Wilderness Act

Posted: Aug 31, 2010

In 1964, the United States Congress enacted the Wilderness Act, which created a new land classification to preserve wild lands in their natural state. In legislation establishing the National Wilderness Preservation System, the Congress immediately designated 54 areas (9.1 million acres) in 13 states as Wilderness, and directed the Secretaries of the Interior and Agriculture to survey their lands (but not including Bureau of Land Management Lands) for other areas that could be added to the wilderness system. To protect these lands in a natural state, the Wilderness Act prohibits development and mechanized activities that would impair the areas' wilderness character, but does not limit human-powered activities such as hunting and fishing. Both the original and subsequent acts "grandfathered" some activities that pre-dated designation, such as pre-existing irrigation systems and hydroelectric dams. The National Wilderness Preservation System now includes 680 areas (106,619,199 acres) in 44 states. Of that total acreage, about 54 percent is located in Alaska.

Key Concepts

Definition of Wilderness

The Wilderness Act says that wilderness is a place where nature is untrammeled by humans and where people are themselves only visitors. The Act also specifies that wilderness lands should be undeveloped lands that retain their primeval character, absent human improvements or human habitation. Generally, wilderness areas are roadless tracts of land that are at least 5,000 acres in size, and often they contain ecological, geological, or other features of scientific, historical, scenic, or educational interest. 

Applicability

The original Wilderness Act applied only to national forests, national parks, and national wildlife refuges. The Act immediately designated some areas (mostly in national forests) as Wilderness and directed the Secretary of Agriculture (Forest Service) and Secretary of the Interior (National Park Service and Fish and Wildlife Service) to survey lands under their jurisdiction for additional tracts that could qualify as wilderness. In 1976, the Federal Land Policy and Management Act (FLPMA) directed the Secretary of the Interior to survey Bureau of Land Management lands for roadless tracts with wilderness characteristics. While the agencies do the survey work and make recommendations, the Congress has always reserved to itself the exclusive authority for designating areas as wilderness. Congress can designate new areas as wilderness by enacting legislation, and has done so on numerous occasions since 1964. In designating specific areas, Congress can adopt specific provisions for how those areas should be managed. 

Roadless Area Reviews and Recommendations (RARE)

The original Wilderness Act of 1964 directed the Secretary of Agriculture to survey national forest system lands to identify lands suitable for designation as wilderness; it then required the President to make recommendations to Congress for additional wilderness designations. The first roadless area review and recommendation process (which became known as RARE), focused mostly on pristine areas that were also unaffected by the sights and sounds of nearby urban areas. As a result, the agency did not recommend any eastern areas for wilderness since so many had been logged and roaded, even though in some places nature had reclaimed the land and evidence of human activities was largely gone. In 1975, Congress designated a number of eastern areas as wilderness, despite the Forest Service's recommendations; and in 1978, the Congress designated a number of areas in the West even though the sights and sounds of human activities could be observed from the wilderness areas. In the meantime, as the result of litigation and public pressure, the Forest Service did a second roadless review (RARE II), which also attracted lawsuits and criticism. However, Congress used that second review as the basis for a number of state-by-state wilderness bills during the 1980s. 

 ph.wilderness.jpg

Ten Lakes Inventoried Roadless Area is located on the Kootenai National Forest, Montana.
PHOTO COURTESY OF USDA FOREST SERVICE

In January 2007, the Forest Service issued guidance (Forest Service Handbook 1909.12, Chapter 70) for identifying and evaluating potential National Forest wilderness. The guidance also lays out the procedures for public review and comment on areas recommended for wilderness designation. Three years later, Rep. Grijalva (D-Ariz.) wrote a letter to the Forest Service, requesting that the agency provide greater interim protection for recommended wilderness areas until Congress enacts formal designation. “We ask that you take immediate steps to preserve the Congressional prerogative to designate wilderness by issuing national guidance on the management of agency-recommended wilderness,” he wrote. “This guidance should prohibit the authorization of activities, such as use of motorized vehicles, that adversely affect the wilderness qualities of the recommended areas to a significant degree.”

BLM Wilderness Review

The 1964 Act did not authorize the Bureau of Land Management (BLM) to survey its lands for wilderness designation potential even though the BLM manages 270 million acres of land. However, the Federal Land Policy and Management Act of 1976 (FLPMA) gave the BLM the ability to propose areas for wilderness designation. FLPMA directed the BLM to identify roadless tracts, and then to evaluate those roadless areas for their suitability for wilderness designation. FLPMA also directed the agency to report its findings to the President, and directed the President to make recommendations to Congress on which areas should be designated as wilderness. In the meantime, the areas that BLM identified as suitable for wilderness designation were to be managed to protect their wilderness qualities. These areas are known as wilderness study areas (WSAs). Lands that BLM identified as roadless, but which the agency did not believe had wilderness characteristics, were not afforded these interim protections. The BLM decisions continue to be controversial, especially in Utah. So far, Congress has designated 177 wilderness areas encompassing about 7.4 million acres of BLM land. 

For more information on the controversy over the BLM inventory and WSAs, see Wilderness: Controversies. 

Citizen Proposals

Land Swaps for Wilderness
After the original Act
designated the first set of wilderness areas, the process of new
wilderness designations has been a process of compromise -- a give and
take among industry, local governments, environmental groups,
landowners, and others. In the last few years, negotiations over new
wilderness areas has included controversial proposals to transfer public
lands to counties in exchange for these local governments' support for
wilderness designation.

 

Only Congress can add areas to the National Wilderness Preservation System. However, citizens and conservation organizations have played key roles in recommending areas for wilderness designation and in advocating for congressional action. In recent years Congress has considered proposals for wilderness designations in many western states, including Montana, Utah, Idaho, California, and Colorado. In order to receive Congress's careful attention, citizen proposals typically must include accurate maps of the areas that are being proposed for wilderness, an analysis of any conflicts that might exist, and even proposed legislative language. Enacting new wilderness legislation is often a time-consuming and resource-intensive process, and most successful efforts are the result of broad coalitions formed to support wilderness legislation. 

For an example of one recent proposal, see "San Juan County wilderness deal moves on without sponsor," Salt Lake Tribune, 4/21/11.

Management

National Park Service Wilderness Policies:
In
early 2006, a federal appeals court decided that NPS wilderness policies
are not rules enforceable against the agency. Rather, the policies
provide only internal guidance for NPS managers and staff. In part, this
means that the agency need not develop the wilderness management plans
"required" by its own policy. 

For more details, see the TWS v. Norton opinion.

The Forest Service, BLM and Fish and Wildlife Service all have formal regulations to direct their management of wilderness areas. The National Park Service has only a set of policies to guide its wilderness management. Agencies often develop specific wilderness management plans for each area. These plans detail how the agency plans to manage everything from recreation to motorized access for servicing grazing improvements. Generally, the agency integrates its wilderness management plans into its broader resource management plan.

For agency regulations and policies for wilderness management, see Links: Regulations and Policies. 

 

 

Process Essentials: Uses

The Wilderness Act generally prohibits some activities and uses in wilderness areas:

  • Permanent roads, motorized vehicles and motor boats;
  • Landing aircraft;
  • Commercial enterprises, except those needed for recreation use; and
  • Permanent structures.

Some of these terms require more detailed definition through agency regulation. For example, the Forest Service originally allowed commercial filming in wilderness areas only if the film project contributed "to the purposes for which the wilderness area was established." The Forest Service prohibited Idaho Public Television rom filming student conservation efforts in the 2.3 million-acre Frank Church River of No Return Wilderness, but the agency reversed its position after pressure from state political leaders. In June 2010 the Forest Service issued temporary rules on commercial filming in wilderness areas, allowing limited filming in wilderness areas, including projects that would convey the "enjoyment of wilderness." See "Our View: A reel-life lesson in managing federal land," Idaho Statesman, 6/11/10.

The Act and subsequent bills designating specific areas as wilderness grandfathered or specifically permitted some uses and activities that the Act generally prohibited. For example:

  • Aircraft and motorboats can be used in a few areas where those uses predated the area's addition to the wilderness system, or where they are "sufficiently limited and focused on restoring the wilderness character of the area," such as use of helicopters to radio-collar wolves in a wilderness area for research purposes;
  • Hydroelectric dams and irrigation reservoirs sometimes are included within wilderness areas;
  • Motorized access is often permitted where it is necessary to maintain water projects or grazing improvements.

 

Controversies have arisen over the uses that should be allowed in areas that have been recommended--but not formally designated--as wilderness. Early in 2010, a group of 72 Democrats from Congress sent a letter to the Chief of the Forest Service, asking him to take a strong stand opposing "activities, such as use of motorized vehicles, that adversely affect the wilderness qualities of the recommended areas to a significant degree." In response, congressional Republicans sent a letter to the Chief  in April 2010, arguing that the Democrats' suggestion would turn agency-recommended wilderness areas into de facto wilderness, prohibiting motorized vehicles and "severely" restricting energy development and timber harvest.

Fire Management

While motorized uses generally are prohibited in wilderness areas, the Wilderness Act gives federal land managers broad discretion to fight fire within wilderness areas, including the ability to use aircraft, chainsaws, bulldozers, and motorized vehicles when necessary. Some fire management and wilderness management plans call for the federal land management agency to let naturally caused fires burn within a wilderness area when that would be beneficial to the ecosystem and would not harm humans or property outside the area. 

Grazing

The 1964 Wilderness Act provided generally that grazing could continue, subject to reasonable regulations, in those areas where livestock grazing was occurring prior to an area's designation as wilderness. Some subsequent bills repeated the 1964 grazing language or variations on that language. And in a number of instances, congressional committee reports have reiterated that managing agencies should not use designation of an area as wilderness as a reason to restrict grazing. Today, livestock grazing continues to occur in many wilderness areas. In addition, the land management agencies generally also permit occasional motorized access to maintain grazing improvements like fences where other forms of access are not practical. 

Mining

The Wilderness Act provided that hardrock mining laws would continue to apply in wilderness areas until the end of 1983; after that time, the lands were closed to new mining claims. The act also provided that any mining patents issued by the Secretary of the Interior during that intervening twenty-year period would convey title only to the minerals, and not to the surface. Moreover, no patent could be issued after December 31, 1983. The Act also included language permitting motorized access to conduct mining activities, but also required restoration of affected areas once the mining had been completed. During the twenty-year period between 1964 and 1983, most legislation designating areas as wilderness simply referred to the mining provisions in the original act; most recent wilderness legislation has simply said that the mining laws no longer apply in these new wilderness areas. 

Minerals

The Wilderness Act said that mineral leasing laws (e.g., oil and gas, coal) would continue to apply within wilderness areas until the end of 1983; after that time, wilderness lands could no longer be leased for development. The 1964 act also specified when motorized access could occur and gave the federal land management agencies the authority to regulate mineral development. Although preexisting leases exist within some wilderness areas, no wilderness bills since 1964 have expanded access under mineral leasing laws. 

Water Rights

The original Wilderness Act included two provisions dealing with water. One allows the President to authorize new water resources facilities within wilderness areas if that use would best serve the interests of the United States; this presidential waiver provision has never been exercised. The second provision in the 1964 Act said that the federal government was neither claiming nor denying that it is exempt from state water laws. For the first twenty years of the Act, water rights were not much of an issue in debates over wilderness. Some bills included language that explicitly protected pre-existing water facilities from being affected by the wilderness designation. A few bills explicitly protected state-created water rights from being affected by an area's designation. However, in the mid-1980s the issue of water resources management within wilderness became more controversial. Since then, some bills designating wilderness have asserted what is known as a "federal reserved water right"—water sufficient to fulfill purposes of the wilderness designation. Other bills have disclaimed such a water right but have exempted areas from presidentially authorized water projects and have carefully circumscribed the circumstances under which existing water facilities can be maintained or replaced.

Controversies

BLM Wilderness Study Areas

While the original Wilderness Act did not apply to BLM lands, section 603 of the Federal Land Policy and Management Act of 1976 (FLPMA) created a mechanism for designating BLM lands as part of the National Wilderness Preservation System. Under FLPMA's three-step process, the BLM first surveyed all of its lands to identify roadless tracts. The BLM then evaluated those roadless tracts for their wilderness characteristics. (The areas that the agency concluded possessed wilderness characteristics were labeled as wilderness study areas.) Finally, FLPMA authorized the President to recommend to Congress which of the wilderness study areas should be added to the wilderness system. Until Congress acts, the BLM designated wilderness study areas receive significant interim protections under FLPMA: BLM must manage these lands to protect their wilderness characteristics. 

Many conservation organizations contend that in conducting its inventory of roadless areas, and evaluating the roadless tracts' wilderness qualities, BLM missed many areas. As a result, they argue vigorously that many more areas should qualify as wilderness study areas than the BLM identified. The controversy is particularly strong in Utah. During the Clinton administration, Secretary of the Interior Babbitt directed the BLM to re-survey its lands in Utah to determine whether some lands had inadvertently been dropped from the earlier inventory and analysis. In that re-survey, BLM found a number of roadless tracts with wilderness characteristics and decided to use the agency's planning process to protect these lands from development until Congress decides either to designate them as wilderness or release them for multiple use. 

Leases without NEPA Disputed:
Following the DOI/Utah agreement, Utah BLM auctioned 55 parcels, 16 of which had been identified as having wilderness characteristics, in the Book Cliffs, Desolation Canyon and the Flat Tops proposed wilderness areas. The Southern Utah Wilderness Alliance (SUWA) and other groups protested the leases, claiming the BLM violated NEPA when it relied on decades-old studies that failed to consider the standard "no-lease" option that NEPA requires as part of environmental analyses. 

In August 2006, a federal court ruled the NEPA evasion illegal. SUWA will now evaluate the court's ruling for application to all of the Utah lease sales following the late-2003 DOI/Utah settlement agreement. 

See SUWA v. Norton, Case No. 2:04CV574 DAK for the full opinion


The state of Utah disagreed with that decision and sued to stop the Department of the Interior from protecting lands identified as part of that re-survey. In 2003, Secretary of the Interior Gale Norton decided to settle the lawsuit and made several changes to the way in which BLM deals with potential wilderness lands. She concluded that once the BLM completed its initial wilderness survey, the agency's statutory authority to review areas for their wilderness characteristics expired. Therefore, the Secretary concluded that the agency could not identify WSAs as part of the on-going land management planning process. Several conservation organizations are now challenging the Secretary's decisions in federal court.

 

Collaboration in Action

Owyhee Initiative

In Owyhee County, Idaho, county officials, who wanted protection for the region to occur on their own terms, organized a collaborative effort between ranchers, environmentalists, motorized users, and outfitters in July 2001. This effort, known as the Owyhee Initiative, released a proposal in April 2004 to protect their natural resources and landscape, while maintaining the viability of the county's ranching economy. The Initiative addressed many local issues; regarding wilderness it proposed to:

  • Designate a half-million acres in six separate wilderness, allowing grazing on all but 35,000 acres of the area; and
  • Release 200,000 acres of "wilderness study areas" for recreation and other uses.

The Owyhee wilderness proposal was included in the Omnibus Public Land Management Act of 2009 (S.22), signed into law by President Obama in March, 2009.

Snow Warriors and Wilderness Advocates

What could be a more unlikely coalition than snowmobiles and wilderness advocates? Following a bloody court battle in the 1990s between the Montana Wilderness Association and the Montana Snowmobile Association, the two groups have been working together—acre by acre—in Montana's high country to recommend areas to allow and exclude snowmobile use. The agreements are just the starting point—but an important first step—for the Forest Service which must do further studies and involve many more stakeholders in their final management decisions. 

For more information, see "Snowy middle ground" by Ray Ring, High Country News 3/06/06. 

Beaverhead-Deerlodge Partnership: Loggers and Wilderness Advocates

What could be an even more unlikely coalition? Loggers and wilderness advocates, of course. In the Beaverhead-Deerlodge National Forest, an ad-hoc group of local timber companies and environmental groups designed their own alternative, proposing to use stewardship contracts on a large scale.  Click here to view the Partnership's web site, which includes a discussion of the process by which they brought this idea to the Forest Service planning process and worked with Mont. Sen. Jon Tester to introduce legislation including the proposal. This bill failed in the final days of the 111th Congress in December 2010, but Sen. Tester reintroduced it as S. 268 in the 112th Congress, and again as S. 37 in the beginning of the 113th Congress. The bill's current title is the Montana Forest Jobs and Recreation Act.

Links

Public Laws

The Wilderness Act of 1964
Public Law 88-577, 16 U.S.C. sections 1131 to 1136
READ MORE >>
 
Federal Land Policy and Management Act of 1976
Public Law 94-579, 43 U.S.C. sections 1701 to 1785 can be viewed on the Cornell University Web site.
READ MORE >>

Regulations and Policies

USDA Forest Service
Forest Service regulations regarding wilderness areas are available through GPO Access.
READ MORE >>
 
Forest Service directives for wilderness evaluations within its planning process are available through the FS web site.
READ MORE >>
 
Bureau of Land Management 
BLM regulations regarding wilderness areas are available through GPO Access.
READ MORE >>
 
U.S. Fish & Wildlife Service
FWS regulations on wilderness areas are available through GPO Access.
READ MORE >>
 
National Park Service
NPS policies on wilderness management are in chapter 6 of the agency's 2001 Management Policies.
READ MORE >>

Other Resources

Wilderness.net
A web site maintained in a partnership of the Arthur Carhart National Wilderness Training Center, the Aldo Leopold Wilderness Research Institute, and the Wilderness Institute at the University of Montana. The site contains detailed information on all wilderness areas in the United States and some background on legal and management issues.
READ MORE >>

Wilderness Legislation of the 113th Congress

New information will be added as the Congress takes action.

The Pew Environmental Group's Campaign for America's Wilderness provides a good source on pending and future legislation to designate wilderness areas.

Copyright © 2014 Red Lodge Clearinghouse. All rights reserved.