The Wilderness Act at 50
Gourlie, Don, Environmental Law
Preservation and management of wilderness areas in the United States is governed in part by the Wilderness Act. Specifically, the Wilderness Act established a process for the congressional designation of federally managed lands as wilderness areas and called for federal land agencies to manage designated lands consistent with their wilderness character. In enacting the Wilderness Act, Congress intended to preserve wilderness lands--untrammeled and undeveloped by man--as an enduring resource for the benefit of the nation. (1) Over the past fifty years, the designation and management of these lands has progressed in fits and starts, subject to congressional will, changing public sentiment, and court decisions. To date, wilderness designations have resulted in protection of over 109 million acres of public land.
September 2014 marks the fiftieth anniversary of the Wilderness Act. In celebration of this anniversary and with the goal of enriching the scholarship of the Wilderness Act, Lewis & Clark Law School organized and hosted The Wilderness Act at 50. The symposium featured several experts on the Wilderness Act's evolution and function, who analyzed different aspects of the past, present, and future of the Wilderness Act. Each also contributed an article to this symposium issue of Environmental Law.
This issue is dedicated to the memory of the late Professor Joseph M. Feller, a distinguished public lands expert who died tragically within the last year and who will be sorely missed by the natural resources and environmental law community. Our issue begins with Professor Feller's last article, an assessment of Wilderness Act litigation in response to a recent article by Professor Peter A. Appel. (2) Professor Feller claimed that the success rate of challenges to agency action under the Wilderness Act depends significantly on the strategic decision made by plaintiffs to pursue only those challenges with the maximum probability of success, rather than on judicial ideology or agency deference as suggested by Professor Appel.
The next article, by Professor Michael C. Blumm and Lorena Wisenhart, claims that the usual vehicle for close judicial scrutiny of lands with wilderness characteristics has been the National Environmental Policy Act (NEPA). They maintain that NEPA has had a large effect both in encouraging wilderness designation by Congress and in restricting the discretion of agency management of designated wilderness areas. They also show how NEPA has functioned to protect areas with wilderness values for potential wilderness designation in the future.
Subsequently, John Copeland Nagle outlines the inclusion of appropriate exceptions to land use restrictions in both the Act itself and in congressional designations of wilderness. Nagle also details the congressional practice of carefully drawing wilderness boundaries so as to avoid land use controversies. Nagle argues that the broad discretion of Congress in designating wilderness and granting limited exceptions to the Wilderness Act's general rules has contributed to the great success of the statute. …