Prohibited Uses and Exceptions: How Much Manipulation of Wilderness Is Too Much?

• Author: Gordon Steinhoff
• Pages: 45-61

45

Chapter 3

Prohibited Uses and Exceptions:

How Much Manipulation of

Wilderness Is Too Much?

The Wilderness Act of 19641 prohibits a number of uses in federally

designated wilderness areas. e Act prohibits commercial enterprises

within these areas. In accordance with the Act, there shall be no per-

manent or temporary roads, no use of motor vehicles, motorized equipment,

landing of aircraft, or placement of structures or installations. e Act states,

[T]here shall be no commercial enterprise and no p ermanent road within

any wi lderness area designated by this Act and, except a s necessary to meet

minimum requirements for the administration of t he area for the purpose of

this Act (includi ng measures required in emergencie s involving the hea lth

and safe ty of persons with in the area), there shall be no temporar y road, no

use of motor vehicles, motorized equipment or motorboats, no landing of air-

craft, no other form of mechan ical tra nsport, and no structure or install ation

within any such are a.2

With its prohibition of structures, the Wilderness Act apparently prohibits

trails and bridges within wilderness a reas. “Structure” is dened as some-

thing that is constructed, that is, formed by combining parts, for example

a building.3 A bridge is obviously a structure. It is fair to say that a wilder-

ness trail is a structure. A properly designed trail is constructed out of se v-

eral parts, including a surface layer and water bars (logs, boards, or rock s)

installed across the trail at an appropriate angle for shunting water o t he

surface. Cross ditches, parallel ditches, a nd cu lverts (wood, metal, or ber-

1. 16 U.S.C. §§1131-1136.

2. Id. at §1133(c). Concerning the prohibition of commercial enterprises, the Act allows commercial

services within wilderness “to the extent necessary for activities which are proper for realizing the

recreational or other wilderness purposes of the areas.” See id. at §1133(d)(5).

3. M-W, available at http://www.merriam-webster.com/dictionary/structure.

Note: is chapter is adapted from e Wilderness Act, Prohibited Uses, and Exceptions:

How Much Manipulation of Wilderness Is Too Much?, 51 N. R J. 287

(Fall 2011).

46 Naturalness and Biodiversity

glass) buried beneath the trail a re used to direct water from the surface.4 For

trails that cross wet areas, sections of t rail may be elevated using turnpikes

(ll supported by logs or at rocks). With its prohibition of structures, the

Wilderness Act apparently prohibits trails, bridges, wooden walkways (pun-

cheons) across muddy areas, replaces, toilets, fences, stockholding facili-

ties, and other commonly used facilities within wilderness areas. Yet federal

agencies with management responsibilities for wilderness assert in t heir wil-

derness policies that trails are acceptable within these areas. As argued by

experts in wilderness management, trails provide critical access to wilderness,

and bridges, wooden walkways, replace s, toilets, etc. are important for visi-

tor safety and protecting wilderness resources from heavy use.5 Such facilities

are not obviously overdevelopment of wilderness.

e Wilderness Act includes an important clause that allows exceptions

to some of the general prohibitions. e Act species (in the passage quoted

above) that temporary roads, motor vehicles, structures and installations, etc.

are prohibited “except a s necessa ry to meet minimum requirements for the

administration of the area for the purpose of this Act.”6 As will be discussed,

this obscure clause has been widely misinterpreted by federal agencies so that

it is far too vague, allowing manipulations that are too extensive and destruc-

tive of wilderness resources. In the Kofa Wilderness Area in Arizona, for

example, the U.S. Fish and Wildlife Ser vice relied on this exception clause

in its proposal to construct watering facilities (“guzzlers”) for deser t bighorn

sheep.7 e project led to litigation. is chapter will present a more precise

and correct interpretation of the exception clause. Properly interpreted, the

Wilderness Act a llows needed ma nipulations of wilderness such as the con-

struction of trails and bridges, yet rules out actions that are too destr uctive.

The Wilderness Act’s Exception Clause

In their wilderness management text, Chad Dawson and John Hendee inter-

pret the Act’s exception clause as allowing generally prohibited uses when an

action involving such uses is the “minimum necessary to ma nage the a rea

4. See David N. Cole, Ecological Impacts of Wilderness Recreation and eir Management, in W

M: S  P  R  V 395, 425-26 (Chad P.

Dawson & John C. Hendee eds., Fulcrum Group 4th ed. 2009); see also W H 

B V, T C  M N (U.S. Forest Serv. 2007).

5. Cole, supra note 4, at 416-17, 425-26; C P. D  J C. H, W M-

: S  P  R  V 460-63 (4th ed. 2009).

6. 16 U.S.C. §1133(c). e Act clearly conveys that such prohibited uses are allowed when “required

in emergencies involving the health and safety of persons within the area.” Id.

7. See Wilderness Watch v. U.S. Fish & Wildlife Serv., No. CV-07-1185-PHX-MHM, 2008 WL 4183040

(D. Ariz. Sept. 8, 2008).