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

AuthorLeshy, John D.
PositionIV. Implementing the Act: Key Emerging Issues E. Fabulous Success through VII. Conclusion, with footnotes, p. 588-622 - The Wilderness Act at 50
  1. Fabulous Success

    Perhaps the most notable thing about implementation of the Wilderness Act is how the NWPS has grown by leaps and bounds. From the original fifty-four charter areas comprising nine million acres, (258) it now includes more than 750 areas extending over nearly 110 million acres, (259) a fifteen-fold increase in the number of areas, and a twelve-fold increase in acreage. Originally thirteen states were represented in the system. (260) Today, there are wilderness areas in forty-four states across the country. (261) The NWPS includes nearly one out of every six acres of federal land administered by the four federal land agencies, and almost one out of every twenty acres in the entire United States. (262)

    Significantly, the vast majority of these additions did not result from the 1964 Act's agency study process. Proposals to add lands to the NWPS were freely formulated by conservationists and steered through Congress by friendly members, sometimes over the opposition of the managing federal agency. (263) The spread of the NWPS across the country has responded to Leopold's call, made in one of his earliest writings on the subject, for wilderness areas in each state in order to make the "wilderness experience more accessible to those who desired it." (264) While many of these proposals were based at least in part on agency inventories, some were based on "citizen inventories," conducted by wilderness advocates outside the agency. Often, a threat of resource development spurred wilderness advocates and supporters in Congress to work to enact legislation putting the threatened lands in the NWPS. When the New York Port Authority eyed New Jersey's Great Swamp, a National Wildlife Refuge, as the site of an airport, opponents successfully persuaded Congress to put about 3,700 acres in the NWPS in 1968, the first refuge lands to be so designated. (265) Other threats prompted advocates to push the Endangered American Wilderness Act through Congress in 1978. (266)

    In acreage terms, the vast bulk of NWPS expansion has come in Alaska, mostly through the landmark Alaska National Interest Land Conservation Act of 1980, or ANILCA, which in a single stroke tripled the size of the NWPS. (267) It put, for example, 18.5 million acres of National Wildlife Refuge land in the NWPS (more than twenty times the acreage of Refuge land in the NWPS in the lower forty-eight); thirty-two million acres of National Park System land (ten times the amount of NPS acreage in the NWPS in the lower forty-eight), as well as five million acres of national forest lands. (268) Even today, with substantial additions to the NWPS in the lower forty-eight states since 1980, Alaska still accounts for more than half of the total NWPS acreage (fifty-seven million acres, in forty-eight units).

    The scale of the NWPS likely exceeds even the most optimistic expectations of the framers of the Wilderness Act. But it would be a mistake to measure the Act's success only by lands formally part of the NWPS. The Act's legacy fairly includes acreage in various study phases for NWPS consideration, described above, as well as acreage being managed substantially to preserve roadless qualities, like the lands subject to the Forest Service's Roadless Rule, discussed further below. When these other lands--managed largely for protection of their wild qualities in the shadow of the Wilderness Act--are included, the total approaches two hundred million acres, or nearly 10% of the land area in the nation. All told, the Act is a majestic achievement, truly remarkable for a nation with a deep commitment to economic development, rapid transportation and private property rights, and infused with a distrust of government, particularly the national government.

    1. CHANGES IN FEDERAL LAND POLICY SINCE 1964

    As the Wilderness Act evolved through implementation, the rest of the federal land management world did not stand still. To the contrary, it changed too, in ways that have had, and will continue to have, significant impact on the future of legal wilderness.

  2. Broadening of Agency Authorities and Appetites to Protect Natural Values on Their Lands Outside the Wilderness Act's Umbrella

    The four major federal land management agencies--the Forest Service, Park Service, Fish & Wildlife Service, and Bureau of Land Management--have undergone some very significant changes since 1964. (269) Two of these changes are particularly noteworthy. One has to do with the agencies' general management responsibilities. The other involves the proliferation of the practice of labeling particular tracts of land under their care for special kinds of management. Each is addressed in turn.

    The marching orders of the agencies are much less distinct from each other than they were in 1964. There are still some important differences, to be sure. The Forest Service and the BLM operate under a "multiple use" mandate, (270) where all kinds of uses--up to and including mining, energy development, timber harvesting, livestock grazing--are allowed. (271) By contrast, the National Park Service and the U.S. Fish & Wildlife Service are legally considered "dominant use" agencies, with NPS primarily tasked with protecting nature for future generations and serving visitors, while the USFWS focuses primarily on protecting wildlife and their habitat, while promoting wildlife-related recreation. (272) Mineral development and commercial logging are generally forbidden in the park system, and greatly discouraged in the wildlife refuge system. (273)

    But there remains an enormous degree of commonality among the four agencies' management. Each of these agencies still has authority to build roads and take numerous other actions that can destroy "wilderness" qualities. (274) More important for present purposes, however, is the other side of the coin: namely, that each of these agencies has general authority to take actions to protect "wilderness." (275) That authority has been buttressed substantially since 1964 by laws like the Endangered Species Act of 1973 (ESA) (276) and the National Environmental Policy Act of 1969 (NEPA), (277) which apply equally to all these agencies. (278)

    Taken together, those changes mean that all four agencies pay much more attention to wildlife habitat and other environmental values than they did when the Wilderness Act was enacted. Also, greater ecological understanding makes them much more aware of the interconnectedness of landscapes, which means all four agencies pay much more attention than they formerly did to what happens on lands outside their boundaries. All are increasingly concerned, for example, with issues like wildfire and invasive species. Also, all four agencies now have fairly elaborate systems to prepare plans governing management of areas under their care. These plans typically address issues of development versus preservation, such as road-development and ORV use, in geographic planning areas under their stewardship. Finally, the Wilderness Act itself has brought the four agencies into closer alignment--as noted earlier, a substantial percentage of each of their lands is being managed under the Act, or under its umbrella (in various study phases), or in its shadow (pursuant to measures like the Roadless Rule, discussed further below). (279)

    This broadening and substantial homogenizing of management mandates has meant that preserving natural conditions--the overriding concern of the Wilderness Act--has become much more of a focus for all the federal land managing agencies than it was when the Act was passed.

    Moreover, agencies today have a much wider array of management tools than were available in 1964 to protect natural values, including "wilderness" qualities, on lands they manage. Federal lands can be designated as "areas of critical environmental concern," (280) "research natural areas," or "critical habitat," or otherwise managed according to the dictates of section 7(a)(2) of the Endangered Species Act, or protected in a myriad of other ways. While some tools, like those in the Endangered Species Act, are designed for a specific purpose--there, protecting imperiled species--they can sometimes provide strong protection for wild qualities. (281) All these tools can be and often are brought to bear to limit or prevent road-building, logging and other more intensive forms of development on many acres of federal land. (282)

    These post-1964 developments mean that the choice of whether and how to protect "wilderness" qualities of a particular tract of federal land is no longer simply one of whether to put it under the umbrella of the Wilderness Act. That is now just one of many tools available to serve that end.

    The Antiquities Act, which authorizes the President to protect "objects of historic or scientific interest" on lands "owned or controlled by the United States," (283) deserves special mention in this context. Strictly speaking, it does not belong in the category of post-1964 innovations. Predating the Wilderness Act by almost six decades, it has long been used by presidents of both political parties to fashion strong and durable protections for large tracts of federal land. (284) At first glance, this might seem surprising, because the Act limits the President to designating "the smallest area [of federal land] compatible with the proper care and management of the objects [of historic or scientific interest] to be protected." (285) But that language proved supple enough to allow larger landscapes to be protected. As long ago as 1920, a unanimous Supreme Court, in an opinion by Justice Van Devanter from Wyoming, had no difficulty upholding President Theodore Roosevelt's use of the Act to protect nearly a million acres of the Grand Canyon. (286) In the years since enactment of the Wilderness Act, presidents have vigorously used it to protect wild qualities of vast tracts. Their decisions have been uniformly upheld by the courts. The most prominent...

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