Wilderness and Protection of Cultural Resources

Peter A. AppelAlex W. Smith ProfessorUniversity of Georgia School of LawPresented via WebinarSponsored by the Carhart CenterFebruary 20, 2013Wilderness and Protection of Cultural ResourcesSections of Wilderness Act Addressing Cultural ResourcesAct itself does not use the term cultural resources or cultural valuesProvisions of the Act that discuss historical resourcesSection 2(c)(4): Wilderness areas may also contain ecological, geological, or other features of scientific, educational, scenic, or historical valueSection 4(b): Except as otherwise provided in this Act, wilderness areas shall be devoted to the public purposes of recreational, scenic, scientific, educational, conservation, and historical use.Major conflict in court cases has been between WA and NHPACumberland IslandImportant cultural sites on either side of wildernessWilderness designation makes sites (Plum Orchard mansion, the Settlement) inaccessible for day visitors

Cumberland IslandNPS starts transporting visitors through wilderness using motor vehiclesClaims program falls within minimum requirements exception of Wilderness Act section 4(c)Visitors are just piggybacking on NPS use of motor vehiclesNPS also argues use is necessary to meet historical resource obligationsPurchases vans for purpose and schedules trips

Wilderness Society v. Mainella, 375 F.3d 1085 (11th Cir. 2004)Court strikes down programRejects minimum requirements evaluationSeems to exclude cultural resources from Section 2(c) languageGiven the consistent evocation of untrammeled and natural areas, the previous pairing of historical with ecological and geological features, and the explicit prohibition on structures, the only reasonable reading of historical use in the Wilderness Act refers to natural, rather than man-made features. (P.1092)Cumberland, contdIn interpreting the reference to historical use in Section 4(b), court similarly rejects NPS argument:[A]ny obligation the agency has under the NHPA to preserve these historical structures must be carried out so as to preserve the wilderness character of the area. (P.1092).

Cumberland, contd

Suggestion that any historic preservation efforts questionable:Of course, Congress may separately provide for the preservation of an existing historical structure within a wilderness area, as it has done through the NHPA. Congress wrote the wilderness rules and may create exceptions as it sees fit. Absent these explicit statutory instructions, however, the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purposes. (Id.)

Cumberland, contdCourt does note that the case turns not on the preservation of historical structures but on the decision to provide motorized access to them. (P.1092).Can we say that the previously quoted language is therefore irrelevant to the courts holding?

Cumberland AftermathCongress eventually redrew wilderness boundary to allow the Lands and Legacies Tour to continue

Questions?Olympic Park SheltersOlympic National Park had several shelters for health and safety of visitorsUpon wilderness designation in 1988, NPS decides to retain some of them, but theyre in bad shape

Olympic Park Shelters, contdNPS chose the alternative of transporting the shelters by helicopter from the ... maintenance yard to the respective historic sites with a finding that this alternative would pose no significant environmental impact.... This alternative was selected because it preserved important historic aspects of ONP's heritage through reconstruction of the ... trail shelters; it would aid in reducing risk to visitor health and safety by providing shelter in times of emergency; it would limit the amount of time spent reconstructing structures in wilderness (using mechanized equipment during breeding season), and flights would occur after breeding seasons for [sensitive species]; and it used a combination of materials, including reused materials from the once-standing shelters.

Olympic Park Assocs. v. Mainella, 2005 WL 1871114 (W.D. Wash. 2005)Court finds reasoning of Cumberland Island persuasiveWhile the former structures may have been found to have met the requirements for historic preservation, that conclusion is one that is applied to a man-made shelter in the context of the history of their original construction and use in the Olympic National Park. Once the Olympic Wilderness was designated, a different perspective on the land is required.

Olympic Park Shelters, contd

If the reconstructed shelters were placed in the Olympic Wilderness, regardless of whether they were placed in the locations of the former shelters, the National Park Service would not be administering the area in accordance with its mandate under the Wilderness Act (citing section 4(b)).Finds Wilderness Act to be more specific than NHPA and that Wilderness Act therefore governsQuestions?Emigrant DamsEmigrant Wilderness Area, managed by USFS, designated in 1975Several dams built in 1920s to develop local fishery that had begin in the 1890sknown to Congress at time of designationDams served a number of purposes historicallyFish stocking carried out for benefit of anglersDams deterioratingPotential ESA issues with two sensitive species (Mountain Yellow-legged Frog and Yosemite Toad)

Emigrant DamsUSFS decides to maintain 11 of 18 dams7 eligible for Historic Register4 because they enhance fisheriesQuestion about whether maintain means reconstruct

High Sierra Hikers Assn v. USFS, 436 F. Supp. 2d 1117 (E.D. Cal. 2006)

The court must conclude the plain and unambiguous text of the Wilderness Act speaks directly to the activity at issue in this caserepairing, maintaining and operating dam structuresand prohibits that activity. (P.1131)

Emigrant Dams, contdNevertheless, the Forest Services observations and conclusions concerning the conditions of the dams, the effect of operation of the dams on various species, the effect of operation of the dams on riparian habitats, and the status of the dams vis-a-vis their historical designations are due great deference. (P.1132)Question boils down to whether the maintenance of these structures meets minimum requirements

Emigrant DamsFish stocking does not meet minimum requirements analysis (following earlier 9th Cir. precedent)Follows Cumberland Island and Olympic Shelters decisions re: conflict between historic structures and Wilderness Act[W]here courts have considered the issue of whether man-made structures may be maintained in a wilderness area under either the general exception clause for the purpose of preservation of historical values, the preservation of wilderness values had been predominant. (P.1136)

Emigrant Dams, contdAttempt to distinguish NPS cases dismissed: USFS offered no authority for the implied contention that application of the Wilderness Act should yield different results under similar factual circumstances where the objectives of the administering agency are different. (P.1137)No court order to remove dams

Questions?Green Mountain LookoutHistoric fire lookout in Mt. Baker-Snoqualmie National ForestArea in issue added to NWPS in 1984 (Glacier Peak WA)Back and forth about whether structure warranted listing on National RegisterUSFS finally concludes that it doesQuestions: Remove? Repair? Let Deteriorate? Decision: Remove by helicopterbut USFS saves pieces of it

Green Mountain LookoutSeven years later, USFS hires NPS to build new foundation for lookoutUsing some of the old pieces, USFS brings saved pieces back to site67 helicopter tripsLawsuit follows challenging:Structure in wildernessUse of motorized equipment

Wilderness Watch v. Iwamoto, 853 F. Supp. 2d 1063 (W.D. Wash. 2012NHPA vs. WA: [I]n light of the Wilderness Acts clear proscription on the actions at issue here, the Court considers that the NHPA has little impact on the outcome of this case unless it can be read to require the [USFS] to protect a historical structure. (P.1070)[T]he NHPA does not compel particular preservation oriented outcomes.... [T]here is no conflict between the Wilderness Act and the NHPA.... (P.1071)Relies on decisions in Cumberland Island, Olympic Shelters, and Emigrant DamsAcknowledges, however, that agency can reasonably conclude that historical use is a valid goal of the Wilderness Act (p.1074)Nevertheless, use of motor vehicleshelicoptersdoes not meet minimum requirements analysis. The Forest Service went too far. (P.1076).Court orders lookout removed

Questions?Take Away MessagesCourts tend to follow prior decisions in this area, even if not bindingUse of motor vehicles and motorized equipment most suspectReconstruction most suspect; no court cases on letting things rotCourts so far are uniform that Wilderness Act trumps NHPAEnvironmental plaintiffs have picked great cases for their side (bad facts make bad law?)Relief imposed by courts will vary[S]ecur[ing] for the American people of present and future generations the benefits of an enduring resource of wilderness.

Phone: (706) 542-5097Email: appel@uga.edu28