Coming to terms with wilderness: the Wilderness Act and the problem of wildlife restoration.

• Author: Kammer, Sean

1. INTRODUCTION II. RECENT ECOLOGICAL INTERVENTIONS IN WILDERNESS AREAS FOR PURPOSES OF WILDLIFE RESTORATION A. Restoration of Bighorn Sheep in the Kofa Wilderness B. Tracking of Gray Wolves in the River of No Return Wilderness C. Restoration of Paiute Cutthroat Trout in the Carson-Iceberg Wilderness III. LEVEL OF JUDICIAL DEFERENCE OWED TO AGENCY INTERPRETATIONS OF THE WILDERNESS ACT IV. WILDERNESS ACT'S SUBSTANTIVE REQUIREMENTS AND PROHIBITIONS A. Proposing an Internally Consistent Definition of "Wilderness Character" B. Management of Wilderness V. RESOLVING THE PROBLEM OF WILDLIFE RESTORATION IN WILDERNESS AREAS A. Restoration of Bighorn Sheep in the Kofa Wilderness B. Tracking of Gray Wolves in the River of No Return Wilderness C. Restoration of Paiute Cutthroat Trout in the Carson-Iceberg Wilderness VI. CONCLUSION I. INTRODUCTION

   With its passage of the Wilderness Act (1) in 1964, Congress formally recognized as a policy of the United States the preservation and protection for present and future Americans "the benefits of an enduring resource of wilderness." (2) To fulfill this basic purpose, Congress established a National Wilderness Preservation System (NWPS) composed of congressionally designated wilderness areas, to be administered to ensure "the preservation of their wilderness character." (3) Using poetic language atypical of congressional legislation, Congress defined "wilderness"--a term with much historical and cultural baggage--as "an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain," as opposed to those areas "where man and his own works dominate the landscape." (4) Since the passage of the Act, federal land agencies have particularly struggled to balance the diverse values wilderness areas were meant to promote. (5) The Wilderness Act was designed to protect these areas from human "trammeling" primarily on a local scale by minimizing direct, intentional physical disturbances. Yet, serious questions are raised about the Act's conception of wilderness and its mandate to preserve "wilderness character" when the communities of life within the areas are deemed threatened not by direct and immediate human impacts, but by human-induced changes--such as climate change or habitat loss-occurring on a much wider scale. (6)

   Interventions to restore wildlife populations in wilderness areas have incited much controversy in recent years. Each instance has exemplified the dilemmas facing land managers (and wilderness advocacy groups) as they attempt to address the apparent tensions embedded in the legal regime of wilderness preservation. In one recent case, for example, Wilderness Watch and other environmental groups challenged the construction of water tanks in the Kofa Wilderness Area of Arizona. (7) Because the tanks were meant to rehabilitate and stabilize populations of bighorn sheep (Ovis canadensis) in the area, the U.S. Fish and Wildlife Service (FWS) defended its action as necessary for the conservation of that species, which it held to be an important purpose of that particular wilderness designation, if not of wilderness protection generally. (8) Wilderness Watch and the other plaintiffs took a different view, contending that the structures, rather than preserving wilderness character of the area, in fact--represented an intentional manipulation of the area's natural conditions--just the sort of management activity Congress intended to prohibit. (9) The court thus faced the apparent paradox between wildness and pristine naturalness. It had to choose between allowing land managers to deliberately manipulate the ecology of the area in order to preserve their view of what was "natural" to it--thereby depriving the area of its wildness--or restricting the ability of land managers to preserve their view of the "natural" in order to maintain the area's wildness or freedom from human control.

   This same sort of dilemma has also arisen in two other legal disputes-one involving the use of helicopters (generally forbidden in wilderness areas) to target and collar reintroduced gray wolves (Canis lupus irremotus) and their offspring in the Frank Church-River of No Return Wilderness Area in central Idaho, (10) and the other involving the use of chemicals to eradicate certain species of trout in order to restock streams in the Carson-Iceberg Wilderness of California with Paiute cutthroat trout (Oncorhynchus clarkii seliniris). (11) In each of these cases, the species being restored was regarded as "native" to the area and therefore essential to its "naturalness," a fact used by land managers to justify their ecological interventions, despite the corresponding loss of wildness and the harm to recreationists' "opportunities for solitude" in encountering the projects during their implementation. (12)

   This Article contends that, whatever "wilderness character" means, it cannot be something that depends upon the active manipulation of humans. While ecological interventions have been rationalized based on the threats posed to ecosystems and their constituent species from human-induced changes on a regional, national, or global scale, these threats do not justify further interventions into the natural processes within wilderness areas. These projects, whose purposes are to restore (or redirect) natural processes through the exercise of human agency, are precisely the intrusions of human culture that the Wilderness Act meant to exclude from these special places. (13) One of the often-overlooked anthropocentric purposes that motivated the protection of wilderness areas was that they were essential to inspiring humility--thought to be an endangered virtue in modern society--among human visitors. Land managers should exercise this same humility in dealing with wilderness areas, lest they lead us down a path to where there are no longer any places that are truly "wild," no places beyond the control of human institutions and cultural imperatives.

   This Article proceeds in four parts. Part H discusses the three controversies introduced above in more detail. Part III analyzes the level of deference courts should grant to agencies in interpreting and implementing the Wilderness Act, concluding that agencies have received (and indeed should receive) much less deference in the wilderness context than in other public land controversies. Part IV examines the substantive standards contained in the Wilderness Act, with particular attention paid to its purposes, its definitions of "wilderness" and "wilderness character," and its management directives for wilderness areas---directives which avoid the contradictions many scholars, courts, and agencies have pointed to as justifying wider discretion for agencies in implementing the Act. Part V applies these standards contained in the Wilderness Act to the three recent controversies involving attempts of agencies to intervene into the ecologies of wilderness areas for the purposes of preserving their "wilderness character."

2. RECENT ECOLOGICAL INTERVENTIONS IN WILDERNESS AREAS FOR PURPOSES OF WILDLIFE RESTORATION

   Federal land agencies have struggled to balance the diverse values that wilderness areas have been found to provide (including some perhaps not contemplated by the members of Congress who passed the legislation). In particular, serious questions are raised about the Act's definition of wilderness and its mandate to preserve the wilderness character when the ecological processes within the areas are deemed threatened, not by the direct and immediate human impacts that Congress intended to exclude from such areas, (14) but by human-induced changes occurring on a much wider scale. Measures that have been taken include the setting or containment of fires to replicate natural processes, (15) the eradication of invasive species with mechanical or chemical treatments, (16) the provision of artificial water supplies to aid certain species, (17) the promotion of native vegetative recovery (18) and curtailment of soil erosion, (19) and the reintroduction of native species, (20) Three recent examples of management interventions in wilderness areas to restore species populations perceived to be threatened by broader human-induced changes to the natural environment include: the construction of water tanks in the Kofa Wilderness Area to enhance water supplies for the declining populations of bighorn sheep, (21) the use of helicopters to aid in the restoration of gray wolf populations in the River of No Return Wilderness Area, (22) and the use of chemicals to eradicate "nonnative" species from streams so as to restore "native" trout in the Carson-Iceberg and Bob Marshall wilderness areas. (23) This Part provides some background material on these interventions.

   1. Restoration of Bighorn Sheep in the Kofa Wilderness

      In May of 2007, FWS authorized the construction of two water installations in the Kofa Wildlife Refuge and Wilderness Area for the aid of bighorn sheep populations. (24) This action was just one in a long line of legal actions taken to protect that species--a line which goes back to at least 1939, when President Franklin D. Roosevelt established the Kofa Game Refuge. (25) According to FWS and the Arizona Game and Fish Department (AGFD), bighorn sheep were "a driving factor in the establishment of the refuge," and maintaining their population numbers has been a management focus ever since. (26) In 1976, the Range was incorporated into the wildlife refuge system, and then in 1990, roughly 510,000 acres of the Refuge's 665,400 acres were designated as a wilderness area, arguably as an effort to give even greater protections for wildlife, including bighorn sheep. (27)

      A sharp decline in bighorn sheep from over 800 in 2000 to fewer than 400 in 2006 prompted FWS's and AGFD's heightened concerns for that species. Together, the agencies studied the problem and issued a report with their recommended actions in...