Prescribed Fire in Wilderness Areas in a Post-Chevron World

• Pages: 10173-10185
• Date: 01 March 2025
• Published date: 01 March 2025
• Author: Kaylinn Charnley
• Subject Matter: Environmental Law

ARTICLES

MAR/APR 2025 ENVIRONMENTAL LAW REPORTER 55 ELR 10173

PRESCRIBED FIRE IN WILDERNESS

AREAS IN A POST-CHEVRON WORLD

by Kaylinn Charnley

In order to manage California wilderness areas to preserve their natural and untrammeled character, as

required by the Wilderness Act, federal land management agencies should adopt interpretations of the Act

that allow prescribed burning and Indigenous cultural burning in areas where it existed pre-colonialism.

Interpreting the Act this way will likely lead to lawsuits, but land management agencies should be able to

defend against these even in a post-Chevron legal landscape because of California’s unique history, the his-

tory of the Wilderness Act, and recognition of the importance of prescribed burns in forest management in

California before and after the Act was passed.

SUMMARYSUMMARY

Kaylinn Charnley is a 2025 J.D. Candidate at the University of California, Davis School of Law.

Our campaig ns against wildres have be en so successful

that we now must “unsell” t he false impression th at all

res are bad.1

What is “wilderness”? It has been dened as “a tract or

region uncultivated and uninhabited by human beings.”2

Wilderness might also be thou ght of as “undeveloped,”

“natural,” “primeval,” “untrammeled,” or as areas where

“man himself is a visitor who does not remain.”3 ese val-

ues are enshrined in one of the United States’ most sig-

nicant moves toward protecting nature, the Wilderness

Act of 1964.4 e Wilderness Act prescribes rules for the

establishment and management of wilderness a reas, which

are granted heightened protection under the Act.5 is

includes prohibitions on roads, mechanized transporta-

tion, commercial enterprises, and a requirement that land

managers “[preserve] the wilderness character” of wilder-

ness areas.6

Wilderness Watch and othe r environmental grou ps have

interpreted these standards to mea n that federal land man-

agers cannot use prescribed re for ecos ystem management

in wilderness areas, a nd the groups have led lawsuits to

that eect.7 K evin Proescholdt, Wilderness Watch ’s con-

1. Miron L. Heinselman, Vegetation Management in Wilderness Areas and Prim-

itive Parks, 63 J. F 440, 444 (1965).

2. M-W D, Wilderness, https://www.merriam-web-

ster.com/dictionary/wilderness (last visited Feb. 2, 2025).

3. e Wilderness Act of 1964, 16 U.S.C. §1131(c).

4. 16 U.S.C. §§1131-1136.

5. Id.

6. Id. §1133.

7. Amended Complaint for Declaratory and Injunctive Relief at 2-3, Wilder-

ness Watch v. National Park Serv., No. 1:23-cv-01398-ADA-BAM (E.D. Cal.

Nov. 17, 2023) [hereinafter Wilderness Watch v. NPS—Complaint]; Kevin

Proescholdt, Conservation Director, Wilderness Watch, Public Comment on

servation director, described prescribed res as “human

manipulations of the wilderness ecosystem” that “are the

kind of manipulations that the Wilderness Ac t militates

against.”8 is concept of wilderness as a land free from

human inuence is pervasive in the American mythos, but

it is part of a harmfu l false narrative.9 Often, lands charac-

terized as “wild” have been actively managed by humans

for thousa nds of yea rs.10

More than 80% of earth ’s land area shows signs of

direct human inuence over the past 12,000 years, and

this is almost cer tainly an underest imate.11 Humans have

been a part of nature in what is now known as California

for millennia, living on the land and actively inuencing

its ecosystems.12 In many areas of Ca lifornia, Indigenous

groups used re intensively to shape the landscape.13 Over

time, California’s ora adapted to this intentional use of

the Grass Valley Watershed Restoration Project 3-5 (May 29, 2018), https://

wildernesswatch.org/images/wild-issues/2018/05-29-2018-WW-Com-

ments-Pine-Valley-Mtn-W-burn.pdf [hereinafter Wilderness Watch Public

Comment]; Wilderness Across Two National Forests reatened With Burning

and Cutting, W W (Nov. 17, 2024), https://wildernesswatch.

org/842-448-wilderness-acres-threatened-with-burning-and-cutting/.

8. Wilderness Watch Public Comment, supra note 7, at 3-5.

9. See W C, U G: R  H

P  N 69-90 (1st ed. 1995).

10. Erle C. Ellis et al., People Have Shaped Most of Terrestrial Nature for at Least

12,000 Years, 118 PNAS e2023483118, at 2 (2021).

11. Id. at 7.

12. ere is signicant academic debate on the dates for the peopling of the

Americas, with some scholars claiming as recent a date as 16,000 years ago

(Bastien Llamas et al., Ancient Mitochondrial DNA Provides High-Resolution

Time Scale of the Peopling of the Americas, 2 S. A 4, 5 (2016)), and

others claiming that humans rst settled on the continent 130,000 years ago

(Steven R. Holen et al., A 130,000-Year-Old Archaeological Site in Southern

California, USA, 544 N 479, 482 (2017)).

13. J W.  W  ., F  C’ E 388-

92 (2d ed. 2018) [hereinafter F  CA E]; Tony Marks-Block