Nagle, John Copeland, Environmental Law
I. INTRODUCTION II. ESTABLISHING WILDERNESS AREAS III. WILDERNESS BOUNDARIES IV. WILDERNESS ACT EXCEPTIONS A. Minimum Requirements Exception B. Existing Aircraft & Motorboats C. Control of Fire, Insects & Diseases D. Mining. E. Water Projects F. Grazing G. Commercial Recreation Services H. Access to Inholdings V. SPECIFIC WILDERNESS EXCEPTIONS A. Establishment Acts B. Subsequent Amendments VI. CONCLUSION
We still debate the paternity of the Wilderness Act fifty years after it was born. The prevailing view is that Howard Zahniser was the father of the Wilderness Act. (1) As a Wilderness Society official lobbying Congress to pass the law, Zahniser authored the law's memorable definition of wilderness as "where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain." (2) The Act further defines wilderness as:
An area of wilderness is ... an underdeveloped 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 ... generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable. (3)
That sweeping language has helped the Wilderness Act gain the reputation of being the most stringent law governing the use of the natural environment. (4) Motorized vehicles, structures, and commercial enterprises are excluded from wilderness areas. (5) The courts read the Wilderness Act especially strictly to prohibit questionable activities. (6)
But Wayne Aspinall has been identified as the father of the Wilderness Act, too. (7) Aspinall represented western Colorado in the United States House of Representatives as Congress debated long and hard before it finally enacted the Wilderness Act. (8) Eight years elapsed between the first wilderness bill introduced by Senator Hubert Humphrey and the passage of the Wilderness Act in 1964. (9) "Congress lavished more time and effort on the wilderness bill than on any other measure in American conservation history," with nine hearings "collecting over six thousand pages of testimony." (10) Aspinall served as the chair of the House Interior and Insular Affairs Committee during that time, and he insisted on balancing wilderness values with other claimants to the use of federal public lands. The compromises extracted by Aspinall that were necessary to finally secure passage of the law included the relaxation of some of the law's land use restrictions, shifting the authority to designate wilderness areas from federal land agencies to Congress, and the elimination of the proposed National Wilderness Preservation Council. (11) The protections of the Wilderness Act only apply to federal lands that Congress has designated as wilderness areas.
Zahniser and Aspinall's competing paternity claims are of much more than historic interest. They represent the fundamental divide in our understanding of the Wilderness Act. Wilderness areas are places that are untrammeled by human activity and where natural conditions prevail. Except when they are not. The law allows some trammeling and some manipulation of natural conditions within designated wilderness areas. (12) Moreover, the understanding of wilderness areas is not reciprocal. While wilderness areas are supposed to be places that are untrammeled by human activity and where natural conditions prevail, it is not true that all such places are wilderness areas that receive the protection of the Wilderness Act. There are many areas that are wilderness in fact, but not wilderness at law.
This Article considers when activities that are inconsistent with wilderness are nonetheless allowed in it. That result happens in four different ways: (1) Congress decided not to designate an area as "wilderness" even though the area possesses wilderness characteristics; (2) Congress draws the boundaries of a wilderness area to exclude land that possesses wilderness characteristics because Congress wants to allow activities there that would be forbidden by the Act; (3) Congress specifically authorizes otherwise prohibited activities when it establishes a new wilderness area; or (4) Congress acts to approve contested activities in response to a controversy that arises after a wilderness area has already been established. …