The underappreciated role of the National Environmental Policy Act in wilderness designation and management.

AuthorBlumm, Michael C.
PositionThe Wilderness Act at 50
  1. INTRODUCTION II. BACKGROUND A. Wilderness Preservation Before the Wilderness Act B. Examining the Wilderness Act C. The Roadless Area Review Evaluation (RARE) audits Challenges III. NEPA'S ROLE IN EXPANDING THE WILDERNESS SYSTEM A. Early NEPA Cases Affecting the Wilderness Designation Process B. Enjoining RARE II C. Congressional Intervention D. NEPA and Wilderness Expansion in National Forests IV. NEPA'S ROLE IN WILDERNESS MANAGEMENT A. Enjoining Management for Non wilderness Purposes B. Permits and Cumulative Impact Analyses V. NEPA'S ROLE IN PRESERVING POTENTIAL WILDERNESS A. NEPA and Roadless Areas in National Forests B. The Forest Service's Roadless Rule C. NEPA and BLM Wilderness Study Areas D. NEPA, Land Plans, and Wilderness Characteristics VI. CONCLUSION I. INTRODUCTION

    The National Environmental Policy Act (NEPA), (1) the nation's basic environmental charter, has often been criticized for its lack of substance. (2) However, NEPA has in fact played a substantial, if overlooked, role in fostering improved federal environmental decision making. (3) A particularly noteworthy contribution of NEPA largely escaping widespread recognition has been the critical role NEPA has played both in encouraging the congressional designation of wilderness areas and in helping to ensure their sound management. In combination with the standards and procedures of the Wilderness Act (4) and the Federal Land Policy and Management Act (FLPMA), (5) NEPA has functioned to provide protection to de facto wilderness lands prior to official wilderness designation and to guard against unwise developments in designated wilderness areas.

    NEPA's role in encouraging the designation of wilderness areas is particularly noteworthy. After the Wilderness Act created some nine million acres of "instant" wilderness in 1964, (6) wilderness designations stalled amid the statute's cumbersome study procedures. (7) However, after the Tenth Circuit ruled in 1971 that the Wilderness Act required the Forest Service to study unroaded lands adjacent to so-called "primitive" areas for their wilderness potential before allowing timber harvests of those areas, NEPA assumed a prominent role in studying the wilderness potential of these areas. (8) And after the Forest Service decided to conduct a nationwide study of potential wilderness area through two "Roadless Area Review and Evaluations" (RARE I and II), the Ninth Circuit stopped the agency from allowing development on lands that it had decided not to recommend for wilderness designation on NEPA grounds. (9) This NEPA injunction effectively ended the RARE program and induced Congress to enact a series of state wilderness statutes that in the 1980s and early 1990s more than doubled the number of wilderness areas and added more than eight percent of the current wilderness acreage. (10)

    With the maturing of the wilderness system in the late 1980s, attention shifted from wilderness designation to wilderness management. In several decisions, courts interpreted NEPA as significantly constraining the discretion of federal agencies in their management of wilderness areas. For example, the D.C. District Court decided that the Forest Service could not, consistent with NEPA, sanction wholesale timber harvesting of insect-damaged timber inside a wilderness area for the benefit of commercial timberlands outside the wilderness. (11) And the Ninth Circuit determined that NEPA required the Forest Service to evaluate the effect of reissuing a permit for pack-mule trips in a wilderness area on the Wilderness Act's essential goal of preserving wilderness character, while pursuing ancillary recreational goals. (12)

    Courts have also invoked NEPA to protect areas with wilderness potential that have not attained wilderness status. For example, the Ninth Circuit interpreted NEPA as requiring the Forest Service to evaluate the effect of logging roadless lands not selected for wilderness designation and to protect the congressional prerogative to designate wilderness in the future. (13) And the Tenth Circuit ruled that when approving a road improvement bisecting two wilderness study areas, (14) NEPA demanded that the Bureau of Land Management (BLM) not only had to examine less damaging alternatives but also had to select the least damaging alternative it studied. (15) In these cases NEPA imposed important curbs on agency discretion in managing both wilderness areas and lands with wilderness potential.

    NEPA has also played an important role upholding Forest Service protection for roadless areas by ratifying the so-called "Roadless Rule" against attacks of NEPA noncompliance by those opposed to protecting roadless areas, demonstrating that courts interpret NEPA's requirements flexibly to achieve the statute's overarching purpose of promoting environmental protection. (16) NEPA continues to promote designation of future wilderness areas by requiring BLM to identify and publicly disclose lands with wilderness characteristics when revising its land plan plans. (17)

    Professor Peter Appel has shown that courts give close scrutiny to agency actions affecting wilderness areas, (18) but we think that NEPA has been the usual vehicle for ensuring that wilderness values are not shortchanged in the administrative process. In this Article, we examine the significant but often overlooked role NEPA has played in wilderness protection. Part I examines the background of the Wilderness Act, relevant provisions of the Act, and the procedures the statute established to designate additional wilderness areas. Part II discusses the way in which NEPA contributed to the political momentum that led to substantial expansion of the National Wilderness Preservation System in the 1980s. Part III turns to NEPA's role in authorizing federal courts to scrutinize closely the management of designated wilderness areas. Part IV shows how NEPA challenges have successfully protected potential wilderness against both BLM and Forest Service development plans. We conclude that NEPA has played a significant, if underappreciated, role in encouraging wilderness designation and in ensuring that both wilderness areas and lands with wilderness characteristics are preserved as the "untrammeled areas" that Congress envisioned in the Wilderness Act a half-century ago. (19)

  2. BACKGROUND

    The Wilderness Act is a legacy of conservation policies of key U.S. Forest Service administrators during the early twentieth century. Legendary figures like Aldo Leopold and Bob Marshall forged policies preserving natural areas as alternatives to the utilitarianism advocated by the first chief of the Forest Service, Gifford Pinchot. (20) By World War II, the Forest Service had an established system of protecting roadless lands from development. (21) But in the 1950s, a nascent environmental community began to lobby Congress for more permanent, statutory protection for these areas. (22) After nearly a decade of consideration, Congress finally passed the Wilderness Act in 1964 giving statutory protection for "primitive areas" that the Forest Service had managed as wilderness since the 1920s. (23) The 1964 Act required the Forest Service to study these primitive areas and pass on recommendations to the President, who in turn would recommend which areas were suitable for wilderness designation by Congress. (24) This statutory study requirement would lead to the first Wilderness Act lawsuits, the results of which constrained the agency's ability to manage the national forests and set the stage for future litigation involving not only the Wilderness Act but NEPA as well. (25)

    1. Wilderness Preservation Before the Wilderness Act

      Support for wilderness preservation rose as an antidote to the utilitarian land management policies Gifford Pinchot and his successors advocated. (26) Forest Service ranger Aldo Leopold spent the 1920s advancing a national forest model that included lands reserved from economic development. (27) The post-Pinchot Forest Service eventually agreed: By 1929, the agency had designated some five million acres of roadless national forests as "primitive areas" that would be managed for recreational and educational benefits. (28) Leopold's associate Bob Marshall, (29) chief of the Forest Service's Division of Recreation, instituted the U-Regulations of 1939, (30) authorizing the Forest Service to designate all primitive areas as either "wilderness," "wild," or "recreation" areas, to greater insulate them from development. (31) For wilderness advocates, however, these initiatives shared a common flaw: The agency's administrative designations could not permanently insulate such areas from economic exploitation because such areas could always be administratively redesignated for development. (32)

      In the 1940s and 1950s, Forest Service actions illustrated the impermanence of these administrative wilderness designations, as the agency reopened large tracts of administrative wilderness across the West to economic activity, including the Gila Wilderness that Aldo Leopold had fought to preserve. (33) Uncertainties about the security of administrative wilderness set the tone for wilderness advocacy following World War II. Howard Zahniser of the Wilderness Society spearheaded this movement, arguing for permanent wilderness designated by Congress that the Forest Service could not revoke. (34)

      Zahniser's efforts gained political traction by the late 1950s, (35) but the Forest Service pushback was equally intense, (36) forcing a congressional compromise that produced the Multiple-Use Sustained-Yield Act of 1960 (MUSYA). (37) MUSYA broadened the statutory authority of the Forest Service beyond its Organic Act, (38) authorizing not only sustained yield management and watershed preservation, but also fostering recreation, grazing, and wildlife as coequal resources. (39) Timber interests believed MUSYA protected sustained yield of commodity production; environmentalists cautiously approved...

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