December 2015 | Volume 231, Number 3
By JOHN COPELAND NAGLE
The meaning of the term wilderness character is at the heart of a dispute about the proper approach to wilderness management. From one perspective, wilderness management is an oxymoron. To manage wilderness, in that view, is to defeat the very wildness that defines it. But from another perspective, wilderness management is essential to preserve the qualities that comprise the wilderness. An unmanaged wilderness, it is claimed, could cease to be a wilderness at all. This dispute is assuming new urgency as the climates of many wilderness areas are changing, and as the federal agencies responsible for managing wilderness areas struggle to respond to those changes.
The legal dispute concerning the meaning of wilderness character is well illustrated by the conflicting positions articulated by a recent federal interagency document (Landres et al. 2015), and some of its detractors who advocate for a different definition of wilderness character (Brandborg 2015). According to the agencies, wilderness character is a holistic idea that encompasses a range of tangible and intangible features of what makes a place a wilderness, and it can be defined and measured by monitoring five wilderness conditions. Some wilderness advocates insist that the character of wilderness is quite straightforward: The essence of wilderness character is its wildness, which is more comprehensive and appropriate to the legislative history than the sum of the five wilderness conditions that the federal interagency document framework has chosen to monitor.
The terms of this argument involve statutory interpretation. There is a rich judicial and scholarly history of how to interpret statutes that has seen an especially robust discussion during the past several decades. Generally, the plain meaning of the statutory language determines the meaning of a statute. There are some exceptions to that rule that apply when the plain meaning produces an absurd result or one demonstrably at odds with the legislative drafters of the statute. The scope of those exceptions is key to the Supreme Court’s pending decision regarding the availability of subsidies under the Affordable Care Act, but there is no suggestion that the meaning of wilderness character in the Wilderness Act triggers one of those exceptions.
The determination of what constitutes the plain meaning of a statute begins with an examination of the statutory text. That includes both the contested provision (here, wilderness character) as well as the rest of the statute. Plain meaning can be discerned as a matter of common sense, or it may be illuminated by dictionaries that defined the word at the time the statute was enacted. Typically, though, whether a statute has a plain meaning must be determined without recourse to the legislative history of the statute’s enactment.
Many statutes, and many statutory provisions, lack a plain meaning. To interpret an ambiguous statute, one will look at legislative intent and purpose, legislative history, and other contextual factors that help illumine what the provision means. There are also a host of linguistic and substantive canons that help inform the interpretation of a statute.
These rules apply to courts, agencies, attorneys, and anyone else who has occasion to determine what a statute means. But there is a special rule for the judicial review of federal agency interpretations. If an agency interprets a statute that it has the authority to implement, then the courts will defer to the agency’s reasonable interpretation of an ambiguous statute. That interpretive canon, announced in a 1980 case involving the application of the Clean Air Act to Chevron’s oil refineries, states a two-part test. First, the court must ask “whether Congress has directly spoken to the precise question at issue.” If so, then such clear congressional intent must be followed by the agency as well as the court. If not, then a court proceeds to ask the second question: whether the agency’s interpretation of a statute that is silent or ambiguous with respect to the specific issue “is based on a permissible construction of the statute.” If so, then the court must defer to such a reasonable interpretation. If not, then the court will overturn the agency’s interpretation, but the agency can then proffer another reasonable definition – the court doesn’t just fill in the right answer itself (Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 1984).
This approach to statutory interpretation shows that there are two distinct questions that must be answered when interpreting the term wilderness character in the Wilderness Act. The first question is simply to ask what the term means. But the second question may prove more important. It asks whether the agencies have offered a reasonable interpretation of an ambiguous term. If so, then the courts will defer to the agency interpretation, even if that interpretation is not the “best” one.
These questions frame the evaluation of the contrasting interpretations of wilderness character offered by the federal agencies and the wilderness advocates. Let me begin with the federal agencies. Landres et al. (2015) offer several explanations of the meaning of “wilderness character.” It is “a holistic concept based on the interaction of (1) biophysical environments primarily free from modern human manipulation and impact; (2) personal experiences in natural environments relatively free from the encumbrances and signs of modern society; and (3) symbolic meanings of humility, restraint, and interdependence that inspire human connection with nature” (p. 5).
The agencies identify five qualities that collectively describe the meaning of wilderness character: untrammeled, natural, undeveloped, solitude or primitive and unconfined recreation, and the catchall “other features of value” (Landres et al. 2015, pp. 5–10). These qualities “are equally important,” they “apply to every wilderness,” and they “are uniquely expressed within each wilderness” (Landres et al. 2015, pp. 10–11). But “wilderness character is more than these qualities” because “there are also important intangible aspects of wilderness character that would be difficult or impossible to quantify” (Landres et al. 2015, p. 11). In that respect, “wilderness character is like a violin or any musical instrument composed of separate pieces that interact to form something greater than the sum of its parts” (Landres et al. 2015, p. 10).
The agencies insist that wilderness management decisions “may preserve or degrade these qualities” (Landres et al. 2015, p. 11). That means that an agency’s action may improve one aspect of wilderness character while diminishing another. The agencies offer this example: “a bridge built to protect a stream bank from erosion caused by people or horses crossing the stream is also an installation that diminishes the opportunity for people to experience the primitive challenge of crossing the stream” (Landres et al. 2015, p. 11). Wilderness managers must acknowledge how such trade- offs impact wilderness character. By considering the five qualities of wilderness character, managers can “approach wilderness stewardship with humility, respect, and restraint, ultimately helping them to preserve wilderness management as a whole” (Landres et al. 2015, p. 12).
The courts have been receptive to the affirmative efforts of management agencies to restore the wilderness character of a wilderness area. For example, one court allowed the use of helicopters to facilitate the recovery of wolves in an Idaho wilderness area because “it was man who wiped out the wolf from the area [and] now man is attempting to restore the wilderness character of the area by returning the wolf ” (Wolf Recovery Foundation v. U.S. Forest Serv. 2010). Another court agrees that reestablishing the native Paiute cutthroat trout in a California wilderness area “enhances the primitive character of an ecosystem and serves a conservation purpose… permissible under the Act” (Californians for Alternatives to Toxics v. United States Fish and Wildlife Serv. 2011). The courts have also acknowledged that the factors identified in the act can inform the meaning of wilderness character. See Montana Wilderness Ass’n v. McAllister (2011) about interpreting the term wilderness character in the Montana Wilderness Study Act of 1977 to include the “outstanding opportunities for solitude” referred to in the Wilderness Act.
Now we turn to some wilderness advocates who counter that wilderness character has a single, plain meaning. That meaning, they claim, appears in the Wilderness Act’s statement that “a wilderness, in contrast with those areas where men and his works dominate the landscape, if 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. § 1131(a)).
The textual analysis of the Wilderness Act cannot end there, as some wilderness advocates recognize, for the statute continues after the preceding definition to state that
an area of wilderness is further defined to mean an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined typeof recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value. (16 U.S.C. § 1131(a))
Thus, some wilderness advocates contend that the Wilderness Act contains two distinct definitions of wilderness. The first, ideal definition, they say, governs the meaning of wilderness character, not the second, practical definition. They rightly cite the rule of statutory interpretation that all the words in a statute are to be given meaning lest a provision be wrongly dismissed as surplusage. An alternative interpretation would combine the two definitions – ideal and practical – to produce a meaning of wilderness, and thus wilderness character, that is both aspirational and pragmatic, and which aspires toward unhindered natural processes while accepting that human management may be necessary to provide the “opportunities” and “values” served by wilderness areas.
Some wilderness advocates rely on the legislative history of the Wilderness Act, formal and informal, to demonstrate that its drafters intended the meaning which they describe. Their reliance on all such legislative history is somewhat surprising given their assertions that the interpretive question is settled by the plain meaning of the statutory text and their acknowledgment that legislative history is irrelevant if the statutory text is clear. Moreover, some wilderness advocates rely almost exclusively on the statements of the earlier wilderness advocates who championed the enactment of the Wilderness Act.
Some wilderness advocates rightly emphasize the crucial role that Howard Zahniser played in lob- bying Congress to enact the law, but they omit any mention of Wayne Aspinall, who has a competing claim to the paternity of the Wilderness Act. As I have explained elsewhere,
“Aspinall served as the chair of the House Interior and Insular Affairs Committee during that time, and he insisted on balancing wilderness values with other claimants to the use of federal public lands. The compromises extracted by Aspinall that were necessary to finally secure passage of the law included the relaxation of some of the law’s land use restrictions, shifting the authority to designate wilderness areas from federal land agencies to Congress, and the elimination of the proposed National Wilderness Preservation Council. (Nagle 2014).”
Most importantly, the Wilderness Act contains seven express exceptions from the law’s otherwise applicable prohibitions on such things as motorized vehicles, aircraft, and structures. The most frequently employed exception allows temporary roads, motor vehicles, motorized equipment, motorboats, aircraft landings, mechanical transport, structures, and installations when they are “neces- sary to meet minimum requirements for the administration of the area for the purpose of this Act” (16 U.S.C. § 1133(c)). That exception, and others like it, is nonsensical from the perspective of the understanding of wilderness character promoted by the wilderness advocates. If all that is needed is to keep wilderness areas wild and free from human interference, then there will never be an instance when it is “necessary” to allow roads, vehicles, and the like to administer a wilderness area in a manner that achieves the act’s purposes. The fact that the act presumes that such activities are necessary implies that wilderness management should consider all of the act’s goals, both ideal and practical.
Reasonable Agency Interpretation
It is not necessary, though, to decide which of the competing meanings of wilderness character is the right one. The courts only ask whether a statute is susceptible of different interpretations, and if it is, then the courts will defer to a reasonable agency interpretation. That is the approach that the Ninth Circuit, the federal appeals court with jurisdiction over the western states that contain most of the federal wilderness areas, has taken in cases involving the Wilderness Act and its term wilderness character. In High Sierra Hikers Association v. Blackwell (2004), a group of wilderness supporters challenged the Forest Service’s issuance of permits to commercial packstock operators in the John Muir and Ansel Adams Wilderness Areas. The federal appeals court had to decide how much deference to afford “the Forest Service’s determination that preserving the wilderness character [of a wilderness area] is not the ultimate interest of the Wilderness Act” (High Sierra Hikers Association v. Blackwell, 2004). The court indicated that it believed that “Congress make the long-term preservation of wilderness areas the ultimate goal of the act” (High Sierra Hikers Association v. Blackwell, 2004). But that did not answer the deference question posed to the court. Instead, the court concluded that “the diverse, and sometimes conflicting list of responsibilities imposed on administering agencies renders Congress’s intent arguably ambiguous,” so the court ruled that the agency’s understanding of the act was entitled to deference. The court then addressed the extent of that deference. Because the Forest Service “was granting permits, not acting in a way that would have precedential value for the parties,” the agency’s decision received only “‘respect’ based on the persuasiveness of the decision.’” Id. at 648 (quoting Wilderness Soc’y, 353 F.3d , 1067). By contrast, when the agency acts “with the force of law” – for example, by issuing regulations interpreting the Wilderness Act – the agency’s interpretation received the judicial deference offered by Chevron (High Sierra Hikers Association v. Blackwell, 2004, pp. 647–648).
Subsequently, the same court emphasized the discretion that the act afforded to management agencies in a case involving the Fish and Wildlife Service’s (FWS) placement of water structures for thirsty big-horn sheep in an Arizona wilderness area. The court explained that “the Act gives conflicting directives to the Service in administering the area” so that the agency must exercise “judgment and discretion” (Wilderness Watch, Inc. v. U.S. Fish and Wildlife Serv., 2010). Earlier, a three-judge panel divided regarding the meaning of the “natural conditions” and “wilderness character” in the Wilderness Act. Two judges argued that the law explicitly anticipates human modifications, while the dissenting judge objected to “artificial” management actions; but an en banc, 11-judge panel reheard the case and decided it without having to resolve that issue (Wilderness Soc’y v. United States Fish and Wildlife Serv., 2003).
Some wilderness advocates would argue that this is not a question of law but rather of our ethical commitment to restrain ourselves in administering these lands. There is an important sense in which that is true. Wilderness has a crucial ethical, even spiritual, dimension, that should inform all of our efforts to identify which lands to designate and how to manage them (Nagle 2005). But the question concerning the meaning of wilderness character is a legal one that requires legal tools to answer it. Those tools suggest that there are strong arguments for the understandings offered by both the federal agencies and the wilderness advocates, but the judicial deference to an agency’s interpretation of a statute suggests that the courts will uphold the understanding of wilderness character that the agencies propose.
JOHN COPELAND NAGLE is the John N. Matthews Professor of Law at the Notre Dame Law School in Indiana; email: John.C.Nagle.firstname.lastname@example.org.
VIEW MORE CONTENT FROM THIS ISSUE
Brandborg, Stewart. 2015. Wilderness, wildness, and wilderness character. International Journal of Wilderness 21(3): 4–5.
Californians for Alternatives to Toxics v. United States Fish and Wildlife Serv., 814 F. Supp. 2d 992, 1016 (E.D. Cal. 2011).
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 1984.
High Sierra Hikers Association v. Blackwell, 390 F.3d 630 (9th Cir. 2004).
Landres, Peter et al. 2015. Keeping It Wild 2: An Updated Interagency Strategy to Monitor Trends in Wilderness Character Across the Wilderness Preservation System. General Technical Report RMRS-GTR-340. Fort Collins, CO: USDA Forest Service, Rocky Mountain Research Station.
Montana Wilderness Association v. McAllister, 666 F.3d 549 (9th Cir. 2011).
Nagle, John Copeland. 2005. The spiritual values of wilderness Environmental Law 35: 955.
———. 2014. Wilderness exceptions. Environ- mental Law 44: 373, 375.
Wilderness Soc’y v. United States Fish and Wildlife Serv., 316 F.3d 913, vacated, 353 F.3d 1051 (9th Cir. 2003) (en banc).
Wilderness Watch, Inc. v. U.S. Fish and Wildlife Serv., 629 F.3d 1024, 1033 (9th Cir. 2010).
Wolf Recovery Foundation v. U.S. Forest Serv., 692 F. Supp. 2d 1264, 1268 (D. Idaho 2010).