Prohibited Uses
Introduction
This toolbox provides information about prohibited uses. It addresses why the prohibitions in Section 4(d) of the Wilderness Act exist as a fundamental measure in the preservation of wilderness character, defines the prohibitions, and describes the exceptions to the prohibitions.
Connection to Wilderness Character
The Wilderness Act mandates the preservation of wilderness character as its principal goal. Much of the Act is centered around furthering that goal. One important contributor to the preservation of wilderness character is the Prohibition of Certain Uses; addressed in Section 4(c) of the Act.
The Wilderness Act lists and prohibits ten uses which degrade wilderness character. in Section 2(c) of the Wilderness Act, wilderness is defined by five qualities, and these qualities make up “wilderness character.” The qualities are: untrammeled, undeveloped, natural, providing outstanding solitude and primitive, unconfined recreation, and, unique to each wilderness, other features of value. Prohibition of the ten listed uses plays an important role in maintaining each of these qualities.
Keeping it Wild 2 notes that three uses (motorized equipment, mechanical transport, and structures on the landscape) impose human will on the environment. By prohibiting those three uses an autonomous environment free from the effects of modern civilization is advanced; key conditions of the untrammeled and natural qualities. Howard Zahinser, principal author of the Wilderness Act, reasoned that “we have a profound fundamental need for areas of the earth where we stand without our mechanisms that make us immediate masters over our environment.” The uses listed in the Wilderness Act as “prohibited” are so listed because their use diminishes wilderness character.
The prohibited uses degrade at least one, but sometimes several, qualities of wilderness character. For example, logging, a commercial enterprise, degrades the undeveloped, outstanding opportunities for solitude, and natural qualietis of wilderness character. Motorized equipment makes it easy to manipulate the ecosystem thus degrading the untrammeled and potentially the natural qualities. Motor vehicles degrade the outstanding opportunities for primitive recreation.
Attempts at wilderness protection prior to the Wilderness Act revealed the importance of specifically prohibiting certain activities in order to preserve wilderness values. The nation’s first administratively protected wilderness, the Gila Wilderness (1924) was shortly after managed under the “L-20 Regulations” which simply called for management “to maintain primitive conditions… to the fullest degree compatible with their highest public use.” Because the L-20 Regulations lacked a specific prohibition to it, timber harvesting could occur in the Gila Wilderness. The nation’s first Congressionally protected wilderness, Everglades National Park (1934), only provided that it “shall be permanently reserved as a wilderness.” Without a specific prohibition, motorboats could be, and were allowed. A motorboat trail named the “Wilderness Waterway” was developed shortly after the area’s establishment as a wilderness reserve.
In 1949 the Library of Congress was called upon by Congress to address two questions: 1) is there a need for a national wilderness policy? And 2), if so, what form should it take? In response, the Library of Congress’ Legislative Reference Service issued a report entitled The Preservation of Wilderness Areas: An Analysis of Opinion on the Problem. The report identified five essential elements needed to effectively preserve wilderness areas; the identification of prohibited activities being one of them. The Wilderness Act addressed each of the five elements, Prohibition of Certain Uses became Section 4(c) of the Act as a critical component to the goal of preserving wilderness character.
10 Prohibited Uses
Section 4(c) of the Wilderness Act, titled Prohibition of Certain Uses, enumerates 10 uses prohibited in units of the National Wilderness Preservation System. They are:
- Commercial enterprises
- Permanent roads
- Temporary roads
- Use of motor vehicles
- Use of motorized equipment
- Use or motorboats
- Landing of aircraft
- Use of mechanical transport
- Structures
- Installations
Agency Definitions
The Prohibited Uses
There are ten developments and uses that are referred to in the Act as “Prohibited Uses” and are also known as “the Section 4(c) prohibitions.” Definitions and discussion of each prohibited use are provided below.
commercial enterprise. 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, including any use or activity where an entry or participation fee is charged. The Wilderness Act allows some commercial services to be permitted "to the extent necessary … for realizing the recreational or other wilderness purposes of the area" (Section 4(d)(6)). Section 1.6.C.4 of this manual provides additional information on authorized commercial uses in wilderness. “Commercial enterprise” includes, but is not limited to: mining, timber harvesting, and geothermal leasing.
permanent roads. Routes used by motor vehicles or mechanical transport over an indefinite period of time. “Permanent roads” do not include cherry-stemmed routes (see Glossary), which are outside the wilderness boundary. Permanent roads must be associated with a valid existing right (as noted in 1.6.B.3.b), or explicitly identified in the legislation designating a particular wilderness. Permanent roads will be removed (or allowed to restore naturally, if that would be less harmful to overall wilderness character) if the valid existing right or other permitted use is retired or otherwise ends. The definition of permanent roads for the purposes of wilderness management is not necessarily the same as the definition of "road" in the context of BLM transportation planning or the “wilderness inventory road” definition used in Manual 6310-Inventory for Lands with Wilderness Characteristics.
temporary roads. Routes used by motor vehicles or mechanical transport over a finite period of time. Temporary roads may only be allowed in wilderness areas if they are associated with a valid existing right (as noted in 1.6.B.3.b), necessary to meet minimum requirements for the administration of the area for the purpose of the Wilderness Act (as noted in 1.6.B.3.c), including measures required in emergencies involving the health and safety of persons within the area, allowed under a special provision of Section 4(d) of the Act, or explicitly identified in the legislation designating a particular wilderness. The definition of temporary roads for the purposes of wilderness management is not necessarily the same as the definition of "road" in the context of BLM transportation planning or the “wilderness inventory road” definition used in Manual 6310-Inventory for Lands with Wilderness Characteristics.
motor vehicles. Any means of transportation over land, snow, or ice that is powered by a motor, engine, or other non-living power source. “Motor vehicles” include, but are not limited to: trucks, motorcycles, ATVs, and snowmobiles. Use of motor vehicles may only be allowed in wilderness areas if it is associated with a valid existing right (as noted in 1.6.B.3.b), if necessary to meet minimum requirements for the administration of the area for the purpose of the Wilderness Act (as noted in 1.6.B.3.c), including measures required in emergencies involving the health and safety of persons within the area, allowed under a special provision of Section 4(d) of the Act, or explicitly identified in the legislation designating a particular wilderness.
motorized equipment. Any machine that applies force by transferring energy from a motor, engine, or other non-living power source. “Motorized equipment” includes, but is not limited to: chainsaws, power drills, suction dredges, and generators. The prohibited power sources include, but are not limited to: internal combustion engines, batteries, wind, solar, and hydro-power. “Motorized equipment” does not include machines where no force is applied (electronics), or small personal equipment where the force is negligible (such as watches, electric shavers, or flashlights). Use of motorized equipment may only be allowed in wilderness areas if it is associated with a valid existing right (as noted in 1.6.B.3.b), if necessary to meet minimum requirements for the administration of the area for the purpose of the Wilderness Act (as noted in 1.6.B.3.c), including measures required in emergencies involving the health and safety of persons within the area, allowed under a special provision of Section 4(d) of the Act, or explicitly identified in the legislation designating a particular wilderness.
motorboats. Any means of transportation over water that is powered by a motor, engine, or other non-living power source. “Motorboats” include, but are not limited to: airboats, jet-boats, and jet-skis. Motor boats may only be allowed in wilderness areas if it is associated with a valid existing right (as noted in 1.6.B.3.b), if necessary to meet minimum requirements for the administration of the area for the purpose of the Wilderness Act (as noted in 1.6.B.3.c), including measures required in emergencies involving the health and safety of persons within the area, allowed under a special provision of Section 4(d) of the Act, or explicitly identified in the legislation designating a particular wilderness.
landing of aircraft. Bringing down to the surface of the earth (land, water, snow, or ice) any means of transportation through the air, whether or not it is motorized, or anything attached to or carried by such aircraft during or after a flight. By regulation (43 CFR 6302.20(e)), “landing” includes dropping or picking up any material, supplies or person by means of aircraft; it does not include overflights. “Aircraft” include, but are not limited to: helicopters, fixed-wing airplanes, parachutes, hang-gliders, parasails, kite-sails, and motorized remotely-controlled flying machines (such as drones). Landing of aircraft may only be allowed in wilderness areas if it is associated with a valid existing right (as noted in 1.6.B.3.b), if necessary to meet minimum requirements for the administration of the area for the purpose of the Wilderness Act (as noted in 1.6.B.3.c), including measures required in emergencies involving the health and safety of persons within the area, allowed under a special provision of Section 4(d) of the Act, or explicitly identified in the legislation designating a particular wilderness.
mechanical transport. Any vehicle, device, or contrivance for moving people or material in or over land, water, snow, ice, or air that has moving parts as essential components of the transport and which apply a mechanical advantage, regardless of the power source. “Mechanical transport” includes, but is not limited to: bicycles, game carts, wagons, and wheelbarrows. It does not include devices that may provide mechanical advantage but are not used for transporting material over great distances (e.g., pulleys, pry bars, or winches) or for methods of transport where the mechanical advantage is from non-moving parts (e.g., travois) or is incidental to primary means of transport (e.g., ski bindings, horse bits, or oarlocks). It does not include wheelchairs suitable for indoor use when used by a person with a mobility impairment (see B.3.d.iii, below, and Glossary). Use of mechanical transport may only be allowed in wilderness areas if it is associated with a valid existing right (as noted in 1.6.B.3.b), if necessary to meet minimum requirements for the administration of the area for the purpose of the Wilderness Act (as noted in 1.6.B.3.c), including measures required in emergencies involving the health and safety of persons within the area, allowed under a special provision of Section 4(d) of the Act, or explicitly identified in the legislation designating a particular wilderness.
structures. Anything made by humans that is intended for human occupation and is left behind when the builder leaves the wilderness. It is immaterial to this definition whether building materials are found in the wilderness or brought into the wilderness. “Structures” include, but are not limited to: cabins, lean-tos, and constructed tent pads. They do not include temporary mobile shelters such as tents (while the user is in the wilderness). Structures may only be allowed in wilderness areas if they are associated with a valid existing right (as noted in 1.6.B.3.b), if necessary to meet minimum requirements for the administration of the area for the purpose of the Wilderness Act (as noted in 1.6.B.3.c), including measures required in emergencies involving the health and safety of persons within the area, allowed under a special provision of Section 4(d) of the Act, or explicitly identified in the legislation designating a particular wilderness.
installations. Anything made by humans that is not intended for human occupation and is left behind when the installer leaves the wilderness. “Installations” can be stationary (including, but not limited to: weather stations, physical geocaches, and trail signs) or mobile (including, but not limited to, radio collars or other remote tracking devices when they are installed in the wilderness). Installations include things that remain on the landscape such as trails and bridges. They do not include non-motorized devices that are carried by people in the wilderness and leave with them (including, but not limited to: GPS units, emergency location transmitters, cell phones, watches, and computers). It may be appropriate to regulate the length of time an installation may be unattended without requiring a special permit (e.g., water caches in desert areas or food caches on long trails) in an individual wilderness area.(Also see C.13.c.i and C.21.c.ix.A.II) Installations may only be allowed in wilderness areas if they are associated with a valid existing right (as noted in 1.6.B.3.b), if necessary to meet minimum requirements for the administration of the area for the purpose of the Wilderness Act (as noted in 1.6.B.3.c), including measures required in emergencies involving the health and safety of persons within the area, allowed under a special provision of Section 4(d) of the Act, or explicitly identified in the legislation designating a particular wilderness.
Motorized Equipment. Machines that use or are activated by a motor, engine, or other power source.
Mechanical Transport. Any device for moving people or material on, over, or through land, water, or air that has moving parts, provides a mechanical advantage to the user, and is powered by a living or nonliving power source.
- This includes, but is not limited to, sailboats, hang gliders, parachutes, bicycles, carts, and wagons.
- We do not include:
- Wheelchairs when used by those whose disabilities require wheelchairs for locomotion;
- Skis, snowshoes, rafts, canoes, sleds, travois, or similar devices.
*note – the FWS does not provide definitions for the other prohibited uses
Motor vehicle. Means any vehicle which is self-propelled, other than:
- A vehicle operated on rails; and
- Any wheelchair or mobility device, including one that is battery-powered, that is designed solely for use by a mobility-impaired person for locomotion and that is suitable for use in an indoor pedestrian area.
Motorized Equipment. Machines that use a motor, engine, or other nonliving power sources. This includes, but is not limited to, such machines as chain saws, aircraft, snowmobiles, generators, motorboats, and motor vehicles. It does not include small battery or gas powered hand carried devices such as shavers, wristwatches, flashlights, cameras, stoves, or other similar small equipment.
Mechanical Transport. Any contrivance for moving people or material in or over land, water, or air, having moving parts, that provides a mechanical advantage to the user, and that is powered by a living or nonliving power source. This includes, but is not limited to, sailboats, hang gliders, parachutes, bicycles, game carriers, carts, and wagons. It does not include wheelchairs when used as necessary medical appliances. It also does not include skis, snowshoes, rafts, canoes, sleds, travois, or similar primitive devices without moving parts.
*note – the FS does not provide definitions for the other prohibited uses
Commercial Enterprise: Any use or activity undertaken within wilderness for one or more of the following purposes:
- Sale of products or services (For example a restaurant or other vendor conducting business within wilderness);
- Extraction of resources, consumptive use of resources, or manipulation of resources for the purposes of generating funds or revenue (For example, timber harvesting, fishing, grazing, mining, or mineral exploration); or,
- An activity where an entry or participation fee is charged (For example a concert or other ticketed gathering or a paid guiding service).
The term commercial enterprise does not include commercial filming or photography
Road, Permanent: A route constructed, maintained or used by motor vehicles or mechanical transport for an indefinite period of time.
Road, Temporary: A route constructed, maintained or used by motor vehicles or mechanical transport for a finite period of time.
Motorized Equipment: Any machine that applies force by transferring energy from a motor, engine, or other non-living power source. This includes, but is not limited to, such machines as aircraft, drones, snowmobiles, motorboats, chainsaws, weed whackers, power drills, power saws, generators, compressors, windmills or turbines, and snow or leaf blowers. "Motorized equipment" does not include shavers, wrist watches, clocks, flashlights, cameras, camping stoves, solar panels, batteries, explosives, Geiger counters, cellular telephones, portable electronic media devices, radio receivers or transmitters, GPS units, or other similar small, battery-powered, hand-carried personal camping equipment.
Motorboat: Any type or description of craft, other than a seaplane on the water, used or capable of being used as a means of transportation on water that is powered by a motor, engine, or other non-living power source. This includes, but is not limited to, airboats and personal watercraft.
Aircraft, Landing of: Bringing down to the surface of the earth (land, water, snow, or ice) any aircraft or anything attached to or carried by an aircraft, during or after a flight.
Mechanical Transport: Any vehicle, device, or contrivance for moving people or material in or over land, water, snow, ice, or air that has moving parts as essential components of the transport and which apply a mechanical advantage, regardless of power source. This includes (but is not limited to) wheeled vehicles, devices, or contrivances, such as bicycles, Segways™ and other Electric Personal Assistance Mobility Devices (EPAMD), game carriers, carts, wheelbarrows, and wagons. "Mechanical transport" does not include skis, snowshoes, sleds, travois, non-motorized river craft including drift boats, rafts, or canoes, or similar primitive devices. Wheelchairs or other mobility devices that meet the definition of "wheelchair" in the Americans with Disabilities Act, Section 508(c) are not prohibited in wilderness.
Structure: Anything made by humans that is intended for human occupation, or their possessions, and is left behind when the builder leaves the wilderness.
Installation: Anything made by humans that is not intended for human occupation and is left unattended or left behind when the installer leaves the wilderness.
Exceptions to Prohibited Uses
All rules have exceptions, including the rules in the Wilderness Act. Exceptions to the Wilderness Act’s prohibitions falls into six categories.
The De Minimis principle directs that statutes are implemented in a manner under which trifling deviations from a standard are not intended to be included. All statutes are enacted with this background principle in effect.7 Applying this principle to the Wilderness Act avoids an unnecessarily absolutist application of the prohibitions to issues of little consequence. Distinguishing between a trifling deviation and an unambiguous prohibition is no insignificant matter; it is a critical to differentiate between prohibitions necessary to preserve wilderness character and those activities that have insignificant effects. The Wilderness managing agencies have done so as seen in the following two examples:
- The prohibition of motorized equipment does not include hand-held equipment that does not exert force on the land. Here’s how that manifests itself in agency policy:
- BLM: “Motorized equipment does not include machines where no force is applied [or] where the force is negligible (such as watches, electric shavers, or flashlights).” BLM Manual 6340 1.6 B.e.
- FWS: Motorized equipment does “not include small, handheld, portable devices such as shavers, wristwatches, flashlights, cameras, stoves, cellular telephones, radios, GPS units, or other similar small equipment.” 610 FW 1 1.5 O.(2).
- FS: Motorized equipment “does not include small battery or gas powered handcarried devices such as shavers, wristwatches, flashlights, cameras, stoves, or other similar small equipment.” FSM 2320.5-4.
- NPS: "Motorized equipment does not include shavers, wrist watches, clocks, flashlights, cameras, camping stoves… radio receivers or transmitters, GPS units, or other similar small, battery-powered, hand-carried personal camping equipment.” NPS RM 41
- Under the prohibition of mechanical transport, only transport that utilizes an assemblage of simple machines or provides transport for more than short distances is prohibited, anything less is not affected by the prohibition. Here’s how that manifests itself in agency policy:
- BLM: Mechanical transport “does not include devices that may provide mechanical advantage but are not used for transporting material over great distances (pulleys, pry bars, or winches) [or] where the mechanical advantage… is incidental to primary means of transport (ski bindings, horse bits, or oarlocks).” BLM Manual 6340 1.6 B.h.
- FWS: Mechanical transport does “not include… skis, snowshoes, rafts, canoes, sleds, travois, or similar devices.” 610 FW 1 1.5 L.(2).
- FS: Mechanical transport “does not include skis, snowshoes, rafts, canoes, sleds, travois, or similar primitive devices without moving parts.” FSM 2320.5-3.
- NPS: "Mechanical transport does not include skis, snowshoes, sleds, travois, non-motorized river craft including drift boats, rafts, or canoes, or similar primitive devices.” NPS RM 41
Reference
7 Statutory Interpretation: General Principles and Recent Trends, Congressional Research Service, Sep. 24, 2014. Back to source of reference 7
Section 4(c) of the Wilderness Act identifies prohibited uses that apply “except as specifically provided for in” the Wilderness Act. Section 4(d) and Section 5 then lists Special Provisions which include:
- Landing of aircraft 4(d)(1)
- Where established (for related information, see the Aircraft (including drones and paragliders) section of the Vehicle Intrusions toolbox)
- Use of motorboats 4(d)(1)
- Where established (for related information, see the see the motorboat section of the Vehicle Intrusions toolbox)
- Control of fire, insects or disease 4(d)(1) (Fire Management toolbox)
- Establishment of water resource developments (only applicable to FS and BLM) 4(d)(4)(1) (for related information, see the water storage and conveyance facilities section in the Water Rights toolbox)
- Grazing of Livestock (only applicable to FS and BLM) 4(d)(4)(2) (Grazing toolbox)
- Commercial Services (Commercial Services toolbox)
- Access to non-federal lands 4(d)(5)(a) (only applicable to FS and BLM) (Inholdings and Other Occupancies toolbox)
- Access to valid occupancies (only applicable to FS and BLM) 4(d)(5)(b) (Inholdings and Other Occupancies toolbox)
Four other provisions are identified in Section 4(d) of the Wilderness Act, but they do not provide special exemptions from the prohibited uses.
- Gathering Information (4(d)(2)). This provision allows for gathering resource information within wilderness if “carried on in a manner compatible with the preservation of the wilderness environment.” This provision means activities must be consistent with the minimum requirements analysis described below. (for information, see the Evaluating Research Proposals toolbox and for information related to prospecting see the Minerals toolbox)
- Mineral Uses (4(d)(2)). (only applicable to FS and BLM) (application to new mineral discovery expired in 1983). Valid discovery of minerals prior to 1983 are managed as Valid Existing Rights described below. (Minerals toolbox)
- Water Rights (4(d)(6)). This provision neither creates an “implied claim or denial” of a claim to federal water rights. It leaves in place the status quo, which is that a federal reservation (such as a wilderness area) reserves the water necessary to accomplish the purposes of the reservation8, while not affecting previously established water rights. (Water Rights toolbox)
- Wildlife jurisdiction (4(d)(7)). (only applicable to FS and BLM) This provision leaves the status quo in place regarding the jurisdiction between the states and federal government in wildlife management. Wildlife and fish management activities in wilderness are carried out in conformance with the Wilderness Act's purpose of securing an enduring resource of wilderness. Congress made preservation of wilderness character the primary duty of the federal agency, and that guides all decisions. The federal agency must implement a minimum requirements analysis before approving the state to implement a project in a Wilderness area. Both the state and federal agencies have essential roles in management of wildlife and fish in wilderness through cooperative management. (Wildlife and Fish toolbox)
Reference
8 Kelley, Amy K. Waters and Water Rights, Third Edition, Volume Two, 2019. Back to reference
In addition to special provisions under the Wilderness Act, many enabling laws (laws that designate specific wilderness areas) contain special provisions specific to the area(s) designated. These fall into four categories:
- Reiteration of the Wilderness Act
- Many enabling laws reiterate provisions already in force under the Wilderness Act. These provisions are generally unnecessary, but are a means to emphasize the importance of a particular issue. For example, PL 116-9 states “Commercial services (including authorized outfitting and guide activities) within the wilderness areas may be authorized to the extent necessary for activities that are appropriate for realizing the recreational or other wilderness purposes of the wilderness areas.” Although the wording is slightly different, this provision is fully addressed in Section 4(d)(5) of the Wilderness Act, but it emphasizes its application to outfitting and guiding. Care must be taken to interpret if a provision creates a new standard for an existing special provision. For example, most enabling laws for the BLM and the FS include a provision to allow the continuation of grazing, which is already addressed in Section 4(d)(4) of the Wilderness Act. However, these provisions further specify interpretation of Section 4(d)(4) through “Congressional Grazing Guidelines.”
- Special allowance to a specific wilderness
- Occasionally a provision unique to a specific wilderness is included in the enabling law for a wilderness. For example, PL 106-156 allowed the FS to use motorized vehicles and motorized equipment for a two year period in order to disassemble and remove a fire tower.
- Post Wilderness Act special provisions that have become standard
- Since passage of the Wilderness Act, several special provisions not included in it have been deemed desirable. Rather than amend the Wilderness Act to include them, these provision have been repeated in nearly all subsequent Acts. They only apply to the Wilderness areas whose enabling laws include them. The following are three examples:
- In 1980 a special provision prohibiting buffer zones began to be included.
- In 1984 a special provision allowing for climatological data collection began to be included.
- In 1989 a special provision allowing military overflights began to be included.
- Since passage of the Wilderness Act, several special provisions not included in it have been deemed desirable. Rather than amend the Wilderness Act to include them, these provision have been repeated in nearly all subsequent Acts. They only apply to the Wilderness areas whose enabling laws include them. The following are three examples:
- Withdrawal of special provisions from the Wilderness Act
- Some special provisions from the Wilderness Act have been limited or withdrawn for specific wilderness areas in their enabling legislation. For example, since 2000, the special provision allowing the establishment of water resource developments has been withdrawn in the enabling laws of many Wilderness areas.
There are numerous unique special provisions for specified Wilderness areas within their enabling laws. It is important to know which apply to the Wilderness area you manage. Visit this toolbox to look up special provisions. https://wilderness.net/practitioners/law/special-provisions-search/default.php
Section 4(c) of the Wilderness Act subjects wilderness management to “existing private rights,” commonly referred to in today’s language as “valid existing rights.” If those rights were to have been terminated by the Wilderness Act, the federal government would have been required, under the Constitution, to compensate the owner of those rights for their value. The Wilderness Act was careful not to create a broad automatic termination of existing property rights that the prohibited uses would create without this provision.
Valid existing rights are not present in all wilderness areas, but when they are they usually exist through one of three means: 1) the federal government issued a right-of-way upon the federal land before it was designated as wilderness. For example, a ROW issued for a telecommunications site. 2) a property in the wilderness was privately owned, and the private owner sold the property to the federal government without full rights to the property. For example, the federal government obtained surface rights, but another party retained the mineral rights. 3) a mining claim was filed upon a valid discovery before the area became designated as wilderness.
Where valid existing rights are present, they are exercised by their owner to their full extent. Sometimes those rights are clearly and fully specified, but sometimes their extent must be reconciled. For example, if a specified right-of-way exists for a constructed pipeline, it is managed to the extent of the terms and conditions specified. In comparison, where an unspecified right to a future right-of-way exists, the agency must identify specific terms and conditions such as its location.
Congress often acts through other statutes in ways that affect Wilderness areas. It is important to recognize that not every statute creates an exception to the mandate to preserve wilderness character stated in the Wilderness Act. Statutes must be written specifically to create such an exception. There are rules of statutory construction that guide in how that is determined. The rules that typically apply include that a specific law is superior to a general law and an outcome oriented law is superior to a procedural law. The Wilderness Act is a specific outcome oriented law, but other laws may also meet that standard and so require a harmonious blending that modifies the Wilderness Act. The use of the terms “shall” and “may” are important indicators of whether the Wilderness Act is superior or another law is equal to or superior. The term “shall” means something is required, there is no option. The term “may” means that something could occur if it’s not in conflict with another requirement.
- Example of a specific outcome oriented law: The Endangered Species Act states:
- “all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.” “Conserve” is further defined as “the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.” The ESA is stated in terms of “shall” and includes specific obligations and substantive outcomes.
- Example of a procedural oriented law under which multiple outcomes are possible:
- The National Historic Preservation Act states: “each agency shall undertake… preservation, as may be necessary to carry out this section.” “Preservation” is further defined as including “identification, evaluation, recordation, documentation, curation, acquisition, protection, management, rehabilitation, restoration, stabilization, maintenance, research, interpretation, conservation, and education and training regarding the foregoing activities or any combination of the foregoing activities.” This law does not create specific substantive obligations but is a procedural law allowing for multiple outcomes.
In sum, the application of provisions of other laws depends upon if law clearly requires a specific action in Wilderness that may be contrary to the prohibitions found in the Wilderness Act. The requirements of other laws can be difficult to discern and so consultation with legal counsel and wilderness program specialists is often necessary.
Another consideration is the effect of state laws. Where the Federal Government does not assert exclusive jurisdiction, the State may enact and enforce its laws on federal lands. However, if those state laws were to conflict with the Wilderness Act, the Wilderness Act supersedes the state laws. For example, the state may enact a law that allows for the use of ATVs to retrieve game, but that would be in conflict with the Wilderness Act’s prohibition on motor vehicles, and consequently, the state law would be preempted.
The most commonly utilized exception to the prohibited uses is where they are the minimum necessary for the preservation of wilderness character. The Wilderness Act lists and prohibits ten uses because they degrade wilderness character. However, the Act also recognizes that there are limited conditions under which the prohibited uses may actually be necessary to preserve wilderness character.
Periodically an issue arises under which wilderness character has been degraded or impaired, or is threatened. Section 4(c) of the Wilderness Act allows for eight of the ten prohibited uses (the two it does not apply to are commercial enterprises and permanent roads) where “necessary to meet minimum requirements for the administration of the area for the purpose of this Act.” Three questions arise from this exception.
The first question is “what is the purpose of the Act?” The purpose of the Act is found in Section 2(a) “…secure for the American people of present and future generations the benefits of an enduring resource of wilderness. For this purpose…” The benefits of wilderness are secured by implementing the mandate of the Wilderness Act found in Section 4(b): “each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area.” Courts have affirmed this construction, one stating “the ‘overarching purpose’ of Congress in passing the Wilderness Act was to preserve the ‘wilderness character’ of that land.”
The second question is “what is necessary to preserve wilderness character?” When wilderness character has been degraded or impaired, or is threatened, some type of administrative action may be necessary in response to the issue. The first step of a Minimum Requirements Analysis is to document the necessity to analyze potential action to address the issue. Actions may require the use of one of the eight prohibited uses. The presence of an issue does not mean that a prohibited use will be required and permitted, but only that prohibited uses may be considered to address the issue.
The third question is “what is the minimum activity needed?” If it is necessary to take action that includes a prohibited use, only the minimum amount of a prohibited use may occur. The second step of the Minimum Requirements Analysis is to consider different courses of action and document the activity that best preserves wilderness character, as a whole, though the minimum amount of a prohibited use (which can be none at all).
Wilderness character is organized into five tangible qualities which are derived from the Definition of Wilderness in Section 2(c) of the Wilderness Act. Wilderness character is, thus, a composite resource in which the five qualities work in unison. The five qualities are:
- Untrammeled—wilderness ecological systems are unhindered and free from intentional actions of modern human control or manipulation
- Natural—wilderness ecological systems are substantially free from the effects of modern civilization
- Undeveloped—wilderness is essentially without structures or installations, the use of motors, or mechanical transport
- Outstanding Opportunities for Solitude or Primitive and Unconfined Recreation—wilderness provides outstanding opportunities for solitude or primitive and unconfined recreation
- Other Features of Value—wilderness may have unique ecological, geological, cultural or other features of scientific, educational, scenic, or historical value
Two of the qualities are sometimes based upon the presence of a prohibited use. For example, the Other Features of Value quality which includes cultural resources. Those cultural resources are sometimes historic structures. Consequently, preserving this quality may occur through preserving a structure that is nonetheless a prohibited use. (see the cultural resources toolbox). The Outstanding Opportunities for Solitude or Primitive and Unconfined Recreation quality may include hiking on a trail. Consequently, preserving this quality may occur through maintaining a trail that is an installation (for more information see the Trail Systems and Features BMP Final document in the Trail Condition Monitoring toolbox).