Peter A. Appel
Alex W. Smith Professor
University of Georgia School of Law
Presented via Webinar
Sponsored by the Carhart Center
May 15, 2013
Section 4(c): “subject to existing private
rights....” (Most post-1964 wilderness additions
use the term “valid existing rights”)
 Section 4(d)(1): Discretion to allow continued
motorboat use and aircraft landings
 Section 4(d)(3): Allows for location of minerals;
expired at midnight, 12/31/1983
 Section 4(d)(4)(2): “[T]he grazing of livestock,
where established prior to September 3, 1964,
shall be permitted to continue subject to such
reasonable regulations as are deemed
necessary by the Secretary of Agriculture

 Section
5(a): “In any case where Stateowned or privately owned land is
completely surrounded by national forest
lands within areas designated by this Act as
wilderness, such State or private owner
shall be given such rights as may be
necessary to assure adequate access to
such State-owned or privately owned land
by such State or private owner and their
successors in interest....”
 Section
5(b): In any case where valid
mining claims or other valid occupancies
are wholly within a designated national
forest wilderness area, the Secretary of
Agriculture shall, by reasonable
regulations consistent with the
preservation of the area as wilderness,
permit ingress and egress to such
surrounded areas by means which have
been or are being customarily enjoyed
with respect to other such areas similarly
situated.
Brown v. USDOI, 679 F.2d 747, 751 (8th Cir. 1982): “A
careful reading of [the Wilderness Act] reveals ... that
it applies only to mining activities within national
forest lands designated as wilderness.... This
provision of the Wilderness Act is not applicable to
lands ... which are not national forest lands....” (Park
Service lands)
 For BLM lands, once lands made wilderness, all WA
provisions “which apply to national forest wilderness
areas shall apply [to these] including ... Ingress and
egress for mining claimants and occupants.” FLPMA
§ 603(c), 43 U.S.C. § 1782(c)
 Most post-1964 acts have extended authority to other
agencies—check your statute

 Nelson
1999)
v. US, 64 F. Supp. 2d 1318 (N.D. Ga.
• Forest Service case
• Property accessible by two
roads; one (Brasstown
Wagon) closed because it
was in wilderness; the other
(Yewell Cove) crossed
private property
• Property owners wanted to
develop one portion of
property; inaccessible from
Yewell Cove road because
there was a cliff
Gate in Brasstown Wilderness

Court finds that limiting inholder to one road did
not provide adequate access to property
• Partly based on fact that access crossed private property
• Partly based on inholders’ plans for developing property
• Partly based on USFS regulation, which defines “adequate
access” as “a route and method of access to non-Federal
land that provides for reasonable use and enjoyment of
the non-Federal land consistent with similarly situated
non-Federal land and that minimizes damage or
disturbance to National Forest System lands and
resources.” 36 CFR § 251.111. Other agencies have
similar regulations; see, e.g., 43 CFR § 6305.10 (BLM)
 Barnes
v. Babbitt, 529 F. Supp. 2d 1141 (D. Ariz.
2004)
• 5 grazing allotments within
Arrastra Mountain Wilderness
• Prior to ownership,
predecessor to the Barnes
family accessed via foot or
horseback; grazing
operations on private
inholding had ceased before
the Barnes family bought
land, but they used private
property as base property for
grazing allotment
Cattle trail in Arrastra Mountain Wilderness
 Barnes
v. Babbitt, 529 F. Supp. 2d 1141 (D.
Ariz. 2004)
• The Barnes family wanted to have improved access,
including using mechanized equipment for some roads
• BLM said that some access allowed; court disagreed
because “the wilderness designation was determined
by Congress” (P.1155).
BLM went through NEPA process
 Access to lands over federal lands existed (even if
not what the Barnes family wanted)

• RS 2477 rejected
• Common law rights of access (e.g.,
easement by necessity) rejected
• Plaintiffs allowed “adequate access”
under Section 5(a), but that does not
guarantee motorized access or
maintenance of routes
• “Grazing guidelines” in congressional
report, do not authorize anything other
than occasional motorized uses
Gate in Arrastra Mountain Wilderness
 Stupak-Thrall
v. US, 89 F.3d 1269 (6th Cir.
1996) (en banc)
• Rights of private lakefront owner
on Crooked Lake in Sylvania
Wilderness
• Lake is 95% in wilderness and
5% out of wilderness; plaintiffs
own lakefront outside of
wilderness boundary
• Initial regs forbade sailboats,
houseboats, disposal containers
within wilderness, etc.
Motorboating not addressed
Photo by Parkcamper.com
Michigan Wilderness Act provides that “valid
existing rights” are protected
 Government’s view:

• “Valid existing rights” are rights recognized and
protected by state law, which, for littoral property in
Michigan, include right to obtain drinking water, right to
“wharf out,” and right to surface access of entire lake (but
not necessarily means of navigation)
• “Valid existing rights” provision violated if it would
constitute a taking of private property

Circuit court equally divides and thus affirms
district court upholding regulation
 Stupak-Thrall
v. Glickman, 988 F. Supp. 1055
(W.D. Mich. 1997)
• New amendment to Forest Plan
restricting motorboats
• Amendment allows “motorboats
equipped with electric motors
up to a maximum size of 24 volts
or 48 pounds of thrust and a
slow no-wake speed.”
• Stupak-Thrall wants to use
gasoline-powered motorboat
throughout entire surface of
Crooked Lake
Crooked Lake. Photo by Friends of Sylvania

District court finds:
• Littoral rights in state law include
right to motorboat: “Under
Michigan law riparian owners
share in common the right to use
the entire surface of the lake for
boating and fishing, so long as
they do not interfere with the
reasonable use of the waters by
the other riparian owners.”
(P.1062)
• Valid existing rights: “These
riparian rights include the right to
continue their pre-existing right
to engage in motor boating on the
surface waters of the entire lake.”
(P.1064)


Crooked Lake Boat Landing. Photo by W. Brinkman
Government appeals, but
eventually dismisses voluntarily
Current status?
 Clouser
v. Espy, 42 F.3d 1522 (9th Cir. 1994)
• Access sought to 3 mining claims in USFS areas
 2 within wilderness areas (Robert E. & Thunderbolt)
 1 on Wild and Scenic River (Wilson)
• Wilderness mining claims
 Robert E.
 USFS challenged validity
 Plan of operations approved
during validity challenge;
pack animal access approved
 Thunderbolt # 2
Sign in Kalmiopsis Wilderness
 Pack animal access allowed
 Also use of suction dredge (motorized equipment)

Determining validity of claim (Robert E.):
• Validity of mining claim determined by whether the claim
is commercially viable—miners argue that lack of access
will affect commercial viability
• “While Congress has assigned to Interior authority to
adjudicate claim validity, it is free to allocate regulation
authority as it chooses and in [the WA] it has empowered
[USFS] to make decisions regarding a particular issue that
happens to have collateral consequences for claim
validity.” (P.1529)
• “The issue here concerns how an agency should treat a
putative claim during the interim while validity is being
assessed. Interior has taken one position, Agriculture
another, and we see no reason why such a divergence is
impermissible as a matter of law.” (P.1535)
 Thunderbolt
# 2 (acknowledged to be valid)
• Limited to pack animals and 5”
suction dredge; USFS tested
ability to take suction dredge in
on pack animal
• Miners limited to means
“essential” to operation or
“customarily used”; no evidence
of essential need nor customary
use of motorized access
Mining operation in Kalmiopsis Wilderness
• Access regulations did not
“materially interfere” with mining
claim

General provision: Section 1323(a), 16 USC 3210(a):
• “Notwithstanding any other provision of
law, and subject to such terms and
conditions as the Secretary of
Agriculture may prescribe, the
Secretary shall provide such access to
nonfederally owned land within the
boundaries of the National Forest
System as the Secretary deems
adequate to secure to the owner the
reasonable use and enjoyment thereof:
Provided, That such owner comply with
rules and regulations applicable to
ingress and egress to or from the
National Forest System.”
Denali Wilderness
• Has been interpreted to apply outside of Alaska. Mont.Wilderness
Ass’n v. USFS, 655 F.2d 951 (9th Cir. 1981).
 Similar
provision for Interior lands (§ 1323(b))
which apparently does not apply outside of
Alaska
 Also
specific access provisions regarding
subsistence uses—oddly, these have not been
litigated
 Absaroka Trust
(Johnson is trustee) seeks access
to lands under both WA § 5(a) and
ANILCA general provision
 USFS
finds that “hiking,
stock, and helicopter
access” existed and were
adequate for Trust’s
needs
 Not
entitled to most
convenient or desirable
access, only adequate
access
Speculator Rd., Absaroka-Beartooth Wilderness
 Access
subject to agency discretion in
many instances
 This
means evaluating access under
NEPA, ESA, NFMA, and other acts
 Individual
access for established uses are
where courts are most leery of
restrictions—consult agency counsel
Phone: (706) 542-5097
Email: appel@uga.edu