| |
Victory on
the Wild Salmon River!
—
By George Nickas
In a major victory for wild and scenic river protection nationwide,
a federal court has ruled that three resorts on the Wild and Scenic
Salmon River in central Idaho must go. The ruling was handed down
on September 19, 2000 by U.S. Circuit Judge Sidney R. Thomas who
found that, “...the law is clear: the construction of permanent
resort lodges is not permitted in the Wild River corridor”
and is clearly “inconsistent with the Wild and Scenic Rivers
Act (WSRA).”
It was also a profound victory for Wilderness Watch. It was the
fight to stop these resorts that drove three long-time Wilderness
activists-Bill Worf, Roberta Hoe, and Jim Dayton- to organize Wilderness
Watch in 1989. It took 12 seemingly interminable years, 1,000’s
of pages of evidence and countless hours to finally put an end to
the illegal resorts.
“It’s a great victory for wild rivers and upholds Congress’
clear direction that they remain ‘vestiges of primitive America,’”
stated Missoula, Montana attorney Jack Tuholske, who represented
Wilderness Watch from the outset of the case.
The pivotal issue before the Court was whether permanent camps were
consistent with mandates of the WSRA, requiring that the river and
its shorelines must remain essentially primitive. The Court rejected
the Forest Service’s claim that “essentially primitive”
is ambiguous and thus subject to the agency’s interpretation.
The Court also rejected the Forest Service argument that the resorts
were allowed by the Central Idaho Wilderness Act (CIWA), which established
the Salmon Wild and Scenic River.
The importance of the victory can’t be overestimated. The Forest
Service argued in Court that it has the authority to approve similar
resorts along any one of our nations 57 Wild rivers that it is entrusted
with protecting. The Bureau of Land Management has also watched
this case because it has faced dozens of proposals for permanent
camps on Wild rivers in Alaska. The decision gives federal agencies
the mandate they need to say “no” to such developments.
The decision is also a tremendous step forward for restoring a piece
of this Wilderness. In a recently released draft management plan,
the Forest Service admitted that removing the three resorts would
restore a primitive recreation experience to 37 miles of the Salmon
River corridor.
The lawsuit had its origins in 1988 when the Forest Service allowed
outfitter Bill Guth to construct a lodge and several cabins at the
mouth of Smith Gulch within the corridor of the Salmon Wild and
Scenic River. By the time the Forest Service wrote an environmental
assessment the resort was already 75% complete.
That’s when Bill Worf, a retired Forest Service official and
former director of Wilderness for the agency’s northern region,
and two other citizens, Roberta Hoe and Jim Dayton, stepped in.
They first appealed the decision to the Chief of the Forest Service.
When the appeal was denied, they turned to national environmental
organizations for help in protecting the Wild Salmon. Finding no
support, they decided it was time to organize citizens around the
need to protect designated wildernesses and wild rivers...and Wilderness
Watch was born.
In 1991, after all administrative appeals were exhausted, Wilderness
Watch and Five Valleys Audubon filed suit against the Forest Service.
The lawsuit alleged that the Guth resort violated the Wild and Scenic
Rivers Act, which defines a Wild river as having “watersheds
or shorelines essentially primitive...[which] represent vestiges
of primitive America.” In court, the Forest Service quickly
conceded that its approval process was flawed and agreed to prepare
an environmental impact statement to reconsider whether its original
decision was correct. It later added two other Salmon River “camps”
at Arctic Creek and Stub Creek to the EIS analysis. Both camps were
permitted as temporary outfitter camps, but had been expanded without
authorization into small-scale resorts.
The EIS was completed in 1995 and the Forest Service granted 15-year
permits for all three resorts. Wilderness Watch returned to Court
asking for removal of the resorts. The case lay dormant from 1996
until July of this year when the Ninth Circuit Court of Appeals
assigned one of it’s judges to take over the case from the
district court. Judge Thomas expedited the review process and handed
down his decision in September, 2000.
In his decision, Judge Thomas described how the Salmon River country
had been designated part of two Primitive Areas in the 1930s, and
how the regulations governing Primitive Areas prohibited permanent
structures such as cabins and resorts. He noted that when Congress
designated the Salmon River as a wild and scenic river the special
use permits in force at that time permitted temporary camps only.
He found that Congress could not possibly have intended to allow
permanent camps to remain because Congress could only have assumed
that any existing camps were temporary as required by law. He flatly
rejected the Forest Service’s argument that Congress “grandfathered”
the resorts into the Wild River legislation, and he rejected the
agency’s argument that the resorts are compatible with the
Act’s requirement that shorelines remain “essentially
primitive” and as “vestiges of primitive America.”
In condemning the actions of former Salmon National Forest supervisor
Richard Hauff, Judge Thomas noted how former Bitterroot National
Forest supervisor Bob Morgan refused to co-sign the 1988 decision
allowing the Guth resort to be built after Morgan’s staff warned
him the resort violated the law. Morgan’s signature was sought
because while the river corridor is administered by the Salmon Forest
the resort site actually lies within the Bitterroot Forest. When
Morgan refused to sign, supervisor Hauff simply drafted a new signatory
page, this one requiring only the signature of the Salmon Forest
supervisor. Judge Thomas vindicated Morgan when he wrote, “The
analysis of the Bitterroot National Forest staff has been entirely
correct from the onset.”
What Happens Next?
As the Wilderness Watcher goes to press, we are awaiting word from
the government whether it will appeal the court’s ruling. Assuming
it does not, the Forest Service must move to eliminate the resorts.
We will push to ensure that they are removed expeditiously; that
the foot-dragging that started three decades ago comes to an end.
In a recent article in a Salmon, Idaho newspaper, U.S. Senator Mike
Crapo (R-ID) raised the specter of pushing legislation in Congress
to overturn the court’s ruling, though he acknowledged that
would take some time and be highly controversial. Ultimately, much
will depend on whether the Forest Service now turns its attention
to restoring the wild river or whether it will continue to promote
private economic interests at the public’s expense.
Death Valley Days
—
By TinaMarie Ekker
At 3.1 million acres, Death Valley Wilderness in California encompasses
95% of Death Valley National Park. Wilderness management issues
are currently on the table for public comment through December 8th
in the form of a revised draft general management plan released
by the park in July.
Major issues include use of motorized vehicles within the wilderness
to access private inholdings, livestock developments, and wildlife
water “guzzlers;” removal of non-native feral burros;
water rights; number, location, and maintenance of backcountry cabins;
continuation of cattle grazing in an extremely arid environment;
existence of numerous patented and unpatented mining claims; need
to identify all rights-of-way and their terms; lack of an official
map or legal description for the wilderness boundary; and impacts
caused by illegal motorized trespass into the wilderness aggravated
by the park’s lack of a completed road inventory and failure
to consider closure of unnecessary secondary roads.
Two other significant issues include a microwave tower and a proposal
to overlay much of the wilderness with a brand new land classification.
Tilting at Towers
The increasing use of cell phones
and internet access pose new potential risks to wilderness as telecommunications
companies seek out high peaks for tower placement. In July Wilderness
Watch filed a Freedom of Information Act request to obtain information
from Death Valley National Park regarding a 35 ft. microwave tower
located on Mormon Peak within the Death Valley Wilderness. The tower
is owned by Pacific Bell and supplies telecommunication services
to the park and other customers. In 1982, before Mormon Peak came
under Park Service jurisdiction, PacBell obtained a right-of-way
(ROW) from the BLM to operate the tower. The ROW stated that the
right was “temporary” and contingent upon the location’s
wilderness status: “If Congress designates the area as non-wilderness,
the grant will be issued for thirty years with the right to renew.”
This indicates that if Congress DID designate the land wilderness,
then the ROW would NOT extend to its full thirty-year term.
In 1994 Congress passed the California Desert Protection Act transfering
millions of acres of BLM lands, including Mormon Peak, to the Park
Service and designating the area as wilderness. Wilderness Watch
believes the ROW therefore expired in 1994 upon wilderness designation,
meaning that PacBell may no longer have any legal right to maintain
the Mormon Peak microwave tower within wilderness.
However, in response to a request by PacBell, park superintendent
Richard Martin granted PacBell permission in July to land helicopters
in the wilderness for purposes of adding new equipment to expand
the tower’s capacity and increase its height by 15 ft! Martin
also assured PacBell that the Park Service will soon issue a new
ROW, although national NPS wilderness management policy prohibits
the Park Service from issuing any new ROWs or extending an existing
ROW within wilderness. In September Wilderness Watch sent a letter
to Superintendent Martin requesting clarification of the basis for
his decision. We have not yet received a response.
On September 21 helicopter landings occurred at Mormon Peak, transporting
12 PacBell employees and two NPS employees. The public was not notified
of this motorized entry into wilderness. Expansion of the tower
is planned for later this fall or winter.
Concerns raised by Wilderness Watch and Public Employees for Environmental
Ethics (PEER) have convinced the Federal Communications Commission
to investigate PacBell’s current license for the Mormon Peak
tower. PacBell and the Park Service both failed to inform the FCC
that the tower was now within designated wilderness.
There are other locations outside of wilderness for relocation of
the Mormon Peak tower, although the tower might have to be higher
due to lower elevations. A potential proliferation of telecommunications
towers and blinking lights within wilderness is an incursion against
the Wilderness Act’s intent to provide the American people
with some places where an increasing population “does not occupy
and modify all areas,” places that still offer “contrast
with those areas where man and his works dominate the landscape.”
It’s also an affront to the Act’s prohibition on commercial
enterprise within Wilderness.
New Classification Proposed
The Timbisha Shoshone have lived in the Death Valley region for
centuries but, unlike other tribes, the federal government has never
set aside a reserved land base for them. To remedy this, the Secretary
of Interior released a draft Legislative EIS this summer proposing
to withdraw 7500 acres of BLM and national park lands in Death Valley
to be held in trust for the Tribe for a permanent homeland. The
proposal also calls for creating an unprecedented new land classification
across most of the park (outside the reservation) by designating
a “Timbisha Shoshone Natural and Cultural Preservation Area.”
Ninety-five percent of the Preservation Area would include existing
wilderness but the LEIS is vague regarding how the new classification
might affect wilderness management.
The overall purpose of the proposed Preservation Area is also ambiguous.
The LEIS states, “In recognition of the contributions of the
Tribe to the history, culture, and ecology of the region, the action
calls for the designation of a Timbisha Shoshone Natural and Cultural
Preservation Area.” This suggests that creation of this new
land classification would primarily be for interpretive purposes,
to highlight and honor the Tribe as integral inhabitants of Death
Valley. However, expanded interpretive efforts could easily be implemented
without need of an entirely new land classification on public lands.
Another concern is that the Preservation Area would be managed with
a jointly developed land management plan. It is not clear why the
Tribe should be given greater management involvement in public wilderness
beyond that granted to all other citizens and affected groups.
Although Wilderness Watch supports the proposal to transfer some
lands into trust for a permanent homeland for the Timbisha Shoshone,
we’ve raised concerns about establishing an unprecedented new
land classification on public lands until the precise purpose, implications,
and management directives for a “Natural and Cultural Preservation
Area” are clearly explained.
To comment on Death Valley issues:
Superintendent, Death Valley National Park
Death Valley, CA 92328
(760) 786-2331
For a United States Wilderness Service
—
By Michael Frome, PhD
Wilderness is at the heart of our
environment, as at the heart of our nation, as clearly manifest
in the Wilderness Act of 1964. Unfortunately, the public has been
led to believe by Congress, the federal agencies and national conservation
organizations that once an area is designated as Wilderness, everything
will be fine. In actual practice things don’t work that way,
except in news releases. Over the years I have been to Wildernesses
all across this country, but I haven’t seen a single one managed
as it should be in fulfillment of the letter or spirit of the Wilderness
Act.
I’ve seen Wildernesses in terrible condition, abused and degraded,
often as not by uncontrolled and inappropriate recreation, getting
worse rather than better, staffed by inadequate personnel inadequately
trained. What’s the point in establishing a Wilderness with
a sensible boundary if it’s not to be wild on the inside? If
you ask me, the shabby state of our Wilderness today is not a reflection
of good forestry, good park practice, good wildlife management,
good rangeland management, or good resource education.
Yes, there are able people at work, but they do their best against
heavy odds. Plenty of agency personnel are geared for commodity
production — timber, forage, minerals, oil and gas - and I
have no quarrel with that. But the attention agencies pay to Wilderness
is minuscule and holds little meaning. That holds equally for the
National Park Service as for the other agencies. Though allegedly
free of commodity pressures, park personnel are concentrated where
crowds and commercial concessionaires are located, while wild country
is neglected.
Now is the time for a serious new beginning that evokes life and
breath into the National Wilderness Preservation System. We need
to go beyond the chronic tokenism and to cut across agency borders
by establishing a new agency, to be called the United States Wilderness
Service. Let it be noted that no agency is responsible for a coordinated
approach, or to project Wilderness preservation beyond the scope
of federal lands, though people everywhere crave to save the remaining
primeval fragments. Since we pay people in government to serve mining,
grazing, timber and other interests of commodity production, why
not underwrite a cadre of men and women mandated to fulfill the
public’s Wilderness cause?
The Wilderness Service would undertake many missions now unmet,
which the agencies are either unwilling to perform or incapable
of performing.
It would prepare and publish a periodic inventory of the Wilderness
now reserved and survey opportunities to protect additional units
by all levels of government.
It would delineate the diverse values of Wilderness, of specific
ecological types, show how they can be saved, and report on threats
to them.
The Wilderness Act has furnished the technique for preservation
of large tracts of federal land. Some states have developed their
own initiatives from that foundation. Now there is need to identify
and to provide firm statutory protection for smaller tracts in urban
areas still relatively untouched. Determining how this can best
be done would be another function of the Wilderness Service.
The agency would be deeply involved in research covering ecology,
economics, utilization and human impact. Federal resource agencies
have conducted some studies in these fields, but they cannot yield
an ultimate understanding because their approach is too narrowly
directed and the efforts of their few Wilderness-oriented personnel
are circumscribed.
One subject demanding study and interpretation involves natural
fire, the wild force of nature. Too often the definition of fire
suppression and fire use objectives within Wilderness has been abdicated
to fire managers. Determining how much fire can and should be allowed
in a valid preservation system is a major challenge requiring extensive
research and dialogue beyond current bureaucracy and politics.
The Wilderness Service would also try to assess how much human use
an area can absorb without being destroyed. The population explosion
has come to the Wilderness, and with serious impacts of hiking and
camping on alpine flora, and of pack animals on meadows, trails
and campsites; of garbage disposal and its effects on the ecosystem;
and disposal of human waste.
Determining carrying capacity may be the simplest aspect of use.
How to impart to the visitor the sense of what Wilderness is all
about is a deeper issue. The federal agencies do not do this, or
do it poorly at most. How to use Wilderness as an educational document,
as well as a recreational resource, so that Americans respect and
appreciate the natural world around them would be a major focal
point of the Wilderness Service.
The new agency should not administer land, but constructively evaluate
the administration of Wilderness by the public land management agencies.
It should be established by Congress as an independent agency, like
the National Transportation Safety Board. The sooner that legislation
can be introduced and congressional hearings conducted the sooner
the condition of Wilderness will receive the attention it deserves
and desperately needs.
— Michael Frome has chronicled public lands management
for nearly four decades. His books include Regreening the National
Parks, Strangers in High Places, and Conscience of a Conservationist.
His 1974 classic, Battle for the Wilderness, was re-published in
1997. Frome currently serves on the Wilderness Watch Board of Directors.
Negotiations Fail to Reach Agreement on Rock Bolting
After
eight days of meetings spread over four months, wilderness advocates
and climbing interests failed to agree on whether climbers should
be allowed to install permanent “fixed” anchors when climbing
in Wilderness. The discussions were part of a formal “negotiated
rulemaking” process initiated by the Dept. of Agriculture to
resolve the decade-long dispute over the use of “bolts”
— steel expansion bolts drilled into cliff faces for use as
safety anchors — and other permanent equipment installed by
climbers. Removable protection such as nuts, cams, chocks, and most
pitons and nylon slings were not at issue, except where an accumulation
of such equipment is left behind. There were 22 national organizations,
business interests, academics and unaffiliated individuals represented
on the fixed anchor advisory committee. Most of the committee represented
climbing interests. Wilderness Watch was one of a handful of wilderness
advocacy groups represented.
The issue came to a head as a result of a 1997 management plan for
the Sawtooth Wilderness in Idaho. The Sawtooth Wilderness plan generally
prohibited new permanent fixed anchors because the Forest Supervisor
concluded that additional fixed anchors are “permanent improvements”
and to allow them “would be irresponsible and in violation
of the law.” The decision allowed the replacement of existing
permanent anchors and new anchors on existing routes provided the
climber first received a Forest Service issued special use permit.
Wilderness Watch appealed those portions of the decision that allowed
for new permanent anchors arguing that they are prohibited by the
Wilderness Act’s ban on permanent installations and structures.
Climbing groups also appealed the plan because they felt it was
too restrictive. On May 27, 1998, the Forest Service Chief ruled
in favor of Wilderness Watch’s appeal. The Chief’s decision
concluded that permanently placed fixed anchors are “installations”
in the meaning of section 4(c) of the Wilderness Act (16 U.S.C.
1133(c)) and are therefore prohibited in wilderness.
The Chief’s decision ignited a storm of protest from the climbing
community. Led by equipment retailer REI, climbers convinced Senator
Slade Gorton to attach a legislative “rider” to an appropriations
bill that would overturn the Chief’s decision. Wilderness Watch
and more than 40 other local, regional and national environmental
organizations challenged the rider. Eventually, a Department of
Agriculture Undersecretary struck a deal, agreeing to initiate the
negotiated rulemaking process in exchange for Gorton dropping his
rider. In an August 14, 1998 memo, Undersecretary Jim Lyons directed
the Forest Service Chief to suspend the agency’s fixed anchor
ban. He noted that Gorton’s rider “represent[s] an assault
on the Wilderness Act [and] our long-standing wilderness management
policy.”
The advisory committee conducted four two-day meetings, all of which
were open to the public. There was a lot of give and take, but in
the end we couldn’t come to an agreement over permanent anchors.
The group seemed to split between those who support climbing, but
put Wilderness first, and those who support Wilderness, but wanted
to carve out an exception for climbers. For our part, Wilderness
Watch and others argued that permanent fixed anchors are generally
prohibited by the Wilderness Act and could only be used if they
passed the strict test required by the law: the minimum required
for protecting Wilderness.
The Dept. of Agriculture is expected to publish a proposed regulation
in the Federal Register by the end of the year. Public comment will
be invited, and then a final Rule will be released. Wilderness Watch
will continue to work to see that the final Rule protects Wilderness
values and does not create exceptions in the Wilderness Act.
|
