C.S. § 12201 (ADA non-preemption clause)
• G.S. § 150B-19(6) (NC APA limit on waiver rules)
• 15A N.C.A.C. 10D .0002(h) (WRC motorized vehicle restriction on game lands)
• Wright v. Manatee County, 717 F. Supp. 1493 (M.D. Fla. 1989)

Original opinion text

September 15, 1993

Charles R. Fullwood Executive Director

N.C. Wildlife Resources Commission 512 N. Salisbury Street Raleigh, North Carolina 27604-1188

Re: Advisory Opinion to the Executive Director of the Wildlife Resources Commission ("WRC") from the Administrative Division, Service to State Agencies Section, as to whether an agency, in accommodating a person under the Americans with Disabilities Act ("ADA"), can allow an activity which is otherwise unlawful under the agency's duly promulgated administrative rules. 42 U.S.C.S. §§ 12131(2), 12132, and 12201; G.S. § 150B-19(6); 15A NCAC 10D .0002(h).

Dear Mr. Fullwood:

We are in receipt of your September 2, 1993, letter concerning a sportsman who is disabled and has requested permission from the WRC to operate a motorized vehicle on State game lands where motorized vehicles are prohibited by administrative rule. Specifically, you have asked whether an agency can, in effect, waive its administrative rules on a case-by-case basis in making accommodations under the ADA.

The ADA generally prohibits discrimination against individuals with disabilities who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provisions of auxiliary aids and services, meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 42 U.S.C.S. §§ 12131(2) and 12132.

While the ADA, in part, addresses the responsibility of the State to accommodate persons with disabilities, it is incomplete in terms of prescribing the means by which accommodation must be achieved. Presumably, accommodation can be achieved by whatever means are consistent with State law. While Congress can override State law by establishing the means for accommodation, here it did not. State law may be borrowed to effectuate Federal policy where the Federal law is incomplete. Wright v. Manatee County, 717 F.Supp. 1493 (M.D.Fla. 1989).

Nothing in the ADA invalidates or limits the remedies, rights and procedures of any other Federal or State law providing greater or equal protection for the rights of individuals with disabilities than are afforded by the ADA. 42 U.S.C.S. § 12201. The ADA, then, only preempts those State laws that address discrimination against persons with disabilities, and that provide less protection to those persons than does the ADA. Because the State Administrative Procedure Act and the State fish and game laws, among other State laws, do not legislate the treatment of persons with disabilities, they are not preempted by the ADA. Therefore, modifications made in an effort to accommodate persons with disabilities must conform to the requirements of these laws.

WRC's administrative rules contain a general prohibition against driving motorized vehicles on game lands except on roads constructed and maintained for vehicular travel and trails posted for vehicular travel. 15A NCAC 10D .0002(h). In response to either a petition for rulemaking or on WRC's initiative, qualified persons with disabilities who wish to use motorized vehicles in these areas may be accommodated by adoption of a rule. Such a rule must contain the guidelines to be used by the agency in waiving or modifying otherwise applicable regulatory requirements. A rule that allows an agency to waive or modify a regulatory requirement is prohibited by statute unless the specific guidelines the agency must follow in determining whether to waive or modify the requirement are set forth. G.S. § 150B-19(6). The guidelines might include the type of disability to which the person is subjected, the environmental sensitivity of the area subject to accommodation, the personal safety of all persons utilizing the area, and other factors necessary to the determination of the reasonableness of an accommodation. Such a rule should also contain the procedure for dispute resolutions.

We trust that this fully answers your questions on this matter. Please do not hesitate to contact us if we can be of any further assistance to you.

Ann Reed
Senior Deputy Attorney General

Melissa L. Trippe
Assistant Attorney General