In a rebuke of the Wilderness Act's prohibition on motorized recreation, a federal judge in Georgia has ruled that its okay for the National Park Service (NPS) to conduct motor vehicle tours through the Cumberland Island Wilderness. The ruling came following nearly 18 months of unusual legal proceedings, and set up an almost certain showdown in the 11th Circuit Court of Appeals. In a separate decision, the judge postponed judgement day for a private concessionaire's jeep tours through the Wilderness.

Wilderness Watch and Public Employees for Environmental Responsibility (PEER) brought the lawsuit against the NPS after the agency purchased a 15-passenger van and started conducting sightseeing tours through the island's Wilderness and congressionally designated "potential wilderness," and after the park service issued a special use permit to the Greyfield Inn to run commercial jeep tours through the Wilderness. The most egregious of the park service tours includes driving 16 miles round trip through the Wilderness to visit an historic area called the "Settlement" on the north end of the island. The Settlement itself is not within the Wilderness, but is within the potential wilderness and can only be reached by traversing the Wilderness first. The other park service tours travel through 3 miles of potential wilderness to reach a non-wilderness enclave called Plum Orchard, an old Carnegie family building that sits on the edge of the island and is accessible by boat. The commericial Greyfield tours are not limited as to where they can drive and they routinely run throughout the Wilderness. Prior to our litigation neither the park service nor the Greyfield tours had ever been analyzed through an environmental review process or subject to public review.

In our complaint, Wilderness Watch and PEER argued that the park service tours through the Wilderness violated the Wilderness Act's prohibition against the use of motor vehicles, and that the tours to Plum Orchard violated congressional direction that the site be accessed by motorboat if feasible. Our complaint also argued that the commercially run Greyfield tours exceeded the Inn's legal rights and needed to be constrained.

A few months after the lawsuit was filed, NPS replaced its van tours to Plum Orchard with boat tours, precisely as our lawsuit sought to do. Thereafter, the government argued that our legal claim was moot. Wilderness Watch countered that could restart the van tours at any time, therefore a determination on the legality of the tours was still appropriate. The judge ruled that the cessation of the tours by NPS rendered our claim moot, but not without first admonishing NPS that any attempt to return to the van tours "would be difficult to justify…[and] is not reasonably likely to recur."

With respect to its motorized tours to the Settlement, the NPS claimed that the tours piggyback on "necessary" trips to maintain the old buildings, when in fact the record clearly shows that the genesis of the NPS trips was nothing more than a backroom deal made by the NPS, a local congressman who was holding hostage the park's budget, a few anti-wilderness island residents, and three conservation groups who bartered away the Wilderness in order to free funding for other island projects. NPS trip logs for the Settlement tours show that the only purpose of the trips has been sightseeing and wildlife viewing. Even if NPS was engaged in legitimate maintenance trips, Wilderness Watch argued that it was illegal to include recreationists in those tours.

In rationalizing his decision to let motorized tours through the Wilderness continue, the judge first opined that to find that NPS can't take visitors on tours as part of its administration of the Wilderness "might have a widespread and undesirable effect on parks administration, since it would call into question the NPS's authority to allow any private individual to ride along with a NPS employee engaged in necessary administrative tasks," even if those individuals are not involved in any way in the administrative task. (By the same logic, it would be perfectly okay for the Forest Service, for example, to conduct snowmobile tours through the Bob Marshall Wilderness or heli-skiing trips in the John Muir Wilderness provided the tours were part of a snow survey.) In explaining how these trips to maintain buildings outside the Wilderness have a necessary Wilderness purpose Judge Alaimo ruled that the "general purposes" of the park aren't changed by Wilderness designation, thus the Wilderness can be violated to achieve these other purposes.

As for our claims that the total lack of environmental analysis or public involvement prior to approving the trips violated the National Environmental Policy Act, the judge ruled that it was "harmless error."

Finally, with respect to our challenge to the Greyfield's commercial tours, the park service admitted during the course of the proceedings that the unrestricted tours violated the Wilderness Act. It agreed to prepare an environmental assessment and to limit driving to only those routes, if any, that the NPS determines the company has a prior existing legal right to drive. The draft EA was released in April 2003 and proposed to limit driving to a single road (the so-called Main Road) in the Wilderness. Further, during the course of the litigation Greyfield's permit expired, sothe judge ruled this claim moot as well, and remanded the remaining issues back to NPS for a determination as to the scope of Greyfield's rights. In the interim, NPS issued a permit to Greyfield that limits its driving to only the main road in the Wilderness where the company possibly has a legal right to conduct tours.

Despite the unfavorable rulings, the lawsuit has resulted in some important changes in the way the Wilderness and tours are administered. The NPS has ended its tours to Plum Orchard, and it has finally acknowledged that most of the areas visited by the Greyfield tours are within the Wilderness and therefore must be accessed by foot. If the NPS enforces these findings, and that's a BIG if on Cumberland, then the amount of vehicle use in the Wilderness will be substantially reduced.
Still we believe there are significant legal violations occuring in the administration of the Cumberland Island Wilderness and that both the action of the NPS and the district court represent an extraordinary affront to the National Wilderness Preservation System. We will continue to pursue this case through both administrative and legal channels.