A preservation paradox: political prestidigitation and an enduring resource of wildness.

• Author: Zellmer, Sandra B.
• Position: Public Lands Management at the Crossroads: Balancing Interests in the 21st Century

1. INTRODUCTION II. WILDERNESS AND WILD LANDS: NECESSITY OR ANACHRONISM? A. Biodiversity Values of Wild Lands B. Anthropocentric Values of Wild Lands III. FOUNDATIONAL LEGAL CANONS: THE CONSTITUTIONAL POWER FOR PRESERVING FEDERAL PUBLIC LANDS AND THE MUSY PRINCIPLE A. The Property Clause B. MUSY, Biodiversity, and Sustainable Development IV. PRESERVING WILD LANDS THROUGH CONGRESSIONALLY DESIGNATED WILDERNESS AREAS A. Wilderness Act Designation Criteria B. Forest Service and BLM Wilderness Areas C. The Continuing Relevance of Wilderness V. PRESERVING WILD LANDS THROUGH EXECUTIVE BRANCH INITIATIVES A. Presidential Preservation 1. Implementation of the Antiquities Act 2. The Efficacy and Durability of National Monument Declarations B. Rulemaking, Planning, and Agency Discretion 1. Primitive Areas, RNAs, and Other Administrative Preserves a. National Forest Primitive Areas b. RNAs c. Late Successional Reserves and ACECs 2. The Roadless Area Conservation Rule VI. PROCEDURAL ASPECTS OF LEGISLATIVE AND EXECUTIVE PROCESSES A. Does Legislated Wilderness Reflect "Democracy at Work"? B. Are Executively Decreed Preserves "Undemocratic"? C. Do Agency Preservation Initiatives Upset the Balance? VII. CONCLUSION "[The wilderness idea is] mortally wounded by the withering critique to which it has been lately subjected.... [Yet it is] by all accounts, ... the most powerful antidote to ... exploitation in the environmentalists' cognitive arsenal." (1) I. INTRODUCTION

   A battle over the preservation of unroaded wild lands has been raging throughout the history of public lands management. During the past decade, the controversy has escalated to even greater heights, with ever increasing pressure on ever more limited natural resources, accompanied by ever changing political responses. The battle has been joined at remarkable places like the Grand Canyon and the Sonoran Desert in Arizona; Jackson Hole, Wyoming; the Giant Sequoias of California; Steens Mountain, Oregon; and Otero Mesa, New Mexico.

   The foremost federal wild land preservation statute, the Wilderness Act of 1964, (2) is now forty years old. By authorizing a network of congressionally designated "untrammeled" wilderness areas on public lands, the Act has proved invaluable for protecting special areas from the most intensive forms of intrusion by humankind. (3)

   Years ago, wild land activist Edward Abbey proclaimed that "wilderness needs no defense, only more defenders." (4) Today, however, critics assert that, like Moses's biblical sojourn in the wilds of Sinai, forty years of wilderness expansion is quite enough. (5) In recent years, Congress has been slow to designate wilderness areas, and the Bush Administration has refused to identify new wilderness study areas for inclusion under the Act.

   During the Clinton Administration, the President and his agencies employed a variety of techniques for identifying and protecting wild places on federal lands without having to rely on Congress. The most notable and broad-sweeping involved the designation and protection of national landscape monuments and roadless conservation areas. Both initiatives were highly controversial, but neither is unprecedented. In fact, an extensive array of executive preserves already existed, created over the course of the past century through presidential orders as well as agency rulemaking and planning processes. Examples include research natural areas, late successional reserves, and areas of critical environmental concern. Many of these areas have been or could be considered for official wilderness status. Many of them are especially rich in biodiversity. And many of them have faced and continue to face significant development pressure.

   Development interests and proponents of strong state and local authority insist that executive preserves are, in effect, a new federal land grab that displaces the fundamental principles of multiple-use management. They also claim that, by designating an expanding mosaic of administrative preserves, the executive branch has unlawfully and undemocratically created "wilderness," a function explicitly reserved to--and best carried out by--Congress.

   Members of the preservationist camp can find fault with executive preservation initiatives as well. The current administration's refusal to continue with Clinton-era strategies to protect roadless areas and national landscape monuments indicates executive branch initiatives may not be the best vehicle for accomplishing sustainable preservation ends. Yet the cumbersome and compromise-ridden legislative process has not fulfilled the Wilderness Act's goal of "securing an enduring resource of wilderness." (6) Executive efforts have been an essential means of filling the nation's preservation gaps.

   This Article considers both the need for wild land preservation and the effectiveness of legislative and executive processes for preserving wild lands, focusing on multiple-use lands, specifically the United States Forest Service (Forest Service) and United States Bureau of Land Management (BLM) systems. It assesses substantive and procedural strengths and weaknesses of wilderness areas, national monuments, roadless conservation areas, and other types of preserves within the existing multiple-use framework.

   Substantive concerns center on the effectiveness of federal preservation initiatives with respect to contemporary land management norms, particularly biodiversity and sustainable development. The preservation of natural features and communities on federal lands is a critical component of sustaining ecological structure and function, biological integrity, and human communities. On purely anthropocentric grounds, wild lands provide opportunities for solitude, nonmechanized recreation, and quiet--an ever diminishing commodity in an increasingly urban world.

   Any initiative that relies solely on federal lands cannot provide a comprehensive preservation strategy for the nation, (7) but federal land preserves can be both a logical and effective first step. As the nation's largest landowner, the federal government should be the initial and even the principal focal point for an integrated biodiversity strategy, (8) The Wilderness Act represents the beginning of the modern preservation era in federal lands policy, but the preservation agenda is far from complete. Existing federal laws and land management policies "are neither a strong web nor a coherent strategy, but rather a patchwork of halfway measures, interstitial tinkering, and missed opportunities for conserving biodiversity." (9) In spite of the Wilderness Act, the ratio of lands in preservation status to nonprotected lands in the United States is miniscule. (10) Additional federal land preservation tools, including presidential and agency action, are necessary.

   As for human uses and expectations, preserving wild lands is an important and lawful engine of change toward sustainable development on multiple-use lands. The multiple-use sustained-yield (MUSY) principle that dominates the management of public lands has evolved significantly over the years, in part due to wild land designations but more importantly due to the evolving expectations and demands of the public. Professor George Coggins claims that, as a governing principle, MUSY is dying, because the creation of wilderness and other "dominant use zones" effectively preempts the land managers' discretion to allow development. (11) Plenty of scholars and activists would applaud its passing, but in all likelihood the reports of MUSY's death are greatly exaggerated. The MUSY standard shows signs of having morphed beyond its production-oriented roots into something more like sustainable development, an overarching objective of international law norms. As in ecology, evolution and change in the law are not only inevitable; in some contexts they are essential. (12) As for MUSY, adaptation toward sustainable development is a positive step.

   Significant procedural concerns are also implicated by legislative and executive decision-making processes for preserving federal wild lands. Process-oriented objectives include predictability and visibility, public involvement and acceptance, and political and judicial accountability. Legislation is said to be the most democratic form of decision making,

   where elected representatives air proposals in a public forum and are directly accountable to their constituents. If Congress fails to pass significant new wilderness designations, arguably it is because the majority of the voters do not want more wilderness. This hypothesis does not stand up to close scrutiny, as the general public consistently expresses a desire for more wild preserves. It appears that local concerns--generally slanted toward development--tend to hold the designation process hostage in Congress.

   Administrative rulemaking and planning processes can also be stymied by local interests and industry "capture," but national preservation interests are more likely to be aired through the opportunities for public involvement provided by administrative processes, and judicial review is available to safeguard against arbitrary action. The primary deficiency of the administrative decision-making process may be the "analysis paralysis" or ossification that arises as a result of the very procedural requirements that serve as its strength. Unilateral presidential proclamations avoid this pitfall, and the ability to issue executive orders expeditiously is a crucial tool in the preservation toolbox. Executive orders, however, are the least visible and allow the least opportunity for public involvement. Procedural deficiencies are exacerbated by the diminished potential for meaningful judicial review of presidential decrees. Yet these shortcomings are far from fatal, both because the President is uniquely accountable and because presidential preservation proclamations simply preserve the status quo. Congress can step in after the fact...