America' s unprotected wilderness

Denver University Law Review

Volumn 76, Issue 2, 1999, Pages 413-447

  Anderson, H Michael ^a,b,c   Moncrief, Aliki ^d  

^a Wilderness Society   (United States)

^b UNIVERSITY OF OREGON   (United States)

^c YALE UNIVERSITY   (United States)

^d HARVARD LAW SCHOOL   (United States)

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EID: 0003304295     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (226)

1. Pub. L. No. 88-577, 78 Stat. 890 (codified as amended at 16 U.S.C. §§ 1131-1136 (1994)).
2. See THE WILDERNESS SOCIETY, THE WILDERNESS ACT HANDBOOK 3 (Jay Watson ed., 3d ed. 1998) [hereinafter HANDBOOK].
3. Cf., e.g., Red Rock Wilderness Act of 1997, H.R. 1500 & S. 773, 105th Cong. (designating 5.7 million acres of BLM lands in Utah); Northern Rockies Ecosystem Protection Act of 1997, H.R. 1425, 105th Cong. (designating more than 13.5 million acres of wilderness in Idaho, Montana, Oregon, Washington, and Wyoming); Morris K. Udall Wilderness Act of 1997, H.R. 900 & S. 531, 105th Cong. (designating as wilderness 1.56 million acres of the Arctic National Wildlife Refuge in Alaska); Rocky Mountain National Park Wilderness Act of 1997, H.R. 302, 105th Cong. (designating certain lands in Rocky Mountain National Park as components of the National Wilderness Preservation System).
4. See infra Part III.B. The moratorium is intended to "retain resource management options in those unroaded areas subject to suspension from the potentially adverse effects associated with road construction, while the Forest Service develops a revised road management policy." 64 Fed. Reg. 7289, 7290 (1999).
5. For information about wilderness classification in national parks and wildlife refuges, see J. HENDEE ET AL., WILDERNESS MANAGEMENT 142-47 (2d ed. 1990). For a narrative account of the history and protection of the National Park System under the Wilderness Act, see Michael McCloskey, What the Wilderness Act Accomplished in Protection of Roadless Areas Within the National Park System, 10 J. ENVTL. L. & LITIG. 455 (1995).
6. For information about wilderness classification in national parks and wildlife refuges, see J. HENDEE ET AL., WILDERNESS MANAGEMENT 142-47 (2d ed. 1990). For a narrative account of the history and protection of the National Park System under the Wilderness Act, see Michael McCloskey, What the Wilderness Act Accomplished in Protection of Roadless Areas Within the National Park System, 10 J. ENVTL. L. & LITIG. 455 (1995).
7. See Wilderness Act § 3(a), 16 U.S.C. § 1132(a).
8. See HANDBOOK, supra note 2, at 3.
9. Pub. L. No. 96-487,94 Stat. 2371 (1980) (codified as amended at 16 U.S.C. §§ 3101-3233 (1994)).
10. Cf. ANILCA §§ 701-704,16 U.S.C. § 1132 note.
11. Pub. L. No. 103-433,108 Stat. 4471 (codified as amended at 16 U.S.C. § 1132 note).
12. ANILCA § 102,16 U.S.C. § 1132 note.
13. Pub. L. No. 93-622, 88 Stat. 2096 (codified as amended at 16 U.S.C. § 1132 note).
14. Less than five percent of the total wilderness acres lies east of the 100th Meridian, and almost half of that is in just two areas: Everglades National Park in Florida and the Boundary Waters Canoe Area in Minnesota. See HANDBOOK, supra note 2, at 3.
15. See id.
16. The proportion of land within each of the four public land systems which is designated wilderness is as follows: National Parks (48.3%), National Forests (18.0%), National Wildlife Refuges (22.6%), BLM lands (2.2%). Cf. id.; DYAN ZASLOWSKY & TOM H. WATKINS, THESE AMERICAN LANDS 11, 58, 105, 151 (1994).
17. See Wilderness Act § 2(c), 16 U.S.C. § 1131(c).
18. The Wilderness Act directed the Secretary of Interior to review the wilderness suitability of "every roadless area of five thousand contiguous acres or more" within the national parks and wildlife refuges. Wilderness Act § 3(c), 16 U.S.C. § 1132(c). The Forest Service and BLM have also used the five thousand acre size criterion in their wilderness inventories. See infra notes 33, 88 and accompanying text.
19. See Memorandum from Bill Meadows, President, The Wilderness Society, to Executive Committee (June 25, 1998) (on file with author). Acreage estimates were developed by Wilderness Society staff based on a variety of sources, including acreage figures supplied by the Forest Service, Park Service, and Fish and Wildlife Service. See id.
20. See HANDBOOK, supra note 2, at 41, 43; see also infra notes 59, 98-99 and accompanying text.
21. See supra note 18 (describing the derivation of the acreage estimates).
22. See Memorandum from Bill Meadows, supra note 18 (providing an estimate for unprotected wilderness).
23. The Act states that "no Federal lands shall be designated as 'wilderness areas' except as provided for in this chapter or by a subsequent Act." Wilderness Act § 2(a), 16 U.S.C § 1131(a). Similarly, "[e]ach recommendation of the President for designation as 'wilderness' shall become effective only if so provided by an Act of Congress." Wilderness Act § 3(b), 16 U.S.C. § 1132(b).
24. See ZASLOWSKY & WATKINS, supra note 15, at 208, 211.
25. See Wilderness Act § 3,16 U.S.C. § 1132.
26. Wilderness Act § 3(b), 16 U.S.C. § 1132(b).
27. See D.M. ROTH, FOREST SERV., U.S. DEP'T OF AGRIC., THE WILDERNESS MOVEMENT AND THE NATIONAL FORESTS: 1964-1980, at 11 (Forest Service History Series 1984).
28. See id. at 19-22.
29. Parker v. United States, 448 F.2d 793,795 (10th Cir. 1971). The court stated: We have no difficulty in recognizing the general purpose of the Wilderness Act. It is simply a congressional acknowledgment of the necessity of preserving one factor of our natural environment from the progressive, destructive and hasty inroads of man, usually commercial in nature, and the enactment of a "proceed slowly" order until it can be determined wherein the balance be-tween proper multiple uses of the wilderness lies and the most desirable and highest use established for the present and future. Id.
30. Wilderness Act § 3(c), 16 U.S.C. § 1132(c). For national wildlife refuges, the Act required the Secretary to review "every roadless island" in addition to roadless areas. Id.
31. See HANDBOOK, supra note 2, at 41, 43.
32. See Wilderness Act § 3(d), 16 U.S.C. § 1132(d).
33. Wilderness Act § 2(a), 16 U.S.C. § 1131 (a).
34. See Charles F. Wilkinson & H. Michael Anderson, Land and Resource Planning in the National Forests, 64 OR. L. REV. 1, 345 (1985).
35. Pub. L. No. 91-190, 83 Stat. 852 (codified as amended at 42 U.S.C. §§ 4331-4370d (1994 & Supp. II 1996)).
36. See Wilkinson & Anderson, supra note 33, at 347.
37. Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1250 (10th Cir. 1973).
38. Pub. L. No. 93-622, §§ 3-4, 88 Stat. 2096, 2097-2100 (codified as amended at 16 U.S.C. § 1132 note).
39. Pub. L. No. 94-588, 90 Stat. 2949 (codified as amended at 16 U.S.C. §§ 1600-1614 (1994)).
40. See NFMA § 6, 16 U.S.C. § 1604(e)(1), (g)(3)(A); 36 C.F.R. § 219.17(a) (1997); see also Idaho Conservation League v. Mumma, 956 F.2d 1508, 1511 (9th Cir. 1992); California v. Berglund, 483 F. Supp. 465, 478 (E.D. Cal. 1980).
41. See FOREST SERV., U.S. DEP'T OF AGRIC., ROADLESS AREA REVIEW AND EVALUATION, FINAL ENVIRONMENTAL IMPACT STATEMENT at iii (1979) [hereinafter RARE II]. The first RARE inventory identified 56 million acres in 1449 roadless areas. See id. at 6.
42. See id. at iv.
43. See California v. Block, 690 F.2d 753, 765-69 (9th Cir. 1982). The Forest Service subsequently amended its forest planning regulations to require wilderness review of all roadless areas, including those evaluated in RARE II, unless directed otherwise by Congress. See 36 C.F.R. 219.17(a) (1997); 48 Fed. Reg. 40,383 (1983).
44. GEORGE CAMERON COGGINS ET AL., FEDERAL PUBLIC LAND AND RESOURCES LAW 1053 (3d ed. 1993).
45. In Oregon, for example, RARE II recommended 370,000 acres for wilderness, but the Oregon Wilderness Act designated nearly one million acres. See ROTH, supra note 26, at 27.
46. See id. at 2-7.
47. See e.g., Washington State Wilderness Act of 1984, Pub. L. No. 98-339, § 5(b)(1), 98 Stat. 299, 303.
48. E.g., id. § 5(b)(2), 98 Stat. at 303.
49. See Id. § 5(b)(3), 98 Stat. at 303. Furthermore, the undesignated roadless areas "need not be managed for the purpose of protecting their suitability for wilderness designation prior to or during revision of the initial land management plans." Id.
50. 778 F.2d 1402 (9th Cir. 1985).
51. See Tenakee Springs, 778 F.2d at 1405. The court stated that the sufficiency language "immunizes from judicial review only the wilderness/nonwilderness allocations made by RARE II and not the detailed Tongass Plan allocations of nonwilderness areas as suitable for primitive, environmentally compatible, or intensive development." Id.
52. 4 F.3d 832 (9th Cir. 1993).
53. National Audubon Soc'y, 4 F.3d at 837 (emphasis added). The court explained, "The desire of Congress to preclude further review of wilderness designations made by the [Oregon Wilderness Act] and RARE II does not persuade us that Congress also intended to preclude judicial review of Forest Service compliance with NEPA in these four contested timber sales." Id.
54. 33 F.3d 1072 (9th Cir. 1994).
55. See Smith. 33 F.3d at 1073.
56. Id. at 1078 (citations omitted).
57. See supra notes 39,47 and accompanying text.
58. For example, the Idaho Panhandle National Forest plan recommended only 4 of the 47 inventoried roadless areas, amounting to 18 percent of total roadless acreage. See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1512 (9th Cir. 1992).
59. All national forest plans in the Pacific Northwest Region (Oregon and Washington), for example, included detailed roadless area reviews. The forest plan EISs in that region included a separate appendix describing each roadless area, the area's management allocation under each alternative, and the environmental consequences of those allocations. See, e.g., FOREST SERV., U.S. DEP'T OF AGRIC., FINAL ENVIRONMENTAL IMPACT STATEMENT, LAND AND RESOURCE MANAGEMENT PLAN WILLAMETTE NATIONAL FOREST app. at C-1 (1990).
60. See FOREST SERV., U.S. DEP'T OF AGRIC., WILDERNESS AND ROADLESS AREA DATA (attachment to Letter from Gerald T. Coghlan, Acting Director of Engineering, Forest Service, to author (June 29, 1998)) (on file with author).
61. See id.
62. See FOREST SERV., U.S. DEP'T OF AGRIC., FACTS ABOUT THE NATIONAL FOREST ROAD SYSTEM (attachment to Letter from Chief Michael Dombeck, Forest Service, to Colleagues (Jan. 22, 1998)) (on file with author).
63. See National Environmental Policy Act; Revised Policy and Procedures, 57 Fed. Reg. 43180, 43,200 (1992). But cf. Smith v. United States Forest Serv., 33 F.3d 1072, 1079 (9th Cir. 1994) (stating that site-specific EIS for roadless area timber sale "may not be per se required"); National Audubon Soc'y v. Forest Serv., 4 F.3d 832, 838 & n.6 (9th Cir. 1993) (remanding decision to enjoin roadless area timber sale with instructions to review under arbitrary and capricious standard).
64. See 36 C.F.R. § 219.17 (1997).
65. See 60 Fed. Reg. 18886, 18931 (1995).
66. See generally FOREST SERV., U.S. DEP'T OF AGRIC. & BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, EASTSIDE DRAFT ENVIRONMENTAL IMPACT STATEMENT (1997).
67. See THOMAS M. QUIGLEY & SYLVIA ARBELBIDE, U.S. DEP'T OF AGRIC., AN ASSESSMENT OF ECOSYSTEM COMPONENTS IN THE INTERIOR COLUMBIA BASIN 1824 (1997) ("[T]he existence of unroaded areas is by far the most valuable output from FS- and BLM-administered lands in the Basin today, and will continue to be so in the year 2045.").
68. See id. at 1348 ("Unroaded areas have the potential to maintain natural processes unaltered by land management activities and may be important refugia for strongholds of salmonid. . . . Designated wilderness and areas predicted to be unroaded are important anchors for strongholds throughout the Basin.").
69. See Letter from The Wilderness Society et al. to Lyle Laverty, Regional Forester, Rocky Mountain Region (July 7, 1998) (on file with author). The letter states: Region 2's record on recommending additional wilderness during the forest planning process is abysmal. The Forest Service identified as roadless a total of 1,387,835 acres on the Black Hills, Rio Grande, Arapaho-Roosevelt, and Routt National Forests. Of this, conservationists recommended 806,430 acres for wilderness, and the agency itself found hundreds of thousands of acres 1 [sic] to be "eligible" for wilderness. Yet, the Forest Service recommended only a paltry 8,551 acres for wilderness designation. Id. (citation omitted).
70. See Letter from Chief Mike Dombeck, Forest Service, to all Forest Service Employees (July 1, 1998) (concerning conservation leadership) (on file with author). Chief Dombeck stated: Values such as wilderness and roadless areas, clean water, protection of rare species, old growth forests, naturalness - these are the reasons most Americans cherish their public land. . . . [T]wenty percent of the National Forest System is wilderness, and in the [minds] of many, more should be. Our wilderness portfolio must embody a broader array of lands - from prairie to old growth. As world leaders in wilderness management, we should be looking to the future to better manage existing, and identify potential new, wilderness and other wild lands. Id.
71. See discussion infra Part III.B.
72. See Bureau of Land Management, U.S. Dep't of the Interior, Public Land Statistics: 1997 (last modified Mar. 21, 1998) 〈http://www.blm.gov/natacq/pls97/partl.html〉 [hereinafter 1997 BLM Statistics]. Throughout this section "public lands" refers to those lands under the BLM's jurisdiction. BLM lands are also referred to as "National Resource Lands." See ZASLOWSKY & WATKINS, supra note 15, at 131. Alaska contains over one-third of all BLM lands. See 1997 BLM Statistics, supra. For a discussion of ANILCA and its impact on wilderness review in Alaska, see infra Part II.D.
73. See ZASLOWSKY & WATKINS, supra note 15, at 105-48 (detailing the extensive history of the BLM and natural resource lands, including the enactment of FLPMA).
74. See Reorganization Plan No. 3 of 1946, 60 Stat. 1097, 1100.
75. See John D. Leshy, Wilderness and Its Discontents: Wilderness Review Comes to the Public Lands, ARIZ. ST. L.J. 361, 363 (1981).
76. See HANDBOOK, supra note 2, at 37; Leshy, supra note 74, at 362-64 (1981). Frequently, BLM lands have been "dismissed as the 'leftover lands,'" or "the land that no one wanted." ZASLOWSKY & WATKINS, supra note 15, at 105, 135. William P. Clarke, who served as Secretary of Interior under Reagan, thought of BLM lands in this way and professed to be surprised to find even 24 million acres containing wilderness characteristics. See id. at 135.
77. Pub. L. No. 94-579, 90 Stat. 2744 (codified as amended at 43 U.S.C. §§ 1701-1785 (1994 & Supp. III 1997)).
78. Many have referred to FLPMA as the BLM's "organic" act, and with respect to outlining land management guidelines, it is more precise than most other organic acts for public land agencies. See HENDEE ET AL., supra note 5, at 148. As a historical note, immediately after passage of the Wilderness Act, Congress established the Public Land Law Review Commission (PLLRC) to review and recommend revisions of the public land laws, "most of which were administered by the Bureau of Land Management." Leshy, supra note 74, at 368; see also Public Land Law Review Commission, Pub. L. No. 88-606, §§ 1-3, 78 Stat. 982, 982 (1964) (originally codified at 43 U.S.C. §§ 1391-1393 (1964) and subsequently omitted with the termination of the Commission, 43 U.S.C. § 1391 note (Codification) (1994)) [hereinafter PLLRC]. In many respects, the work of the commission was Congress's first step towards FLPMA's enactment. Cf. PLLRC, supra, §§ 1-3; see also Leshy, supra note 74, at 368-71.
79. See FLPMA § 603(c), 43 U.S.C. § 1782(c).
80. Leshy, supra note 74, at 365-66.
81. See FLPMA § 102(a)(1), 43 U.S.C. § 1701(a)(I).
82. See Interim Management Policy and Guidelines for Land Under Wilderness Review, 44 Fed. Reg. 72,014, 72,015 (1979) [hereinafter IMP]. The BLM recognized that "[u]nder FLPMA, wilderness preservation is part of BLM's multiple-use mandate, and wilderness values are recognized as part of the spectrum of resource values and uses to be considered in the inventory and in the land-use planning process." Id. Section 603 of FLPMA "directs the BLM, for the first time, to carry out a wilderness review of the public lands." Id.; see also FLPMA § 603(a), 43 U.S.C. § 1782(a).
83. FLPMA § 201(a), 43 U.S.C. § 1711(a).
84. FLPMA § 603(a), 43 U.S.C. § 1782(a).
85. See HENDEE ET AL., supra note 5, at 148.
86. See generally BUREAU OF LAND MANAGEMENT, U.S. DEP'T OF THE INTERIOR, WILDERNESS INVENTORY HANDBOOK (1978) [hereinafter WILDERNESS INVENTORY]. The inventory began in September 1978 and covered 174 million acres in the lower 48 states. See HENDEE ET AL., supra note 5, at 147. Because of the uncertainty concerning the future of Alaska's public lands, BLM land in Alaska was not reviewed. See WILDERNESS INVENTORY, supra, at 4.
87. See HENDEE ET AL., supra note 5, at 148.
88. See Wilderness Inventory Results for Public Lands Under Administration of the Bureau of Land Management in the Contiguous Western States, 45 Fed. Reg. 75,574, 75,574 (1980).
89. See HENDEE ET AL., supra note 5, at 148.
90. 45 Fed. Reg. at 75,576.
91. See id. at 75,574-75; see also supra note 39 and accompanying text.
92. See Utah; Final Wilderness Inventory Decision, 45 Fed. Reg. 75,602,75,604 (1980).
93. See Wilderness Study Policy, 47 Fed. Reg. 5098, 5103 (1982); HENDEE ET AL., supra note 5, at 151.
94. Wilderness Study Policy, 47 Fed. Reg. 5098, 5103 (1982). The BLM does not provide any guidance as to how "manageability" is to be determined. Cf. id. The decision is essentially based on whether it would be practical to manage a particular area as wilderness - a highly subjective determination - given such factors as the degree to which private or state inholdings would disrupt federal management. See HENDEE ET AL., supra note 5, at 151.
95. See FLPMA § 603(a), 43 U.S.C. § 1782(a) (1994 & Supp. II (1996)). Section 603 of FLPMA extends the public participation requirements of section 3(d) of the Wilderness Act to the BLM wilderness review. See id.; see also Wilderness Act § 3(d), 16 U.S.C. § 1132(d) (1994).
96. See FLPMA § 603(a), 43 U.S.C. § 1782(a).
97. HENDEE ET AL., supra note 5, at 152.
98. See Leshy, supra note 74, at 374. Although the House version of FLPMA would have made the President's wilderness recommendations automatically effective if Congress failed to take action within 120 days, the Conference Committee jealously guarded Congress's right to have the final say and dropped the provision. See Id.
99. See 1997 BLM Statistics, supra note 71.
100. See id.
101. See FLPMA § 603(a), 43 U.S.C. § 1782(a); Utah; Final Wilderness Inventory Decision, 45 Fed. Reg. 75,602, 75,605 (1980).
102. Utah v. Babbitt, 137 F.3d 1193, 1198 (10th Cir. 1998) (summarizing the history of Utah's wilderness debate).
103. See id. Another 0.7 million acres were subsequently added as a result of administrative appeals, bringing the total amount of WSAs to 3.2 million acres. See Telephone Interview with Ken Rait, Issues Director, Southern Utah Wilderness Alliance (Sept. 2, 1998).
104. See Ray Wheeler, The BLM Wilderness Review (visited Oct. 27, 1998) 〈http://www.suwa.org/WATE/review.html〉. In 1983, House Public Lands Subcommittee Chairman John Seiberling went to Utah to investigate charges of mismanagement in the Utah BLM wilderness inventory. Seiberling returned to Washington convinced that the BLM had indeed mismanaged the inventory, and told reporters: "They've left out areas that obviously qualify for wilderness - and I've seen a lot of them." Id.
105. See Daniel Click, A Wilderness Shell Game, WILDERNESS, Winter 1995, at 14, 16-17. When Rep. Owens left Congress in 1993, Rep. Hinchey reintroduced H.R. 1500, with 5.7 million acres of proposed wilderness. In response, Utah Representative James Hansen offered H.R. 1745 in 1995 - a bill that would designate only 1.2 million acres and which would have allowed unprecedented development of dams, roads, pipelines, and other facilities even within designated wilderness. Id. at 16. A companion bill to H.R. 1500 has been introduced in the Senate. See S. 773, 105th Cong. § 2(b)(1)(1997).
106. Babbitt, 137 F.3d at 1199-1200.
107. See id. at 1216. The court did note that section 603 "envisions a much more comprehensive process . . . than that implemented by the [reinventory]," which did not address the suitability of the lands for management as wilderness. See id. at 1206 n.17. Therefore, authority for the Secretary's decision flowed from FLPMA's general land use planning provisions. See id; see also FLPMA §§ 201, 202, 43 U.S.C. §§ 1711, 1712 (1994). For the most part, the BLM has justified wilderness inventory work after 1991 (the deadline imposed by section 603) on the basis of these provisions. See Babbitt, 137 F.3d at 1206 n.17.
108. See 1997 BLM Statistics, supra note 71.
109. See Alexander H. Southwell, Comment, The County Supremacy Movement: The Federalism implications of a 1990s States' Rights Battle, 32 GONZ. L. REV. 417, 435 (1996-97). Although R.S. 2477 was repealed, FLPMA expressly grandfathered rights-of-way established before 1976. See FLPMA §§ 701(a), (h), 43 U.S.C. § 1701 note (1994).
110. See, e.g.. Sierra Club v. Hodel, 848 F.2d 1068, 1077-79 (10th Cir. 1988).
111. Section 603(c) provides that during the inventory and study phase of the review, the Secretary: shall continue to manage such lands according to his authority under this Act and other applicable law in a manner so as not to impair the suitability of such areas for preservation as wilderness, subject, however, to the continuation of existing mining and grazing uses and mineral leasing in the manner and degree in which the same was being conducted on October 21, 1976; Provided, That, in managing the public lands the Secretary shall by regulation or otherwise take any action required to prevent unnecessary or undue degradation of the lands and their resources or to afford environmental protection. FLPMA § 603(c), 43 U.S.C. § 1782(c) (emphasis added). The BLM has promulgated guidelines for management of land under wilderness review. See IMP, supra note 81, at 72,014. The Reagan administration limited the extent to which the BLM may restrict "valid existing rights" by amending the IMP in 1983. See Interim Management Policy and Guidelines, 48 Fed. Reg. 31,854, 31,854 (1983) [hereinafter Revised IMP].
112. FLPMA § 603(c), 43 U.S.C. § 1782(c).
113. IMP, supra note 81, at 72,016.
114. Parker v. United States, 498 F.2d 793, 795 (10th Cir. 1971).
115. Section 603 recognizes grandfathered uses such as mining, grazing, and mineral leasing. See FLPMA § 603(c), 43 U.S.C. § 1782(c). Section 701(h) protects "valid existing rights." FLPMA § 701(h), 43 U.S.C. § 1701 note.
116. See Revised IMP, supra note 110, at 31,854-55.
117. See id.
118. See id.
119. 486 F. Supp. 995, 1007 (D. Utah 1979); see also Colorado Envtl. Coalition v. Bureau of Land Management, 932 F. Supp. 1247, 1251 (D. Colo. 1996) (noting that existing mineral leases are exempt from the nonimpairment standard).
120. Andrus, 486 F. Supp. at 1007.
121. See id. at 1004.
122. 848 F.2d 1068, 1085-87 (10th Cir. 1988) (characterizing the tension between interim protection and recognition of valid existing rights as a "latent ambiguity," the court deferred to the BLM's interpretation of section 603).
123. See Andrus, 486 F. Supp. at 1007-08.
124. See id. at 1008-09.
125. See FLPMA § 603(b), 43 U.S.C. § 1732(b) (1994). FLPMA requires the BLM to manage all public lands, even those not under wilderness review, so as to "prevent unnecessary or undue degradation." Id. Given the BLM's application of section 603, and its treatment in the courts, management standards for WSAs do not differ much in effect from any other public lands under its jurisdiction.
126. See Pub. L. No. 85-508, § 4, 72 Stat. 339, 339 (1958) (codified at 48 U.S.C. § 21 note (Alaska Statehood) (1994)). Before Alaska became a state, all of its lands were federally owned. The Alaska Enabling Act granted Alaska the right to select for state ownership 104 million acres of land - approximately one-third of the state. See COGGINS ET AL., supra note 43, at 143; HENDEE ET AL., supra note 5, at 148.
127. Pub. L. No. 92-203, 85 Stat. 688 (1971) (codified as amended in scattered sections of 16 U.S.C.); see also ANCSA Amendments, Pub. L. No. 94-204, 89 Stat. 1149 (1976) (codified as amended in scattered sections of 43 U.S.C). 43 U.S.C. § 1616(d)(2) (1994)).
128. See 43 U.S.C. § 1616(d)(2) (codifying ANCSA § 17(a)(7), 85 Stat. at 707, as amended by ANCSA Amendments § 7, 89 Stat. at 1149); see also Leshy, supra note 74, at 377.
129. Pub. L. No. 96-487, 94 Stat. 2371 (1980) (codified as amended in scattered sections of 16 U.S.C. and 43 U.S.C).
130. See ANILCA §§ 701-704, 16 U.S.C. § 1132 note (1994). ANILCA is also commonly referred to as the "Alaska Lands Act."
131. See ZASLOWSKY & WATKINS, supra note 15, at 345-46. The only pre-ANILCA wilderness areas in Alaska were managed as part of the National Wildlife Refuge System. See id.
132. THE WILDERNESS SOC'Y, THE ALASKA LANDS ACT: A BROKEN PROMISE 1 (1990) [hereinafter A BROKEN PROMISE].
133. See ANTLCA § 1317(a), 16 U.S.C. § 3205(a).
134. See ANILCA § 1317(a), (b), 16 U.S.C. § 3205(a), (b).
135. See ANILCA § 704, 16 U.S.C. § 1132 note. ANILCA only created one such area - the Nellie Juan-College Fjord Study Area in the Chugach National Forest. See id. All of Alaska's national forest roadless areas were included in the Forest Service's nationwide RARE II study. Out of about 16 million roadless acres reviewed in Alaska, the Forest Service recommended wilderness for 5.6 million acres. See RARE II, supra note 40, at A-1.
136. See ANILCA § 704,16 U.S.C. § 1132 note.
137. See A BROKEN PROMISE, supra note 131, at 6.
138. See id.
139. See ANILCA § 1320, 43 U.S.C. § 1784.
140. See HANDBOOK, supra note 2, at 37.
141. See ANILCA § 1004,16 U.S.C. § 3144.
142. See ANILCA § 1004(c), 16 U.S.C. § 3144(c). For a detailed discussion of FLPMA's interim management provisions, see supra Part II.C.3.
143. ANILCA § 1004(c), 16 U.S.C. § 3144(c).
144. Id.
145. See ANILCA § 1003, 16 U.S.C. § 3143. ANILCA also withdrew the coastal plain from all mineral entry. See ANILCA § 1002(i), 16 U.S.C. § 3142(i).
146. See ZASLOWSKY & WATKINS, supra note 15, at 309-12.
147. See COGGINS ET AL., supra note 43, at 622-23.
148. See Wilkinson & Anderson, supra note 33, at 336-37.
149. See id. at 337-39 (citing McMichael v. United States, 355 F.2d 283, 284 n.3 (9th Cir. 1965)).
150. See id. at 339-10.
151. See id. at 340-41.
152. See discussion supra Part II.B.1.
153. Between 1987 and 1995, for example the total timber sale volume declined from 11.3 billion board feet to 2.9 billion board feet, while total road construction fell from 2,593 miles to 468 miles. Compare 1987 REPORT OF THE FOREST SERVICE 18, 37 (1987), with 1995 REPORT OF THE FOREST SERVICE 17, 30 (1995).
154. See, e.g., Letter from Max Cleland et al., U.S. Senators, to Dan Glickman, Secretary of Agriculture (Nov. 14, 1997) (on file with author).
155. President's Statement on Signing the Department of the Interior and Related Agencies Appropriations Act of 1998, 33 WKLY COMP. PRES. DOC. 1809, 1810(Nov. 14, 1997).
156. Id.
157. See Temporary Suspension of Road Construction in Unroaded Areas, 64 Fed. Reg. 7289, 7290 (1999) (to be codified at 36 C.F.R. § 212).
158. See id. at 7290.
159. Id.
160. Id. at 7298. See generally SOUTHERN APPALACHIAN FOREST COALITION & THE WILDERNESS SOC'Y, THE SOUTHERN APPALACHIAN ASSESSMENT: HIGHLIGHTS AND PERSPECTIVES 22 (1997) [hereinafter SAA HIGHLIGHTS].
161. 64 Fed. Reg. at 7298. In the Northwest, conservationists have contested timber sales in several areas that they contend qualify as roadless. See, e.g.. Smith v. Forest Service, 33 F.3d 1072, 1079 (9th Cir. 1994) (enjoining timber sale affecting an uninventoried roadless area adjacent to an inventoried area).
162. See generally FRIENDS OF THE EARTH & WILDLANDS CENTER FOR PREVENTING ROADS, TRAILS OF DESTRUCTION (1998).
163. See 64 Fed. Reg. at 7290. The revision of the Forest Service's overall road management policy began with an Advance Notice of Proposed Rulemaking issued in conjunction with the proposed interim rule to suspend road construction in roadless areas. See 63 Fed. Reg. 4349 (1998). The notice acknowledged the need to reexamine the condition and function of the 373 thousand mile forest road system and take steps to remove unneeded roads, reduce environmental impacts, and use available funds more wisely. See id. at 4350-51.
164. A lawsuit challenging the interim policy was filed pro se shortly after release of the draft rule. See Respondents' Memorandum in Support of Motion to Dismiss at 2, Martin v. Glickman, (W.D. Va. 1998) (No. 98-M-05-R). The government argued that the case was premature since the draft rule was not final agency action. See id. The suit, which sought to enjoin the policy pending local public involvement and preparation of an EIS, was dismissed for failure to respond to a show cause order. See Telephone Interview with Vincent DeWitt, U.S. Dep't Agric., Office of General Counsel (Sept. 16, 1998).
165. Cf. Memorandum from Karen Budd-Falen & Gus Redmond Michaels, III to Tom McDonnell, Am. Sheep Indus. Ass'n (Mar. 26, 1998) (arguing that the NFMA and FLPMA do not grant "discretion to enact moratoriums or . . . manage roadless areas administratively" and that instead the laws "evidence Congressional intent to build roads for adequate transportation within the National Forests in order to honor access rights to existing multiple use interests located in roadless areas") (on file with author).
166. Organic Act of 1897, ch. 2, 30 Stat. 11, 35 (codified as amended at 16 U.S.C. § 551 (1994)).
167. See, e.g., United States v. Grimaud, 220 U.S. 506, 509-14, 521, 523 (1911) (upholding grazing regulations); see also Wilkinson & Anderson, supra note 33, at 55-59.
168. Pub. L. No. 86-517, 74 Stat. 215 (codified as amended at 16 U.S.C. §§ 528-531 (1994)).
169. See MUSYA § 2, 16 U.S.C. § 529.
170. 355 F.2d 283 (9th Cir. 1965).
171. See McMichael, 355 F.2d at 285-86.
172. Pub. L. No. 93-205, 87 Stat 884 (codified as amended at 16 U.S.C. §§ 1531-1544 (1994)).
173. See ESA § 7, 16 U.S.C. § 1536(a)(2).
174. NFMA § 6, 16 U.S.C § 1604(f)(4) (1994).
175. See Letter from Frank Murkowski et al., U.S. Senators & Representatives, to Dan Glickman, Secretary of Agriculture (Nov. 13, 1997) ("[T]he NFMA does not allow instantaneous changes to the plans based on new policy direction. . . . Congress expects the Secretary of Agriculture to amend or revise the plans with the same degree of analysis it took to prepare the plans in the first instance.") (on file with author).
176. See 5 U.S.C. § 553 (1994). The APA specifically exempts decisions concerning federal lands from rulemaking procedures. See id. § 553(a)(2); see also NLRB v. Wyman-Gordon Co., 394 U.S. 759, 776 n.1 (1969) (noting that the public property exemption applies to BLM lands). Land management agencies, however, commonly do not take advantage of the exemption.
177. See NFMA § 6, 16 U.S.C. 1604(f)(4).
178. See 5 U.S.C. 553(b).
179. 779 F. Supp. 1353 (N.D. Ga. 1991), vacated sub nom., Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 811 (11th Cir. 1993) (vacating for jurisdictional reasons).
180. See Southern Timber, 779 F. Supp. at 1360-61 (concluding that the district court lacked jurisdiction because the timber company and the Council lacked standing to bring claims under the Forest Management Act).
181. Id. at 1361.
182. See Forest Service Timber, 993 F.2d at 807-10.
183. 971 F. Supp. 457, 462, 472-74 (D. Or. 1997).
184. See Prarie Wood Prods., 971 F. Supp. at 460-61. Both policies were instituted pending completion of a longer-term regional strategy being developed through two EISs covering Forest Service and BLM lands in different parts of the Columbia River Basin. See id. at 461. One policy, called the "Eastside Screens," prohibited most logging in old-growth forests and near streams in eastern Oregon and Washington. See id. The second policy, called "PACFISH," expanded the riparian protection policy to anadromous fish habitats in Idaho and California. See id.
185. See id.
186. Id. at 465; accord Sierra Club v. Cargill, 11 F.3d 1545, 1548 (10th Cir. 1993) (The NFMA "expressly commends the significance of an amendment to the Forest Supervisor's judgment.").
187. Prarie Wood Prods., 971 F. Supp. at 464, 465.
188. Id. at 467; accord Douglas County v. Babbitt, 48 F.3d 1495, 1505 (9th Cir. 1995) ("NEPA procedures do not apply to federal actions that do nothing to alter the natural physical environment.").
189. Prarie Wood Prods., 971 F.Supp. at 467.
190. 974 F. Supp. 1022 (E.D. Ky. 1997).
191. See House, 974 F. Supp. at 1024 n.1, 1028, 1034.
192. See id. at 1034.
193. Pub. L. No. 101-628, 104 Stat. 4469 (codified as amended, in pertinent part, at 16 U.S.C. § 1132 note (1994 & Supp. II 1996)). The legislation also designated several national wildlife refuge wilderness areas.
194. Pub. L. No. 100-668, 102 Stat. 3961, 3961-63 (codified as amended, in pertinent part, at 16 U.S.C. § 1132 note).
195. H.R. 1500, 105th Cong. (1997).
196. Pub. L. No. 95-495, 92 Stat. 1649 (codified as amended, in pertinent part, at 16 U.S.C. § 1132 note).
197. Pub. L. No. 94-357, 90 Stat. 905 (codified as amended, in pertinent part, at 16 U.S.C. § 1132 note).
198. H.R. 1425, 105th Cong. (1997).
199. H.R. 1567 § 4(a), 105th Cong. (1997).
200. See supra text accompanying note 19.
201. The Eastern Wilderness Act, a bill now pending, would require the federal land management agencies to inventory and review potential wilderness areas located east of the 100th Meridian. See H.R. 1567, 105th Cong. §§ 2(c)(3), 2(d), 3, 4(a). The proposed bill would also require the federal agencies to study the wilderness potential of state and private lands in the East. See id. § 3. The agencies would have to complete the reviews within 15 years. See id. § 4.
202. See NFMA § 6, 16 U.S.C. § 1604(e) (1994); FLPMA § 201(a), 43 U.S.C. § 1711(a) (1994); NEPA §§ 101-207, 42 U.S.C. §§ 4331-4370d (1994 & Supp. II 1996)). The National Park Service and U.S. Fish and Wildlife Service also have a policy of conducting wilderness reviews as part of their normal management planning. See The Eastern Wilderness Act: Hearings on H.R. 1567 Before the Subcomm. on National Parks and Public Lands of the House Comm. on Resources, 105th Cong. 39-41 (1997) (statement of Destry T. Jarvis, National Park Service).
203. See 4 SOUTHERN APPALACHIAN MAN AND BIOSPHERE, THE SOUTHERN APPALACHIAN ASSESSMENT (1996). For a useful summary of the assessment, see SAA HIGHLIGHTS, supra note 159.
204. See SAA HIGHLIGHTS, supra note 159, at 51.
205. See id. at 29.
206. See id. at 22.
207. See, e.g., THE WILDERNESS SOC'Y, TENNESSEE'S MOUNTAIN TREASURES (1996); The Wilderness Society, Conservation Coast to Coast: Center for Landscape Analysis: Mapping the Wild (visited Nov. 6, 1998) 〈http://www.wilderness.org/ccc/cla/index.htm〉 (describing The Wilderness Society's mapping of the Sierra Nevada region, the Columbia River Basin, and the Southern Appalachians).
208. See Forest Service, U.S. Dep't of Agric., Southern Appalachian Assessment Hits the Streets! (visited Nov. 6, 1998) 〈http://www.fs.fed.us/news/080796.htm?southern+appalachian〉 (reporting on the release of the Southern Appalachian Assessment and stating "the USDA Forest Service plans to use the information in the assessment in the upcoming revision of several long term management plans for the National Forests in the Southern Appalachians").
209. Cf. California Wilderness Coalition, California Wilderness Coalition (last modified January 25, 1998) 〈http://www.calwild.org/f-mail.htm〉 (presenting information about the California Wilderness Coalition including its membership, mission, and projects).
210. Cf. Southern Utah Wilderness Alliance, The BLM Wilderness Review (visited Nov. 6, 1998) 〈http://www.suwa.org/WATE/review.html〉 (outlining the inventory of Utah's public lands for designation as wilderness by the Utah Wilderness Coalition, a private group of conservationists dedicated to maintaining the wilderness); supra notes 107-09 and accompanying text.
211. See Utah v. Babbitt, 137 F.3d 1193, 1207-08 (10th Cir. 1998).
212. Cf. Southern Utah Wilderness Alliance, New Utah Wilderness Inventory: Fruition of the New Citizen's Inventory of Utah Wilderness (visited Nov. 6, 1998) 〈http://www.suwa.org/ new_inventory〉 (reporting on the Utah Wilderness Coalition's inventory of public lands in Utah).
213. See Memorandum from State Director, Colorado BLM Office, to District Managers, Area Managers, and Deputy State Director, Resource Services (May 19, 1997) (on file with authors) (setting forth policy for the management of lands described in the Colorado Environmental Coalition's wilderness proposal for BLM lands) [hereinafter Colorado BLM Directive].
214. See, e.g., Forest Serv., U.S. Dep't of Agric., Words to Action: Conservation Leadership for the 21st Century, Remarks of Mike Dombeck, National Leadership Conference, October 27, 1998 (visited Nov. 6, 1998) 〈http://www.fs.fed/us/intro/speech/19981027.html〉.
215. See, e.g., supra notes 65-67 and accompanying text (arguing that roadless areas should remain undeveloped based on studies of the potential effects on wildlife, water quality, and natural conditions if development were to take place in the roadless areas of the Columbia Basin); see also P.R. Ehrlich & E.O. Wilson, Biodiversity Studies: Science and Policy, 253 SCIENCE 758 (1991) (arguing that human action, specifically land development, is causing the extinction of wild species and ecosystems); Reed F. Noss, Sustainability and Wilderness, 5 CONSERVATION BIOLOGY 120, 120-21 (1991) (arguing for the necessity of roadless areas to provide habits for various species such as wolves, grizzly and black bears, and mountain lions).
216. See, e.g., supra notes 65-67 and accompanying text (arguing that roadless areas should remain undeveloped based on studies of the potential effects on wildlife, water quality, and natural conditions if development were to take place in the roadless areas of the Columbia Basin); see also P.R. Ehrlich & E.O. Wilson, Biodiversity Studies: Science and Policy, 253 SCIENCE 758 (1991) (arguing that human action, specifically land development, is causing the extinction of wild species and ecosystems); Reed F. Noss, Sustainability and Wilderness, 5 CONSERVATION BIOLOGY 120, 120-21 (1991) (arguing for the necessity of roadless areas to provide habits for various species such as wolves, grizzly and black bears, and mountain lions).
217. See Ken A. Rait, Forest Service Should Keep President Clinton's Promise, OREGONIAN, Sept. 4, 1998, at 24, 26 (reporting on the nationwide opinion survey commissioned by The Wilderness Society finding that 65 percent of voters support a proposal to "stop all timber cutting in roadless wild forest areas").
218. See, e.g., 95 GEN. ACCT. OFF. REP. 237FS, at 2 (1995) (reporting that expenditures for timber sales exceeded receipts returned to the Treasury by a total of $995.4 million in three-year period); THE WILDERNESS SOC'Y, DOUBLE TROUBLE: THE LOSS OF TREES AND MONEY IN OUR NATIONAL FORESTS 1 (1998) (stating that the commercial timber sale program lost $204 million in 1996).
219. See supra Part III.C.
220. FLPMA § 102(a)(1), 43 U.S.C. § 1701(a)(1) (1994).
221. See Letter from Dominick Dellasala et al., Scientists, to President Clinton (Dec. 10, 1997) ("In our view, a scientifically-based policy for roadless areas on public lands should, at a minimum, protect from development all roadless areas larger than 1,000 acres and those smaller areas that have special ecological significance because of their contributions to regional landscapes.") (on file with author); see also H.R. REP. No. 105-814 (1998) (proposing the Eastern Wilderness Act of 1997 which would provide interim protection for all roadless areas 500 acres or larger on federal lands east of the 100th Meridian).
222. See FOREST SERV., U.S. DEP'T OF AGRIC., FOREST SERVICE LAND AND RESOURCE MANAGEMENT PLANNING HANDBOOK § 1909.12, § 7.11b (1992) (defining inventory criteria allowing for up to a half mile of improved road for each 1,000 acres).
223. See supra Part II.C.3; see also H.R. REP. No. 105-814 (1998) (proposing the Eastern Wilderness Act of 1997 which would apply FLPMA's interim protection requirement to potential wilderness areas on federal land east of the 100th Meridian); H.R. 1376, 105th Cong. (1997) (prohibiting road building and logging in public land roadless areas larger than five thousand acres in the West and 1500 acres in the East).
224. In Colorado, where the BLM is reviewing the wilderness characteristics of previously uninventoried areas, the agency has adopted a policy to "[i]nitiate an evaluation of an area or areas whenever discretionary actions that might have irreversible or irretrievable impacts are proposed in the areas recommended for wilderness by the [Colorado Environmental Council]" and "to hold discretionary actions that might have irreversible or irretrievable impacts temporarily in abeyance" pending resolution of wilderness issues through the BLM planning process. Colorado BLM Directive, supra note 212.
225. SEE THE WILDERNESS SOC'Y, IDAHO'S VANISHING WILDERNESS: A STATUS REPORT ON ROADLESS AREAS IN IDAHO'S NATIONAL FORESTS 1 (1997).
226. See supra Part I.B.