Wilderness and Protection of Cultural Resources

1. Wilderness and Protection of Cultural Resources Peter A. Appel Alex W. Smith Professor University of Georgia School of Law Presented via Webinar Sponsored by the Carhart Center February 20, 2013

2. Sections of Wilderness Act Addressing Cultural Resources • Act itself does not use the term “cultural resources” or “cultural values” • Provisions of the Act that discuss historical resources • Section 2(c)(4): Wilderness areas “may also contain ecological, geological, or other features of scientific, educational, scenic, or historicalvalue” • Section 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 NHPA

3. Cumberland Island Important cultural sites on either side of wilderness Wilderness designation makes sites (Plum Orchard mansion, the Settlement) inaccessible for day visitors

4. Cumberland Island • NPS starts transporting visitors through wilderness using motor vehicles • Claims program falls within “minimum requirements” exception of Wilderness Act section 4(c) • Visitors are just “piggybacking” on NPS use of motor vehicles • NPS also argues use is necessary to meet historical resource obligations • Purchases vans for purpose and schedules trips

5. Wilderness Society v. Mainella, 375 F.3d 1085 (11th Cir. 2004) • Court strikes down program • Rejects “minimum requirements evaluation” • Seems to exclude cultural resources from Section 2(c) language • “Given 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)

6. Cumberland, cont’d • In 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).

7. Cumberland, cont’d • 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.)

8. Cumberland, cont’d • Court 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 court’s holding?

9. Cumberland Aftermath • Congress eventually redrew wilderness boundary to allow the Lands and Legacies Tour to continue

10. Questions?

11. Olympic Park Shelters • Olympic National Park had several shelters for health and safety of visitors • Upon wilderness designation in 1988, NPS decides to retain some of them, but they’re in bad shape

12. Olympic Park Shelters, cont’d NPS “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.’”

13. Olympic Park Assocs. v. Mainella, 2005 WL 1871114 (W.D. Wash. 2005) • Court finds reasoning of Cumberland Island “persuasive” • “While 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.”

14. Olympic Park Shelters, cont’d • “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 governs

15. Questions?

16. Emigrant Dams • Emigrant Wilderness Area, managed by USFS, designated in 1975 • Several dams built in 1920’s to develop local fishery that had begin in the 1890’s—known to Congress at time of designation • Dams served a number of purposes historically • Fish stocking carried out for benefit of anglers • Dams deteriorating • Potential ESA issues with two sensitive species (Mountain Yellow-legged Frog and Yosemite Toad)

17. Emigrant Dams • USFS decides to “maintain” 11 of 18 dams • 7 eligible for Historic Register • 4 because they enhance fisheries • Question about whether “maintain” means reconstruct

18. High Sierra Hikers Ass’n 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 case—repairing, maintaining and operating dam ‘structures’—and prohibits that activity.” (P.1131)

19. Emigrant Dams, cont’d • Nevertheless, “the Forest Service’s 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”

20. Emigrant Dams • Fish 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)

21. Emigrant Dams, cont’d • Attempt 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

22. Questions?

23. Green Mountain Lookout Historic fire lookout in Mt. Baker-Snoqualmie National Forest Area in issue added to NWPS in 1984 (Glacier Peak WA) Back and forth about whether structure warranted listing on National Register—USFS finally concludes that it does Questions: Remove? Repair? Let Deteriorate? Decision: Remove by helicopter—but USFS saves pieces of it

24. Green Mountain Lookout • Seven years later, USFS hires NPS to build new foundation for lookout • Using some of the old pieces, USFS brings saved pieces back to site • 67 helicopter trips • Lawsuit follows challenging: • Structure in wilderness • Use of motorized equipment

25. Wilderness Watch v. Iwamoto, 853 F. Supp. 2d 1063 (W.D. Wash. 2012 • NHPA vs. WA: “[I]n light of the Wilderness Act’s 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 Dams • Acknowledges, however, that agency can reasonably conclude that “historical use is a valid goal of” the Wilderness Act (p.1074) • Nevertheless, use of motor vehicles—helicopters—does not meet minimum requirements analysis. “The Forest Service went too far.” (P.1076). • Court orders lookout removed

26. Questions?

27. Take Away Messages • Courts tend to follow prior decisions in this area, even if not binding • Use of motor vehicles and motorized equipment most suspect • Reconstruction most suspect; no court cases on letting things rot • Courts so far are uniform that Wilderness Act trumps NHPA • Environmental plaintiffs have picked great cases for their side (bad facts make bad law?) • Relief imposed by courts will vary

28. “[S]ecur[ing] for the American people of present and future generations the benefits of an enduring resource of wilderness.” Phone: (706) 542-5097 Email: appel@uga.edu