When Old Becomes New: Reconciling the Commands of the Wilderness Act and the National Historic Preservation Act

• Publication year: 2021

WHEN OLD BECOMES NEW: RECONCILING THE COMMANDS OF THE WILDERNESS ACT AND THE NATIONAL HISTORIC PRESERVATION ACT

Nikki C. Carsley

Abstract: The Wilderness Act created a national framework for the protection of wilderness areas. Although the statute defines wilderness as an area "untrammeled by man, where man himself is a visitor who does not remain," it leaves room for the "public purposes of recreational, scenic, scientific, educational, conservation, and historical use." As such, the Wilderness Act clarifies that its purposes are "within and supplemental" to other land-use statutes, including statutes like the National Historic Preservation Act (NHPA), which created a national scheme for preserving historic places and structures. When considering the Wilderness Act relative to the NHPA, agencies and courts have interpreted agency obligations under each act differently. Though the historical context, text, and purpose of each statute indicate that historic preservation efforts should be permitted within wilderness areas, courts have read the two acts as mutually exclusive and held that the Wilderness Act takes precedence over the NHPA. The two statutes can be harmonized. To clarify the law in this area, however, Congress should amend the Wilderness Act to provide an express exception for preservation efforts in compliance with the NHPA.

INTRODUCTION

Thousands of tired, nerve-shaken, over-civilized people are beginning to find out that going to the mountains is going home; that wildness is a necessity; and that mountain parks and reservations are useful not only as fountains of timber and irrigating rivers, but as fountains of life.(fn1)

-John Muir

[T]hese old buildings do not belong to us only; . . . they have belonged to our forefathers, and they will belong to our descendants unless we play them false. They are not in any sense our property, to do as we like with. We are only the trustees for those that come after us.(fn2)

-William Morris

Although the American public has long contested the uses and purposes of wilderness,(fn3) the concept of an open frontier of wild lands has never ceased to be a culturally and historically important aspect of America.(fn4) Similarly, while not universally acknowledged, the study of history-whether by museum, textbook, or designation of historic landmark-has also wielded significant influence on American society.(fn5) However, in the race to define and protect wilderness lands and historic monuments, the respective land-use schemes created by Congress did not explicitly account for each other.(fn6) The resulting inconsistencies have left agencies and courts alike in a predicament when determining whether and how to maintain protected historic structures located within designated wilderness areas.(fn7)

Congress enacted the Wilderness Act(fn8) in 1964 against a backdrop of competing ideologies regarding the value of wilderness, the rise of conservationism, and inter-agency conflict.(fn9) For its time, the Wilderness Act was "the most far-reaching land preservation statute ever enacted."(fn10) Through the creation of the National Wilderness Preservation system,(fn11) the Wilderness Act established a national framework(fn12) for the protection of designated wilderness areas via acts of Congress.(fn13) Since designating the inaugural 9.1 million acres of wilderness,(fn14) Congress has added over 100 million acres to the National Wilderness Preservation System.(fn15) Today, approximately five percent of the United States is protected as wilderness.(fn16) With few exceptions, wilderness legislation has enjoyed wide bipartisan support.(fn17) In fact, every president following Lyndon Johnson has signed legislation protecting additional wilderness acreage.(fn18)

In a similarly conservationist spirit, two years later Congress passed the National Historic Preservation Act (NHPA).(fn19) The purpose of the NHPA was to remedy ineffective federal historic preservation statutes.(fn20) Like the Wilderness Act, the NHPA was "a watershed in preservation law, for it created a means by which the Nation's preservation goals could be achieved."(fn21) The NHPA promotes the protection of historic resources at federal, state, and local levels.(fn22) It authorizes the Secretary of the Interior to maintain and expand the National Register of Historic Places,(fn23) fosters the development of state, local, tribal, and individual preservation programs through administrative requirements(fn24) and federal grants,(fn25) and establishes the Advisory Council on Historic Preservation, an independent federal agency.(fn26) The Act has enjoyed bipartisan support, and Congress has enacted several amendments to the NHPA,(fn27) each serving to strengthen its protection of historic sites.(fn28) Since the NHPA's enactment, Congress has also enhanced federal historic preservation policy in several other statutes.(fn29) Currently, more than eighty thousand properties are listed on the National Register of Historic Places.(fn30)

However, neither the Wilderness Act nor the NHPA specifies whether wilderness protection or historic preservation should take precedence when the two values conflict.(fn31) Although the Wilderness Act purports to be "within and supplemental" to other land-use statutes,(fn32) courts have consistently interpreted the Wilderness Act to preclude historic preservation efforts undertaken by agencies and the public.(fn33) As a result, a court decision can strip a nationally significant historic structure located within wilderness land of its federal historic protection and leave it to deteriorate or be removed entirely.(fn34)

As opposed to the trend of lower and appellate court interpretations that preference the Wilderness Act's commands over those of the NHPA,(fn35) this Comment argues that the Wilderness Act should be reconciled with the NHPA so as to ensure that historic structures within wilderness areas be preserved. Part I explores the historical context of the Wilderness Act's enactment, as well as its purposes and text. Part II discusses the same aspects of the NHPA. Part III reviews three lower court decisions that have grappled with the conflicts between the Wilderness Act and the NHPA. Part IV makes two arguments. First, long-standing canons of statutory interpretation compel the harmonization of the Wilderness Act with the NHPA. Second, because courts are not harmonizing the two statutes, Congress should clarify this area of the law by amending the Wilderness Act to explicitly provide for historic preservation activities within wilderness areas.

I. THE WILDERNESS ACT'S HISTORICAL CONTEXT, PURPOSE, AND TEXT REFLECT COMPROMISE

Prior to the passage of the Wilderness Act, protection of wild lands was haphazard and depended on agency willpower.(fn36) However, once the conservation movement gained a foothold in American political ideology,(fn37) the first comprehensive approach to wilderness protection was undertaken, which culminated eight years later in the passage of the Wilderness Act.(fn38) The political history and language of the bill demonstrate that its ultimate success was the result of compromise and bipartisanship.(fn39) For example, the final version of the bill only permanently designated as wilderness about sixty percent of land that was previously classified as wilderness and primitive areas(fn40) and removed agency authority to designate wilderness areas.(fn41) Moreover, the Wilderness Act clarified that its aims are "within and supplemental" to other land-use legislation (including historic preservation statutes)(fn42) and specified that, in addition to conservation, the purposes of wilderness areas also include "recreational," "scenic," "scientific," and "historic use."(fn43) The Wilderness Act also contains numerous exceptions for private rights and established and special uses, even for activities such as mining and aircraft use.(fn44)

A. The History of the Wilderness Act's Enactment Demonstrates Concession and Cooperation from Both Wilderness Advocates and Opponents

Before the Wilderness Act's enactment, federal land-use policy varied according to the administering agency, lacking any uniform purpose.(fn45) The earliest federal effort to protect wilderness occurred with the creation of the national park system.(fn46) However, wilderness protection was not the first priority of those managing the national parks.(fn47) The Park Service did not systematically designate wilderness areas and often gave precedence to the demands of recreation.(fn48) The Forest Service was the first agency to designate wilderness areas in national forests for the purpose of wilderness protection.(fn49) While its conservation efforts were laudable, the Forest Service's designation of wilderness areas was in fact part of a larger turf battle between the two agencies.(fn50) The Forest Service also often caved in to business interests by declassifying formerly designated wilderness areas.(fn51)

By the end of World War II, the conservation movement had established its legitimacy and was beginning to gain political acceptance.(fn52) In response to proposed developments in wilderness areas,(fn53) Howard Zahniser of the Wilderness Society and other conservationists began their campaign to establish a national system of wilderness protection.(fn54) Together, Zahniser, the Sierra Club, the National Parks Association, the National Wildlife Federation, and the Wildlife Management...