Commercial Services

The Commercial Services toolbox is a 'work in progress' and represents only the information available. It provides information on agency policy and guidelines, examples of processes, plans, assessments and other related documents. Toolboxes are comprehensively reviewed and updated approximately every three years, with intermittent small updates and additions in the interim. To suggest new materials for inclusion, email Lisa Ronald at lisa@wilderness.net. Date of last update: 08/18/2018.

Introduction

Commercial enterprises are generally prohibited in wilderness by Section 4(c) of the Wilderness Act of 1964. (Exceptions include valid existing rights such as pre-existing mineral leases.) A commercial enterprise is any use or activity undertaken for the purpose of the sale of products or services for the generation of funds or revenue, or for the promotion of a product, individual, or business, regardless of whether the use or activity is intended to produce a profit. It also includes any use or activity where an entry or participation fee is charged.

A commercial service, however, is a type of commercial activity that is permitted under Section 4(d)(6) of the Wilderness Act if the managing agency determines it to be necessary and appropriate for realizing the recreational or other wilderness purposes of the area. Allowable commercial services may include those provided by packers, outfitters, and guides, and may also include commercial filming.

Policy and Guidelines

General Guidelines

Needs Assessment

The most common approach to determining the need for Commercial Services in wilderness has been to prepare a Needs Assessment. Agency policy does not require a needs assessment nor provide guidance as to what should be considered in determining a need for commercial services beyond what is stated in the Wilderness Act. A Needs Assessment is typically a programmatic assessment that does not require a NEPA analysis.

Identification of need is not based solely on public need for a service but may consider how a commercial service operation can contribute to preserving wilderness character, meeting wilderness management objectives, and support the public purposes of wilderness TWA, Section 4(b). The public's need for services can be determined by examining current and past use and trends, results of a visitor preference survey, state game hunting license data, etc.

Consider the following elements when determining need:

  1. Visitor need for services
    • Specialized skills needed
    • Specialized equipment needed
    • Accessibility or age issues
    • Visitor safety
    • Wilderness dependent activity
    • Other wilderness specific factors
  2. Management objectives
    • Information and education
    • Resource protection
    • Other wilderness specific factors
  3. Public purposes of wilderness
    • recreational
    • scenic
    • scientific
    • educational
    • conservation
    • historical use

Determining Need, Allocating Use and NEPA

Note - The following are general guidelines only and should be verified against agency regulations and current policy.

The two levels of planning allow for both programmatic and site-specific analysis but have differing requirements for NEPA compliance. 

Planning Processes: 

Programmatic Planning:

  • Desired Conditions
  • Prescriptions, standards, guidelines
  • Capacity framework (guidelines)
  • Needs Assessments

Project or Site-specific Planning

  • Specific capacity limits
  • Outfitter-Guide use allocation
  • Outfitter-Guide Special Use Authorization

NEPA Analysis Requirements:

Programmatic - NOT a NEPA Decision:

  • Needs Assessments
  • Need for Services
  • Role of Providers

Programmatic - NEPA Decision

  • Allocation of use by activity

Project (Site Specific) - NEPA Decision

  • Outfitter-Guide SUA

Training Materials

Gila Wilderness

Wilderness in the Courts Webinar Series, Session 1: Commercial Services

This webinar was held on November 15, 2012 at 12:30 PM Eastern time. The 90-minute session featured Peter Appel, the Alex W. Smith Professor of Law at the University of Georgia Law School, and introduced participants to existing case law that decision-makers can use to make more informed decisions regarding the extent to which commercial services are necessary in wilderness.

Resources