Wilderness management in National Parks and wildlife refuges.

• Author: Zellmer, Sandra B.
• Position: II. Distinguishing Features of Wilderness Management by the Dominant Use Agencies C. Contours of the Agencies' Statutory Mandates through V. Conclusion, with footnotes, p. 521-547 - The Wilderness Act at 50

3. Contours of the Agencies' Statutory Mandates

   1. The Park Service Organic Act

      Under the Organic Act of 1916, the NPS must "conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." (164) When the dual purposes of conservation and public use conflict, NPS must find an appropriate balance. Courts have insisted, "[t]he test for whether the NPS has performed its balancing properly is whether the resulting action leaves the resources 'unimpaired for the enjoyment of future generations.'" (165) But as Robert Fischman observed, "the Organic Act sets up an elegant tension between providing for enjoyment (often interpreted as recreation) and leaving units unimpaired (often interpreted as preservation)." (166)

      In addition to the Organic Act, units within the National Park System are also governed individually by park-specific legislation and planning documents. Each unit must uphold the mission of the park system as well as the purposes set forth in the specific legislation under which it was created. (167)

      At times, NPS has asserted that the conservation mandate of the Organic Act provides the same level of protection as the preservation mandate of the Wilderness Act, such that wilderness designation resulted in little change to an area's management. (168) However, as Michael McCloskey observed: '"It is obvious that Congress could only have intended ... that wilderness designation of National Park System lands should, if anything, result in a higher, rather than a lower, standard of unimpaired preservation.'" (169)

   2. The Refuge Acts

      Two years after the passage of the Wilderness Act, Congress organized the widely scattered national wildlife refuge lands into a unified system by passing the National Wildlife Refuge System Administration Act of 1966. (170) The Act sets forth the primary purpose of the system: "the conservation, management, and where appropriate, restoration of the fish, wildlife, and plant resources and their habitats within the United States for the benefit of present and future generations of Americans." (171) It limits secondary uses of the land to those uses "compatible with" the primary purpose. (172) It allows recreational uses to the extent such uses are "not inconsistent with" and do "not interfere with" the primary purpose. (173)

      Despite the statutory directives, in 1989, the General Accounting Office concluded that FWS was allowing harmful secondary uses--such as boating, grazing, timber harvest, and public use--on 59% of the refuges. (174) In 1996, President Clinton issued Executive Order 12,996 to reform refuge management and to establish an overriding conservation mission for the system. (175) The Executive Order prompted Congress to enact the National Wildlife System Refuge Improvement Act of 1997. (176)

      The Improvement Act maintained all of the major provisions of the 1966 Act, but added new provisions intended to subordinate human uses to wildlife conservation and to promote "biological integrity, diversity, and environmental health." (177) The Act also requires the FWS to prepare and implement comprehensive conservation plans for each refuge. (178)

      The Improvement Act emphasizes that all activities within a refuge must be compatible with the system's conservation purpose. A "compatible use" is one that "will not materially interfere with or detract from the fulfillment of the mission of the System or the purpose of the refuge." (179) Wildlife-dependent recreational uses--such as environmental education, interpretation, wildlife photography, hunting, and fishing--are considered a priority use, and are generally deemed compatible unless the refuge manager finds otherwise. (180) All other uses--including grazing, oil development, timber harvesting, and nonwildlife related recreation--receive a lower priority ranking, and are prohibited when they conflict with the National Wildlife Refuge System mission, contradict the purposes for which the individual refuge was created, or materially interfere with wildlife-dependent uses. (181) FWS's guidelines for determining the compatibility of proposed uses explain that uses that may "conflict with th[e] directive to maintain the ecological integrity of the System are contrary to fulfilling the National Wildlife Refuge System mission and are therefore not compatible." (182)

      The 1997 Act is far more detailed, and provides far more specific substantive management criteria, than does the NPS Organic Act of 1916. (183) As a result, FWS's management discretion is bounded by relatively discrete congressional parameters, and the legally binding statutory requirements of the 1997 Act can be more easily enforced through judicial review. That said, FWS still has a great deal of discretion in determining whether public uses are compatible with the purposes of any individual refuge and the system as a whole, and whether and when management intervention might be warranted to protect or restore refuge conditions. (184)

4. Agency Rules, Policies, and Procedures

   As described above, the organic statutes for both the Park Service and the FWS embrace conservation principles. (185) In exercising the discretion afforded by the conservation mandate, however, both agencies have fluctuated between more and less protective regimes. Differences between the two agencies are a product of the factors discussed above in Parts A-C, including agency history, culture, organization, and statutory missions. In addition, the agencies' regulations, policies, and planning requirements influence how wilderness is managed and preserved in both systems.

   1. National Parks

      The NPS does not have formal, binding regulations governing wilderness preservation in the National Park System. (186) Instead, its wilderness management guidelines are found in the NPS Management Policies, manual provisions, and general management plans. (187)

      The NPS Management Policies contain the agency's interpretation of the Organic Act and other statutory requirements, including the Wilderness Act. (188) The Policies allow some effects to park resources when necessary to fulfill the purposes of a park, so long as the effects stay below the threshold of "impairment" to affected resources and values. (189) When there is a conflict between conserving resources and providing for their enjoyment, the Policies insist that conservation predominates. (190) Because the threshold at which "impairment" occurs is not always apparent, NPS strives to avoid "unacceptable impacts," including those that individually or cumulatively "diminish opportunities for current or future generations to enjoy, learn about, or be inspired by park resources or values" or impede the attainment of desired park conditions. (191)

      The Policies include several provisions directly relevant to wilderness management. First, they require park superintendents to "develop and maintain a wilderness management plan or equivalent planning document to guide the preservation, management, and use of these resources." (192) This plan should specify desired future conditions for wilderness areas and "establish indicators, standards, conditions, and thresholds beyond which management actions will be taken to reduce human impacts to wilderness resources." (193) Wilderness management plans should also contain "specific, measurable management objectives that address the preservation and management of natural and cultural resources within wilderness as appropriate to achieve the purposes of the Wilderness Act and other legislative requirements." (194)

      Wilderness plans have been slow in coming. NPS's own national wilderness coordinator criticized the agency for failing to issue wilderness management plans in a timely fashion. (195) As of 2004, nearly three-fourths of the NPS's wilderness areas did not have wilderness management plans in place. (196) When The Wilderness Society attempted to force NPS to follow the Policies and issue management plans for designated wilderness areas, its claims were dismissed. The court held that the Policies are not judicially enforceable, because they had not been promulgated as official rules and because they contained general statements of policy rather than specific directives. (197) According to the court, the Policies are "no more than a set of internal guidelines for NPS managers and staff." (198)

      Unenforceable though they are, the Management Policies are not unimportant. NPS treats the Policies as the "Level 1" top-tier directive in its hierarchy of internal instructions and guidance, and NPS officers and staff look to it for direction. (199) In addition to the wilderness planning guidelines, the Policies provide substantive guidelines regarding activities and processes in wilderness areas. Chapter six, on Wilderness Preservation and Management, directs NPS managers to allow "natural processes ... insofar as possible, to shape and control wilderness ecosystems." (200) However, management intervention is allowed "to the extent necessary to correct past mistakes, the impacts of human use, and influences originating outside of wilderness boundaries." (201)

      Intrusion into wilderness is also allowed for scientific activities "when the benefits of what can be learned outweigh the impacts on wilderness resources or values." (202) Chapter six cautions that scientific activities must be evaluated to ensure that they are the "minimum requirement" for managing wilderness. (203) The minimum requirement concept is applied as a two-step process that determines whether the proposed action is 1) appropriate or necessary for administration, and 2) does not cause a significant impact to wilderness resources and character. At step two, the NPS manager must analyze the techniques and types of equipment needed to ensure that impacts are minimized. (204) Chapter six...