© Jayme Dittmar

Communication and Education

April 2018 | Volume 24, Number 1

When issues arise concerning wilderness planning, policy, and management, scholars often look to the Wilderness Act, written more than 50 years ago, to determine what should or should not be done. Fidelity to the text of the Wilderness Act guides their decision-making, even when considering modern developments that were unheard of when the act was passed in 1964. But this fidelity raises an issue familiar to any legal scholar or lawyer: how can a piece of legislation passed more than a half century ago logically guide the management of modern technologies that did not exist and could not have been considered at the time it was written?

In this article, we discuss this challenge by drawing an analogy between the Wilderness Act and the US Constitution. Constitutional scholars and judges routinely employ competing models of analysis for their legal interpretations, and we will do the same. Our intent is not to favor one model over another, or to argue that interpretive approaches for legal decisions and interpretive approaches for policy guidance are entirely analogous, but to stimulate thoughtful consideration of how different models might influence our thinking about what should or should not be done in wilderness planning, policy, and management in a changing world.

The language of the Wilderness Act of 1964 oscillates between the highly precise and the poetically vague, sometimes within the same paragraph (US Public Law 88-577). For example, the act defines wilderness as “undeveloped federal land” of at least “5,000 acres” in size. Clear enough. But the act also provides more lyrical instruction, holding that wilderness is “untrammeled” nature of “primeval” character, a place where a person is a “visitor who does not remain,” and where “primitive” and “unconfined” types of recreation prevail. The act further tells us that wilderness is a place where “motor vehicles,” “motorized equipment,” and other forms of “mechanical transport” are unwelcome. The meanings of federal land, 5,000 acres, and motorized are straightforward, and the policy maker seeking fidelity to their requirements has clear guidance. But what to make of more nuanced language, such as untrammeled, primeval, unconfined, and mechanical? These require interpretation. How we approach that interpretation is the subject of our inquiry.

Interpreting the US Constitution

An American judge called to interpret the US Constitution will find certain clauses far more unambiguous than others. Sometimes a rule is clear. A US president must be at least 35 years old. Each state gets two senators. Each senator must be at least 30 years old. There is no room for sensible judges, no matter their politics or schools of legal interpretation, to disagree. Disagreement instead arises when they are asked to interpret broader, less precise clauses. For example, how do freedom of speech rights guaranteed by the First Amendment enacted in 1789 apply to the internet?

Faced with these thornier constitutional issues, judges and scholars often look to several models of analysis for help. Richard Posner, one of the nation’s foremost judges and legal scholars, distills these differing models into two general categories: formalists and realists (Posner 2013, 2011). Volumes have been written debating the exact parameters of these two schools, but they posit the following:

Formalists, including self-described originalists and textualists, attempt to derive their decisions entirely from the text of the Constitution as it was signed 230 years ago. They argue that the judge’s responsibility is to enforce the law as written, and that the outcome prescribed by the law (and thus the founder’s intent) is reliably determinable by the judge for any relevant case. Anything else, argues the formalist, is tantamount to an unelected judge improperly legislating from the bench.

Realists consider it implausible to determine with any precision what the long-dead coauthors of a vague text may or may have not meant. Nor is such inflexibility wise. Realists view the Constitution as a living document that “evolves, changes over time, and adapts to new circumstances, without being formally amended” (Strauss 2010, p. 1). The best course, realists contend, is to investigate the real-world consequences of a proposed interpretation, examine the purpose of the clause at issue while considering basic fairness, and apply common sense accordingly.

Interpreting the Wilderness Act

How might policy makers adopting formalist and realist approaches differ in their interpretation of the Wilderness Act of 1964? How might those differing interpretations lead to different conclusions about what should or should not be done regarding contemporary issues in wilderness planning, policy, and management? To illustrate our analysis and enliven debate, we have chosen two issues currently being discussed in wilderness circles: allowing mountain bikes in wilderness and the use of cell phones in wilderness. We examine both issues through formalist and realist lenses to give the reader an idea of how these two different frames of reference might lead to differing conclusions. Again, our intent is not to take positions on these issues but rather to stimulate discussion and debate about which of these two frames of reference – the formalist or realist perspective – might better inform contemporary wilderness policy, planning, and management.

Mountain Bikes

According to the International Mountain Bike Association (IMBA), there are approximately 40 million mountain bike enthusiasts in the United States (IMBA 2005). Of concern to the IMBA is the number, location, length, and variety of trails available to the mountain biking community. While the IMBA opposes opening federally designated wilderness to mountain biking, the association lobbies for modifying boundaries of existing wilderness if it creates new mountain bike trails, as well as resisting new wilderness designations if they reduce existing mountain biking opportunities. Other organizations, such as the Sustainable Trails Coalition (STC), are more outspoken in their support of opening federally designated wilderness to mountain biking. The STC, for example, is a staunch supporter of current proposed federal legislation to amend the Wilderness Act to “ensure that the use of bicycles, wheelchairs, strollers, and game carts is not prohibited in Wilderness Areas” (H.R. 1349 2017).

Formalist Perspective

In thinking about the appropriateness of mountain bikes in wilderness, formalists refer to the language of the Wilderness Act (US Public Law 88-577), which specifically states that there shall be “no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, [and] no other forms of mechanical transport.” (US Public Law 88-577, Sec. 4c). Formalists reason that mountain bikes are a form of mechanical transport and therefore should not be allowed in wilderness (Scott 2016; Scott 2003). From the formalist perspective, the Wilderness Act’s framers were clear in their intent and in their language. Mountain bikes, formalists conclude, are part of our society’s “growing mechanization” (US Public Law 88-577, Sec. 2a) to which the establishment of wilderness was meant to be an antidote. If the act intended to exempt bicycles from prohibited “mechanical transport,” it would have done so explicitly.

Another dimension of formalist reasoning originates from the clear language that wilderness be protected and managed to offer “outstanding opportunities for solitude” (U.S. Public Law 88-577, Sec. 2c). Among the most sought-after and meaningful aspects of a wilderness experience is leaving behind the distractions we are confronted with in our day-to-day lives. Hikers who share trails with mountain bikers can be distracted from their thoughts or observations of nature when one or more mountain bikers ride past. Hikers can be startled or nearly run over by mountain bikers coming around a curve too fast. These encounters can be a disruption of an otherwise contemplative experience in nature; they can take away from the solitude many hikers seek.

Mountain bike organizations encourage their members to be courteous on the trail, and to keep speed within safe limits for others who share the trail, but part of what appeals to mountain bikers is the excitement of swift travel over rough trails. Mountain biking’s allure can be about the speed of the activity and a mountain biker’s focus is often, by necessity, on navigating a trail at a challenging speed, a speed that can create conflict with others on the trail (Carothers, Vaske, and Donnelly 2001).

Mountain bikers can thus interfere with people who are seeking a more contemplative experience in nature; those in search of “outstanding opportunities for solitude.” Furthermore, agencies administering wilderness are responsible for “preserving the wilderness character of the area” (US Public Law 88-577, Sec. 4b). That “wilderness character” includes the peace, quiet, solitude, inspiration, and wonder that make up such places. Disruption of those qualities goes against the grain of the intent of the Wilderness Act.

Realist Perspective

Realists approach the question of mountain bikes in wilderness somewhat differently. They reason that “mechanized transportation” is too imprecise a term to clearly define what should and should not be allowed. Moreover, they note that the Wilderness Act could have explicitly prohibited bicycles, which were ubiquitous at the time, but it did not (mountain bikes had yet to be invented [Scott 2003]). Further, given this ambiguity, realists focus on the demonstrable consequences of allowing bicycles in wilderness. What harm would it cause weighed against the interests of citizens to enjoy their public lands, and would that harm contravene the purpose of the act?

Advocates for mountain bikes reason that the intent of the Wilderness Act was to prohibit nonhuman-powered forms of transport, hence the act’s emphasis on motorized vehicles, motorized equipment, motorized boats, and motorized aircraft (Stroll 2004). Realists suggest that mountain biking, just like backpacking, is a human-powered form of transportation, one that has no greater environmental impact than backpacking (Marion and Wimpey 2007). To their way of thinking, mountain biking is simply a variation on a human-powered theme. Realists also reason that if mountain biking is deemed inappropriate in wilderness because of its mechanized nature, then several other forms of wilderness transport should be deemed inappropriate because of their mechanized nature – forms that are currently allowed in wilderness – such as ski bindings, snowshoes, and rafts with metal oarlocks (Bradley 2010). Finally, realists hasten to point out that an added benefit to opening wilderness to mountain biking would be the likely recruitment of 40 million new advocates for wilderness at a time in American history when political threats to wilderness are bound to be on the rise.

There may also be realists who oppose mountain bikes in wilderness, and they have their own arguments to make. As discussed earlier, any evidence that mountain bikes ruin the sense of solitude for others, any scientific data showing that they cause more damage to the environment than currently permitted activities, that they create safety concerns, or would result in some unjustifiable increase in costs, is highly relevant to a realist analysis. In addition, realists would be far more willing to consider a middle ground. For example, concerns that mountain bikes would decrease the sense of solitude in wilderness could be addressed by restricting mountain bike use to very limited areas where they are unlikely to interfere with hikers, backpackers, or anyone else seeking a more serene experience.

Mountain Biking Summary

Mountain biking was not the popular activity in 1964 that it is today (Scott 2016). While the authors of the Wilderness Act were certainly aware of bicycling as an outdoor pursuit (Scott 2003), it did not occur to them that people might want to bicycle through wilderness someday (Scott 2003), which may explain why they did not specifically address it in the statutory language. Consequently, there is wiggle room in the act for different interpretations of its intent and meaning. Formalists favor a narrow interpretation, and are more likely to ban mountain bikes without further analysis because they plausibly can be described as the very kind of mechanical transportation prohibited by the act (Scott 2016). But should the analysis end there? Does mountain biking reflect the “growing mechanization” of society that wilderness preservation was intended to counteract? Does mountain biking infringe upon “outstanding opportunities for solitude” that the “wilderness character” of an area implies? Or is mountain biking simply a new form of nonmotorized human-powered transport that satisfies the Wilderness Act’s original intent and meaning? Whether we find these latter questions worth addressing reveals our formalist or realist leanings.

Cell Phones

Cell phones in wilderness present a subtler challenge to the intent and meaning of the Wilderness Act. Now more than ever we are a connected global community. A recent Pew Center study reported that most children in the United States receive their first wireless device by the age of 12 (Lenhart 2016). Ninety-two percent of teens between the ages of 13 and 17 report being online every day, and 24% are online “almost constantly.” By the time they reach adulthood, today’s teenagers are a “wired” generation and their predilection for immediate connectivity permeates all aspects of their lives. Indeed, Turkle (2015) now estimates that American adults check their smart phone every six and one-half minutes. Given their ubiquity in modern life, the introduction of cell phones into wilderness warrants further consideration.

Formalist Perspective

Formalists reason that cell phones should be discouraged, if not banned, in wilderness (Dustin, Beck, and Rose 2017). Cell phones are devices reflecting society’s growing mechanization, and they have an impact, however indirect, on movement through wilderness (Moor 2016). Cell phones with navigation apps employ Global Positioning Systems that do not require cell phone service and make it possible for hikers to know exactly where they are on wilderness trails, where the next reliable water is, and where the next campsites are. Wherever cell phone service is available, wilderness recreationists can also communicate with one another about how best to make their way down the trail.

Once again, formalists point to the language of the Wilderness Act, and emphasize the wilderness-related values that are compromised by cell phone use. For example, Section 2c of the act declares that wilderness should have “outstanding opportunities for solitude or a primitive and unconfined type of recreation” (US Public Law 88-577, Sec. 2c, 1964). Section 4b states that “each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area” (US Public Law 88-577, Sec. 4b, 1964). Cell phones detract from “solitude,” “primitive and unconfined types of recreation,” and “wilderness character.” Moreover, Section 2a specifically addresses society’s “growing mechanization” that threatens to infringe upon wilderness character (US Public Law 88-577, Sec. 2a, 1964). Cell phones are certainly part and parcel of society’s growing mechanized nature and therefore should be deemed antithetical to the Wilderness Act’s intent.

In nature, and especially in wilderness as it has been defined, formalists contend that people should have the opportunity to think without distraction. That is part of the attraction to wilderness. Wilderness is a place that relieves us from the constant bombardment of flickering digital screens – screens that are intentionally designed to be addictive and to hold our attention (Kardaras 2016). According to Sullivan (2016), these screens “rob us of a silence that was previously regarded as integral to the health of the human imagination.” Wilderness defined as “primitive” (that is lacking in modern technology), offers silence, in which we can think without distraction. It encompasses “the very spaces where we can gain a footing in our minds and souls that is not captive to constant pressures or desires or duties. And the smartphone has all but banished them” (Sullivan 2016).

Realist Perspective

Realists are far more receptive to the argument that (1) because cell phones did not exist in 1964, it is unreasonable to speculate whether the act’s authors would or would not consider cell phones prohibited “mechanization,” and (2) in practical terms, cell phones may merely represent a more advanced form of several tools that have always been permitted in wilderness. Cell phones function as cameras, maps, compasses, and convenient encyclopedias of wilderness-related information that enhance the wilderness experience rather than detract from it. Cell phones serve a safety function as well that makes it easier for wilderness recreationists and wilderness managers to respond to accidents in the backcountry. Finally, realists reason that it is virtually impossible to separate wilderness recreationists from their cell phones today. Any downside to cell phone use in wilderness, they conclude, is more than offset by their upside. Cell phones are omnipresent among the current generation of wilderness enthusiasts, and any effort to eliminate cell phones from wilderness would not only be futile, it would also run the risk of alienating potential wilderness advocates. Banishing cell phones from wilderness would also, likely, be impossible to enforce. Cell phones, in sum, are a practical fact of contemporary life and should be accepted as such in wilderness.

Once again, it is also possible that some realists might reason that given the increasingly technological nature of contemporary life, cell phones should be discouraged in wilderness because they are a clear expression of society’s growing mechanization. Their rationale, however, would not be rooted in the intransient logic of the 50-year-old Wilderness Act but rather in the realization that we are now 50 years farther down civilization’s path, a path characterized by a highly urbanized citizenry that is irrevocably dependent on that “growing mechanization” to which wilderness should be an important antidote. In this case, formalists and realists might agree on the matter, but for fundamentally different reasons. Formalists would strictly adhere to what the framers of the Wilderness Act intended in 1964, while realists would focus on current conditions in relation to those intentions. Formalists would not see the Wilderness Act as a living document that “evolves, changes over time, and adapts to new circumstances, without being formally amended” (Strauss 2010, p. 1). Realists would.

Cell Phone Summary

While it is easy to appreciate the value of cell phones for safety reasons and for the immediacy of answers to most any wilderness-related question (e.g., identifying an unknown wildflower), formalists still find something disconcerting about relying almost exclusively on sophisticated electronic technology to make one’s way in wilderness (Beck and Dustin 2016). Such technology, they claim, is antithetical to what wilderness was intended to be about. Realists, on the other hand, recognize the centrality of cell phones to present and, no doubt, future generations, and wonder how we might accommodate cell phones in wilderness without detracting significantly from the wilderness experience. Once again, how receptive we are to cell phones in wilderness will likely reveal our formalist or realist inclinations.

Jefferson’s Problem

As we have shown, interpreting the Wilderness Act can be a complicated undertaking when considering formalist and realist perspectives. The complexity is due in large part to the fact that the act’s language, just like the US Constitution’s, is less precise than we think it is, and much of its meaning can be open to interpretation (Steinhoff 2010). And just like the US Constitution, people interpret the Wilderness Act through different frames of reference. Whether we see the Wilderness Act as etched in stone and as a document that must be strictly adhered to over time, or whether we see the Wilderness Act as a reflection of a time and place and as a living document that can be adjusted to fit changing times, remains a lively topic for discussion.

Perhaps the most probing question related to interpreting the Wilderness Act is not ours, but Thomas Jefferson’s. In The Living Constitution (2010), Strauss reads from a letter Jefferson wrote to James Madison in 1789: “The earth belongs to the living and not to the dead. We seem not to have perceived that, by the law of nature, one generation is to another as one independent nation is to another” (Strauss, pp. 99–100). Paraphrasing Jefferson, Strauss continues, “What possible justification can there be for allowing the dead hand of the past to govern us today?” (Strauss, p. 100)

Jefferson was brooding over the binding authority of the US Constitution from one generation to the next, but we might ask the same question of the Wilderness Act written more than 50 years ago by individuals who are no longer living. Why should we feel obliged to follow their lead? We are a different generation. We are as an independent nation to theirs. What possible justification can there be for allowing legislation written a half century ago to govern wilderness planning, policy, and management today?

Strauss’s response is that “we defer to the past because it makes sense to do so for our own purposes” (Strauss 2010, p. 100). He believes we make fewer mistakes by benefiting from the lessons of history. Both formalists and realists might agree with Strauss on that point, but they would likely disagree on the extent to which we should allow history to decide for us what we should do today. Formalists defer to history and a strict interpretation of the Wilderness Act. Realists operate from a broader interpretive perspective that allows for changing times and circumstances. While some realists might reason that the world is more mechanized than ever, and therefore that adhering to the original intent of the Wilderness Act is more important than ever, other realists might conclude that advancing technology should be welcomed in wilderness if the practical advantages of doing so outweigh the disadvantages. Jefferson’s problem, it seems, is now our problem, and how we respond to it may well determine the future of wilderness in America.

The challenge for wilderness planners, policy makers, and scholars is to identify which, if any, of the values underlying the Wilderness Act ought to be treated as inviolate, and then to decide if advancing technologies compromise those values or not. If we can agree on those values, then formalist thinking might be the model of choice for informing wilderness planning, policy, and management. Indeed, if we could reach such a consensus, it might illuminate common ground upon which formalists and realists might strike an agreement about what ought to be done in any case. However, in the absence of any such agreement, realist thinking might be the model of choice for informing wilderness decision-making. As we stated at the outset, the Wilderness Act oscillates between highly precise and poetically vague language, thereby necessitating its interpretation. When conducting that interpretation, the question of fidelity remains central. To what interpretation do wilderness planners, policy makers, and scholars owe their allegiance? And why?

DANIEL DUSTIN is a professor in the Parks, Recreation, and Tourism Program at the University of Utah; email: daniel.dustin@health.utah.edu

 

LARRY BECK is a professor in the L. Robert Payne School of Hospitality and Tourism Management at San Diego State University; email: lbeck@mail.sdsu.edu

 

JEFF ROSE is an assistant professor in the Parks, Recreation, and Tourism Program at the University of Utah; email: jeff.rose@utah.edu

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