When Old Becomes New: Reconciling the Commands of the Wilderness Act and the National Historic Preservation Act

By Carsley, Nikki C. | Washington Law Review, June 2013 | Go to article overview

When Old Becomes New: Reconciling the Commands of the Wilderness Act and the National Historic Preservation Act


Carsley, Nikki C., Washington Law Review


Abstract: The Wilderness Act created a national framework for the protection of wilderness areas. Although the statute defines wilderness as an area "untrammeled by man, where man himself is a visitor who does not remain," it leaves room for the "public purposes of recreational, scenic, scientific, educational, conservation, and historical use." As such, the Wilderness Act clarifies that its purposes are "within and supplemental" to other land-use statutes, including statutes like the National Historic Preservation Act (NHPA), which created a national scheme for preserving historic places and structures. When considering the Wilderness Act relative to the NHPA, agencies and courts have interpreted agency obligations under each act differently. Though the historical context, text, and purpose of each statute indicate that historic preservation efforts should be permitted within wilderness areas, courts have read the two acts as mutually exclusive and held that the Wilderness Act takes precedence over the NHPA. The two statutes can be harmonized. To clarify the law in this area, however, Congress should amend the Wilderness Act to provide an express exception for preservation efforts in compliance with the NHPA.

INTRODUCTION

Thousands of tired, nerve-shaken, over-civilized people are beginning to find out that going to the mountains is going home; that wildness is a necessity; and that mountain parks and reservations are useful not only as fountains of timber and irrigating rivers, but as fountains of life.1

-John Muir

[T]hese old buildings do not belong to us only; . . . they have belonged to our forefathers, and they will belong to our descendants unless we play them false. They are not in any sense our property, to do as we like with. We are only the trustees for those that come after us.2

-William Morris

Although the American public has long contested the uses and purposes of wilderness,3 the concept of an open frontier of wild lands has never ceased to be a culturally and historically important aspect of America.4 Similarly, while not universally acknowledged, the study of history-whether by museum, textbook, or designation of historic landmark-has also wielded significant influence on American society.5 However, in the race to define and protect wilderness lands and historic monuments, the respective land-use schemes created by Congress did not explicitly account for each other.6 The resulting inconsistencies have leftagencies and courts alike in a predicament when determining whether and how to maintain protected historic structures located within designated wilderness areas.7

Congress enacted the Wilderness Act8 in 1964 against a backdrop of competing ideologies regarding the value of wilderness, the rise of conservationism, and inter-agency conflict.9 For its time, the Wilderness Act was "the most far-reaching land preservation statute ever enacted."10 Through the creation of the National Wilderness Preservation System,11 the Wilderness Act established a national framework12 for the protection of designated wilderness areas via acts of Congress.13 Since designating the inaugural 9.1 million acres of wilderness,14 Congress has added over 100 million acres to the National Wilderness Preservation System.15 Today, approximately five percent of the United States is protected as wilderness.16 With few exceptions, wilderness legislation has enjoyed wide bipartisan support.17 In fact, every president following Lyndon Johnson has signed legislation protecting additional wilderness acreage.18

In a similarly conservationist spirit, two years later Congress passed the National Historic Preservation Act (NHPA).19 The purpose of the NHPA was to remedy ineffective federal historic preservation statutes.20 Like the Wilderness Act, the NHPA was "a watershed in preservation law, for it created a means by which the Nation's preservation goals could be achieved."21 The NHPA promotes the protection of historic resources at federal, state, and local levels. …

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