Wilderness management in national parks and wildlife refuges.

• Author: Zellmer, Sandra B.
• Position: I. Introduction through II. Distinguishing Features of Wilderness Management by the Dominant Use Agencies B. Agency History, Culture, and Organization, p. 497-521 - The Wilderness Act at 50

1. INTRODUCTION II. DISTINGUISHING FEATURES OF WILDERNESS MANAGEMENT BY THE DOMINANT USE AGENCIES A. Physical Characteristics 1. Wilderness Characteristics 2. National Park Characteristics 3. Wildlife Refuge Characteristics B. Agency History, Culture, and Organization 1. Pre-Wilderness Act Agency History a. National Parks b. FWS 2. Timing and Impact of Wilderness Application 3. Modern Agency Culture and Organization C. Contours of the Agencies' Statutory Mandates 1. The Park Service Organic Act 2. The Refuge Acts D. Agency Rules, Policies, and Procedures 1. National Parks 2. Wildlife Refuges III. CASE STUDIES A. NPS B. FWS IV. THE FUTURE OF WILDERNESS PRESERVATION ON THE MULTIPLE USE LANDS V. CONCLUSION I. INTRODUCTION

   The nation's preeminent preservation statute, the Wilderness Act of 1964, has achieved significant gains in ensuring that portions of federal lands remain "unimpaired for future use and enjoyment as wilderness." (1) Great strides have been made to realize the congressional purpose of "secur[ing] for the American people of present and future generations the benefits of an enduring resource of wilderness.... administered ... in such manner as will leave them unimpaired for future use and enjoyment as wilderness, and so as to provide for the protection of these areas, [and] the preservation of their wilderness character...." (2) Despite the achievements, pressure to allow motorized access, road construction, and intensive recreational use within wilderness areas continues to mount.

   All four of the nation's federal land management agencies are subject to the Wilderness Act, and each has millions of acres of federally designated wilderness under its jurisdiction. (3) But there is significant variation between agencies when it comes to their wilderness management approaches. As Robert Glicksman and George Cameron Coggins observed, the wilderness managing agencies have their own distinct traditions, missions, and governing standards, with "no pretense of uniformity or even of coordination." (4)

   Professor Glicksman's Article in this symposium issue explores the distinctions between the two multiple-use agencies--the Bureau of Land Management (BLM) and the Forest Service--and concludes that the Forest Service does a better job of achieving the objectives of the Wilderness Act. (5) He measures the agencies' successes and failures by applying six factors that signify the agencies' approaches to wilderness: 1) the physical characteristics of the lands managed by each agency; 2) the agencies' history, culture, and structure; 3) the distinctions in statutory provisions governing the agencies' activities; 4) the differences in the agencies' planning and other policies; 5) congressional commitment to wilderness preservation on the lands under each agency's jurisdiction; and 6) judicial treatment of the agencies' wilderness related decisions.

   This Article unabashedly borrows Glicksman's analytical framework to provide a scorecard of sorts for the two "dominant use" land management agencies--the National Park Service (NPS) and the United States Fish and Wildlife Service (FWS). It applies many of the same factors to determine whether NPS or FWS has had more success in handling wilderness issues. In a slight departure from Glicksman's analysis, this article hones in on wilderness management, but considers the agencies' approaches to wilderness designation to the extent that they shed light on the agencies' management modus operandi. Keying in on wilderness management leads to a greater emphasis on the language and implementation of the agencies' regulations and internal policies and guidelines. It also sharpens the focus on individual case studies on wilderness management and their resolution in court.

   Like Glicksman's Article, this assessment provides an impressionistic view rather than an empirical one. For the purpose of the analysis, "success" in the agencies' approaches to wilderness management is measured by each agency's tendency to preserve the primitive, untrammeled character of wilderness areas under its jurisdiction, particularly when facing conflicts with other priorities and values. This benchmark for success tracks the Wilderness Act's requirement to keep wilderness areas wild by minimizing deliberate manipulation of natural biological and ecological processes and by prohibiting intrusive, "unnatural" human activities such as roads, motorized vehicles and equipment, structures, and installations. (6)

   Unlike the multiple-use agencies, the organic statutes of both NPS and FWS favor resource conservation and recreation over commodity production and extractive uses. (7) Given that both agencies operate under a similar conservation oriented mandate, one might assume that the imposition of a wilderness mandate would be closely aligned with their organic missions. The agencies have not necessarily agreed.

   NPS and FWS are alike in that they both have, at times, been surprisingly hostile toward wilderness within their systems. In NPS's case, this is likely because of a concern that wilderness might disrupt visitor use and enjoyment of the National Parks and rein in its management discretion over park activities and resources. It may also be due to the sentiment that NPS does not need wilderness because of its long history and reputation as the preeminent land steward among the federal agencies. For FWS, wilderness may be seen as interfering with its discretion and ability to manage wildlife populations and to restore habitat through deliberate intervention, both of which are favored by state fish and game agencies that exert pressure on FWS.

   Part II of this Article tests these hypotheses by cataloguing the distinguishing features of wilderness management by the two dominant use agencies. It explores the physical characteristics of the land under each agency's jurisdiction, then turns to agency history, culture, and structure. Next, it assesses distinctions in the statutory provisions governing each agency, as well as the distinctions in their respective regulations and policies. Part III then attempts to identify management patterns and biases in NPS and FWS wilderness case studies. Part IV looks ahead, assessing how wilderness preservation on dominant use lands might be enhanced by reinforcing preservation oriented factors and by dampening preservation destroying factors. Possible options include legislative amendments, regulatory reforms, and presidential or secretarial orders. Part V provides closing observations about the two agencies and their relative success as wilderness managers.

   In contrast to Glicksman's assessment of the Forest Service and the BLM, where the Forest Service comes out the clear "winner," there is no obvious front runner between NPS and FWS. They each face pressure to allow intensive recreation: NPS must navigate demands for roads and tourism development, while FWS must navigate demands for wildlife propagation and hunting. They each have issued policies supportive of wilderness preservation. But only FWS has put its policies--at least some of them--in its regulations, while NPS continues to rely on nonbinding manuals and policies. Neither has been especially committed to wilderness planning, although FWS's planning processes may have a slight edge. Finally, each agency has prevailed in court when it has made preservation oriented decisions, and each has lost when it has attempted to favor intervention or development over preservation. All that can be said with confidence is that both agencies could improve their wilderness strategies and practices by engaging in rulemaking to solidify their commitment to preserving wilderness characteristics, and that the Department of Interior could take steps to coordinate its wilderness strategies and oversight over all of the wilderness managing agencies.

2. DISTINGUISHING FEATURES OF WILDERNESS MANAGEMENT BY THE DOMINANT USE AGENCIES

   The Wilderness Act defines wilderness "as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." (8) Congress intended wilderness areas to be different than the vast majority of federal public land, "in contrast with those areas where man and his own works dominate the landscape." (9) The Act further specifies that wilderness is "an area of undeveloped 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," having four essential characteristics:

   (1) [It] generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable;

   (2) [It] has outstanding opportunities for solitude or a primitive and unconfined type of recreation;

   (3) [It] has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and

   (4) [It] may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. (10)

   Both the National Park System and the Wildlife Refuge System contain qualifying lands, but the physical characteristics of the two systems are distinct.

   1. Physical Characteristics

      1. Wilderness Characteristics

         In addition to being untrammeled and without permanent improvements or habitation, to qualify as wilderness, an area must be at least 5,000 acres or otherwise of "sufficient size as to make practicable its preservation and use in an unimpaired condition...." (11) Wilderness designations include immense swaths of land, such as Death Valley National Park in California and Nevada, which contains more than three million acres, and the eight million acre Mollie Beattie/Arctic National Wildlife Refuge in Alaska. However, small areas amenable to preservation and use in unimpaired condition are also included in the system. For example, the...