A Primer on Wilderness Law and Policy

Michael McCloskey and Jeffrey Desautels

Editors' Summary: In its 20-year history, the congressionally established wilderness system has seldom seen as much controversy as it has of late. Development pressures are increasing, the controlling agencies are reconsidering their wilderness policies, and Congress is being pressed to make ultimate decisions about the status of undeveloped lands.

The following discussion of wilderness law is adapted from the transcript of a panel discussion held at the February 1983 Conference on Environmental Law in San Francisco, cosponsored by ALI-ABA, the Environmental Law Institute, and the Smithsonian Institution. The remarks presented here are from panelists Michael McCloskey, Executive Director of the Sierra Club, and Jeffrey Desautels, Manager of Government Issues Analysis for Anaconda Minerals Co. The panelists succinctly present the underpinnings of wilderness law, trace the highlights of wilderness litigation, and discuss the major controversies remaining.

[13 ELR 10278]

M. McCLOSKEY: We are going to begin by briefly reviewing the statutory scheme for wilderness in the United States, then go over some of the leading cases that have interpreted wilderness law and conclude by outlining some of the policy issues that new confront the country on this question.

Foundations of Wilderness Law

The Wilderness Act

M. McCLOSKEY: The key wilderness statute is the Wilderness Act of 1964.¹ The passage of the Act, as much as anything, reflected discontent over the exercise of administrative discretion over wilderness areas, which up to then were administrative creatures, and was designed to put wilderness areas, at least in the national forests, under the protection of Congress. Basically, under the Wilderness Act only Congress can create wilderness areas and only Congress can reduce or change the size or protection afforded to wilderness areas.

The Wilderness Act definition of wilderness² has two thrusts to it: a general one that says these are areas where the earth and its community of life are untrammeled by man and where man is a visitor who doesn't remain; it is an area of undeveloped federal land retaining its primeval character and influence without permanent improvements or human habitation, and it is protected and managed to preserve its natural conditions. Beyond that, it has an elaborated definition, more qualified, that says that a wilderness "generally appears to have been affected primarily by the forces of nature, with the imprint of man's work substantially unnoticeable."³ This leads to the supposition that these areas don't have to be absolutely pristine in character to be admissible to the system. It goes on to say they offer opportunities for solitude and recreation. They are at least 5,000 acres in size, or are of sufficient size to make their preservation practicable, and it says they may also contain ecological and geological and scientific features of interest.

When the Wilderness Act was passed, all of the Forest Service's then-existing wilderness and wild areas were put into the system,⁴ and the Act provided a process for Congress to add new areas.⁵ At the time, there was also a category of roughly-defined units called Primitive Areas, and Congress provided, in the Saylor Amendment, that they should continue to be administered as they had been until Congress determined otherwise, so as to preserve their primitive qualities.⁶

The management of wilderness areas proceeds under two general thrusts. One of them is found in the general management acts of the various agencies involved.⁷ The other is found in the Wilderness Act itself. The general management language of the Act⁸ says there shall be no commercial enterprise and no permanent road within the units of the system. Then it has a general exception that says there shall be no temporary roads, and no use of motor vehicles, nor motorized equipment, nor motorboats, nor landing of aircraft, nor mechanical transport, nor structures and installations unless they are necessary to meet minimum requirements for administration. This specifically involves the health and safety of people operating within the area.

In addition to these general exceptions, the Act has some very specific exceptions. The use of aircraft and motorboats can be permitted to the same extent that it was established prior to 1964, subject to secretarial regulation.⁹ There is also an exception for ongoing mineral surveys on a planned, recurring basis to the extent consistent with maintaining wilderness qualities.¹⁰

And then there is a very large and elaborate exception [13 ELR 10279] dealing with mining under the 1872 Mining Act and the Mineral Leasing Act.¹¹ Basically, there is a window of 20 years (until the end of this year, 1973) within which mining and leasing can continue. But those activities are subject to reasonable regulations on ingress and egress to the extent consistent with allowing the mining activity to take place; restoration of the surface is authorized; no patents for the surface resource are to issue after the 1964 enactment date, though they can issue for mineral values until the end of 1983. Thereafter, beginning January 1, 1984, all of these areas are withdrawn from the entry under the Mining Act or the Mineral Leasing Act.

There is also a general exception on dams and water resource developments in wilderness areas if the President makes a specific authorization.¹² To the extent livestock grazing was taking place prior to 1964, its continuation is authorized.¹³ There are also some specific provisions on occupancies or inholdings in wilderness areas, with distinctions drawn between occupied and unoccupied ones.¹⁴ There has been an Attorney General's opinion governing the question of access to occupied inholdings. The Attorney General ruled that the Secretary of Agriculture can deny access to such inholdings (unless there was a prior existing right of access), but if he does so he must offer exchange land to the owner of such an occupied inholding.

Growth of the System

M. McCLOSKEY: The wilderness system has grown considerably since the 1964 Act.¹⁵ Nine million acres were put in it at that time. Today, there are some 79 million acres in the wilderness system, with the most acres in the National Park System, and the next greatest amount in the National Forest System. At the beginning of this year there were 34 wilderness units administered by the National Park Service totaling 35.2 million acres; there are 65 units administered by the Fish and Wildlife Service totaling 19.3 million acres; and 158 units administered by the Forest Service totaling 25.1 million acres. There are also parts of four units administered by the Bureau of Land Management (BLM) totaling 12,000 acres in the system.

There have also been some subsequent surveys of inventories — two for the National Forest System called roadless area reviews and evaluations (RARE surveys). The first one in 1971 looked for roadless areas in the national forests that might qualify for inclusion in the wilderness system and identified 56 million acres. When the RARE II surveys were done in 1979, some 15.6 million acres in 2,918 roadless areas of the national forests were recommended as wilderness, some 10.8 million acres were recommended for further study of their wilderness potential, and some 36 million acres were recommended for uses other than wilderness. The numbers of what remains in these categories had changed considerably. There are now seven million acres left of the 15.6 million acres recommended for wilderness (the balance has been added to the wilderness system); there are still around 10 million acres in the further study category, but there are only 23 million acres left in the non-wilderness category (13 million acres have been devoted to other uses and no longer have wilderness qualities). BLM did an inventory in the late 1970s, and it identified 24 million acres, out of the 174 million acres it administers in the lower 48 states, that might qualify for inclusion in the system and that needed to be reviewed.¹⁶

Each addition to the system, of course, must be accomplished by act of Congress. These acts often include specific study and management directives. In 1975 Congress enacted legislation pointing out that there are units of the national forests in the eastern United States that qualify for inclusion in the system, and certain studies were instigated at that time.¹⁷ There have also been big packages of legislation adding units to the system, such as the Endangered American Wilderness Act of 1978.¹⁸ It pointed out that wilderness does serve multiple values.

Since 1964 Congress has often mandated that agencies study wilderness potential in given units, asking that reports be done within three or four years. In some cases, there have been more specific provisions set forth in statutes adding units to the system. For instance, in the Alpine Lakes' Wilderness Management Act of 1976,¹⁹ there is a very elaborate management scheme set forth for adjacent areas. And the New Mexico Act of 1980²⁰ had a specific provision dealing with continuation of current levels of motorized use, though for the most part, the acts adding units to the system merely invoke the original management language. The act that put most of the old Boundary Waters Canoe Area into the wilderness system in 1978 superseded a host of prior legislation on the subject and some of the cases dealing with that famous area.²¹ My colleague will cover some of the other management statutes that deal with wilderness.

General Management Acts

J. DESAUTELS: The Wilderness Act overlays the general management acts governing federal lands. A thorough review of public land law is beyond the scope of this introductory; however, we will present a brief look at the organic [13 ELR 10280] statutes of the Forest Service and BLM, the two agencies involved in the most controversial wilderness lands.

The 1897 Organic Act²² established the United States Forest Service. It established national forests as withdrawn areas for forest protection and use and water flow. The Act specifically did not withdraw these lands for agriculture or for mining purposes. Its stated purpose was "to improve and protect the forest, securing favorable water flows and furnishing a continuous supply of timber."²³ National forests were not to include lands more valuable for mining and agriculture, and, in fact, any such lands discovered to have higher values were to be returned to the public domain.²⁴ This provision has since been effectively repealed.²⁵

The 1960 Multiple-Use Sustained-Yield Act²⁶ specified in a little bit more detail some of the uses for national forests. They were established for outdoor recreation, for rangeland, for timber, watershed, and fish and wildlife protection. The Act was not to affect mineral uses of the forest. The Act was to provide for a multiple-use sustained yield of renewable surface resources, and the relative values of the various resources were to be considered when making administrative decisions by the Forest Service. The Act specifically stated that wilderness designation was consistent with purposes of the U.S. Forest Service and the Act.²⁷

In 1974, the Forest and Rangeland Renewable Resources Planning Act was passed,²⁸ and in 1976 this act was amended by the passage of a National Forest Management Act,²⁹ and they are currently intertwined in title 16 of the U.S. Code.³⁰ Sections 1600-1614 provide for renewable resource planning. Any renewable resource planning is to be conducted in accordance with the provisions of the National Environmental Policy Act (NEPA).³¹ The Forest Service is to establish a planning program to be updated every five years, which will cover a rolling 40-year period and be transmitted to the President.³² As part of the overall program on a more specific level, the Forest Service is to make resource management plans for each unit of the national forest by September 30, 1985.³³ That is the first planning cycle. Work on those plans is in progress. The plans must comply with NEPA and must include consideration of budgets, planning staff, and so forth. They will be very precise management plans, more precise than for almost any other federally held resource.

The Classification and Multiple Use Act of 1964³⁴ was the Department of the Interior equivalent of the Multiple-Use Sustained-Yield Act. BLM lands were to be classified for retention and use or disposal and sale. The classification was to apply multiple use concepts in development of comprehensive zoning plans, using zones of sufficient size to be meaningful in the planning process with a primary use within each zone; the reviews and decisions would be reevaluated periodically. This particular statute expired in 1970 on the publication of the Report of the Public Land Review Commission, which was undertaken in the 1960s to review all of the U.S. policies with regard to public lands and public lands' use.

The key statute for the BLM now is the 1976 Federal Land Policy and Management Act (FLPMA).³⁵ It is really BLM's first comprehensive land management statute, and it is very comprehensive. It provides for establishing various uses of the public lands, the public lands here defined as BLM lands. Section 201 calls for an inventory of the public lands to facilitate land-use decision-making.³⁶ FLPMA also details control of land acquisition and conveyance, administration, rights-of-way, and, key to this discussion, wilderness study. Section 603³⁷ talks about roadless area review, and BLM has designated 24 million acres, more or less, a wilderness study areas. The § 603 review is to be conducted on all areas greater than 5,000 acres and on roadless islands, and those are to be identified during the § 201 inventory process as having wilderness characteristics. That process is in progress now and is to be completed and presented to the President by the Interior Department no later than 1991. The President then has two years to present the recommendations to Congress, and Congress is given no time frame within which it must make any decisions on what actually to designate wilderness. This particular section, 603, has provided a lot of grist for the litigation mill as we will discuss a little bit later. It contains non-impairment language, and has led Interior to promulgate regulations that essentially preclude non-wilderness uses of the study areas, pending finalization of recommendations and determination by Congress of which areas should be included as wilderness.³⁸

Section 701,³⁹ the valid existing rights language, when read in conjunction with § 603, provides the rest of the grist for the mill. Valid existig rights are to be protected from the non-impairment land management criterion during the study. What constitutes a valid existing right, how much protection, how much discretion, and all those things are the subject of the litigation that we will be discussing below.

The Role of NEPA

J. DESAUTELS: One more act deserves brief mention, and that is NEPA.⁴⁰ It overlies almost all wilderness planning. [13 ELR 10281] Section 102(2)(C)⁴¹ requires that any major federal proposal for action be accompanied by a consideration of its impacts — usually an environmental assessment or an environmental impact statement (EIS). These accompany most wilderness proposals, and their preparation, their adequacies and inadequacies, have again been the focus of a large part of the litigation attending the wilderness decision process. Next, we will discuss some of the litigation.

Wilderness Litigation

M. McCLOSKEY: Most wilderness suits either deal with areas being studied for their wilderness potential, or their suitability for addition to the system, or they arise under the exception for mineral leasing and deal with the question of how those exceptions shall be construed. We will first highlight cases involving Forest Service lands, and then explore BLM cases.

Forest Service Wilderness Study

M. McCLOSKEY: The first really important wilderness case, Parker v. United States,⁴² dealt with a primitive area in Colorado. The case involved logging in the East Meadow Creek roadless area, which was adjacent to the Gore Range-Eagles' Nest Primitive Area. The Tenth Circuit basically held that the Forest Service had to study the wilderness potential of the adjoining roadless area and to protect it in status quo until the entire review process had been completed, which includes not only the agency study and the President's determination of his recommendation, but extends all the way through final congressional disposition of the status of the primitive area. So this case enunciated the doctrine of "adjacency" — that roadless areas adjacent to protected primitive areas have to be protected as roadless, undeveloped areas until there is a final disposition of the primitive area.

Moving from privitive areas, we will next look at the RARE I survey of 1971 and the challenge to it in court in 1972. Although I suggested the process that led to RARE I to the Council on Environmental Quality in 1971, the Sierra Club and others were not happy with wilderness recommendations stemming from it, and so went to court to challenge its implementation. This produced the case of Sierra Club v. Butz.⁴³ The outcome of that case was that the Forest Service was enjoined from engaging in any kind of mass timber cutting or road building or anything that would alter the wilderness character of inventoried roadless areas (i.e., those areas that were physically undeveloped in the national forests) until an environmental impact statement (EIS) was prepared. The implication of the case was that these impact statements should be local in scope. They should be on the individual roadless area, or perhaps on the national forest, but they were to be fairly site-specific. The court did way that trial construction was acceptable in the interim.

The Chief of the Forest Service, a little later, in July of 1972, issued complying regulations,⁴⁴ and this general approach was subsequently upheld in a 1973 case, Wyoming Outdoor Recreation Coordinating Council v. Butz.⁴⁵ This case dealt with two timber sales in an inventoried roadless area that was not recommended for wilderness. Incidentally, the area had jeep trails across it that were held not to disqualify the area. The timber sales had actually been made prior to RARE I, which gave an interesting twist to the case. However, the court enjoined the Forest Service from allowing timber cutting or road building in the area until it prepared an EIS.

For RARE II in 1979, the Forest Service did a broad programmatic environmental impact statement for its surveys of those 2,900 areas mentioned earlier, and the adequacy of that programmatic EIS was contested in court by the State of California.⁴⁶ The district court ruling, subsequently generally affirmed by the Ninth Circuit, held that the environmental impact statement in that case was not adequate because, among other reasons, it had too little in the way of site-specific analysis of the impacts of their decisions; that the rationality, the reasoned basis for the choices made, was not apparent from the material set forth in the EIS; and the decision really wasn't supportable based upon the kind of generalized data set forth. The court said that probably an EIS in the nature of one that is done for a dam or on a mineral lease would be the kind of EIS required. It did not squarely rule out the possibility of doing an EIS for the whole national forest system, but it certainly implied that to do one adequately would be a monumental task. The dilemma posed by California v. Block is still before the country, and we will return to it when we discuss current issues below.

The ruling in the case also said that the alternatives have to be sufficiently broad in nature. One alternative examined in RARE II reserved 30 percent of the inventoried areas as wilderness; the next one reserved 100 percent. The implication is that something in between would have been necessary to fairly present a proper range of alternatives. The court in California v. Block also held that an environmental impact statement must deal substantively with the opposing public views that surround the controversy; it is not sufficient just to tabulate the numbers of comments from the various sides.The court also held that if the final decision departs significantly from that proposed in the draft EIS, a supplemental EIS must be prepared and the public must be given an additional opportunity to comment.

Forest Service Mineral Leasing

J. DESAUTELS: As discussed above, the Wilderness Act provides a 20-year window ending this year allowing miningexploration and development with wilderness areas.⁴⁷ In the 1960s in the Cabinet Mountains of northwestern Montana, a mining company, ASARCO, Inc., discovered a silver-copper deposit and filed claims on it. [13 ELR 10282] ASARCO's claims were partly within the Cabinet Mountains Wilderness, and ASARCO intended to prove its deposit in order to establish valid existing rights so that it could continue mining. In 1979 it presented a proposal for a small exploratory drilling program to the Forest Service to prove out the deposit. The Forest Service approved the 1979 program, and in 1980, in order to meet the 1983 deadline, ASARCO presented a plan for an expanded four-year program. The Forest Service completed an environmental assessment on the proposal, and the Fish and Wildlife Service completed a biological assessment. They determined that the area is potential grizzly habitat, where as many as a dozen bear might live. To protect the bears, the Forest Service imposed mitigating measures on ASARCO; they were accepted, and the Forest Service issued a finding of no significant impact (FONSI) under NEPA in June of 1980.

Environmental groups brought suit claiming violations of the Endangered Species Act and NEPA in that no EIS was performed. The district court and the D.C. Circuit both held that the environmental assessment fairly presented the potential impact and that the drilling program did not constitute significant federal action to the point where an EIS was required.⁴⁸ The court noted that no mining plan had been submitted and that this was a limited program of exploratory drilling. Presumably there could be some further discussion if, in fact, the mining plan submitted is held to have some significance for the grizzly habitat, and unquestionably approval of the full-fledged mining operation will require an EIS.

In a similar case involving mineral leasing, Sierra Club v. Peterson,⁴⁹ the District Court for the District of Columbia held that an environmental assessment was adequate to consider the environmental effects of granting exploratory oil and gas drilling permits. The court noted that protective stipulations in the leases would substantially mitigate the impacts on the wilderness.

The holdings in mineral development cases to date have been relatively limited. The assessments were considered to be adequate in light of the extent of the program. The activities proposed fit within the Wilderness Act definition of specifically designated window activities — mining, mineral location, and mineral leasing — and were only the first steps in a process that will allow more study and mitigation of environmental impacts. The mineral development cases do not present any great departure from the general drift of judicial wilderness decisions, which is that wilderness and areas studied for wilderness are to be protected to the greatest extent possible.

M. McCLOSKEY: One should further note that probably there are no cases to date that I know of that suggest that an EIS is not required for timbering operations; the dispensations here seem to relate to the mineral leasing that is an exception in the Wilderness Act. I might add that there is also a pending case called the Deep Creek case, or Bob Marshall Alliance v. Watt,⁵⁰ being argued that goes beyond exploratory permits and deals with leases in general, and it may shed some further light on this question.

BLM and Interior Controls

M. McCLOSKEY: Turning to BLM wilderness, these cases usually hinge on interpretation of § 603 of the Federal Land Policy and Management Act (FLPMA), which provides that BLM wilderness study areas are to be preserved as wilderness until Congress receives the agency recommendations and acts.⁵¹ This is the non-impairment standard, but it contains an exception, in § 603(c), to allow "continuation of existing mining and grazing uses and mineral leasing."⁵² The key case in this field is Rocky Mountain Oil and Gas Association v. Watt (RMOGA).⁵³ RMOGA involved an Interior Solicitor's opinion interpreting § 603 to ban any development activities that could possibly impair a wilderness study area's wilderness character.⁵⁴ The district court upheld that as applied to mining activities, the opinion was contradicted by §§ 603(c) and 701 of FLPMA,⁵⁵ which preserve development rights existing when FLPMA became law. The court of appeals reversed. The final holding turned on the question of whether the exception was for leases or leasing, and the court of appeals held that leases were the key. The exception is only for leases in existence on October 21, 1976 rather than a continuous process of leasing having been grandfathered in. There was a similar holding in an earlier case, Utah v. Andrus,⁵⁶ that said the exception is only for actual uses begun in 1976 as opposed to rights to use resources in the future.

However, controversies continue. Secretary Watt has now said that he will treat as valid existing rights those leases issued between 1976 and the end of 1982, and surely there will be further litigation over whether the post-1976 leases are valid.

Another controversy, which may be nearly moot now, is over whether the Secretary of the Interior has discretion to deny oil and gas permits in Forest Service wilderness areas (as opposed to the BLM ones). In Learned v. Watt,⁵⁷ the district court in Wyoming held that the Secretary did have that discretion, though that case did not just deal with a statutory wilderness area, but also with a secretarial order going back to 1947 that withdrew an area north of the 11th Standard Parallel from mineral leasing because of the scenery and wildlife around Jackson Hole. So, in this particular case, the denial was based upon values of scenery, recreation, and wildlife rather than the wilderness status of the unit.

While the Forest Service has held that wilderness designation [13 ELR 10283] alone cannot be the basis for denying an application for an oil and gas lease in the wilderness area, a long line of cases has upheld the Secretary's discretion to offer or deny leases on public lands in general.⁵⁸ Section 4(d)(2) of the Wilderness Act states that the laws pertaining to mineral leasing shall extend to the National Forest lands designated as Wilderness Areas "to the same extent as applicable prior to September 3, 1964."⁵⁹ Prior to 1964, it is quite clear that, under the proprietary powers of the Secretary of the Interior as the manager of the public domain, he had discretion to grant or deny leases. This prior discretion was continued in wilderness areas after 1964 by the language of the Wilderness Act that said that the application of the mineral leasing laws continued to the same extent as before. The Secretary had discretion before the passage of the Wilderness Act, and he had discretion after the passage of the Wilderness Act. Certainly, the understanding of the meaning of this language by the conservation community at the time the Act was passed contrasts sharply with the implication that the mineral leasing laws were not discretionary in their application to wilderness areas. The cases, however, seem to draw the distinction that after the passage of the Act, the Secretary's discretion to deny leases must be built around factors other than wilderness alone.

Congress severely curtailed the Secretary's discretion in the appropriations for the Department of the Interior for fiscal 1983;⁶⁰ no monies can be spent to process or issue leases or permits for mineral development in certain areas through the end of September 1983. The ban applies only to the following units: units of the Wilderness Preservation System; RARE II areas in the national forests that were recommended for wilderness; RARE II areas in the national forests that were recommended for further planning; and statutory wilderness study areas in the national forests. The ban does prevent seismic exploration wherever roads might be required. Secretary Watt has also stated that he will not issue leases after September 30, 1983 through the end of that calendar year because his staff would not have sufficient time in those remaining months to process lease applications. And, of course, at the end of 1983, the 20-year exception for mineral leasing expires.

The spending ban, however, does allow the following: exploratory operations that do not involve roads; slant drilling from producing fields outside of the wilderness area, or from areas outside that might be prospectively valuable for such purposes; mineral surveys by federal agencies under the Wilderness Act's general provisions for such surveys; hardrock mining under the Wilderness Act; and action on leases under any valid existing rights. Watt has also said that he can proceed to process leases on any valid existing rights.

This congressional ban was the culmination of a controversy on leasing in wilderness-type areas that has raged since the day Watt came into office. At the outset Watt backed the mining industry's suggestions for a 20-year extension of the window that would have allowed mining in wilderness until the year 2003. After embracing this program, Watt then maintained that he not only could issue leases within units of the national wilderness preservation system, but that he was obliged to do so. He was on the verge of issuing such a lease in the Bob Marshall Wilderness of Montana when the House Interior Committee stopped him by making an emergency withdrawal. At the beginning of 1982 following this congressional action, Watt then announced that he was going to postpone action on any leases in wilderness areas until the end of the 1982 congressional session to give Congress a chance to act. He proposed to Congress a package of legislation that combined an extension of the ban until 2003 (but thereafter, units of the wilderness system would be open to leasing), with a provision that gave Congress only a couple of years to act on all the wilderness study areas (this was a form of "release" legislation). Congress responded, thereupon, by banning leasing in fiscal 1982 and a little bit later in fiscal 1983.

J. DESAUTELS: The issue there, however, is that wilderness designation itself cannot be the sole reason, the sole criterion, on which to deny a lease up until the end of 1983. Again, in the legislation passed late last year, which prevents further leasing activities up until September 30, 1983, Congress has prevented Interior from issuing any further leases in wilderness study areas. That leaves a three-month remaining window, and Secretary Watt stated early this year that he was going to extend the ban on further leasing until the end of 1983, effectively closing off the window in the wilderness areas, RARE II recommended areas, RARE II further planning areas, and in congressionally designated wilderness study areas and also in the BLM wilderness study areas. So, in fact, the Interior Department's decision in January went beyond what Congress mandated last year, because Congress didn't mention the BLM wilderness study areas. The decision has now been made to close that window on leasing; now this is not mineral location, this is only mineral leasing under the 1920 Act on certain wilderness and wilderness study areas. It is closed off as of now, essentially.

Unsettled Mining Issues

J. DESAUTELS: Wilderness litigation has left a number of unsettled questions. RMOGA⁶¹ upheld the 1978 Interior Solicitor's opinion regarding the scope of the § 603 non-impairment criterion. In 1981 the new Interior Solicitor changed the 1978 Interior Solicitor's opinion in another opinion in which he stated that the § 701 language on valid, existing rights limits the application of the non-impairment criterion on pre-FLPMA-issued leases.⁶² It was a relatively complex opinion dealing with "when a property right is a valid existing right" versus a "vested right" versus "an expectation only," and the varying constitutional protections that apply to those different rights. In [13 ELR 10284] pre-FLPMA leases, which generally don't contain as many environmentally based stipulations as those issued aftef FLPMA was passed, the lessee is often given the right to enjoy the fruits of the lease that the non-impairment criterion would probably prevent. The 1981 Solicitor's opinion stated that the pre-FLPMA leases would be subject only to the undue degradation language in § 603 and not to the non-impairment criterion language. There is some question whether the Solicitor's opinion is consistant with RMOGA.

M. McCLOSKEY: There are two other unsettled questions that may be the basis of litigation. One of them deals with whether mitigation measures and stipulations in leases in wilderness areas can serve as the basis for avoiding the preparation of an environmental impact statement. We cited those cases earlier. In the Cabinet Mountain case,⁶³ there were some loose ends left about what would have happened under differing circumstances. At least as far as the Forest Service is concerned, or their land holdings are concerned, this issue may now largely be moot at the result of the spending ban, although where valid existing rights are in place there may still be an issue to pursue.There is another unsettled question that deals with leases in wilderness that have stipulations that there shall be no surface occupancy. The question is whether those are really valid or whether they amount to some kind of a confiscatory taking. The lower court in RMOGA regarded these as a taking, but the court in Sierra Club v. Peterson⁶⁴ thought they were valid. There is another case, though, involving the Gros Ventre Wilderness Study Area in Wyoming, called the Jackson Hole Alliance for Responsible Planning v. Watt,⁶⁵ that was just filed last October and involves applications for permits to drill, and thus the question will probably be litigated further.

Policy Questions

M. McCLOSKEY: In addition to these questions for litigation, a plethora of policy issues is agitating the political process. These largely concern what actions Congress and the agencies should take to complete the wilderness study and classification process.

Release

J. DESAUTELS: One of the issues is that of release. When are lands to be stopped being studied? Are lands that are not recommended for wilderness to be released to multiple use, or are they to remain in a restricted category for some unspecified period of time? Closely related to this is the issue of whether a congressional time limit on designation of wilderness should be imposed. FLPMA imposes time limits on getting BLM recommendations to the President, and from the President to Congress, but there are no time limits on Congress to act. In addition, there are no time limits on Congress to act on the Forest Service wilderness areas. And the issue of when lands are to be returned to multiple use is certainly a hot one for the natural resources industries. Their feeling is that enough is enough, and when these areas are recommended as not having wilderness attributes, then they ought to be released for multiple use. That has run into opposition from the environmental groups, and it is a hot public policy issue right now.

M. McCLOSKEY: Under proposed "hard release" language the Forest Service would be barred from considering the wilderness option in its normal planning cycles for the national forests. This would particularly affect all of those areas that were not recommended for wilderness. As a matter of fact, much of the environmental community believes a considerable portion of that acreage should have been recommended for wilderness, or at least for further study (about 20 million acres of the 36 million acres). Thus, there is a real battleground over the future of this category of forest land. Proposed release legislation would also give Congress tight timetables to also complete processing of wilderness proposals They would have only four to five years to complete action on those areas recommended for wilderness and seven years for those areas recommended for further planning studies.⁶⁶ Environmental interests support limited or "soft release," which would ban consideration only in the current planning cycle. The normal planning cycle of the Forest Service is designed to take a fresh look periodically at how all of the allocation decisions in national forests are used (to the extent that they are discretionary with the Secretary) and a look at whether any factors have changed in terms of public need. It seems arbitrary to the conservation community to allow commercial users of the forest to bar full inquires into their uses in these normal planning cycles. If it is fair enough to consider increasing the allowable cut for the timber industry, why is it not fair enough to consider whether some areas ought to be withdrawn from potential timbering and be put into wilderness?

Sufficiency

M. McCLOSKEY: A related issue is the so-called sufficiency issue arising out of California v. Block.⁶⁷ There is an outstanding injunction in California against development in some 45 areas that were not recommended for wilderness. This has caused anxiety among resource development industries that subsequent lawsuits might be filed in other regions of the country leading to injunctions. To deal with this fear the environmental community has advanced the suggestion that Congress enact wilderness bills on a state-by-state basis, that is, bills adding RARE II proposals to the wilderness system for each state. These bills would declare the programmatic RARE II EIS sufficient for all legal purposes as far as wilderness in that state is concerned and would bar any future challenge to that EIS in court; but under soft release, they would allow consideration of wilderness alternatives for the non-recommended areas in future national forest planning cycles if those areas remain undeveloped. This proposal had been negotiated with the timber industry in [13 ELR 10285] late 1980, and we thought all parties found it satisfactory. Subsequently, it was found not to be acceptable to the timber industry.

Sufficiency language is only acceptable to the environmental community when it is joined to legislation putting RARE II inventory areas into the national wilderness preservation system. Since the effect of sufficiency language will be to deny the possibility of injunctions from issuing to safeguard roadless areas, it only makes sense to accept such language when it is balanced by an increase in the protection given to areas that are the subject of controversy.

J. DESAUTELS: I might add that the main reason that the resource industries want to see sufficiency, but also want to see release, is the difference between the so-called "hard release" and the "soft release." The sufficiency language would open up lands not designated as wilderness to further wilderness consideration in subsequent Resource Planning Act and other studies by the federal agencies. That also fits within the problems of soft release, and the resource industries want hard release. Once an area has been determined not to have wilderness characteristics and is not designated wilderness, the position of the industry is that it be returned to multiple use and not be subject to wilderness study in future years. Hard release removes the incentive for the agencies in the interim to restrict mining exploration and other activities on those lands so as not to degrade any potential wilderness characteristics.

I think we generally feel, of course, under this administration that the agencies are, in their hearts at least, more friendly to the industry. The results might not bear that out, but in a couple of previous administrations, the "hearts" of the agencies, in the view of the industry, were not at all in conjunction with our views on what sort of public land multiple-use policy should be in place, and there would be a very great desire on their part to preserve and preserve forever in the process.

RARE III

J. DESAUTELS: All of this leads to the question, Is there a RARE III? On February 1st Assistant Secretary of Agriculture John Crowell announced that the Forest Service was going to bow to the dictates of California v. Block and redo the RARE II EISs in toto as part of the individual forest unit plans — the ones ongoing under the Forest Range and Renewable Resources Act, due to be completed by September 30, 1985.⁶⁸ There are about 120 national forest plans being done, and the restudy, with new EISs, will include not only lands recommended for further study and non-wilderness, but also the lands that were recommended for wilderness designation. Because Congress has created over eight million acres of new wildernesses and released about 13 million acres since RARE II, the new study will involve roughly 40 million acres out of the 62 million acres inventoried in RARE II.

M. McCLOSKEY: The anomaly of Crowell's RARE III action is that it reopens the question of land use for areas recommended for wilderness in RARE II — despite the fact that the flaw in the EIS that led to California v. Block was the weak justification for not extending wilderness protection to more areas in the national forests. It seems contrary to the court's holding to contemplate removing protection for areas recommended for wilderness when the problem surrounds the justification for areas being removed from potential wilderness protection. There are some seven million acres at stake in the national forests as a result of this question. While in theory the administration is going to take another look at areas not recommended for wilderness, their policy positions have been such that it is extremely unlikely that they would recommend much acreage for wilderness that had once been recommended for non-wilderness.

RARE III will add more delay and uncertainly to the wilderness designation process. At least two more years of study are involved, perhaps more. It seems unlikely that the studies will present anything new. RATE II was not perfect and perhaps some improvement in the rationales could be developed, but it is not likely that this is what the administration, in fact, intends to do. It is going to cost 15-30 million dollars more and accomplish very little in the process.

The environmental community suspects that Assistant Secretary Crowell is trying to push the Congress into adopting nationwide legislation that would have both sufficiency and general release language. Most of the environmental community would rather see the RARE issue resolved through state-by-state wilderness bills. State-by-state wilderness packages have already been adopted for some 11 states, embracing some seven million acres that have gone into the system, and state sufficiency language has been adopted for a number of states: Alaska, Colorado, New Mexico, Missouri, West Virginia, and indiana;⁶⁹ there are state wilderness-package bills pending, or that will soon be introduced, for Washington, Oregon, California, Wyoming, Montana, and Idaho.⁷⁰ If they go through for those states, the issue will be largely decided.

BLM Wilderness Study

M. McCLOSKEY: In the last year two aspects of BLM's wilderness study have become controversial: area size and split estates. The Wilderness Act provides that for areas to be admitted they generally have to be over 5,000 acres; they can be less than 5,000 acres if their preservation is practicable. FLPMA had somewhat similar, though less explicit, language on this question. The problem arose out of a decision by the Interior Board of Land Appeals (IBLA) in an Idaho case, Tri-County Cattlemen's Association.⁷¹ The IBLA in that case held that the Department could not consider areas less than 5,000 acres, and more specifically, that Interior could not consider 5,000-acre units when its management was shared with other federal agencies. In its handbook the Interior Department had heretofore indicated that it was possible [13 ELR 10286] to combine federal holdings to determine whether a 5,000-acre block exists. This seems logical inasmuch as the Wilderness Act embraces the holdings of three different federal land management agencies. Secretary Watt ruled that he was dropping all of the BLM areas under 5,000 acres from study.⁷² This would seem to rule out consideration of not only small areas adjacent to other holdings, but also dry islands or mesas of less than 5,000 acres, even though they would be easily protectable.

A consequence of denying study-area status for units under 5,000 acres is that some 341,000 acres of Interior Department lands won't be given interim protection under § 603 of FLPMA. The Department has discretion to protect any of these if it should want to, but Secretary Watt has indicated that he only intends to extend protection under § 603 to such units until the Bureau of Land Management reconsiders their status under normal BLM planning processes. The Sierra Club and other groups are challenging the Secretary's policies in court.

J. DESAUTELS: The second aspect of controversy concerns the so-called split estate lands, specifically, lands where the surface and mineral rights are in different hands. An IBLA decision last year, ruling on a Santa Fe Pacific Railroad Co. protest on the designation of certain wilderness study areas in Arizona and New Mexico, stated that it is legally beyond the authority of the Secretary of the Interior to withdraw lands on which there is a split estate.⁷³ IBLA reasoned that the railroad's title to mineral rights on the land precludes any effective restrictions on use of the surface by the government, and therefore the lands could not be considered to be a part of the wilderness study designation. There are about 465,000 acres of split-estate lands, but they are included in larger wilderness study area blocks that total about 3.6 million acres. The Interior Department has stated that it will restudy the issue, not only of the 465,000 acres, but also to determine whether the rest of the acreage in any specific study area still retains the wilderness characteristics needed if that area's split estate is removed.⁷⁴ The Interior Department also stated that it would not immediately release the lands to multiple use.

M. McCLOSKEY: Environmental groups have criticized the IBLA ruling and the Watt response on four points. First, FLPMA itself did contemplate that some mining might take place on split-estate lands. FLPMA grandfathered in mining on pre-1976 claims and leases; thus, it clearly contemplated that areas might be wilderness study areas and have mining going on within them. Second, some of the mineral leases do have restrictions on surface occupancy. They forbid it in some cases. And, the Wilderness Act itself provides that patents issued after 1964 do not include the surface estate (though it was referring to Forest Service units). Third, many of the mining developments that might occur on subsurface estates are hypothetical only; they may never in fact take place to affect the wilderness on the surface estate. And, if they do take place, in some cases the adverse effects may be so limited that the wilderness qualifications of the unit as a whole will not be fatally compromised. Fourth, it is possible for the Interior Department to acquire subsurface mineral estates by purchase, exchange, donation, or even condemnation so as to protect the surface estate from degradation.

Perhaps in a few years we can come back and tell you how these cases came out, but that's our story on wilderness law for the moment.

1. 16 U.S.C. §§ 1131-1136, ELR STAT. 41411.

2. 16 U.S.C. § 1131(c), ELR STAT. 41411.

3. Id. (emphasis added).

4. 16 U.S.C. § 1132(a), ELR STAT. 41411.

5. 16 U.S.C. § 1132(b), ELR STAT. 41411.

6. Id.

7. Initially, there were three agencies involved: the Forest Service, the National Park Service, and the Fish and Wildlife Service. Wilderness Act § 3(b) & (c), 16 U.S.C. § 1132(b) & (c), ELR STAT. 41411-12. Subsequently, the Bureau of Land Management's units were considered for inclusion too. See infra text accompanying note 37. It should also be noted that the organic act for the National Park Service of 1916, 39 Stat. 535, does provide a basis for preserving holdings in their natural state. That act directed the Secretary of the Interior to preserve the natural objects of the national parks without impairment, though it authorized recreational use that was consistent with that end. The Wilderness Act, § 4(a)(3), 16 U.S.C. § 1133(a)(3), ELR STAT. 41416, provided that the organic act of the National Park Service continued to be in force.

8. 16 U.S.C. § 1133, ELR STAT. 41415.

9. 16 U.S.C. § 1133(d)(1), ELR STAT. 41415.

10. 16 U.S.C. § 1133(d)(2), ELR STAT. 41415.

11. 16 U.S.C. § 1133(d)(3), ELR STAT. 41415.

12. 16 U.S.C. § 1133(d)(4), ELR STAT. 41416.

13. In 1980, in an act making additions to the wilderness system, Pub. L. No. 96-560, 94 Stat. 3265, Congress effectively adapted the existing administrative guidelines for grazing in wilderness areas. Id. § 108, 94 Stat. 3271 (codified in note following 16 U.S.C. § 1133, ELR STAT. 41416).

14. 16 U.S.C. § 1134, ELR STAT. 41416.

15. A list of units in the system along with their date of designation appears at ELR STAT. 41412-14.

16. Because of the "split estate" and "5,000 acre" decisions discussed infra in text accompanying notes 71-74, as of mid-August 1983, the inventory was reduced to 22.5 million acres. See BLM wilderness study deletions total 1.5 million acres, PUB. LANDS NEWS, Aug. 18, 1983, at 7. Also worth noting is that of the BLM's holdings in the California Desert Conservation Area, 2.1 million acres were recommended for wilderness out of 5.7 million acres inventoried.

17. Pub. L. No. 93-622, 88 Stat. 2096 (reprinted in part in note after 16 U.S.C. § 1132, ELR STAT. 41414).

18. Pub. L. No. 95-237, 92 Stat. 40 (reprinted in part in note after 16 U.S.C. § 1132, ELR STAT. 41414).

19. Pub. L. No. 94-357, 90 Stat. 905 (reprinted in note after 16 U.S.C. § 1132, omitted from ELR STAT).

20. Pub. L. No. 96-550, 94 Stat. 3223 (reprinted in note after 16 U.S.C. § 1132, omitted from ELR STAT).

21. Pub. L. No. 95-495, 92 Stat. 1649.

22. 30 Stat. 34.

23. 16 U.S.C. § 475, FLR STAT. 41405.

24. 16 U.S.C. § 482.

25. The Forest Resources Planning Act of 1974 provided that no national forest land could be returned to the public domain without congressional approval. 16 U.S.C. § 1609, ELR STAT. 41439.

26. 16 U.S.C. §§ 528-531, ELR STAT. 41406.

27. 16 U.S.C. § 529, ELR STAT. 41406.

28. Pub. L. No. 93-378, 88 Stat. 476.

29. Pub. L. No. 94-588, 90 Stat. 2949.

30. 16 U.S.C. §§ 1600-1676, ELR STAT. 41433.

31. Forest and Rangeland Renewable Resources Planning Act § 4, 16 U.S.C. § 1602, ELR STAT. 41436. NEPA is discussed briefly infra in text accompanying notes 40-41.

32. 16 U.S.C. § 1602, ELR STAT. 41436.

33. 16 U.S.C. § 1604, ELR STAT. 41436.

34. 43 U.S.C. §§ 1411-1418 (expired).

35. 43 U.S.C. §§ 1701-1782, ELR STAT. 41458.

36. 43 U.S.C. § 1701, ELR STAT. 41459.

37. 43 U.S.C. § 1782, ELR STAT. 41475.

38. 43 C.F.R. § 3802.

39. Note following 43 U.S.C. § 1701, ELR STAT. 41459.

40. 42 U.S.C. §§ 4321-4361, ELR STAT. 41009.

41. 42 U.S.C. § 4332(2)(C), ELR Stat. 41010.

42. 309 F. Supp. 593, 1 ELR 20522 (D. Colo. 1970), aff'd, 448 F.2d 793, 1 ELR 20489 (10th Cir. 1971), cert. denied, 405 U.S. 989 (1972).

43. 3 ELR 20071 (N.D. Cal. 1972).

44. Forest Service Manual § 1952.22.

45. 484 F.2d 1244, 3 ELR 20830 (10th Cir. 1973).

46. California v. Bergland, 483 F. Supp. 465, 10 ELR 20098 (E.D. Cal. 1980), aff'd sub nom. California v. Block, 690 F.2d 753, 13 ELR 20092 (9th Cir. 1982).

47. See supra note 11 and accompanying text.

48. Cabinet Mountain Wilderness v. Peterson, 510 F. Supp. 1186, 11 ELR 20812 (D.D.C. 1981), aff'd, 685 F.2d 678, 12 ELR 21058 (D.C. Cir. 1982).

49. 12 ELR 20454 (D.D.C. 1982).

50. No. CV-82-15(GF, ELR PEND. LIT. 65743 (D. Mont., complaint filed Feb. 5, 1982).

51. See supra note 37 and accompanying text.

52. 43 U.S.C. § 1782(c), ELR STAT. 41475.

53. RMOGA v. Andrus, 500 F. Supp. 1338, 11 ELR 20036 (D. Wyo. 1980), rev'd sub nom. RMOGA v. Watt, 696 F.2d 734, 13 ELR 20038 (10th Cir. 1982). See generally Comment, Tenth Circuit Approves Interior's Wilderness Protection Policies in Energy-Rich Rocky Mountain Region, 13 ELR 10004 (Jan. 1983).

54. Solicitor's Opinion No. M-36910 (Sept. 5, 1978): Interpretation of Section 603 of the Federal Land Policy and Management Act of 1976 — Bureau of Land Management (BLM) Wilderness Study, 86 I.D. 89 (1979).

55. Note following 43 U.S.C. § 1701, ELR STAT. 41459.

56. 486 F. Supp. 995, 10 ELR 20570 (D. Utah 1979).

57. 528 F. Supp 980 (D. Wyo. 1981).

58. These include Udall v. Tallman, 380 U.S. 1 (1965); Burglin v. Morton, 527 F.2d 486 (9th Cir. 1975); Duesing v. Udall, 350 F.2d 748 (D.C. Cir. 1965).

59. 16 U.S.C. § 1133(d)(2), ELR STAT. 41415.

60. Pub. L. No. 97-394, § 308, 96 Stat. 1996.

61. Discussed supra in text accompanying notes 53-55.

62. Solicitor's Opinion No. M-36910 (Supp.) (Oct. 5, 1981): The Bureau of Land Management Wilderness Review and Valid Existing Rights.

As of June 1983, BLM had issued nearly 5,000 leases involving all told about seven million acres of wilderness study areas. See BLM and Congress move on BLM wilderness study program, PUB. LANDS NEWS, June 23, 1983, at 7, 8.

63. Discussed supra in text accompanying notes 47-48.

64. Discussed supra in text accompanying note 49.

65. Nos. C-82-409, -411, & -412 (D. Wyo., filed Oct. 6, 1982).

66. Senator McClure introduced such a bill, S.842, into the 96th Congress, but it was never reported out of committee.

67. Discussed supra in text accompanying rule 46.

68. This proposal was later made into a proposed rule. 48 Fed. Reg. 16505 (1983).

69. See Pub. L. No. 96-487, 94 Stat. 2371 (Alaska); Pub. L. No. 96-560, 94 Stat. 3265 (Colo.); Pub. L. No. 96-550, 94 Stat. 3221 (N. Mex.); Pub. L. No. 97-407, 96 Stat. 2033 (Mo.); Pub. L. No. 97-466, 96 Stat. 2538 (W. Va.); Pub. L. No. 97-384, 96 Stat. 1942 (Ind.).

70. State-wide bills currently before Congress include S.837 (Wash.); H.R. 1149 (Or.); H.R. 1437, S.5, S.1515 (Cal.); S.543 (Wyo.).

71. 60 IBLA 305 (1981).

72. 47 Fed. Reg. 58372 (1982).

73. Santa Fe Pacific Ry., 64 IBLA 27 (1982).

74. 47 Fed. Reg. 58372 (1982).