Peter A. Appel
Alex W. Smith Professor
University of Georgia School of Law
Presented via Webinar Sponsored by the
Carhart Center
November 15, 2012


In general, courts defer heavily
to discretionary decisions—6675% win rate
Wilderness win rates vary
significantly from that
• For challenges by
environmentalists, about 48%
win rate


Courts look at terms of statutes
(plain meaning, maybe
legislative history?) and
regulations to hold agencies
accountable to written rules
General standard is “arbitrary
or capricious” review
 Section
4(c) contains the principal
prohibitions that define what can/can’t go
on in a wilderness.
 The
Section 4(c) prohibitions are subject to
“existing private rights.”
 There
are also a number of exceptions in
Section 4(d).


Commercial fishing?
Alaska Wildlife Alliance v.
Jensen, 108 F.3d 1065 (9th
Cir. 1997).
Fish hatchery run by
volunteers but to support
commercial harvest that
takes place outside
wilderness? Wilderness
Soc’y v. FWS, 353 F.3d
1051 (9th Cir. 2003) (en
banc).

Provision at issue:
“Commercial services
may be performed within
the wilderness areas
designated by this Act to
the extent necessary for
activities which are
proper for realizing the
recreational or other
wilderness purposes of
the areas.”
(*Note this was § 4(d)(6) in
the 1964 Act)
Selway-Bitterroot Wilderness, MT
“Commercial services
may be performed
within the wilderness
areas designated by
this Act to the extent
necessary for
activities which are
proper for realizing the
recreational or other
wilderness purposes
of the areas.”
Selway-Bitterroot Wilderness, MT


No court cases
interpreting the term
Generally construed
by agencies to include:
• Guide services
• Commercial
photography (even if
it’s nonprofit)
• Scientific research
with commercial
applications


Section 4(b): “wilderness areas shall be devoted to the
public purposes of recreational, scenic, scientific,
educational, conservation, and historical use”
Section 2(a)
• “to secure for the American people of present and future
generations the benefits of an enduring resource of
wilderness”
• “For this purpose there is hereby established a National
Wilderness Preservation System [which] shall be
administered for the use and enjoyment of the American
people in such manner as will leave them unimpaired for
future use as wilderness, and so as to provide for the
protection of these areas, the preservation of their
wilderness character, and for the gathering and
dissemination of information regarding their use and
enjoyment as wilderness”
 Courts
generally presume that Congress picks
its language carefully
 No
court cases distinguishing the two terms
 “Commercial
Enterprise”: No McDonald’s or
WalMart
 “Commercial
Service”
• Guide services
• Commercial photography (even if it’s nonprofit)
• Scientific research with commercial application
 Mostly
litigated in
context of guide
services
 How
necessary is
necessary?
• Strictly necessary—
which means very few
activities would be
allowed
• Reasonably necessary

Pack animal services in
Ansel Adams and John
Muir Wilderness Areas
• USFS limits number of
visitors for overnight
stays
• Limits regulated by
quotas at specific
trailheads
• Pack animal services
regulated by special use
permit

NEPA and Wilderness Act
claims brought—NEPA
violation found
 “It
is clear that the statutory scheme
requires, among other things, that the Forest
Service make a finding of ‘necessity’ before
authorizing commercial services in
wilderness areas.”
• USFS did so here
• WA “does not specify any particular form or
content for such an assessment; therefore the
finding of ‘necessity’ requires this court to defer
to the agency’s decision under the broad terms
of the Act.”


“However, under the terms of the
Wilderness Act, a finding of
necessity is a necessary, but not
sufficient, ground for permitting
commercial activity in a wilderness
area.”
The agency “must show that the
number of permits granted was no
more than was necessary to achieve
the goals of the Act. Nowhere in [its
planning documents] does the Forest
Service articulate why the extent of
such packstock services authorized
by the permits is ‘necessary.’”

USFS examined three factors, all of which held to
be relevant:
• “the types of activities for which commercial
services are needed”
• “the extent to which current permits are being used
• “the amount of use the land can tolerate.”

“[A]t some point in the analysis, the factors must
be considered in relation to one another. If
complying with the Wilderness Act on one factor
will impede progress toward goals on another
factor, the administering agency must determine
the most important value and make its decision to
protect that value. That is what the Forest Service
failed to do in this case.”
“At best, when the Forest
Service simply continued
preexisting permit levels, it
failed to balance the impact
that that level of commercial
activity was having on the
wilderness character of the
land.”
“At worst, the Forest Service
elevated recreational activity
over the long-term
preservation of the wilderness
character of the land.”
“The Forest Service’s decision to grant
permits at their pre-existing levels in the
face of documented damage resulting from
overuse does not have rational validity. In
its Needs Assessment, the Forest Service
listed the trailheads showing damage from
overuse, but it did not take the next step to
actually protect those areas by lowering
the allowed usage.”
“Although the Act stresses the
importance of wilderness areas
as places for the public to enjoy,
it simultaneously restricts their
use in any way that would
impair their future use as
wilderness. This responsibility
is reiterated in Section 1133(b),
in which the administering
agency is charged with
preserving the wilderness
character of the wilderness
area.”
The Wilderness Act of
1964
Section 1133(b)
 USFS
relied on survey results to show necessity
 Court
agrees that it must defer to USFS
methodology
“[T]he survey here allowed
anonymous responses without any
means to verify that the
respondents were the intended
recipients of the survey ... and the
recipients knew its purpose. Most
strikingly, there is evidence that
respondents took advantage of
these flaws in the survey’s design
by copying and distributing the
survey to non-recipients friendly to
the packers and encouraging these
individuals to return the survey
anonymously in a deliberate effort
to skew the results.”
 Survey
 “In
unreliable for other reasons
relying on an aging population with various
disabilities to show a huge increase in future
need for pack services, [USFS] cited the most
frequently occurring health conditions of
elderly people. Yet these conditions included
hearing impairments, sinusitis and others
which are irrelevant to determining the need
for pack stock services due to an inability to
hike with gear.”
 Often, pack
animals
used to bring into
wilderness items not
essential to wilderness
experience (e.g., radios
and cases of beer)—
wants, not needs (i.e.,
not “necessary”)
 Concerns
about spikes
in usage, trailhead vs.
destination quotas



Pack animals in
Sequoia/Kings Canyon
Nat’l Parks
Challenge to General
Management Plan, not
actual permitting
decisions for specific
activities
Necessity finding not
made in GMP
• NPS admits but says it will
do at permitting level

Same result
 Sec. 4(c)
limits many agency activities to
those that are “necessary to meet minimum
requirements for the administration of the
area for the purpose of this Act”
 Compare
Wilderness Watch v. Mainella, 375
F.3d 1085 (11th Cir. 2004)
Phone: (706) 542-5097
Email:
appel@uga.edu