Wilderness exceptions.

Author:Nagle, John Copeland
Position:The Wilderness Act at 50
 
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  1. INTRODUCTION II. ESTABLISHING WILDERNESS AREAS III. WILDERNESS BOUNDARIES IV. WILDERNESS ACT EXCEPTIONS A. Minimum Requirements Exception B. Existing Aircraft & Motorboats C. Control of Fire, Insects & Diseases D. Mining. E. Water Projects F. Grazing G. Commercial Recreation Services H. Access to Inholdings V. SPECIFIC WILDERNESS EXCEPTIONS A. Establishment Acts B. Subsequent Amendments VI. CONCLUSION I. INTRODUCTION

    We still debate the paternity of the Wilderness Act fifty years after it was born. The prevailing view is that Howard Zahniser was the father of the Wilderness Act. (1) As a Wilderness Society official lobbying Congress to pass the law, Zahniser authored the law's memorable definition of wilderness as "where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." (2) The Act further defines wilderness as:

    An area of wilderness is ... an underdeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which ... generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable. (3) That sweeping language has helped the Wilderness Act gain the reputation of being the most stringent law governing the use of the natural environment. (4) Motorized vehicles, structures, and commercial enterprises are excluded from wilderness areas. (5) The courts read the Wilderness Act especially strictly to prohibit questionable activities. (6)

    But Wayne Aspinall has been identified as the father of the Wilderness Act, too. (7) Aspinall represented western Colorado in the United States House of Representatives as Congress debated long and hard before it finally enacted the Wilderness Act. (8) Eight years elapsed between the first wilderness bill introduced by Senator Hubert Humphrey and the passage of the Wilderness Act in 1964. (9) "Congress lavished more time and effort on the wilderness bill than on any other measure in American conservation history," with nine hearings "collecting over six thousand pages of testimony." (10) Aspinall served as the chair of the House Interior and Insular Affairs Committee during that time, and he insisted on balancing wilderness values with other claimants to the use of federal public lands. The compromises extracted by Aspinall that were necessary to finally secure passage of the law included the relaxation of some of the law's land use restrictions, shifting the authority to designate wilderness areas from federal land agencies to Congress, and the elimination of the proposed National Wilderness Preservation Council. (11) The protections of the Wilderness Act only apply to federal lands that Congress has designated as wilderness areas.

    Zahniser and Aspinall's competing paternity claims are of much more than historic interest. They represent the fundamental divide in our understanding of the Wilderness Act. Wilderness areas are places that are untrammeled by human activity and where natural conditions prevail. Except when they are not. The law allows some trammeling and some manipulation of natural conditions within designated wilderness areas. (12) Moreover, the understanding of wilderness areas is not reciprocal. While wilderness areas are supposed to be places that are untrammeled by human activity and where natural conditions prevail, it is not true that all such places are wilderness areas that receive the protection of the Wilderness Act. There are many areas that are wilderness in fact, but not wilderness at law.

    This Article considers when activities that are inconsistent with wilderness are nonetheless allowed in it. That result happens in four different ways: (1) Congress decided not to designate an area as "wilderness" even though the area possesses wilderness characteristics; (2) Congress draws the boundaries of a wilderness area to exclude land that possesses wilderness characteristics because Congress wants to allow activities there that would be forbidden by the Act; (3) Congress specifically authorizes otherwise prohibited activities when it establishes a new wilderness area; or (4) Congress acts to approve contested activities in response to a controversy that arises after a wilderness area has already been established. In Part II, I describe how only Congress has the authority to designate wilderness areas, and how Congress has used that authority both to establish over 100 million acres of wilderness areas and to exclude certain wild places because Congress does not want them managed as wilderness. (13) Part III explains the importance of wilderness boundaries--which separate land subject to the land use regulations of the Wilderness Act from land that is free from those regulations--and how Congress employs those boundaries to achieve even finer distinctions between land use that is regulated by the Wilderness Act and land use that is not. (14) Part IV examines the exceptions contained in the Wilderness Act that allow activities that are otherwise prohibited by the Act. (15) Part V shows how Congress sometimes creates additional exceptions to the Wilderness Act's general rules both in the statutes establishing new wilderness areas and in statutes enacted in response to controversies about the use of a wilderness area. (16) My conclusion is that the combination of stringent restrictions and appropriate exceptions is what has made the Wilderness Act so successful for fifty years.

  2. ESTABLISHING WILDERNESS AREAS

    The first impediment to securing the protections of the Wilderness Act is that Congress must act. No matter how wild or untrammeled, the establishment of a wilderness area depends on congressional legislation. In other words, there are places that are wilderness in fact, but not wilderness at law. (17).

    The original bills proposed by wilderness supporters would have empowered federal agencies to designate wilderness areas in the land they managed. (18) That approach would have worked as a hybrid of the Antiquities Act (19) and the Endangered Species Act (ESA). (20) As is the case with the Antiquities Act, the President would have unilateral authority to make the necessary decision. (21) The President's authority to establish a national monument under the Antiquities Act is nominally limited to "historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest" located on federal lands. (22) The original intent of the enactors of the Antiquities Act was even narrower: To preserve the relics of the ancient tribes of the Southwest. (23) But the Supreme Court held that the Grand Canyon satisfied the statutory test, (24) and presidents have liberally employed the law ever since. (25) They often do so precisely because Congress has failed to act. Indeed, both President Obama and Secretary of the Interior Sally Jewell have threatened to designate national monuments pursuant to the Antiquities Act if Congress fails to take their desired conservation actions. (26) Not surprisingly, the unilateral authority that the Antiquities Act gives the President to establish national monuments continues to face significant--and sometimes fierce--resistance more than 100 years after Congress passed it. (27)

    The ESA takes a different approach to designating the species that are protected by the law. The United States Fish & Wildlife Service (FTVS) must determine whether a species is "endangered" or "threatened" according to the statutory definitions of those terms. (28) A species must be listed if it satisfies that criteria; it may not be listed if it does not. (29) Judicial review is available to ensure that the agency has properly applied the statutory test to any proposed listing. (30) But this process, too, faces frequent dissatisfaction both from those who object to the mandatory nature of the fisting process for species whose value is less evident, and from those who complain that the agency stalls its decisions because of concerns about the regulatory provisions that automatically attach once a species is listed. (31)

    The original version of the proposed wilderness law would have empowered an executive branch official (like the Antiquities Act) to designate wilderness areas pursuant to statutory criteria (like the ESA). That was a stumbling block for western members of Congress who supported continued development of western lands. (32) Many western officials and economic interests opposed wilderness legislation when it was first considered during the 1950s. (33) Their principal fear was that the prohibition upon economic activities in lands designated by federal agency officials as wilderness would deprive local interests of the ability to provide for their economic wellbeing. (34) They complained about "giving a power to unknown officials in the departments to denominate as wilderness, lands that might be necessary for the economic fate or the defense fate of the United States." (35) They further observed that "[t]he method of establishment of wilderness areas by executive department recommendation, subject to objection by Congress, is contrary to the precedent established in providing for the creation of national parks." (36) Only Congress can create national parks. (37) And so the erstwhile opponents of the original wilderness proposal amended it "to provide for establishment of wilderness areas only by affirmative act of Congress with respect to each proposed wilderness area." (38) That was one of the essential compromises necessary for the Wilderness Act to become law in 1964. The Wilderness Act thus provides that "no Federal lands shall be designated as 'wilderness areas' except as provided for in this Act or by a subsequent Act." (39)

    The shift of wilderness designation authority from federal agencies to Congress divided some wilderness...

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