Rhetorical traction: Definitions and institutional arguments in judicial opinions about wilderness access.

• Author: Schwarze, Steve

Almost every spring for the past eight years, I made a phone call to Maryland in order to get into Minnesota. An office in Maryland houses the reservation system for the Boundary Waters Canoe Area Wilderness, a one-million acre preserve in the northeastern tip of Minnesota that is the most visited unit of the National Wilderness Preservation System. This office acts as a medium of and barrier to my access to the Wilderness; it issues permits to groups of people wishing to enter the Boundary Waters, and it limits the number of parties that may enter at a given point on a particular day. Although the Wilderness is public land, I must first gain permission from a state institution to enter the Boundary Waters.

That permit is only one of the keys needed to unlock the door to the Boundary Waters. I also must pass through a ranger station on the day I enter to confirm my permit and ensure that I view a short video about the wilderness ethic of "Leave No Trace." Going into the wilderness does not mean merely entering a supposedly untainted, uninhabited area; it requires that people interact with the environment in ways that the Forest Service has deemed appropriate. Indeed, my yearly trips to the Boundary Waters involve more than just packing up my gear and heading north; more than catching fish and making campfires; more than escaping the sights and sounds of the city and relaxing in solitude. These trips require me to play by the rules set by the state. The rules and regulations, the permits and videos, all affect my sheer physical presence in the wilderness. Passing through the wilderness means passing through the state.

Wilderness, as it has come to be articulated in the United States, is neither an inherent quality of the natural world, nor a state of mind. Nor is it the cultural commonsense about wilderness, the dominant mode of speaking and writing about wilderness. For better or worse, wilderness is a construction of state institutions. Although environmentalists, philosophers and ethicists have written prolifically about the meaning of wilderness and its contradictions, (1) scholars have given far less attention to the question of how these meanings and contradictions get resolved by governing institutions for the practical purpose of managing wilderness areas. (2) This essay addresses that question by examining arguments produced by governing institutions that have a direct impact on the management and human experience of established wilderness areas. I take as my case studies the controversies concerning wilderness management in two areas: the Boundary Waters Canoe Area Wilderness in Minnesota and the wilderness port ion of Denali National Park in Alaska.

Specifically, I focus my attention on judicial opinions that address the issue of motorized access to the Boundary Waters and Denali. I examine judicial opinions because they are texts by which state institutions provide temporary resolutions of ongoing public controversies. Especially, in the last decade, individuals and interest groups have engaged in several controversies in order to influence public policy regarding the use of trucks, off-road vehicles and snowmobiles as modes of access and recreation on federal lands, including wilderness areas.

Advocates of motorized use have exploited ambiguity in wilderness legislation and management plans to gain rhetorical traction for arguments about motorized use in certain areas of desiguated wilderness. These arguments often get lodged in the courts, where ambiguities in policy get resolved by judicial opinions.

This essay demonstrates that judicial opinions rely on two related types of argument to resolve ambiguities in wilderness policy: definitional arguments and institutional arguments. Judicial opinions surrounding motorized use employ definitional arguments in order to clarify ambiguous policy prescriptions regarding wilderness management. However, these definitional arguments often get resolved through arguments about institutional authority. Decisions about which definition shall be accepted get supported by arguments about the specific governing institution that has authority to establish that definition. In fact, ongoing philosophical debates about the meaning of wilderness fade into the background as courts attempt to fix definitional authority within a particular institution. Within the courts, then, institutional arguments have primacy over definitional arguments. Institutional arguments provide justification for the court's resolution or deferral of definitional arguments.

Identifying these two types of argument and the relationship between them is useful for elaborating theories of rhetoric and argumentation and for assessing rhetorical strategies in current motorized use controversies. In terms of rhetorical theory, this essay contributes to ongoing discussions about the characteristics and functions of definitions in processes of argumentation. (3) It does so by specifying institutional arguments as a significant influence on definitions that get fixed as part of the policy process. Recent essays have identified other influences on definitions, such as political and economic interests (Schiappa 1996), racist beliefs (McGee), and the ideology of normalcy (Titsworth). Scholars also have identified a variety of influences on the definitions of wilderness and related terms in public policy (Callicott and Nelson; Nash; Oelschlager). While both the argumentation literature and the wilderness literature successfully discern forces that motivate particular definitions, the cases discussed in this essay point to another influence--arguments about institutional authority-that has little to do with the definitions themselves. That is, regardless of the beliefs and assumptions that might have contributed to definitions of "wilderness" or notions of what counts as an appropriate means of "access" to wilderness areas, the definitions that get fixed by judicial opinions are ultimately justified by the courts through the use of arguments regarding institutional authority. Thus, it is important for argumentation scholars to consider institutional arguments as yet another important influence on the resolution of definitional issues in policy arguments.

Second, this essay contributes to scholarship that explores institutional argument, especially in the realm of environmental issues (Doxtader; Peterson). It does so by showing how arguments about institutional authority function to negotiate the legitimacy of governing institutions. As Erik Doxtader has claimed in his work on institutional argument, "Discussions of particular policy choices often affirm the general authority of institutional practices of reasoning and codify norms of public interest" (185). In the cases I examine, policy prescriptions about motorized access ultimately turn on arguments about institutional authority. By explaining and clarifying the relationship between institutional and definitional arguments, I intend to show how institutional arguments operate as a specific form of argument that not only shapes the concrete execution of public policy but also contributes in complex ways to the legitimation of state power.

To the extent that these arguments contribute to the legitimation of state power, they also play an important role in the processes of hegemony that have drawn the attention of several theorists and critics in communication studies. This points to a third theoretical contribution of the essay; it suggests that studies of hegemony could benefit by accounting for the specific role that state rhetorics play in the process of consent formation. While many studies of hegemony have examined civil society rhetorics in order to challenge the notion of a monolithic, univocal "dominant ideology," this turn toward civil society has often neglected how state institutions contribute the hegemonic process. The motorized access cases show how institutional arguments intended to clarify the authority of state institutions can simultaneously erode the legitimacy of those institutions. If the analysis of hegemony is concerned with the process of negotiating consent to the established order, then it is imperative to analyze th e rhetorics by which the established order contributes to consent and dissent.

On a more practical level, my analysis can help critics and advocates assess arguments about motorized use on other public lands. Arguments about access in the Boundary Waters and Denali have re-emerged in other management controversies. The Interior Department's proposed ban on snowmobiles in national parks is an especially salient example of how arguments get taken up in new controversies. An Anchorage Daily News article about a 1999 lawsuit over snowmobile regulations in Denali encapsulates this argumentative move: "Both sides say the case could carry weight far beyond the borders of Denali. The debate has come to symbolize a much broader struggle over snowmachining in Alaska and in national parks across the country" (Kornarnitsky). Public arguments by advocates for motorized use provide clear evidence for such an assertion. Advocates have continued to pursue arguments about access during the process of developing the Winter Use Plan in Yellowstone and Grand Teton National Parks, proposed off road vehicle bans on other federal lands, and the Bureau of Land Management's proposed National Off-Highway Vehicle Strategy. In the conclusion of the essay, I briefly discuss how my analysis provides a useful point of departure for interpreting and intervening in other management controversies.

The essay is divided into three major sections. In the first two sections, I analyze the judicial opinions in the Boundary Waters and Denali controversies. I introduce each of these sections by contextualizing the controversies in relation to the ambiguous terms of federal wilderness policy. In the analysis, I explain how the ambiguity of key...