The national park system contains great swaths of officially designated wilderness. And it contains expansive tracts of land that are of wilderness quality and which some wish would gain official wilderness designation. The latter point continues to generate much debate, which I'll leave for another day.
For now, though, I've come across a carefully prepared analysis of how wilderness and human history are juggled -- not always correctly -- across the national park system. It was written by Frank Buono, a former Park Service employee and now a board member of Public Employees for Environmental Responsibility.
It's an informative piece, one advocates of both wilderness and human history in the parks should take the time to read.
Wilderness and History: Reconciling The Past with The Primeval
By Frank Buono
Federal courts help us understand the meaning of laws. The Wilderness Act is no exception. The words of the Wilderness Act include both poetic statements of purpose and more precise definitions. The Act prohibits nine specific activities, and provides some exceptions to the prohibitions. The Wilderness Act obligates wilderness-managing agencies to act in particular ways. The Wilderness Act is enforceable by the courts.
The National Park Service has been the subject of three recent Federal court decisions that clarify its wilderness responsibilities. Two of the three court cases examined NPS decisions about historical values within designated wilderness. The first decision concerned Cumberland Island National Seashore. The second decision affected Olympic National Park.
This article will not satisfy those who insist that wilderness should not contain elements of past human activity. Nor will those be satisfied who insist that the NPS must preserve all evidence of human history within wilderness. As usual, the truth lies somewhere in between.
As NPS Regional Director Jonathan Jarvis wrote, it is important to understand that all park managers are tasked with the complex job of balancing a variety of public mandates designed to protect diverse and valuable resources.
In both decisions, the courts concluded, the NPS failed to judiciously consider applicable public mandates. Both decisions found that the NPS wrongly interpreted and misapplied relevant legal authorities. Both cases found that the NPS errors resulted from decisions to subordinate wilderness values to cultural resources.
This article presents the courts’ findings in the two cases where wilderness and historical values collided. Wilderness is a legal fact that imposes duties and obligations upon the NPS. The courts’ findings help to define the nature and extent of those duties, specifically in the context of legal obligations to conserve historic objects.
This article avoids a broader philosophical debate about wilderness. One valid viewpoint questions the very legitimacy of wilderness as a concept on a planet so influenced by humans, past and present. In its most extreme form, this perspective regards wilderness as a counterfeit delusion, a romantic fantasy.
This article will not examine the unresolvable, but largely irrelevant, debate about the conceptual legitimacy of wilderness.
THERE IS HISTORY IN WILDERNESS
No one reasonably denies that human activity and history have occurred in areas now designated as wilderness. Remains of past human activity do not disqualify undeveloped areas from recommendation, or designation by Congress as wilderness.
The Wilderness Act contains two definitions of wilderness. The Act first defines “wilderness” in the “ideal.” The first definition is: “A wilderness, in contrast with those areas where man and his works dominate the landscape, is hereby recognized 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.” 16 U.S.C. 1131(c).
The second definition is of the Federal areas that realistically qualify as wilderness, i.e. “An area of wilderness is further defined…to mean 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 and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable..."
The two definitions of wilderness, “the ideal” and “the realistic,” have caused some confusion from the inception of the Wilderness Act. Early wilderness proposals from the NPS applied the very rigid test that, to be suitable for recommendation as wilderness, an area must be completely free of man’s works, including but not limited to, administrative facilities such as patrol cabins, border fences and fire towers. The argument persists today that many areas created by Congress as wilderness are unworthy of such classification because they contain abandoned mine shafts, old road beds (although closed to motor vehicles), or similar features.
Senator Frank Church (D-ID) who managed the Wilderness Act on the floor of the Senate, conducted oversight hearings on wilderness on May 5, 1972. Senator Church addressed this confusion in the following way:
“The test of suitability of an area for wilderness designation is simply and solely in the definition of wilderness in section 2(c) (of the Wilderness Act), which is a reasonable, flexible definition, resting basically on a balancing judgment of man’s work being “substantially unnoticeable” within the proposed wilderness entity.” “There is much confusion on this point which has led some to policies about what can or cannot be designated “wilderness” which are simply not consistent with the clear intent of Congress…”
The hearing transcript shows that Senator Church went on to address primarily the issue of why facilities for the administration of the area as wilderness do not disqualify otherwise undeveloped areas from recommendation. But at the end of the hearing, Senator Church turned to the wilderness recommendation for Shenandoah National Park. The lands recommended were once occupied, logged and, farmed by hundreds of families.
“I want to commend the National Park Service for recognition that this land, though once abused by various disturbances decades ago, has recovered under the natural restorative powers of natural forces, to the point where it, indeed, in the language of section 2(c) of the Wilderness Act 'generally appears to have been affected primarily by the forces of nature, with the impact of man’s work substantially unnoticeable.'”
In short, to be proposed as “wilderness,” an area of undeveloped Federal land need not be free of all human influence. Rather, human influences need to be “substantially unnoticeable.” To qualify as wilderness, an area must “generally appear(s) to have been affected primarily by the forces of nature.” Proposed wilderness areas need not have been affected only by the forces of nature.
To define lands eligible for proposal as wilderness in any other way would have resulted in a very small wilderness preservation system indeed. That was not the intent of the authors of the Wilderness Act.
Department of the Interior officials also recognized that some lands with historical features may be included within wilderness recommendations to Congress. For example, in a letter to Senator Henry Jackson of June 10, 1974, the Office of the Secretary wrote the following:
“This section (section 2(c)(4) of the Wilderness Act) provides, in part, wilderness areas may contain 'ecological, geological, or other features of scientific, educational, scenic or historical value.' We interpret this language to mean that structures of historical value need not be carved out of wilderness areas. A recommendation to include such a structure in wilderness would be based on two criteria: (1) the structure should only be a minor feature of the total wilderness proposal; and (2) the structure will remain in its historic state, without development.”
Before reviewing the court cases, we all acknowledge that wilderness areas contain remnants of human history. Only the most extreme view asserts that the Wilderness Act precludes the recommendation of undeveloped areas containing “historical values” as wilderness. There are thousands of historically important objects, structures and sites within wilderness.
Few such sites are as easy to recognize as the Puebloan ruins in Bandelier National Monument, New Mexico. Yet Congress designated these lands as wilderness that contain archeological remains such as the Painted Cave.
The two court cases do not address whether historic values belong in wilderness or whether wilderness may contain historic values. They did not need to. Such a debate would be silly, given the language and history of the Wilderness Act. There are, indisputably, historic values in wilderness! Instead, the court cases clarified how the NPS must manage wilderness and the historic values within wilderness.
The court cases rebuked the NPS for failing to judiciously apply “a variety of public mandates designed to protect diverse and valuable resources.” Instead, both courts concluded that the NPS violated the law because the NPS pursued historic preservation at the expense of wilderness values.
CUMBERLAND ISLAND NATIONAL SEASHORE
Congress established a national seashore on Georgia’s Cumberland Island in 1972. Cumberland Island features some of the last remaining undeveloped land on barrier islands along the Atlantic Coast of the United States. In 1982 Congress designated wilderness in the park. Cumberland Island contains important historical resources, notably a mansion complex at Plum Orchard, and The Settlement, the remnants of a post-Civil War community of freed slaves.
In 2002 Wilderness Watch, a wilderness advocacy organization based in Missoula, Montana, joined by Public Employees For Environmental Responsibility filed a complaint against the NPS for several violations of the Wilderness Act. The District Court agreed with the NPS. However, on June 28, 2004, the Eleventh Circuit Court of Appeals reversed the District Court and found for Wilderness Watch.
Wilderness Watch alleged, and the court found, that the NPS violated the Wilderness Act at Cumberland Island. The NPS asserted that, under the Wilderness Act, NPS employees could drive motor vehicles across designated wilderness to maintain Plum Orchard (outside of wilderness) and The Settlement (which lies in designated “potential wilderness”).
The NPS then metamorphosed its “maintenance trips” into routine, regularly scheduled excursions by fifteen-passenger vans, filled with tourists. The NPS stated that since no added impact would result by adding park visitors to the routine “maintenance trips,” there was no violation of the motor vehicle prohibition in the Wilderness Act.
The NPS presented a two-part Wilderness Act defense for driving tourist-filled vans through wilderness. First, the NPS argued that transporting passengers through wilderness in the van tours was in line with the Wilderness Act because such travel was “necessary to meet minimum requirement necessary for administration of the (wilderness) area.”
The Eleventh Circuit rejected this assertion as inconsistent with the Wilderness Act. The Court said that the NPS decision to administer The Settlement by “using a fifteen-passenger van filled with tourists simply cannot be construed as “necessary” to meet the “minimum requirements” for administering the area “for the purpose of the [Wilderness Act].”
Here, the Circuit Court decision turned not on NPS responsibilities for historical preservation but on the NPS’s far-fetched reasoning that it was “necessary for the purpose of wilderness" to provide motorized public access to historic sites across and within designated wilderness.
Second, the NPS argued that the Wilderness Act directs that “wilderness areas shall be devoted to the public purposes of recreational…and historical use.” The NPS asserted that its duty to preserve historic resources and provide for their enjoyment justifies driving motor vehicles with tourists in wilderness because it furthers the recreational and historical purposes of the Wilderness Act.
The NPS believed that it could waive the Wilderness Act prohibition on motor vehicles not only under the administrative necessity exception, but also because wilderness was to be administered for historical purposes. The NPS’ second argument raised a more interesting question than its assertion of “necessary for administration.”
The Circuit Court responded:
“…we cannot agree with the Park Service that the preservation of historical structures furthers the goals of the Wilderness Act. The Park Service’s responsibilities for the historic preservation of Plum Orchard and the Settlement derive, not from the Wilderness Act, but rather from the National Historic Preservation Act (NHPA), 16 U.S.C. 461, et seq. The NHPA requires agencies to assume “responsibility for the preservation of historic properties” they control. Id at 470h-2(a)(1)….”
"The agency’s obligations under the Wilderness Act are quite different. The Wilderness Act defines wilderness as 'undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation.' 16 U.S.C. 1131(c). A wilderness should 'generally appear to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable.'”
The Court continued:
“…the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purpose. Furthermore, any obligation the agency has under the NHPA to preserve these historical structures must be carried out so as to preserve the 'wilderness character'” of the area. See 16 U.S.C. 1133(b) (“Each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer such area for such other purposes for which it may been established as also to preserve its wilderness character.”)”
The court recognized that Congress imposes historical preservation responsibilities upon the NPS, but the court found that the NHPA (the only historic resources statutory responsibility considered in this decision) does not overrule the Wilderness Act prohibitions.
This decision helps lead the NPS towards the intelligent “balancing of a variety of public mandates.”
While some may argue that the NHPA trumps the Wilderness Act, there is no support for that in court. The Eleventh Circuit found that while the NHPA applies to historic sites within wilderness, the NHPA does not repeal, overrule or grant an exception to the Wilderness Act mandate that the NPS manage wilderness to preserve wilderness character.
The NPS did not appeal the decision to the Supreme Court.
OLYMPIC NATIONAL PARK
In 1988 Congress designated wilderness in Olympic National Park in the State of Washington. Olympic is a vast park of over 900,00 acres, with 876,000 acres designated wilderness, protecting the rugged and wild heart of the Olympic Peninsula. In the 1970s, as the NPS developed the wilderness proposal for Olympic National Park, the NPS noted the existence of 47 wooden trailside shelters in the wilderness proposal.
In late 2002 the NPS announced consideration of a proposal to fly two newly constructed structures to replace two collapsed shelters at Low Divide and Home Sweet Home in the Olympic Wilderness. The NPS had already built the new structures in a park maintenance yard. The NPS sought comment not on the placing of new structures in wilderness but, among other things, the use of the aircraft (helicopters) to deliver them.
On January 10, 2004, the NPS announced for public comment an environmental assessment (EA) for the shelter proposal. After receiving public comment, later in 2004, the NPS signed a Finding of No Significant Impact (FONSI) to airlift the new structures into wilderness.
In November 2004 Olympic Park Associates, public citizens dedicated to conservation on the Olympic Peninsula, joined by Wilderness Watch and Public Employees For Environmental Responsibility filed a complaint in Federal court against the NPS for violation of the Wilderness Act.
The Wilderness Act, prohibits, among other things, “landing of aircraft….and structure(s) or installation(s)”… “except as necessary to meet minimum requirements for the purpose of administration of the area (including measures required in emergencies involving the health and safety of persons within the area).”
The NPS argued that:
1. the collapsed structures were historic properties, eligible for listing on the National Register of Historic Places;
2. the new structures, to replace the old, served “to maintain the historic feeling and appearance of the park trail system”, and;
3. the decision to restore “historic feeling and appearance” within park wilderness arises from a general statutory mandate(s) superior to the explicit proscriptions of the Wilderness Act.
On July 29, 2005, the U.S. District Court in Tacoma, Washington, rejected the NPS arguments and found that the NPS proposal to place new structures in wilderness and deliver them by air violated two specific prohibitions of the Wilderness Act.
Note that this case is not about “historic” structures. This case involved non-historic “structures.” The Wilderness Act specifically prohibits structures, except as necessary for administration of the area. The case is made more useful because the NPS did not muddy the issue by arguing that the new structures were “historic” nor avail itself of the argument that the structures were needed for “health and safety.”
The Olympic case answered whether the NPS could install non-historic structures, not justified by administrative necessity (health and safety), but rather for the purpose of recreating the “historic feeling and appearance” of a location within designated wilderness.
The Court determined that the NPS could not legally place the new structures in wilderness “for the purposes of cultural resource protection.” The judge said that “[O]nce the Olympic Wilderness was designated, a different perspective on the land is required."
Regarding the Olympic Wilderness, that perspective means “lands retaining its primitive character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions.””
The judge continued:
“f the reconstructed shelters were placed in the Olympic Wilderness, regardless of whether they were placed in the locations of the former shelters, the National Park Service would not be administering the area in accordance with its mandate under the Wilderness Act:
"[E]ach agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer such area for other purposes for which it may have been established as also to preserve its wilderness character.”
The NPS argued that other purposes of Olympic National Park, from the general mandates of the National Historic Preservation Act (NHPA), the Historic Sites Act of 1935 and ultimately the Organic Act of 1916, overruled the explicit proscriptions of the Wilderness Act. The judge, citing long-established court decisions, found no requirement in the NHPA that the NPS reconstruct anything, let alone the two shelters.
More importantly, the judge disposed of the NPS argument that the NPS Organic Act mandate “to conserve historic objects” trumps the Wilderness Act prohibitions.
The judge wrote:
“The Organic Act cannot be interpreted to require replacement of collapsed shelters with new reconstructions to be placed in wilderness by helicopter where the Wilderness Act is a specific, protective statute militating against such intrusions. The Wilderness Act provides that an agency utilizing its authority under other laws in ways that affect wilderness must do so pursuant to the requirements of the Wilderness Act as a whole:…
"A long established rule of statutory construction is that where there is a specific provision that governs an issue, it takes superiority over any general provision. Here, the Wilderness Act under which the Olympic Wilderness was designated, is the specific provision, while the National Historic Preservation Act, among others earlier mentioned, is the general. The rule allows the NPS to administer the Olympic Wilderness for other purposes only insofar as to also preserve its wilderness character.”
The court found the NPS managers committed a “clear error in judgment.” The NPS error was the decision to place structures in wilderness, aimed at recreating the historic feeling and appearance of the place, without regard to whether that aim was valid under the terms of the Wilderness Act.
NPS scoping, the EA, or the FONSI never addressed whether restoring historic feeling and appearance by placing new structures in wilderness was compatible with either the general terms or the specific prohibitions of the Wilderness Act. The NPS leapfrogged that analysis and went directly to whether it was permissible to use helicopters to place the structures.
For the Olympic National Park managers, it was only a matter of examining the “means” and not the “ends.” The NPS error lay in deciding that recreating historic feeling and appearance of the Olympic backcountry was automatically more compelling than preserving its wilderness character. The NPS failed to judiciously weigh the “variety of public mandates designed to protect diverse and valuable resources.” The NPS did not appeal the district court decision.
NEW MANAGEMENT POLICIES
On August 31, 2006, the NPS adopted new Management Policies. The Wilderness chapter of the Policies states:
The Wilderness Act specifies that the designation of any area of the park system as wilderness “shall in no manner lower the standards evolved for the use and preservation of” such unit under the various laws applicable to that unit (16 USC Section 1133(a)(3)). Thus, the laws pertaining to historic preservation also remain applicable within wilderness but must generally be administered to preserve the area’s wilderness character.
The new language replaced the previous words:
Cultural resources that have been included within wilderness will be protected and maintained according to pertinent laws and policies governing cultural resources, using management methods that are consistent with the preservation of wilderness character and values.
The new policies direct that the “laws pertaining to historic preservation…must generally be administered to preserve the area’s wilderness character.” The new Management Policies contrast with the previous policies. The previous policies focused on ensuring that only “management methods” be consistent with wilderness character.
One aspect of the new Management Policies requires examination. The new Management Policies - “Cultural Resources” section of the Wilderness chapter, states that “[T]he Wilderness Act specifies that the designation of any area of the park system as wilderness “shall in no manner lower the standards evolved for the use and preservation of such unit under the various laws applicable to that unit (16 USC Section 1133(a)(3)).”
This quote does not appear in the Policies of 2001. Further, this provision of the Wilderness Act, by its own terms, is not limited to cultural resource standards of the national park system. Why then does it appear in the “Cultural Resources” section and not generally throughout Chapter 6? It may be a misguided effort to inoculate historic conservation to wilderness claims. If that were the intent, it fails.
The plain language of the “no lowering of standards” provision in the Wilderness Act does not allow a repeal of the NPS Organic Act mission to “conserve” historic objects (or “scenery” or “wildlife” for that matter!). However, a deeper meaning of this provision is found in NPS documents written shortly after the passage of the Wilderness Act.
The 1970 Administrative Policies of the NPS explains the meaning of Wilderness Act, Section 4(a)(3) – the “no lowering of standards” provision:
The Wilderness Act of 1964 recognizes, moreover, that all lands which may be included in the National Wilderness Preservation System are not to be managed alike. For example, the Wilderness Act provides for certain multiple uses in wilderness areas of the national forests designated by the act, such as existing grazing; mineral prospecting until 1984 and mining (with authority to construct transmission lines, waterlines, telephone lines, and utilize timber for such activities); and water conservation and power projects as authorized by the President.
No such lowering of park values is contemplated by the Wilderness Act for national park wilderness, since that act provides, in part, that:
* * * the designation of any area of any park…as a wilderness area pursuant to this Act shall in no manner lower the standards evolved for the use and preservation of such park* * in accordance with the Act of August 25, 1916, [and] the statutory authority under which the area was created * * *.
At the time of enactment, the NPS feared that some might view resource development exceptions that applied to national forest wilderness as applicable to wilderness in the national parks. In national parks, resource extraction was, and remains, impermissible except where directly and specifically provided by Congress.
The NPS feared that a misinterpretation of the Wilderness Act could lower the standard of protection for parks, perversely so for the lands designated as wilderness. The “no lowering of standards” provision specifically cites the Federal Power Act. This example demonstrates how the “no lowering of standards” provision ensures that the 1921 prohibition on dam building in parks (16 U.S.C. 797) remains unaltered by the Wilderness Act.
The Wilderness Act authorizes the President to allow water development projects in national forest wilderness. (16 U.S.C. 1133(d)(4)). It would be a perverse outcome if dams were prohibited in nonwilderness park areas under 16 U.S.C. 797, but were viewed as authorized in park wilderness by the Wilderness Act. The “no lowering of standards” language, according to the NPS 1970 interpretation, was aimed at preventing such an unintended outcome both for dams and a list of other activities.
Conflict over how to treat cultural resources within designated wilderness will continue. There are intelligent people on both sides of the issue. Some may insist that all human influences and modifications within designated wilderness be expunged. Others may insist that all such influences be perpetuated. Both perspectives are likely unwise.
No one has ever sued the NPS for stabilizing ruins in the Bandelier wilderness. Those who care about protecting the values of designated wilderness have better things to do. The NPS possesses a wide range of possible preservation methods for cultural resources, from natural degradation to full reconstruction.
There are few laws, if any, that mandate a specific treatment for a specific cultural resource. The new NPS Management Policies accept, that in administering the historic preservation laws (and selecting the most appropriate treatment), wilderness does matter!
According to one Federal court, recreating historic feeling and appearance of landscapes within wilderness, as the NPS attempted at Olympic, was a treatment clearly in error.
The courts have illuminated how the NPS may preserve designated wilderness and still administer the historic preservation laws. To avoid more litigation, NPS managers must truly achieve the complex job of administering “a variety of public mandates designed to protect diverse and valuable resources.” Historians and wilderness advocates alike are in the business of preservation, at a time when far too much of history and wildness is disappearing. Crusades from either community are not appropriate in this context.