Nondegradation and the Wilderness Concept: Interpreting the Wilderness Act

Science & Stewardship

April 2014 | Volume 20, Number 1

by Doug Scott

---

Poetry lovers do not turn to the United States Statutes at Large looking for new verses to savor. For all their legal majesty, the words of the law are almost without exception dry and precise, intentionally drained of all possible imprecision. So what are we to make of this, from the Wilderness Act of 1964 (U.S. Public Law 88-577)?

A wilderness, in contrast with those areas where man and his own works dominate the landscape, is hereby recognized as an area where the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain. (16 U.S.C. 1133(c))

Although it appears in section 2(c) of the Wilderness Act, which is captioned “Definition of Wilderness,” this is not the operational definition Congress uses as it chooses lands to designate as wilderness areas. Rather, that specific, practical definition is the second sentence of 2(c), whereas this poetic language is the first.

In our work as wilderness stewards and advocates, we cannot simply admire the literary qualities of the first of these two definitions and then proceed to ignore it. The Supreme Court instructs in Montclair v. Ramsdell (107 U.S. 147, 152 [1883]) that “a basic principle … is that courts should give effect, if possible, to every clause and word of a statute, avoiding, if it may be, any construction which implies that the legislature was ignorant of the meaning of the language it employed.” As the Congressional Research Service (Kim 2008) summarized this for members of Congress and their staff, “The modern variant is that statutes should be construed ‘so as to avoid rendering superfluous’ any statutory language.”

So, what purpose does the first, poetic definition of wilderness serve in the statute? The members of Congress who championed the law left us statements of their legislative intent that give us useful guidance of that intent, but these do not help in understanding the implications of the two definitions for purposes of wilderness stewardship today. If we are to avoid the error of rendering the words of the first definition superfluous, we must look further.

The most helpful statement is by Senator Clinton P. Anderson (D-NM), the chairman of the Senate Committee on Interior and Insular Affairs and lead Senate sponsor of the Wilderness Bill in its final years before the Senate. He provided a detailed statement of his intent and stressing that the bill contains two definitions of wilderness: In 1961 Senator Clinton P. Anderson (D-NM) was chairman of the Senate committee and lead sponsor of the bill; his explanation to the committee is a definitive statement of his intent. Opening hearings that year, he explained his intent, stressing that the bill “contains two definitions of wilderness”: “The first sentence is a definition of pure wilderness areas, where ‘the earth and its community of life are untrammeled by man…’ It states the ideal. The second sentence defines the meaning or nature of an area of wilderness as used in the proposed act: A substantial area retaining its primeval character, without permanent improvements, which is to be protected and managed so man’s works are ‘substantially unnoticeable.’ The second of these definitions of the term, giving the meaning used in the act is somewhat less ‘severe’ or pure’ than the first.” (Wilderness Act: Hearings before the Senate Committee on Interior and Insular Affairs on S. 174, 87th Cong., 1st sess., February 27–28, 1961, p. 2).

As a student of the Wilderness Act and its legislative history, I have had my own belief about this for years. I eventually found solid legal footing for my belief when I worked as a strategist for the Sierra Club and was drawn into the campaigns to strengthen our clean air and water laws. These laws include “prevention of significant deterioration” provisions, making clear that having water or air that is already cleaner than the laws require is no license to allow pollution to dirty that air and water down to the minimum levels (also known as the “nondegradation” provision).

Before the Environmental Protection Agency was established in 1970, the Department of the Interior set the guidelines to implement the Clean Water Act of 1965 (U.S. Public Law 89-234). These required all states to adopt water quality standards needed to permit drinking and fishing. The guidelines provided that “in no case will standards providing for less than existing water quality be acceptable,” and that standards provide for “the maintenance and protection of quality and use or uses of water now of a higher quality.” The same concept was adopted in the Clean Air Act Amendments of 1970 (U.S. Public Law 91-604), although the EPA resisted implementing this requirement. As one legal scholar (Glicksman 2012) summarizes:

When Congress adopted the Clean Air Act in 1970, it transferred responsibility to adopt air quality standards to EPA, leaving the states responsible for achieving the standards through state implementation plans (SIPs) that imposed enforceable emission limitations on individual sources. EPA insisted that it lacked the authority under the Act to adopt nondegradation rules. In Sierra Club v. Ruckelshaus, an environmental group challenged EPA’s refusal to require SIPs to prevent degradation in existing clean air areas. The district court ruled for the plaintiffs, reasoning that the statutory purpose “to protect and enhance” air quality to promote public health and welfare reflected Congress’ intent “to improve the quality of the nation’s air and to prevent deterioration of that air quality, no matter how presently pure that quality in some sections of the country happens to be.” EPA’s decision to allow the states to submit SIPs that lacked nondegradation protections was therefore invalid. The decision was upheld on appeal.

Before turning to my belief about the intent of the Wilderness Act, it important to acknowledge that the clean air and water laws also expressly protect clean air and water within national parks, national monuments, national seashores, wilderness areas, and other areas of “special” natural, recreational, scenic, or historic value (42 U.S.C. s 7470[2]). In the congressional debate on the Clean Air Act Amendments of 1970, supporters argued that degradation of air quality would interfere with scenic vistas in places such as the Grand Canyon or damage unique natural resources, frustrating the opportunities for preservation, recreation, and spiritual renewal that justified the creation of these protected areas. The Clean Water Act’s antidegradation policy serves the same function through its prohibition on water quality degradation in Outstanding National Resource Waters (Oren 1989).

Although the Wilderness Act does not say it in so many words, I believe it includes an implicit nondegradation principle parallel to those in our basic pollution statutes. This functions in two ways:

1. 1. If a wilderness area is very wild at the time that area is designated, it is illegal for the administering agency to allow uses or impacts that would reduce its wildness on the argument that it is more pristine compared to other areas in the system.
   2. If, on the other hand, an area has had a long history of significant human use and impacts, it can and will get wilder if left to the restorative powers of time and nature. Purposeful human manipulation, however well-intentioned, should be kept to a minimum.

Throughout the history of our wilderness system, this nondegradation function of the Wilderness Act has not been a matter for mere theoretical musings. As the first wilderness areas were being designated, the Forest Service took the position that “the criteria used in determining suitability or nonsuitability for the inclusion of lands in the system is also our guide for administering areas once they are included” (Nelson 1968, p. 24). This was a deliberate misreading of the law and its legislative history at a time when the agency hoped to minimize the amount of national forest land Congress would designate. It was a stratagem intended to make
wilderness so “costly” that the public support for the protection of more wilderness might be undercut (Costley 1972). Using this purity doctrine, the agency was circling its wagons around the argument that only lands never touched by human uses or impacts could qualify for designation. The result was the exclusion of millions of acres of once-impacted national forest roadless land from consideration during the first nationwide Roadless Area Review and Evaluation Process, a serious flaw that ultimately contributed to its rejection. More important to the agency at that time was that stringent application of the purity doctrine would minimize conflict between lands qualified as wilderness and lands available for logging. As James Morton Turner (2012, p. 58) puts it in his definitive history of implementation of the Wilderness Act, “The agency’s purity policies did align neatly with the agency’s institutional commitment to logging – protecting a ‘pristine’ wilderness system also meant keeping the wilderness system small.”

Among other misadventures, their strategy of relying on the purity doctrine to keep the extent of national forest wilderness small led the Forest Service to oppose the designation of any wilderness areas east of the Rockies. However, their argument was badly undercut by the fact that prior to the enactment of the Wilderness Act, the agency itself had established three “wild areas” on eastern national forests under their administrative wilderness policy, each involving lands with a history of extensive human development and impacts. Further, had this interpretation been allowed to go unchallenged, it would have similarly disqualified most lands in the West, for most had some history of past human abuse (Scott 2004). Senator Frank Church, the Idaho Democrat who managed the floor debate on the Wilderness Bill in the U.S. Senate, saw this immediately and told the chief:

If we [adopt the Forest Service purity theory] we will be saying, in effect, that you can’t include a comparable area in the West in the wilderness system. That is the precise effect of your approach because you will have redefined section 2(c) of the Wilderness Act. (Senate Committee on Interior and Insular Affairs, Eastern Wilderness Areas: Hearing before the Subcommittee on Public Lands on S. 316, 93rd Cong., 1st sess., February 21, 1973, p. 31)

This now-abandoned Forest Service “purity” concept reflects a too-common misunderstanding that if Congress includes some evidence of impacts and disturbances of human activities, such as roads and logging scars – even quite recent ones – in a wilderness area, that means the same kinds of human activities could invade other wilderness areas already designated. But precedents don’t work like that.

Consider a parallel. In 1972 a madman got into St. Peter’s Basilica and took a hammer to Michelangelo’s Pietà, a world-renowned sculpture of exquisite beauty. This was an inestimable tragedy for art. It took restorers years to do what they could to repair the damage, and the Pietà is certainly no longer pristine. But this episode did not set a precedent for others with hammers to have a go at the Vatican statuary.

This illustrates the essence of the nondegradation principle that lies at the heart of the Wilderness Act. In the same way, Congress carefully distinguished the ideal for wilderness stewardship from the practical criteria by which it chooses to designate areas – hence the two definitions of wilderness. Senator Church (1973) later summarized this intent of his fellow framers of the Wilderness Act, terming it “one of the great promises of the Wilderness Act [that] we can dedicate formerly abused areas where the primeval scene can be restored by natural forces” (p. 1251).

Three examples illustrate how this fundamental aspect of the Wilderness Act works.

Shining Rock Wilderness

Located on the Pisgah National Forest in far western North Carolina, this is one of my favorite wilderness areas, not only because it offers a cool retreat in a canyon enlivened by the music of a tumbling stream, but also because it is the strongest possible example of the point I am making here. In the long history of European settlement east of the Appalachian crest, this area was settled, heavily logged, and swept by devastating fires. Yet in 1964 it was one of the areas Congress designated in the Wilderness Act itself. Indeed, it had been the final Wild Area established by the chief of the Forest Service on May 1964, before his authority to do this was superseded by the Wilderness Act. Like the others, it is in effect a “type specimen” of the kind of land Congress felt could be designated.

Leaders of wilderness advocacy organizations agreed. As the agency was preparing to establish this wild area, Howard Zahniser of The Wilderness Society asked Harvey Broome, who lived in Knoxville and was one of the society’s founders, to check it out. Broome toured the area with the regional forester and reported to Zahniser, as he later recalled in writing to another conservationist:

Zahniser and I had this matter up about five years ago when the Forest Service was proposing a heavily [logged and] burned-over area in North Carolina as part of the Shining Rock wilderness area. We concluded that under the definition in the [Wilderness] Bill, as then drafted, there was no conflict provided [new] roads and mechanical and other uses were prohibited. Congress apparently accepted the same understanding since the Shining Rock Wild Area was incorporated in the wilderness system. (Broome 1966)

In fact, the evidence of human impact could be quite recent – even current. The formal proposal that resulted in Forest Service administrative designation of that Shining Rock Wild Area in May 1964 (just as Congress was finalizing the Wilderness Act and therefore closely scrutinizing such agency designations) pointed out that

in determining the best and most logical boundaries for the Wild Area, it was necessary to include a portion of the drainage of Ugly Creek covered by a timber sale contract which expires December 20, 1963. About 500 MBF [thousand board feet] are left to be cut and the operation will be completed this year. The skid trails and log landings will be revegetated and otherwise treated as necessary to hasten natural recovery and prevent vehicular access. (US Forest Service report n.d.)

Great Swamp Wilderness

A part of the Great Swamp National Wildlife Refuge in New Jersey, this small gem was the first wilderness area designated on lands administered by the Department of the Interior (see Figure 1). The entire area had been drained and farmed before the Revolutionary War, so it was no one’s idea of pristine wilderness. As recommended by the U.S. Fish and Wildlife Service it comprised two units separated by a low-standard “oiled” public road. During the hearing in the House committee, the chairman, Representative Wayne N. Aspinall, a Colorado Democrat who had held up enactment of the Wilderness Act for two years to gain the final provisions he insisted on, questioned this. He was insistent that Congress take care in designating the first statutory wilderness areas to assure that it was following his intent in the 1964 act. All involved agreed that the road should be closed and the roadbed removed. The committee’s formal report explaining the bill to the House stated that this concern

was satisfactorily answered by agreement of the townships of Passaic and Harding to close the existing road that now separates [the agency-proposed wilderness] units. The closure of this dividing road, in the opinion of the committee, is absolutely essential if this area is to be considered for wilderness designation. It is with this understanding, as well as the full assurance of the two townships involved that the road will be closed, that this committee favorably recommends the area for wilderness designation. (House Committee on Interior and Insular Affairs, Designating Certain Lands in the Great Swamp National Wildlife Refuge, Morris
County, N.J., as Wilderness, House Report 90-1813, 90th Congress, 2nd Session, July 26, 1968, p, 2)

It took three years for local officials to legally close the road and remove the roadbed. Today it is a delightful hiking and equestrian trail. While the roadbed was being removed, a pre-Revolutionary drainage ditch was blocked, establishing a more natural water level and allowing the swamp to return.

Wild River Wilderness

This good example is located on the White Mountain National Forest near Gorham, New Hampshire (see Figure 2). Its colorful history of intense human use and abuse is well described on wilderness.net (2014):

At the turn of the nineteenth century the area was covered in pristine forest with only a few inhabitants in the lower reaches of the watershed. One hundred years later the valley stood in stark contrast after being penetrated and developed by large-scale logging operations. A rail line followed the banks of the Wild River from its confluence with the Androscoggin River almost all of the way to its headwaters at Perkins Notch. Numerous logging camps were located in what is now the Wild River Wilderness and a booming village named Hastings had sprung up along the river’s lower reaches. Any timber that was moderately accessible had been removed by the beginning of the twentieth century despite repeated attempts by the river to live up to its name and erase all timber-related infrastructure. Dams, bridges and railroad tracks seemed to fall prey to the river’s raging storm flows on a regular basis but were always rebuilt to meet the country’s growing demand for wood.

Ideal Pure Wilderness

It is my belief that the meaning and purpose of the first definition of wilderness expresses the ideal of “pure” wilderness. As I have explained elsewhere (Scott 2001), that was the express intent of the draftsman and sponsors of the Wilderness Act. So, if that definition is not merely superfluous poetry and must have some function in the law, what is that? Paragraph 4(b) of the Wilderness Act mandates that “each agency administering any area designated as wilderness shall be responsible for preserving the wilderness character of the area and shall so administer the area for such other purposes for which it may have been established as also to preserve its wilderness character” (16 U.S.C. 1135[c]). This presents a difficulty for the reader, for the term wilderness character is nowhere defined in the law. Again, we cannot assume it has no meaning, only that Congress failed to define it. It cannot be left floating functionless.

Finally, although it is not the kind of legislative history that would be relied on by a federal judge, since it is the view of an outside advocate and not a member of Congress, here is the evidence that is most meaningful to me. Although he was scrupulous never to acknowledge that he was the draftsman of the words of the law, in a written supplement to his testimony at the final Senate hearing on the Wilderness Bill Howard Zahniser explained his interpretation of the two definitions:

In this definition the first sentence is definitive of the meaning of the concept of wilderness, its essence, its essential nature – a definition that makes plain the character of lands with which the bill deals, the ideal. The second sentence is descriptive of the areas to which this definition applies – a listing of the specifications of wilderness areas; it sets forth the distinguishing features of areas that have the character of wilderness.

The first sentence defines the character of wilderness, the second describes the characteristics of an area of wilderness. (“Supplementary Statement of Howard Zahniser, Executive Director of the Wilderness Society,” in Senate Committee on Interior and Insular Affairs, National Wilderness Preservation Act: Hearings before the Committee on Interior and Insular Affairs on S. 4, 88th Cong., 1st sess., February 28 and March 1, 1963, p. 68, emphasis added.)

I believe the only plausible explanation is that the term wilderness character is defined by the “ideal” definition with which section 2(c) begins. Thus, all of this exploration of meaning and congressional practice comes down to this: whatever past human impacts there may have been, our goal is to free nature within each wilderness area, as best we can, from the fetters of human influence, so that wilderness may be, through our own self-restraint, lands “where the earth and its community of life are untrammeled by man.” What a gift for us to leave future generations. They have every right to expect no less.

DOUG SCOTT was a lobbyist for The Wilderness Society and the Sierra Club, and the wilderness advocacy arm of The Pew Charitable Trust from 1968 to the 2013, working with many of the members of Congress who played key roles in enacting and implementing the law. He is author of The Enduring Wilderness: Protecting Our Natural Heritage through the Wilderness Act (2004); and travels giving talks about the history and bipartisan politics of the Wilderness Act and its implementation; email: scottdoug959@gmail.com.

VIEW MORE CONTENT FROM THIS ISSUE

References

Broome, Harvey. 1966. Harvey Broome to Robert W. Jasperson, September 10, 1966, The Wilderness Society Archives 7: 173 (Tennessee: Great Smoky Mountains National Park), Denver Public Library.

Church, Frank. 1973. The Wilderness Act applies to the East. Congressional Record, January 16, 1973.

Costley, Richard J. 1972. An enduring resource. American Forests 78 (June): 2.

Glicksman, Robert L. 2012. The justifications for nondegradation programs in U.S. environmental law. In Le Principe de Non-Regréssion en Droit de L’Environnment, ed. M. Prieur an G. Sozzo.

Kim, Yule. 2008. Statutory Interpretation: General Principles and Recent Trends. Washington, DC: American Law Division, Congressional Research Service, Library of Congress. Updated August 31, 2008.

Nelson, M. M. 1968. Deputy Chief, U.S. Forest Service, Letter to Senator Clifford P. Hansen, February 15, 1968, in Senate Committee on Interior and Insular Affairs, San Gabriel, Washakie, and Mount Jefferson Wilderness Areas: Hearings before the Subcommittee on Public Lands, Committee on Interior and Insular Affairs, 90th Congress, 2nd sess., February 19–20, 1968, p. 24.

Oren, Craig N. 1989. The protection of parklands from increased air pollution: A look at current policy. Harvard Environmental Law Review 13: 313.

Scott, Douglas W. 2001–2002. Untrammeled. Wilderness Character. Challenges of Wilderness Preservation. Wild Earth (Fall/Winter).

Scott, Douglas W. 2004. The Enduring Wilderness: Protecting Our Natural Heritage through the Wilderness Act. Golden, CO: Fulcrum Publishing.

Turner, James Morton. 2012. The Promise of Wilderness: American Environmental Politics since 1964. Seattle: University of Washington Press.

U.S. Public Law 88-577. The Wilderness Act of September 3, 1964. U.S.C. 78 Stat. 890.

U.S. Public Law 89-234. The Clean Water Act of October 2, 1965. U.S.C. 70 Stat. 498.

U.S. Public Law 91-604. The Clean Air Act Amendments of December 31, 1970. U.S.C. 84 Stat. 1676.

Wilderness.net. 2014. Wild River. Accessed January, 2013.