44-2

Articles

Have Judges Gone Wild? Plaintiffs’ Choices and Success Rates in Litigation Against Federal Administrative Agencies

Joseph M. Feller

Editors’ Introduction by Peter A. Appel and Mark Squillace

Our colleague, Professor Joe Feller of the Sandra Day O’Connor College of Law at Arizona State University was well-known and well-regarded in the community of environmental and natural resources law professors. He stood out for the quality of his scholarship, as well as his active and helpful participation in our community and his community at large. Tragically, a car struck and killed Professor Feller on the evening of April 8, 2013, while he was returning home from work.

Joe had been the inspiration for a natural resources law teachers conference scheduled for the following month in Flagstaff, Arizona. Following that conference, Professors Appel and Squillace conversed and agreed that one of many suitable tributes to Joe would be to arrange to publish one of the last articles that Joe drafted. The subject was wilderness. Professor Squillace received the Article in draft with Joe’s request that Squillace make comments on it. Professor Appel—who had never met Joe in person but had spoken to him on the phone and had exchanged emails several times with him—received the Article in draft because the Article directly and pointedly critiques some of Appel’s own work. Despite his near-complete rejection of Appel’s arguments, Joe nevertheless suggested that, as the Article matured with revision, he and Appel could be co-authors on the piece. Appel responded in a lengthy email, which is reproduced after the main body of the Article. Unfortunately, that collaboration or friendly debate never occurred. Nevertheless, the offer to co-author the Article is a striking testament to Joe’s generosity, willingness to cooperate, and his focused dedication to get the answer to a problem right. As those who have delved in the law know, getting the right answer is not as easy as it sounds.

As the reader will see, this Article involves important issues regarding wilderness specifically and federal environmental litigation generally. Despite the fact that it does not represent Joe’s finished thoughts on the subject, we nevertheless believe that this Symposium issue of Environmental Law offers an ideal forum for this fine piece of scholarship. With the generous agreement of the journal’s editors, as well as the permission of Joe’s family and his community at ASU Law, we present this Article to join its rightful place in the legal literature about wilderness.

A note on editing: Because we wanted this Article to represent Joe’s views and not our own, we have taken a very light touch in editing this Article. We have taken the liberty to correct typographical errors and citations to conform to the Bluebook and to Environmental Law’s style guidelines. Where we believed that a thought needed expansion or clarification, we have done so and noted the emendation in square brackets. We tried to channel Joe as best as we could to keep these thoughts in the spirit of Joe’s thinking, not our own.

In closing, we wish to express deepest gratitude once again to Professor Joe Feller’s family for granting us permission to reproduce Professor Feller’s Article posthumously. We hope that this serves as a fitting tribute and memorial to the life of a great scholar, passionate advocate, good friend, and all-around mensch.

The Underappreciated Role of the National Environmental Policy Act in Wilderness Designation and Management

Michael C. Blumm & Lorena M. Wisehart

On its 50th anniversary, the Wilderness Act owes much to the effect of the National Environmental Policy Act (NEPA), both in terms of the number of acres in the national wilderness system and in the management of designated wilderness areas. Courts have closely scrutinized federal land management agency actions that threaten wilderness qualities, and this Article maintains that the usual vehicle has been NEPA. Enacted a little over a half-decade after the Wilderness Act, NEPA was instrumental in the doubling of wilderness acres in the 1980s, as Congress added wilderness areas and released other areas to multiple uses in response to a NEPA injunction imposed on U.S. Forest Service management. NEPA has also had a considerable effect on wilderness area management, curbing timber cutting and recreational activities and, in combination with the Federal Land Policy and Management Act, requiring the Bureau of Land Management (BLM) to pursue the least damaging environmental alternative to rerouting a road bisecting wilderness study areas.

NEPA’s influence on potential wilderness remains large a half-century after the passage of the Wilderness Act, as NEPA has ratified the Forest Service’s “Roadless Rule,” which will protect potential wilderness areas from most developments, making them eligible for future wilderness designation. Additionally, NEPA has required BLM to identify and publicly disclose lands with wilderness characteristics when revising its land plans. Thus, NEPA has fulfilled its mission of improving environmental decision making by encouraging the designation of new wilderness areas, insisting on careful management of existing wilderness, and approving both the protection of large roadless areas in national forests and the identification of roadless areas in BLM land plans. Without NEPA, there would be considerably less to celebrate on the Wilderness Act’s 50th anniversary.

Wilderness Exceptions            

John Copeland Nagle

The Wilderness Act provides for the management of “undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions.” Except when it doesn’t. This Article considers when activities that are inconsistent with wilderness are nonetheless allowed in it. That result happens in four different ways:  (1) Congress decided not to designate an area as “wilderness” even though the area possesses wilderness characteristics; (2) Congress draws the boundaries of a wilderness area to exclude land that possesses wilderness characteristics because Congress wants to allow activities there that would be forbidden by the Act; (3) Congress specifically authorizes otherwise prohibited activities when it establishes a new wilderness area; or (4) Congress acts to approve contested activities in response to a controversy that arises after a wilderness area has already been established. The careful decisions regarding those areas that should be entitled to the law’s protections, and the circumstances in which those protections may give way to other values, demonstrate the ability to identify and prioritize wilderness values in a way that was never possible before.

Grazing in Wilderness Areas

Mark Squillace

Domestic livestock grazing is naturally in tension with wilderness.  Wilderness areas are not truly “untrammeled by man” when they host managed livestock grazing.  Yet the compromise that allowed livestock grazing in wilderness areas was surely one of the greatest in the history of the conservation movement.  Without it, Congress might never have passed a wilderness bill or designated countless wilderness areas throughout the country.  The grazing exception—and the Congressional Grazing Guidelines that afford specific protections for grazers—made it possible to secure bipartisan support for wilderness bills in even the most conservative western states.

Notwithstanding this success, the ecology of some wilderness areas would plainly benefit from reducing or removing livestock, and modest changes to current law could accommodate such reductions without undermining the essential compromise that has allowed wilderness to flourish.  In particular, as livestock grazing has declined in importance to the economy and the culture of the western public lands states, opportunities abound for the voluntary retirement of grazing rights.  Unfortunately, the law has not yet evolved in a manner that can assure that the voluntary retirement of grazing rights can be made permanent.  Without such assurances parties interested in purchasing grazing rights to protect wilderness areas are unlikely to step forward.

This article reviews the history and legal status of livestock grazing on the wilderness lands.  It includes a brief review of the beneficial and adverse impacts of livestock grazing on the ecological health of land systems and how those impacts might compromise wilderness values before discussing federal grazing policy, especially as applied to wilderness areas.  It concludes with a modest plea to clarify the authority of the BLM and the Forest Service—the principal federal land management agencies—to reduce or remove livestock from wilderness lands where necessary to protect public lands resources, and to retire wilderness grazing rights permanently, where the existing permittee willingly accepts an offer to purchase such rights.

Wilderness Management by the Multiple Use Agencies: What Makes the Forest Service and the Bureau of Land Management Different

Robert L. Glicksman

The organic statutes for the Forest Service and the Bureau of Land Management direct each agency to manage lands under its jurisdiction in accordance with nearly identical multiple use, sustained yield mandates. Like the dominant use agencies, the National Park Service and the Fish and Wildlife Service, the multiple use agencies are required to identify lands suitable for preservation as wilderness and must manage lands designated by Congress as wilderness pursuant to the Wilderness Act. Although the Forest Service and the Bureau of Land Management are subject to parallel statutory regimes, wilderness preservation practices in national forests and on public lands have diverged. More acres in, and a greater percentage of, national forests are protected as wilderness, and the Forest Service generally has been more receptive to wilderness preservation than the Bureau of Land Management. This Article explores whether the divergence is due to differences in the physical characteristics of the two land systems, agency culture and organization, interactions between the agencies’ organic statutes and either the Wilderness Act or other statutes, agency management policies and procedures, degree of congressional commitment, and judicial treatment. After concluding that several of these factors have more explanatory power than others, the Article suggests statutory and administrative actions that would allow wilderness to be preserved as effectively on public lands as in national forests.

Wilderness Management in National Parks and Wildlife Refuges

Sandra B. Zellmer

This Article provides a wilderness scorecard of sorts for the two “dominant use” land management agencies—the National Park Service (NPS) and the United States Fish and Wildlife Service (FWS). Given that both agencies operate under a similar conservation oriented mandate, one might assume that the imposition of a wilderness mandate would be closely aligned with their organic missions. However, NPS and FWS have both, at times, been surprisingly hostile toward wilderness within their systems. In NPS’s case, this is likely because of a concern that wilderness might disrupt visitor use and rein in its management discretion over park activities and resources. It may also be due to the perception that NPS does not need wilderness because of its long history and reputation as the preeminent land steward among the federal agencies. For FWS, wilderness may be seen as interfering with its discretion and ability to manage wildlife populations and to restore habitat through deliberate intervention, both of which are favored by the state fish and game agencies that exert pressure on FWS.

While both agencies have issued policies supportive of wilderness preservation, only FWS has put its policies—at least some of them—in its regulations, while NPS continues to rely on nonbinding manuals and policies. Neither agency has been especially committed to wilderness planning, although FWS’s planning processes may have a slight edge. Both agencies could improve their wilderness strategies and practices by engaging in rulemaking to solidify their commitment to preserving wilderness characteristics. For its part, the Department of Interior could take steps to coordinate its wilderness strategies and its oversight over all of the wilderness managing agencies.

Legal Wilderness: Its Past and Some Speculations on Its Future 

John D. Leshy

This Article considers the past and possible future of the effort to provide legal protection for tracts of federal lands under the umbrella of the Wilderness Act of 1964. Because legal protection comes through the political process, the task requires examining the politics of wilderness. Therefore, the Article spends considerable time looking at the political forces that led up to enactment of the Wilderness Act of 1964, and have shaped its implementation in the half-century that has followed. It explores the political compromises contained in the Wilderness Act, and how these have worked out in practice. It discusses how the legal meaning of wilderness has been shaped since enactment, and how successful the idea of legally protecting wild values has been. It also puts the Wilderness Act in the broader context of changes in federal land management policy since 1964. For example, whereas in 1964 wilderness designation was just about the only reasonably secure way to protect land from road building and other forms of intensive development, today many legal tools are available to accomplish it. Finally, the Article discusses current and likely future challenges to wilderness protection, some but not all of which stem from a destabilizing climate. The cumulative effect of these and other factors identified in the paper has already slowed down expansion of the National Wilderness Preservation System, and will likely continue to do so. Nevertheless, the System stands as a monumental achievement, expressing some of the more high-minded objectives of American political culture.

The Wilderness Act and Climate Change Adaptation

Elisabeth Long & Eric Biber

Resource managers, scientists, and legal scholars have struggled with the question of how to adapt natural resources law and policy to the future of climate change. A common proposal has been that rigid legal restrictions may need to be made more flexible to allow for dynamic, active management that responds to climate change. But how rigid is natural resources law, and is flexibility really needed?

We explore these questions by looking at the Wilderness Act, by reputation one of the most rigid natural resource laws on the books. Climate change effects will not stop at federal wilderness area boundary signs, and in response there have been specific calls to make the Act more flexible to allow for climate change adaptation. The fiftieth anniversary of the Act, which established a strong presumption that hands-off management is the best choice for wilderness areas, provides us with a timely opportunity to consider the question of how well existing environmental and natural resources law can provide for climate change adaptation.

We survey the range of proposals developed by scientists and managers to respond to climate change in forested wilderness ecosystems—including both active and passive management. We then compare that list of proposals with the range of management choices that might plausibly be allowed under the Act, as determined by the statutory text, agency policies and regulations, and relevant case law.

Our conclusions may surprise some readers. Despite the Wilderness Act’s reputation as an inflexible law, it is not an absolute prohibition on active management for climate change adaptation. Rather, the vast majority of management options are available to agencies that manage wilderness areas, though the agency must jump through a variety of procedural and substantive hoops to justify active management for climate change adaptation.

To be sure, these procedural and substantive hurdles place a thumb on the scale in favor of restraint and passive management. While advocates for more aggressive active management might believe that these costs and constraints are not worth it, we disagree. The thumb on the scale in favor of restraint may be particularly important given the uncertainty about what kinds of active management techniques might be effective, the possible negative effects of active management on other resources, and the political and bureaucratic pressures that might otherwise lead to the overuse of active management in response to climate change. At the same time, our analysis shows that the Act allows for responses in situations where we are more certain that actions will be effective and the benefits of active management are worth the costs.