Managing the 5th Quality
Except in certain specific instances, “there shall be no...structure or installation within any [wilderness] area.”
Wilderness Act, Section 4(c)
Quick Poll #1. Choose the best answer: In designated wilderness,
A. Wilderness law ‘trumps’ cultural resources law.
B. Cultural resources law ‘trumps’ wilderness law.
C. Neither is correct.Immateria
l
WildAct v. NHPA
Wilderness Act – specific & substantiveNHPA – general & procedural
Specific & substantive “trumps” general & procedural
∴ Wilderness Act “trumps” NHPA Immateria
l
WildAct v. NHPA
Wilderness Act – specific & substantiveNHPA – general & procedural
Specific & substantive “trumps” general & procedural
∴ Wilderness Act “trumps” NHPA Le
t’s not g
et hung up on th
is!
WildAct v. NHPA
Wilderness Act – specific & substantiveNHPA – general & procedural
Specific & substantive “trumps” general & procedural
∴ Wilderness Act “trumps” NHPA Cultural re
source
s are protecte
d by
the Wild
erness Act
Wilderness Watch v. Mainella (11th Cir. 2004)“...we cannot agree...that the preservation
of historical structures furthers the goals of the Wilderness Act.”
“...the only reasonable reading of ‘historical use’ in the Wilderness Act refers to natural, rather than man-made features.”
“Absent...explicit statutory instructions...the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purpose.”
OLYM Park Assoc. v. Mainella (W.D. Wash. 2005)
“The Court’s reasoning in Wilderness Watch v. Mainella is persuasive.”
Wilderness Watch v. Mainella (11th Cir. 2004)“...we cannot agree...that the preservation
of historical structures furthers the goals of the Wilderness Act.”
“...the only reasonable reading of ‘historical use’ in the Wilderness Act refers to natural, rather than man-made features.”
“Absent...explicit statutory instructions...the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purpose.”
High Sierra Hikers v. USFS (E.D. Calif. 2006)Wilderness Watch v. Iwamoto (W.D. Wash. 2012)
Agency claimed “historical use”Courts cite 1st two cases
Wilderness Watch v. Mainella (11th Cir. 2004)“...we cannot agree...that the preservation
of historical structures furthers the goals of the Wilderness Act.”
“...the only reasonable reading of ‘historical use’ in the Wilderness Act refers to natural, rather than man-made features.”
“Absent...explicit statutory instructions...the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purpose.”
5th Quality v. public purposes
DEFINITION [2(c)] USE [4(b)]
ecologicalgeologicalscientificeducationalscenichistorical
recreationalscenicscientificeducationalconservationhistorical
5th Quality v. public purposes
DEFINITION [2(c)] USE [4(b)]
ecologicalgeologicalscientificeducationalscenichistorical
recreationalscenicscientificeducationalconservationhistorical
5th Quality v. public purposes
DEFINITION [2(c)] USE [4(b)]
“a precise meaning or significance; the act of making clear and distinct”
Wilderness Character
“the employment of something for some purpose; the quality of being suitable or adaptable to an end”
Public Purposes
≠
Managing the 5th Quality
Structures and Installations (among other uses) are prohibited “except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act.”
Wilderness Act, Section 4(c)
Managing the 5th Quality
Structures and Installations (among other uses) are prohibited “except as necessary to meet minimum requirments for the administration of the area for the purpose of this Act.”
Wilderness Act, Section 4(c)
“administration” NOT just regulatory“Activity in the exercise of [the agency’s] duties”
Managing the 5th Quality
Structures and Installations (among other uses) are prohibited “except as necessary to meet minimum requirments for the administration of the area for the purpose of this Act.”
Wilderness Act, Section 4(c)
“the purpose” is to preserve wilderness character
NOT to facilitate public uses
5th Quality v. public purposes
DEFINITION [2(c)] USE [4(b)]
“a precise meaning or significance; the act of making clear and distinct”
Wilderness Character
“the employment of something for some purpose; the quality of being suitable or adaptable to an end”
Public Purposes
≠
↑We have been
arguing for this
↑We should have been arguing for
this
5th Quality v. public purposes
To what extent do your wilderness area’s contribute to making clear and distinct the area’s precise meaning and significance?
To what extent are those an inextricable part of the area’s wilderness character?
Other Features of Value
Other Features
5th Quality v. public purposes
To what extent do your wilderness area’s contribute to making clear and distinct the area’s precise meaning and significance?
To what extent are those an inextricable part of the area’s wilderness character?
Cultural Resources
Cultural Resources
Earliest Congressional Intent
Sec. 1(c)(2): For NPS, “’Wilderness’ shall include those units...except those portions set aside...for roads and accommodations for visitors.”
Sec. 2(b): “The System shall include...Mesa Verde National Park.”
Sec. 3(b): “...there shall be no road...nor any structure or installation in excess of the minimum required for the administration....”
3 Classes of Stuff
1) Wilderness Character would be improved without it.
REMOVE2) Mixed effects to Wilderness Character if it
disappeared DOCUMENT, AT LEAST3) Wilderness Character would be
irrevocably damaged if it were lost. PRESERVE
3 Classes of Stuff1)Remove both2)Remove one,
“molder” one3)Molder both4)Remove one,
preserve one
5)Molder one, preserve one
6)Preserve both7)Something else
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