A Preservation Paradox: Political Prestidigitation and an Enduring Resource of Wildness
Zellmer, Sandra B., Environmental Law
I. INTRODUCTION II. WILDERNESS AND WILD LANDS: NECESSITY OR ANACHRONISM? A. Biodiversity Values of Wild Lands B. Anthropocentric Values of Wild Lands III. FOUNDATIONAL LEGAL CANONS: THE CONSTITUTIONAL POWER FOR PRESERVING FEDERAL PUBLIC LANDS AND THE MUSY PRINCIPLE A. The Property Clause B. MUSY, Biodiversity, and Sustainable Development IV. PRESERVING WILD LANDS THROUGH CONGRESSIONALLY DESIGNATED WILDERNESS AREAS A. Wilderness Act Designation Criteria B. Forest Service and BLM Wilderness Areas C. The Continuing Relevance of Wilderness V. PRESERVING WILD LANDS THROUGH EXECUTIVE BRANCH INITIATIVES A. Presidential Preservation 1. Implementation of the Antiquities Act 2. The Efficacy and Durability of National Monument Declarations B. Rulemaking, Planning, and Agency Discretion 1. Primitive Areas, RNAs, and Other Administrative Preserves a. National Forest Primitive Areas b. RNAs c. Late Successional Reserves and ACECs 2. The Roadless Area Conservation Rule VI. PROCEDURAL ASPECTS OF LEGISLATIVE AND EXECUTIVE PROCESSES A. Does Legislated Wilderness Reflect "Democracy at Work"? B. Are Executively Decreed Preserves "Undemocratic"? C. Do Agency Preservation Initiatives Upset the Balance? VII. CONCLUSION "[The wilderness idea is] mortally wounded by the withering critique to which it has been lately subjected.... [Yet it is] by all accounts, ... the most powerful antidote to ... exploitation in the environmentalists' cognitive arsenal." (1)
A battle over the preservation of unroaded wild lands has been raging throughout the history of public lands management. During the past decade, the controversy has escalated to even greater heights, with ever increasing pressure on ever more limited natural resources, accompanied by ever changing political responses. The battle has been joined at remarkable places like the Grand Canyon and the Sonoran Desert in Arizona; Jackson Hole, Wyoming; the Giant Sequoias of California; Steens Mountain, Oregon; and Otero Mesa, New Mexico.
The foremost federal wild land preservation statute, the Wilderness Act of 1964, (2) is now forty years old. By authorizing a network of congressionally designated "untrammeled" wilderness areas on public lands, the Act has proved invaluable for protecting special areas from the most intensive forms of intrusion by humankind. (3)
Years ago, wild land activist Edward Abbey proclaimed that "wilderness needs no defense, only more defenders." (4) Today, however, critics assert that, like Moses's biblical sojourn in the wilds of Sinai, forty years of wilderness expansion is quite enough. (5) In recent years, Congress has been slow to designate wilderness areas, and the Bush Administration has refused to identify new wilderness study areas for inclusion under the Act.
During the Clinton Administration, the President and his agencies employed a variety of techniques for identifying and protecting wild places on federal lands without having to rely on Congress. The most notable and broad-sweeping involved the designation and protection of national landscape monuments and roadless conservation areas. Both initiatives were highly controversial, but neither is unprecedented. In fact, an extensive array of executive preserves already existed, created over the course of the past century through presidential orders as well as agency rulemaking and planning processes. Examples include research natural areas, late successional reserves, and areas of critical environmental concern. Many of these areas have been or could be considered for official wilderness status. Many of them are especially rich in biodiversity. And many of them have faced and continue to face significant development pressure.
Development interests and proponents of strong state and local authority insist that executive preserves are, in effect, a new federal land grab that displaces the fundamental principles of multiple-use management. …