Oregon Closes Loophole in the Wilderness Act

The State of Oregon has adopted stringent standards on emissions into air and water and permissible noise levels within areas established under the 1964 Wilderness Act, 16 U.S.C. § 1131 et seq., ELR 41412. The standards will be found at ELR 49001. The establishment of the standards itself raises interesting questions of exclusive federal jurisdiction and federal preemption. See the Opinion of the Oregon Attorney General, ELR Dig. [250]. It is the effect of the standards, however, which this Comment discusses.

Mining claimants, who are specifically exempted until 1984 from restrictions on activity in wilderness areas by 16 U.S.C. § 1133 (d) (3), ELR 41414, are the class of persons most strongly affected by the new standards. The effect of the Oregon regulations is to make mining activities virtually impossible in Oregon's wilderness areas. The standard for noise without a permit obtained 90 days in advance is a maximum intensity of 50 decibels at a distance of 50 feet from the source: roughly the noise produced by an average vacuum cleaner at that distance, or the sound of wind in the treetops.With a permit, some activities would be allowed to generate sound levels of 75 decibels, still well below the levels of most mining operations. Cutting of timber on mining claims, permitted under the mining laws and § 1133 (d) (3), would be unfeasible within this noise standard. The air emission standard, prohibiting any visible particulates, prohibits mining activities which raise dust, as well as the use of most gasoline or diesel motors for mineral extraction. Tailings from mining operations would have to be carefully handled to avoid water run-off after a rainstorm entering streams and creating measurable water pollution.

At hearings on the then proposed regulations December 6, 1971, representatives of the mining industry noted that even application of the regulations would prohibit cooking fires for campers during daylight hours and singing around the campfire at night. There has as yet been no report of the standards being enforded so stringently.

In its original proposal to the Environmental Quality Commission, the Oregon Department of Environmental Quality recommended application of the standards not only to federal wilderness areas, but also to buffer zones around both wilderness areas and state parks. The expressed intent was to preserve the values for which the wilderness areas and state parks were established to the extent of the boundaries of the areas. The Environmental Quality Commission approved the standards for federal wilderness areas, but continues to hold hearings on the buffer zones, which encompass some privately-held land and are regarded as more politically volatile.