Legal wilderness: its past and some speculations on its future.

AuthorLeshy, John D.
PositionI. Introduction through IV. Implementing the Act: Key Emerging Issues D. Evolving Threats to Existing and Potential NWPS Areas, p. 549-588 - The Wilderness Act at 50
  1. INTRODUCTION II. MAJOR FORCES LEADING TO THE WILDERNESS ACT OF 1964 III. THE WILDERNESS ACT A. The Act's Creation of Study Areas for Possible NWPS Expansion B. The Wilderness Act's Compromises on Mining, Water Development, Grazing, and Inholdings IV. IMPLEMENTING THE ACT: KEY EMERGING ISSUES A. Tailoring the Idea of Wilderness to Conditions Across the Nation: Of "Purity" and "Sights and Sounds" B. The Emergence of Categories of Protection for Land's Wild Qualities C. The Question of Minimum Size D. Evolving Threats to Existing and Potential NWPS Areas E. Fabulous Success V. CHANGES IN FEDERAL LAND POLICY SINCE 1964 A. Broadening of Agency Authorities and Appetites to Protect Natural Values on Their Lands Outside the Wilderness Act's Umbrella B. New Congressional Categories or Labels for Protecting Natural Values on Tracts of Federal Land VI. THE FUTURE OF WILDERNESS A. The Future of the Act's Protections for Existing NWPS Areas B. The Future of Proposals to Add New Areas to the NWPS C. The Impact of a Destabilizing Climate VII. CONCLUSION I. INTRODUCTION

    The common concept of wilderness as landscapes without much human presence or impact is mostly a creation of human culture. (1) Since 1964, federal law has defined and embedded that understanding. (2) The fiftieth anniversary of the Wilderness Act is an opportune moment to think about its future. It requires a close examination of its meaning in law, which is what I propose to do in what follows. This turns out not to be a simple task, because the legal meaning has evolved and become considerably more complex over the last half-century. In the course of my examination, I will touch on a number of topics explored in other papers in this symposium, but I will keep my focus on the politics of wilderness. This is for one simple reason: Labeling a tract of land as legal wilderness is a political act, and therefore politics has shaped the system of legal protection of wild areas.

    Law is intimately related to culture, of course, and the culture has gradually embraced the idea of preserving wilderness--a process that, in William Cronon's words, loaded the idea with "some of the deepest core values of the culture that created and idealized it...." (3) The cultural understanding of wilderness obviously has influenced, and continues to influence, the legal meaning of wilderness. While my focus here is the legal framework for protecting and managing wilderness areas, it is necessary to keep the cultural context in view.

    The Wilderness Act's uncommonly poetic language, inspirational to generations of wilderness lovers, reflects the cultural understanding of "wilderness":

    In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possession, leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness. (4) A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized 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. An area of wilderness is further defined to mean in this chapter an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition, and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. (5) Eloquent, to be sure, but also, considered as a legal text, a bit contradictory. Although the italicized phrases seem straightforward enough, the remainder of the definition is replete with qualifying phrases ("primarily," "generally," "substantially") that depart from the ideal. Also, the language that such areas must "generally appear[] to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable," is more concerned with surface presentation than with what can be revealed by detailed examination, informed by scientific understanding.

    The more that is learned about humans and nature, the more this contradiction becomes apparent. It is now generally appreciated, much more than in 1964, that human impact is found everywhere on earth. (6) Despite their relatively recent appearance in the earth's history, humans have contributed to and are continuing to cause the appearance and disappearance of species all over the planet. (7) Detritus from civilization is ubiquitous, in microscopic forms like traces of heavy metals and persistent organic pollutants. (8) Few if any areas of the globe are free from aircraft noise and contrails. (9) Most ominously, global climate is being altered by human-caused buildup in greenhouse gases. (10) No place, including wilderness areas preserved by law, is free from such influences today.

    Following the statute's concern with appearances, advocates for legal protection of wilderness have maintained that wilderness areas cannot contain the more obvious imprints of human endeavor. These include things like road building and mechanical transport and their close relatives, commercial enterprises. The latter include, besides conventional industrial activity, recreational developments associated with what Edward Abbey, a fierce wilderness advocate, called "industrial tourism." (11)

    "[W]here to draw the line," Justice Holmes famously said, "is the question in pretty much everything worth arguing in the law." (12) Like all major products of the political process, the Wilderness Act reflects many compromises among disparate interests and, inevitably, some ambiguity. It also partially, and imperfectly, charted a course for future expansion of the system of wilderness areas it created. How those compromises, ambiguities and imperfections have played out on the ground can tell us a good deal about what the future of wilderness might be.

  2. MAJOR FORCES LEADING TO THE WILDERNESS ACT OF 1964.

    The campaign to enshrine protection for "wilderness" in law is a kind of American epic, a landmark in the evolution of American culture. Although the idea was mentioned earlier, (13) its beginning is usually traced back to around 1920, to the actions of career civil servants in the executive branch of the national government. (14) Their efforts built upon what was then a rather recent development in American life--wide public embrace of the notion that the United States should permanently retain large tracts of land in federal ownership, and manage them in the overall national interest.

    Most of this land was in the eleven western states and in what was then the territory of Alaska. Within the prior decade, the national government had also launched a program to acquire significant chunks of land east of the Mississippi, mostly for watershed and wildlife protection. (15) The movement to retain federal lands in the west, and to acquire lands into federal ownership elsewhere, flowered in the so-called "progressive" era, when the idea that the government had the capability to improve the human condition was widely embraced. (16)

    The progressive era was winding to a close when the notion that the national government should preserve some of its land in a wild condition was put forward. (17) At the time, the generally accepted characterization of the settlement of the "New World" by Europeans was a process by which civilization occupied areas that heretofore were largely subject to natural forces, and only thinly populated by Native Americans. (18) "Wilderness" was, during the European settlement period, understood to mean "wasteland," a condition to be overcome, and so the subjugation of the wilderness and of Native American populations was widely celebrated as a majestic American achievement. (19) Given this cultural history, the idea that Americans should protect and preserve some of the remaining "wilderness" would not find easy acceptance. One of the movement's major architects, Aldo Leopold, acknowledged in his first essay on the subject that serious discussion of this idea "will seem ... rank heresy to some minds." (20) He was right. Nearly a half-century went by before that heretical notion gained majority support in the U.S. Congress.

    Beginning around 1920, a remarkable cadre of U.S. Forest Service employees, led by Leopold and Arthur Carhart and some others, invented a designation called "primitive area," (21) and gradually, over the next dozen years or so, persuaded the agency's leaders to approve affixing it to a few million acres of national forest land. These areas were not selected for biodiversity values, but because they had abundant natural scenery, few obvious signs of human presence, ample opportunities for more "primitive" forms of recreation, and little if any commercial value. (22) Congress was not involved; the matter was worked out exclusively within the executive branch. (23) In the decades that followed, across large changes in society, this "heretical" campaign to preserve something of what Americans had been laboring long and hard to overcome found increasing acceptance.

    From the beginning, the movement's primary impetus was a reaction to the growth and spread of the automobile and road building. (24) The automobile age was well underway...

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