Stewardship
August 2016 | Volume 22, Number 2
BY DOUG SCOTT
We all love getting outdoors for a walk or hike. Our families can’t wait to get in the car and head out on a camping trip – and to enjoy the scenic drive amid the canyons of Big Bend, or the Great Smoky Mountains, or along the edges of the deepest, wildest forests and great peaks of the Rockies. And, young and old, we yearn to lace up our boots, shoulder our backpacks, and hit the trail in some of our 765 congressionally designated wilderness areas across America.
As the government’s peer-reviewed public opinion survey has consistently found since the 1960s, 3.6 billion people participated in nature-based outdoor recreation of all kinds in 2005–2008. The social scientists who conduct the ongoing National Survey on Recreation and the Environment (NSRE) report, “Both the total number of Americans and the total number of days annually in which we participate in nature-based recreation have grown since 1994. In particular, viewing, photographing, and studying nature in all its forms, for example, wildlife and birds, have grown strongly” (Cordell et al. 2008).
The NSRE confirms: Americans want to see wilderness areas preserved, want to see more wilderness areas protected in their own states – and see their recreational enjoyment as ninth down the list of values for which they support the national wilderness program (NSRE 2016).
Fifty-one years ago, in August 1964, the US Senate and House of Representatives passed the Wilderness Act unanimously. In a confirmation of the broad bipartisan support of their constituents, year after year, including in 2015, Congress has continued to enact laws adding units to our National Wilderness Preservation System. In a representative democracy, the overwhelming and bipartisan votes of our elected representatives for the 124 laws passed since 1964 adding new areas is the best evidence of the overwhelming, bipartisan public support.
Mountain Biking Controversy
Some mountain biking enthusiasts want to open the way to get bikes into some wilderness areas. For example, one such group created the Sustainable Trails Coalition (STC) (STC 2016). They’re planning to write a bill that grants this discretion to the four wilderness administering agencies. Should such a bill become law, this could set the stage for unprecedented mechanical entry into the boundaries of any wilderness area.
This idea of bikes-are-okay-in-wilderness is not new. One assertion is that Congress did not intend to ban bicycles in the Wilderness Act. This leap of creative imagination never touches down on the actual legislative history of the law, however. For example: “The Sustain-able Trails Coalition believes that the legislative history of the Wilderness Act of 1964 shows that Congress would have wanted to allow bikes in wilderness if mountain bikes had existed or they had thought about them” (STC 2016, emphasis added). Sadly, this is the stuff of fairy tales. As an advocate before Congress for more than 40 years, a close friend of the leaders who gave us the Wilderness Act and subsequently worked for its faithful interpretation and application to new areas of the federal lands, I know that such arguments are simply wrong.
Public use of any form of motorized or mechanical transport has been illegal within wilderness areas begin-ning with the first one established – Gila Wilderness Area in New Mexico in 1924. The policy of preserving this area was strictly extended to every subsequently established wilderness area and every addition to an existing area. On September 3, 1964, the Wilderness Act became law, and this prohibition was made as firm as possible – in statutory law.
For opponents who failed to stop the law, the new line of resistance became “anything but statutory wilderness.” This was the stance taken by some logging companies, mining companies, road builders, and other development lobbies. Their opposition is now long in the past. But this is the heritage that today flows through the arguments of some mountain bike advocates – although not the vast majority of mountain bikers, many of whom are also hikers and backpackers. Some advocates of mountain bikes in wilderness have spent years purposefully deconstructing and distorting the clear and otherwise undisputed facts of wilder-ness preservation history. However, Congress only opened a few, very narrow exceptions.
Wilderness administrators, academic researchers, and volunteer advocates and stewards know the key language of the Wilderness Act well. “Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area (US Public Law 88-577, emphasis added).
In statutory language, the term may is permissive; it is a grant of discretion to officials of the executive branch. By contrast, the term shall, as used here, is a command. These commands are binding on officials of the executive branch, they are mandatory; there is no discretion whatsoever.
There is no way around these nine words. You needn’t be a law professor; the meaning is crystal clear: “There shall be … no other form of mechanical transport.”
However, a US Forest Service (USFS) regulatory error implement-ing the act was spotlighted in the first authoritative legal analysis of the new Wilderness Act and the proposed regulations, and was published in the June 1966 Oregon Law Review. Commenting on the wording as it appeared in the draft form of the regulations published the previous year, attorney Michael McCloskey caught the error,
In its regulations to implement the act, the Forest Service has defined “mechanical transport” as “any contrivance propelled by a nonliving power source.” As a nonliving power source is the same as a motor, mechanical transport is thus defined as being the same as “motorized transport,” and there is no exclusion [in the agency regulations] of horse-drawn vehicles, bicycles, or cargo carriers. The wording of section 4(c) is that there shall be “no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport.” In an effort to give meaning to each item enumerated, the rules of statutory construction would suggest that duplicate definitions should be avoided. For this reason, the Forest Service would appear to be in error in saying that the phrase “mechanical transport” means no more than the preceding phrase “motor vehicles.” The meaning of the sentence would appear to be that the final phrase refers to modes of mechanical transport that are not motor vehicles, motorboats, or motor-driven aircraft. By a process of elimination, this would seem to leave only items such as bicycles, wagons, and cargo carriers as the referent for the phrase. (McCloskey 1966, emphasis added)
The Department of Agriculture was on notice from the time it published its draft regulations for comments in 1965 – their interpretation of this key element of the Wilderness Act’s objective was wrong.
Legislative History
The flat prohibition of any form of mechanical conveyance or transport was in the first version of wilderness preservation legislation introduced in 1956 by Senator Hubert H. Humphrey (D-MN), cosponsors in the US Senate, and Representative John P. Saylor (R-PA) in the US House of Representatives – and every subsequent version of the legislation right to its signing.
Senator Humphrey and nine bipartisan cosponsors in the Senate introduced the first wilderness protection legislation in 1956. This bill provided that “there shall be no … use of motor vehicles, nor any airplane landing field, or other provision for mechanized transportation” (McCloskey 1966). Introducing the identical House bill in July 1956, the lead sponsor, Representative Saylor, explained to his colleagues: “The stress and strain of our crowded, fast-moving, highly-mechanized and raucously noisy civilization create another great need for wilderness – a deep need for areas of solitude and quiet, for areas of wilderness where life has not yet given way to machinery.” (Cong. Rec. 12583, 1956). Reintroducing his bill at the start of the next Congress in 1957, Senator Humphrey explained on the Senate floor, “Mr. President, here is a measure designed to make sure that some parts of America may always remain unspoiled and beautiful in their own natural way, untrammeled by man and unmarred by machinery” (Cong. Rec. 1893, 1957).
The statutory prohibition on any other form of mechanical transport was not altered in any way through the next eight years to enactment of the law on September 3, 1964. The statute expresses exactly what Congress intended … and what Congress has consistently maintained in the 124 wilderness designation laws enacted since. Congress has never waivered from this strict prohibition on public use of all forms of mechanical transportation in wilderness areas. These words express exactly what Congress intended – then and now. These exceptions prove how narrowly Congress views this issue – and the limited exceptions were and are supported by wilderness advocates.
• Agency stewardship. The four wilderness agencies have a very limited grant of discretion to use certain practices and tools in stewardship of wilderness areas.
• Agency response to health and safety of visitors within a wilderness area. The administrative agencies are given very narrow discretion to use motorized and mechanical transport in cases involving the health and safety of persons within the areas for search and rescue.
• Mobility disabled individuals. The Americans with Disabilities Act interprets, not amends, the Wilderness Act. Mobility disabled visitors – and no others – may use nonmotorized wheelchairs in wilderness areas. “Congress reaffirms that nothing in the Wilderness Act … is to be construed as prohibiting the use of a wheelchair in a wilderness area by an individual whose disabilty requires use of a wheelchair, and consistent with the Wilderness Act no agency is required to provide any form of special treatment or accommodation, or to construct any facilities or modify any conditions of lands within a wilderness area in order to facilitate such use (US Public Law 110-325).
• Rural subsistence users in Alaska. The wilderness areas in Alaska are enormous. Therefore, Congress allowed use of snow machines, motorboats, and other motorized and mechanized means of surface transportation by rural residents relying on hunting, fishing, and trapping for their subsistence lifestyle (US Public Law 96).
Controversy Revisited
Every member of Congress is already hearing from America’s wilderness advocacy and stewardship organizations, including their constituents back home. In a March 23, 2016, joint letter to members of Congress, 116 organizations wrote: “For over a half century, the Wilderness Act has protected wilderness areas designated by Congress from mechanization and mechanical transport, even if no motors were involved with such activities” (Wilderness Watch 2016). This has meant, as Congress intended, that wilderness areas have been kept free from bicycles and other types of mechanization and mechanical transport.
A bicycle is indisputably a machine – a mechanized contrivance of metal with rubber tires, braking mechanisms, an adjustable seat, suspension forks for front suspension, a chain and gears, and a derailleur for shifting gears while in motion. The result is a mechanized vehicle with the more durable heavy-duty wheels, more powerful brakes, and lower gear ratios needed for steep grades that offer poor traction.
The first mass-production mountain bike – and hence the beginning of the considerable use of these machines on our federal lands came 17 years after Congress enacted the Wilderness Act. No one – no member of Congress, no federal official, and no bicyclist was anticipating this important and popular new machine.
Some mountain bike advocates claim to see some ambiguity in the wording of the Wilderness Act. They assert that the legislative history demonstrates this. Then they pile on irrelevant out-of-context quotes made by other members of Congress after the law was enacted. They offer statements from internal memos between mid-level USFS officials. This is not legislative history; Duke Law School provides this definition: “The ‘legislative history’ of a particular law consists of all the documents created by the legislature during the process of the law’s passage. This material often becomes valuable later, when disputes arise from vague or ambiguous statutory language” (Duke Law 2015). As shown here, everything that is legislative history of subsection 4(c) of the Wilderness Act is specific and consistent: no other form of mechanical transport.
Some mountain bike advocates claim that mountain bikes were allowed in wilderness areas until 1984, but were then banned administratively by a reversal of the Forest Service regulatory policy (STC 2016). The Forest Service did go through initial regulatory confusion for understandable reasons. Drafted in 1965 by the agency, the Department of Agriculture’s initial regulations misinterpreted this part of the new law: “Mechanical transport, as herein used, shall include any contrivance which travels over ground, snow, or water, on wheels, tracks, skids, or by floatation and is propelled by a nonliving power source contained or carried on or within the device” ((36 CFR § 293.6(a), 1973), (formerly 36 CFR § 251.75, 1966.)).
Some internal communications within the USFS during 1977 and 1986 do show confusion on how to interpret the Wilderness Act. However, in 1986 the Forest Service announced that their original 1966 regulation, which allows for wilderness travel by living power sources, “is to be read as prohibiting Wilder-ness travel by certain living power sources, including bicycles” (51 FR 13835, April 21, 1986).
As a litany of federal agency confusion, this confusion is classic. But look at the pattern – fitfully and with some backward steps, the Forest Service leadership finally got it right. This is not surprising, as I was among wilderness advocates who both argued these points directly with the chief and with Department of Agriculture leaders and mobilized powerful members of the House and Senate. These leaders – Senator Frank Church, Idaho Democrat, and Representative Morris K. “Mo” Udall, Democrat from Tucson, Arizona – collaborated on several “message bills” designed with wilderness advocates – including me – to provide focus for hearings at which the two committees and conservation group witnesses could correct the chief of the Forest Service.
When the bikes-in-wilderness advocates began their agitation, I was the policy expert on the Wilderness Act and its history for the Sierra Club and later The Pew Charitable Trusts. I made it my business to visit Bill Worf, who was then in charge of the USFS wilderness program. Prior to that he had administered USFS wilderness areas in Montana and the Northern Rockies. Because of his depth of on-the-ground experience as a wilderness area administrator with wilderness, Bill was one of the field officers called to Washington in 1965 to draft what became the original Department of Agriculture wilderness regulations and the related Forest Service Manual documents to guide field personnel on the practical details of the new program.
I asked Bill how they could have failed to avoid misunderstanding; they could have listed bicycles, wagons, wheeled game carriers, and other forms of mechanical transport in these original regulations. “Doug,” he replied, with a laugh, “we were all from the West. Our experience was with rugged, straight up-and-down wilderness areas. Given the bicycles which existed at that time, long before the invention of the mountain bike, it simply did not occur to us that anyone would want to ride a bike in wilderness areas like the Bob Marshall.”
Bill’s fierce loyalty for the correct interpretation and application of the Wilderness Act by Forest Service administrators is reflected by the fact that when he retired and move back to Missoula, Montana, he founded Wilderness Watch – the reliable chief watchdog advocacy group on wilder-ness protection issues.
Rattlesnake Wilderness
Misrepresentations of the legislation and policies abound among certain advocacy groups. For example, some mountain bike advocates misrepresent the 1980 law that established the Rattlesnake National Recreation Area and Wilderness Act north of Missoula, Montana, alleging that in this statute Congress considered cycling as “primitive recreation” and would be allowed in the Rattlesnake Wilderness. In fact, the Rattlesnake law, like every other of its kind, carefully divided the land designations into two clearly separate management areas. The section designating the Rattlesnake Wilderness Area is nothing more than the straightforward designation language Congress used in the first law adding an area to the National Wilderness Preservation System in 1968 – and in every law since. It makes no departures from the policies of the Wilderness Act itself. Bicycles are not allowed – and never were. The separate second section establishes a nonwilderness management area in which bicycles are allowed (Public Law 96-476).
This handful of leaders has been pursuing this line of misinformation for years. But everything they marshal for their noncase is irrelevant. Bicycles are prohibited in every designated wilderness area – and always have been.
There is a better option: encourage mountain biking enthusiasts, of which there are many, to meet with local wilderness advocacy and stewardship folks in their areas, of which there are also many. They will be happy to get acquainted and sit down with maps to see what can be worked out. This is what local wilderness leaders and bicycling groups did in Virginia in the early 2000s. The result was the establishment of a number of new wilderness areas “ and several nonwilderness scenic areas – areas designated by law, devoted to recreational use, prohibiting any roads and use of motor vehicles –and allowing bicycles” (Scenic areas, 16 US Code § 546b – Seng Mountain and Bear Creek Scenic Areas, Jefferson National Forest, Virginia, 2009). This was a similar case to the adjoining, but separate, Rattlesnake National Recreation Area and Rattle-snake Wilderness – two separate land management areas operated under different regulations.
Historic Guidance
Finally, some words of historic guidance. The first to propose establishing a wilderness area, Aldo Leopold, advised, “Recreation is valuable in proportion to the intensity of its experiences, and to the degree to which it differs from and contrasts with workaday life. By these criteria, mechanized outings are at best a milk-and-water affair” (Leopold 1949). He added, “Public wilderness areas are, first of all, a means of perpetuating, in sport form, the more virile and primitive skills in pioneering travel and subsistence. … We who seek wilderness for sport are foiled when we are forced to compete with mechanized substitutes” (Leopold 1949, pp. 192–193).
Bob Marshall wrote the first detailed article in a scholarly journal promoting preservation of wilderness areas – The Scientific Monthly (which became Scientific American). He defined wilderness “to denote a region which … possesses no possibility of conveyance by any mechanical means” (Marshall 1930). In a short essay found among his papers by Bob’s brother George, and published posthumously as the editorial in the summer 1954 issue of The Living Wilderness, Bob Marshall – the great champion of American wilderness preservation – wrote, “A wilderness journey provides the ideal conditions for developing physical hardiness. In the wilderness a person cannot buy transportation or services. He must provide them for himself. He cannot find machinery to relieve him of the need for expending his own strength and energy. If he gets into trouble he must get himself out of it or face the consequences” (Marshall 1954).
References
Congressional Record, 12583. 1956.
Congressional Record, 1893. 1957.
Cordell, H. K., C. J. Betz, and G. T. Green. 2008. Nature-based outdoor recreation trends and wilderness. International Journal of Wilderness 14(1): 7–13.
Duke Law. 2015. Federal Legislative History. Retrieved from http://law.duke.edu/lib/researchguides/fedleg/.
Leopold, A. 1949. A Sand County Almanac and Sketches Here and There. New York: Oxford University Press.
Marshall, G. 1954. Bibliography of Robert Marshall: A supplement. The Living Wilderness: 31–35.
Marshall, R. 1930. The problem of the wilderness. The Scientific Monthly 30(2): 141.
McCloskey, M. 1966. The Wilderness Act of 1964: Its background and meaning. Oregon Law Review 45(4): 288–321.
National Survey on Recreation and the Environment (NSRE). 2016. The Interagency National Survey Consortium, USDA Forest Service. Retrieved from http://www.srs. fs.usda.gov/trends/nsre-directory/index. html.
Sustainable Trails Coalition. 2016. Retrieved from http://www.sustainabletrailscoalition.org. (Editor Note: quoted material has since been removed from website.)
US Public Law 88-577. The Wilderness Act of September 3, 1964. 78 Stat. 890.
US Public Law 96. Alaska National Interest Lands Conservation Act. 811, 16 U.S.C. 2131.
US Public Law 96-476. An Act to Establish the Rattlesnake National Recreation Area and Wilderness in the State of Montana.
US Public Law 110-325. Americans with Disabilities Act. 507, 42 U.S.C. 12207. Wilderness Watch. 2016. Wilderness community unites to keep bike ban in wilderness. Retrieved from http://wildernesswatch. org/wilderness-community-unites-to-keep-bike-ban-in-wilderness.
DOUG SCOTT is author of Wild Thoughts: Short Selections by Great Writers about Nature, Wilderness, and the People Who Protect Them (Amazon, 2016); email: scottdoug959@gmail.com.