Chapter 6

Preservation

Protected Lands

• Professor Sax notes (intro quote) that there is general agreement that we ought to preserve certain lands

• What do we mean by “preservation”?– Doesn’t it depend on the context?– Do we mean an unspoiled wilderness?– A “developed” urban park with playgrounds and ball fields?

• And what are we preserving for? – To protect “natural” environments?– To protect native species, ecosystems, or landscapes?– To provide a “natural” recreational experience?

Recreational Use• National Forests

– Between 1950 and 1996, 27.4 million visitor days to 341.2 million visitor days

• National Parks– Between 1950 and 2002, 33 million visitor

days to 277 million visitor days

• BLM Lands– Between 1972 and 2002, 31 million visitor

days to 68 million visitor days

Protected Lands Legislation

• Forest Service Organic Act of 1897• Antiquities Act of 1906• National Park Organic Act of 1916• Wilderness Act of 1963• Land and Water Conservation At of 1965• National Wildlife Refuge Administration Act of 1966• National Historic Preservation Act of 1968• National Trails System Act of 1968• Endangered Species Act of 1973• FLPMA (BLM Organic Act) of 1976• Alaska Nat’l Interests Land Cons. Act of 1980

Why Preserve Lands?• Why do people support wilderness?

• Is there an economic case for preservation?– Is it even necessary to demonstrate economic value to

support preservation?– What are the economic values associated with preservation?

• Is there an historical and cultural case?

• Is there an ecological case?– Consider “rock and ice” areas with little biological diversity?

• Is there a moral case?– Mountains Without Handrails

• What does Professor Sax advocate?

Y2Y

• Home page– http://www.y2y.net/science/default.asp

• Land Use Maps– http://www.y2y.net/landuse/default.asp

Industrial Tourism vs. The Purist

• Is this just about line drawing or is something more fundamental at stake?– Are the purist’s values – independence, self-reliance,

and self-restraint – majoritarian?

• Do motors (ever) have a place in wilderness?– How about mechanical devices like bikes?

• What relevance does this debate have to our law and policy?– Should we legislate to keep cars, motor boats, and

snow machines in or out of our parks?

The Dark Side of Preservation

• Do the values of the purist – independence, self reliance, and self restraint – avoid the dark side?

• Do we need industrial tourism to build public support for our protected lands?– Winnebago tourists– Snowmobiles and power boats

• Is a recreational economy more benign than a resource extraction economy?– Compare mining economy with mountain biking

economy in Moab, Utah

The Idea of Wilderness

• Is Foreman right – that it needs no defense?– What does he mean?– Foreman is expressing a normative value – that

wilderness is essentially a good thing – and presumably – that we don’t have enough of it

– Recall that our views of wilderness have evolved• It was once viewed as a dangerous and undesirable place to

be tamed• Yet we now associate wilderness with positive values of

nature, solitude, and self-reliance

• Is Baden right that it is intellectually and ethically impossible to pretend away the necessity of choices between preservation and development?

National Parks• …the best idea we ever had. Absolutely

American, absolutely democratic, they reflect us at our best rather than our worst….” Wallace Stegner

• 355 areas including 56 national parks

• Early parks reserved for their scenery and curiosities– Yellowstone, Grand Canyon, Yosemite, Zion

The Park Service Mission• “to conserve the scenery and the natural and

historic objects and the wildlife therein AND to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 16 U.S.C. §1.

• Does the non-impairment standard trump the requirement to provide for the enjoyment of the parks?

• How does the Park Service achieve its mission when 3 million people want to visit a park during a three month period?

Off-Road Vehicle Use in Canyonlands

•

SUWA v. Dabney• Ten-mile ORV trail left open on a limited permit

basis

• Does the decision violate the non-impairment standard?

• How much discretion does the Park Service have to make the judgment?

• Consider the language of the Park Service Organic Act and the interpretation of the Act by Professor Keiter

Angel Arch and the Molar

• http://www.thebackpacker.com/pictures/pic/iagen3e9oh1bln.php

Conflicting Mandates?• Are the requirements to manage parks for

enjoyment and to leave them unimpaired for future generations consistent mandates?

• Why has the problem of conflicting mandates arisen only recently?

• Should land management agencies always come down in the middle – so that neither side is happy with the decision? – Why does Professor Cheever suggest that this has a

corrosive quality?– Does it suggest that agency lacks a core vision?

Bioprospecting in Yellowstone

• Why wouldn’t we allow bioprospecting in Yellowstone if its impact is truly negligible?

• Why does Professor Doremus object to bioprospecting in Yellowstone?– Is she offering a moral argument?– What would Professor Sax say?

Concessions Policy• 1998 NPS Concessions Management Act

– Concessions are limited to those that are – necessary and appropriate for public use and enjoyment, and consistent to the highest degree practical with the preservation and conservation of park resources

– Does Congress want it both ways?

• Are resort-style hotels “necessary and appropriate”?

• Are they consistent with preservation?

• Why does Professor Sax object to the concessions policy?

Snowmobiles in Yellowstone• Fund for Animals v. Norton struck down the Bush

rule that would have allowed 950 snowmobiles/day with BAT requirements

• Temporary Rule finalized last week– November 4, 2004, – Allows 720 snowmobiles/day subject to BAT

requirements (basically 4-stroke engines)

• Is snowmobiling an appropriate use in a national park?– Does it matter whether it is a means of transportation as

opposed to a recreational use in its own right?

The Redwood

Cases

The Redwoods Cases• Redwoods I

– Logging on private lands adjacent to and upstream from the park threaten park resources

– The Court notes the Secretary’s “fiduciary obligations”• What is the source of these obligations? Is it imposed by

statute?– Is the court effectively ordering the Park Service to buy private

land?

• Redwoods II– The court finds that “cooperative agreements with logging

companies and further studies are not enough

• Redwoods III– Where Park Service has expended all available funds court

cannot require more– What does this decision suggest about the ability of courts to

monitor natural resource policy?

The Redwoods Cases and the Public Trust

• Redwoods I suggested that the federal government has a trust responsibility to protect park lands

• The Park Service Organic Act, 16 U.S.C. 1a-1– “The authorization of activities shall be construed and

the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established….”

• But consider how difficult it is for courts to police this obligation as suggested by Redwoods III

National MonumentsThe Antiquities Act of 1906

• ….The President of the United States is authorized, in his discretion, to declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated upon the lands owned or controlled by the Government of the United States to be national monuments, and may reserve as a part thereof parcels of land, the limits of which in all cases shall be confined to the smallest area compatible with the proper care and management of the objects to be protected….

What was Congress Trying to Protect?

• Fundamentally, American antiquities, which were being looted by collectors and even renowned museums

• But the Interior Department was intent upon securing broader authority

• Chaco Canyon– http://www.cr.nps.gov/

worldheritage/chaco.htm

National Monuments• Why have they been so controversial?

– Consider how they are established

• Controversial Examples– The Grand Canyon – The Grand Tetons (Jackson Hole)– The Alaska monuments– Grand Staircase-Escalante

• What are the chances that Congress would have designated any of these lands as parks or monuments on their own?

Bright Angel Trail

The Grand Canyon• 800,000 acre canyon

Jackson Hole National Monument

The Clinton Monuments• Grand Staircase-Escalante

– http://www.ut.blm.gov/monument/Visitor_Information/photo_gallery.html– Consider the political landscape– Consider Louise Liston’s comments

• Should locals be allowed to decide how public lands are managed?• Are these just playgrounds for rich, urban people?

• Mountain States Legal Foundation v. Bush– Courts may review Antiquities Act decisions– Consider, however, that NEPA does not apply to monument decisions.

Why not? See Alaska v. Carter, 462 F. Supp. 1155 (D.Al 1978)

• Tulare County v. Bush– (1) Identifying the “objects”; (2) objects don’t qualify; (3) not

the smallest area compatible; (4) increased chance of fire; (5) unconstitutional delegation of congressional power

Scope of the Antiquities Act

• Is an ecosystem an “object of scientific interest”

• In FLPMA, Congress repealed every withdrawal authority – including the implied authority of Midwest Oil –EXCEPT the Antiquities Act– Why do you think it chose to leave the Antiquities Act

in place?

• One designated, does the President have the authority to abolish a monument or reduce its size?– Consider Mount Olympus National Monument (now

Olympic National Park)

The Antiquities Act and Public Process• The Antiquities Act establishes no process

– No prior notice, no opportunity to comment, no environmental analysis (NEPA doesn’t apply)

• Several bills introduced to make NEPA applicable to monument proposals– Is this a good idea?– What arguments can you muster against it?– How might process impact the President’s ability to

designate a monument?

• Should the BLM be allowed to manage national monuments– National Landscape Conservation System

Wilderness• Early wilderness designations were done

administratively by the U.S. Forest Service– Trappers Lake, Colorado (White River NF)– Gila Wilderness. NM (Gila NF)– Forest Service 1939 U-Regulations

• Prohibited roads, motor vehicles, logging in designated “primitive areas”

• The Wilderness Society– Bob Marshall; Howard Zahniser– The Wilderness Act of 1963

The Wilderness Act of 1963, 16 U.S.C. 1131

• (a)…shall be administered for the use and enjoyment of the American people in such manner as will leave them unimpaired for future use and enjoyment as wilderness ….

• (c) A wilderness … 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. An .. area of underdeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation …which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition….

Wilderness Areas

• How are they designated?

• What types of lands are eligible?

• Today 662 areas totaling 106.5 million acres– http://www.wilderness.net/index.cfm?fuse=NWPS

• Not surprisingly, wilderness designation has been especially controversial on multiple use lands– National Forests and BLM lands

National Forest Wilderness

• The process for designating wilderness essentially involves three steps1. An agency inventory of roadless areas

2. Agency recommendations to the Congress

3. Congressional action

Note that heavy lobbying – rent seeking –

occurs at every stage of the process

– RARE I• 56 million acres managed to protect wilderness values

– RARE II• 62 million acres of inventoried potential wilderness• Court refused to allow 36 million acres to be released

BLM Wilderness• Inventory found only 24 million acres of eligible land

(out of 174 million inventoried)

• Continuing controversy over the BLM inventory, especially in Utah– Eligible lands excluded from further study because of

mineral potential– Efforts to exclude split estates and areas less than 5,000

acres overturned in Sierra Club v. Watt

• Legal issues and problems– Consider issues raised by note 2, page 618– “Hard release” language– Wilderness water rights

Wilderness Issues• Environmentalists vs. Workers

– What does Richard White mean when he says that environmentalism should focus on our work rather than on our leisure?

• Do people understand the “idea of wilderness”?– What are the implications if they don’t?

• Should we divide our land management agencies into two parts – one focused on parks and wildlife and the other on resource use?

Wilderness Society v. FWS• Is a “sockeye salmon enhancement program” in an

Alaska wilderness consistent with wilderness preservation?– The Act prohibits all “commercial enterprise” within

wilderness areas– Is the program a “commercial enterprise”?– Does it meet the requirement that the agency preserve

the “wilderness character” of the area preserve it in its “natural condition”

• Consider Note 1, pp. 629-630

• Note the Chevron analysis– Is the statute clear?

Wilderness “Management”• Is the very idea of “management” inconsistent with

wilderness?

• The Act allows measures necessary to control “fire, insects and diseases.” – Should these measures be used? If so, when?

• The Act allows grazing to continue where it was established before September 3, 1964– Should the FS nonetheless seek to cut back on grazing?– Note the language from the House Report, p. 632

• The Act allowed mining and mineral leasing but these rights were never exercise to a significant extent

Case Study: Roading the Izembek Nat’l Wildlife Refuge

Case Study: Roading the

Izembek Nat’l Wildlife Refuge

Case Study: Roading the Izembek Nat’l Wildlife Refuge

• Could the FWS have approved the road on its own?

• Could Congress?

• Should we allow Congress to make legislative changes through a rider to an appropriations bill?– Consider ANWR

SUWA v. Norton• APA, 5 USC § 706(1): Requires courts to “…compel agency

action unlawfully withheld or unreasonably delayed…”

• FLPMA: – For WSAs, mandates that the Secretary “shall continue to manage”

the WSAs “in a manner so as not to impair their suitability for wilderness….” 43 USC § 1782

– Requires Secretary to manage public lands in accord with land use plans. 43 USC §1732

• Agency had committed to an “intensive ORV monitoring program” in its plan

• Supreme Court ruled that – The first requirement of FLPMA did not provide a discrete action

that could be enforced under the APA– The second requirement did not impose a legally binding

commitment enforceable under the APA

National Wildlife Refuges• 521 refuges covering 90.6 million acres in 50 states (84% in

Alaska) http://www.defenders.org/habitat/refuges/map/map.html

• Migratory Bird Hunting and Conservation Stamp Act, [Duck Stamp Act], 16 U.S.C. §§ 718-718j– Money acquired from duck stamps may be used for “locating and

acquiring suitable areas for migratory bird refuges under the provisions of the Migratory Bird Conservation Act.”

– Duck Stamps: http://duckstamps.fws.gov/Info/Stamps/stampinfo.htm– http://duckstamps.fws.gov/federal/results/fedresults03.htm– Duck stamp sales have netted >$670 million – money used to

purchase or lease over 5.2 million acres of U.S. waterfowl habitat

• Secretary can acquire lands for migratory bird conservation if recommended by the Commission

• Other lands acquired through the Land and Water Conservation Fund

National Refuge System Administration Act, National Refuge System Improvement Act

• Recreation, hunting, fishing, and accommodation allowed, but only to the extent “compatible with” the primary purpose of the refuge – conservation and restoration of wildlife habitat– Priority for “wildlife dependent” recreational

activities

• Comprehensive management plans required

Wild and Scenic Rivers Act• Rivers included either –

– by congressional approval or – State nomination (by legislation) and approval by Secretary

of the Interior• 16 U.S.C. § 1273(a)

• Rivers (or river sections) are “classified, designated, and administered as” –– Wild Rivers: Free of impoundments and generally

inaccessible except by trail– Scenic Rivers: Free of impoundments with shorelines and

watersheds largely primitive but accessible in some places by roads

– Recreational Rivers: Readily accessible by roads or rail lines, with some shoreline development, and some impoundment or diversion in the past

Wild and Scenic Rivers Act• Rivers included in the system are to be managed to –

– “protect and enhance the values which caused it to be included in said system without, insofar as is consistent therewith, limiting other uses that do not substantially interfere with public use and enjoyment of these values.” 16 U.S.C. § 1281.

– Includes management of the watershed– Is this another conflicting mandate?– Consider the cases:

• Oregon Natural Desert Ass’n v. Singleton; and Oregon Natural Desert Ass’n v. Green: Required studying and then removal of grazing from River corridor

• Hells Canyon Alliance v. USFS: Upholding use of motor boats on wild river section on grounds that no “substantial” interference.

• Note that rivers are required to have a comprehensive management plan

Questions and Discussion

• Note 1. Since the agency must give preference to “wildlife-dependent” activities, grazing should arguably give way.

• Note 2: Are “artificial aquaculture activities” compatible with the primary purposes of the Refuge?

• Note 4: ANWR. Not included in budget bill.

Land and Water Conservation Fund• A trust fund that accumulates from –

– Outdoor recreational users fees; Federal motorboat fuel tax; surplus property sales

– Not a true trust fund – the money must be appropriated by congress

– Through FY 2001, 11.4 billion appropriated (Less than half of what was available)

– In recent years, about $900 million made available, but not all is appropriated

• The money can be spent to acquire lands for the four major land management agencies, or for state and local governments for parks (subject to certain matching fund requirements)– Ohio has received more than $145 million since 1965

Land and Water Conservation Fund• Recent major acquisitions from the fund included

the New World Mine ($65 million) and Headwaters grove acquisition ($250 million of federal money)

• Note the opposition in some Western states to use of the Fund by the federal government to acquire more land

• Conservation and Reinvestment Act (CARA) would have made LWCF a true trust.– CARA-lite works like the LWCF and has never been fully

funded

NOTE

• Slides end at page 650.