Wilderness: Legislation and Issues in the 114th Congress
August 31, 2015
(R41610)
Jump to Main Text of Report
The 1964 Wilderness Act (16 U.S.C. §§1131-1136) established the National Wilderness Preservation System and directed that only Congress can designate federal lands as part of the system.1 Many believe that special areas should be designated to protect and preserve their unique values and characteristics, and bills are usually introduced in each Congress to designate wilderness areas. Others oppose such legislation because commercial activities, motorized access, and roads, structures, and facilities generally are prohibited in wilderness areas. Debate over wilderness bills introduced in the 114th Congress may follow this pattern, especially as to how those prohibited activities affect law enforcement in wilderness areas along U.S. national borders.
This report presents background information on wilderness protection and a discussion of issues in the wilderness debate—the pros and cons of wilderness designation generally; possible considerations for specific legislation; and a discussion of possible wilderness study area designation and protection. This report also tracks the status of legislation introduced in the 114th Congress to designate new wilderness or release wilderness study areas. Tables of legislation from the 113th Congress are provided in Appendix A of this report.
The Wilderness Act and Subsequent Designations
The Wilderness Act established a National Wilderness Preservation System of federal lands, initially with 54 wilderness areas containing 9.1 million acres of federal land within the national forests. It reserved to Congress the authority to add areas to the system, although agencies were given the authority to review the wilderness potential of certain lands. This congressional authority is based on what is known as the Property Clause of the Constitution, which gives to Congress the "Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States."2
The Wilderness Act and more than one hundred subsequent laws have designated wilderness areas. As of January 1, 2015, the National Wilderness Preservation System totaled 762 areas, with nearly 110 million acres.3 The 113th Congress added approximately 279,907 acres to the system by either adding new wilderness areas or expanding existing areas.4 The wilderness areas are part of existing units of federal land administered by the several federal land management agencies—the Forest Service in the Department of Agriculture, and the National Park Service (NPS), Fish and Wildlife Service (FWS), and Bureau of Land Management (BLM) within the Department of the Interior. Thus, statutory provisions for these agencies' lands, as well as the Wilderness Act and the subsequent wilderness statutes, govern the administration of the designated wilderness areas.
Wilderness designations can be controversial because the Wilderness Act restricts the allowed uses of the land within designated areas. In general, the Wilderness Act prohibits commercial activities, motorized access, and roads, structures, and facilities in wilderness areas. Specifically, Section 4(c) states:
Except as specifically provided for in this Act, and subject to existing private rights, there shall be no commercial enterprise and no permanent road within any wilderness area designated by this Act and, except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act (including measures required in emergencies involving the health and safety of persons within the area), there shall be no temporary road, no use of motor vehicles, motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport, and no structure or installation within any such area.5
This section thus prohibits most commercial resource exploitation (such as timber harvesting) and motorized entry (via cars, trucks, off-road vehicles, aircraft, or motorboats) except for "minimum requirements" to administer the areas and in emergencies. However, Section 4(d) provides numerous exceptions, including (a) possible continued use of motorboats and aircraft; (b) measures to control fires, insects, and diseases; (c) mineral prospecting conducted "in a manner compatible with the preservation of the wilderness environment"; (d) water projects; (e) continued livestock grazing; and (f) commercial recreation activities. Subsequent wilderness statutes have included additional provisions for administering those wilderness areas, including exceptions to the general Wilderness Act prohibitions.6
Valid existing rights established prior to the designation of an area as wilderness remain, unless Wilderness: Legislation and Issues
in the 114th Congress
Katie Hoover
Analyst in Natural Resources Policy
Kristina Alexander
Legislative Attorney
Sandra L. Johnson
Information Research Specialist
January 12, 2015
Congressional Research Service
7-5700
www.crs.gov
R41610
Wilderness: Legislation and Issues in the 114th Congress
Summary
The Wilderness Act of 1964 established the National Wilderness Preservation System and
directed that only Congress can designate federal lands as part of the system. Free-standing bills
to designate wilderness areas are typically introduced and considered in each Congress; such bills
are not amendments to the Wilderness Act, but typically refer to the act for management guidance
and sometimes include special provisions. Numerous wilderness bills were introduced in the 112th
Congress, but it was the first Congress since 1966 that did not add to the wilderness system. The
only wilderness law that was enacted in the 112th Congress reduced the size of a wilderness area.
At the end of the 113th Congress, multiple wilderness designations and expansions were included
in the National Defense Authorization Act for FY2015 (NDAA) (P.L. 113-291, §§3060-3062,
3064-3066). The NDAA expanded or created wilderness in five states: Colorado, Montana,
Nevada, New Mexico, and Washington.
Wilderness designation can be controversial. The designation generally prohibits commercial
activities, motorized access, and human infrastructure from wilderness areas; however, there are
several exceptions to this general rule. Advocates propose wilderness designations to preserve the
generally undeveloped conditions of the areas. Opponents see such designations as preventing
certain uses and potential economic development in rural areas where such opportunities are
relatively limited.
Most bills direct management of designated wilderness in accordance with the Wilderness Act.
However, proposed legislation also often seeks a compromise among interests by allowing other
activities in the area. Pre-existing uses or conditions are often allowed to continue, sometimes
temporarily, with nonconforming uses to be halted and/or nonconforming conditions to be
rectified. More commonly, the authority is permanent, with limited access permitted for specific
areas, uses, and times, or with the authority to operate and maintain pre-existing infrastructure.
Wilderness bills often contain additional provisions, such as providing special access for
particular purposes, for example, border security. Water rights associated with wilderness
designations have also proved controversial; many statutes have addressed wilderness water
rights.
Controversies regarding management of existing wilderness areas also have been the subject of
legislation. Bills have been introduced to expand access to wilderness areas for border security; to
guarantee access for hunting, fishing, and shooting; to release wilderness study areas from
wilderness-like protection; and to limit agency review of the wilderness potential of their lands.
The latter two issues have been contentious for Bureau of Land Management (BLM) lands
because BLM is required by law to protect the wilderness characteristics of its wilderness study
areas (WSAs) until Congress determines otherwise.
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Wilderness: Legislation and Issues in the 114th Congress
Contents
The Wilderness Act and Subsequent Designations .......................................................................... 1
Debate Surrounding Wilderness Designations .......................................................................... 2
Issues for Congress .......................................................................................................................... 3
Bills Designating Wilderness Areas .......................................................................................... 3
Management in Accordance with the Wilderness Act ............................................................... 4
Hunting, Fishing, and Recreational Shooting ..................................................................... 5
Non-Conforming Uses or Conditions.................................................................................. 5
Wilderness and Border Security ................................................................................................ 7
Legislative Action ............................................................................................................... 9
Wilderness Study Areas and Reviews for Wilderness Potential ................................................ 9
Forest Service Wilderness Considerations .......................................................................... 9
BLM Wilderness Review .................................................................................................. 10
Legislative Action ............................................................................................................. 12
Tables
Table A-1. 113th Congress: Bills to Designate Wilderness Areas .................................................. 13
Table A-2. 113th Congress: Bills to Release Wilderness Study Areas ............................................ 16
Table B-1. 112th Congress: Bills to Designate Wilderness Areas .................................................. 18
Appendixes
Appendix A. 113th Congress Wilderness Legislation..................................................................... 13
Appendix B. 112th Congress Wilderness Legislation..................................................................... 18
Appendix C. Border Security Bills Affecting Wilderness ............................................................. 20
Contacts
Author Contact Information........................................................................................................... 21
Acknowledgments ......................................................................................................................... 21
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Wilderness: Legislation and Issues in the 114th Congress
T
he 1964 Wilderness Act (16 U.S.C. §§1131-1136) established the National Wilderness
Preservation System and directed that only Congress can designate federal lands as part of
the system.1 Many believe that special areas should be designated to protect and preserve
their unique values and characteristics, and bills are usually introduced in each Congress to
designate wilderness areas. Others oppose such legislation because commercial activities,
motorized access, and roads, structures, and facilities generally are prohibited in wilderness areas.
If wilderness bills are introduced in the 114th Congress, debate may follow this pattern, especially
as to how those prohibited activities affect law enforcement in wilderness areas along U.S.
national borders.
This report presents background information on wilderness protection and a discussion of issues
in the wilderness debate—the pros and cons of wilderness designation generally; possible
considerations for specific legislation; and a discussion of possible wilderness study area
designation and protection. This report will also track the status of legislation introduced in the
114th Congress to designate new wilderness or release wilderness study areas. Tables of
legislation from the 113th and 112th Congresses are in Appendix A and Appendix B of this
report, respectively.
The Wilderness Act and Subsequent Designations
The Wilderness Act established a National Wilderness Preservation System of federal lands,
initially with 54 wilderness areas containing 9.1 million acres of federal land within the national
forests. It reserved to Congress the authority to add areas to the system, although agencies were
given the authority to review the wilderness potential of certain lands. This congressional
authority is based on what is known as the Property Clause of the Constitution, which gives to
Congress the “Power to dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States.”2
The Wilderness Act and more than one hundred subsequent laws have designated wilderness
areas. As of January 1, 2015, the National Wilderness Preservation System totaled 762 areas, with
nearly 110 million acres.3 The 113th Congress added approximately 279,907 acres to the system
by either adding new wilderness areas or expanding existing areas.4 The wilderness areas are part
of existing units of federal land administered by the several federal land management agencies—
the Forest Service in the Department of Agriculture, and the National Park Service (NPS), Fish
and Wildlife Service (FWS), and Bureau of Land Management (BLM) within the Department of
the Interior. Thus, statutory provisions for these agencies’ lands, as well as the Wilderness Act and
the subsequent wilderness statutes, govern the administration of the designated wilderness areas.
1
This report does not address the administrative, legislative, and judicial actions related to national forest roadless
areas, which some observers believe were an administrative attempt to create wilderness; see CRS Report RL30647,
National Forest System (NFS) Roadless Area Initiatives.
2
Art. IV, §3, cl. 2.
3
See CRS Report RL31447, Wilderness: Overview and Statistics.
4
See P.L. 113-87 (Sleeping Bear Dunes, MI), and P.L. 113-291, §§3060-3062, 3064-3066 (Alpine Lakes Wilderness,
WA; Columbine-Hondo Wilderness, NM; Wheeler Peak Wilderness, NM; Hermosa Creek Wilderness, CO; Pine Forest
Range Wilderness, NV; Bob Marshall Wilderness, MT; Scapegoat Wilderness, MT; Wovoka Wilderness; NV.) The
acreage is approximate, as the statute does not contain precise acreage for each area.
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Wilderness: Legislation and Issues in the 114th Congress
Wilderness designations can be controversial because the Wilderness Act restricts the allowed
uses of the land within designated areas. In general, the Wilderness Act prohibits commercial
activities, motorized access, and roads, structures, and facilities in wilderness areas. Specifically,
Section 4(c) states:
Except as specifically provided for in this Act, and subject to existing private rights, there shall be
no commercial enterprise and no permanent road within any wilderness area designated by this
Act and, except as necessary to meet minimum requirements for the administration of the area for
the purpose of this Act (including measures required in emergencies involving the health and
safety of persons within the area), there shall be no temporary road, no use of motor vehicles,
motorized equipment or motorboats, no landing of aircraft, no other form of mechanical transport,
and no structure or installation within any such area.5
This section thus prohibits most commercial resource exploitation (such as timber harvesting) and
motorized entry (via cars, trucks, off-road vehicles, aircraft, or motorboats) except for “minimum
requirements” to administer the areas and in emergencies. However, Section 4(d) provides
numerous exceptions, including (a) possible continued use of motorboats and aircraft; (b)
measures to control fires, insects, and diseases; (c) mineral prospecting conducted “in a manner
compatible with the preservation of the wilderness environment”; (d) water projects; (e)
continued livestock grazing; and (f) commercial recreation activities. Subsequent wilderness
statutes have included additional provisions for administering those wilderness areas, including
exceptions to the general Wilderness Act prohibitions.6
Valid existing rights established prior to the designation of an area as wilderness remain, unless
expressly modified by the wilderness statute. The phrase valid existing rights means that the
designation does not alter property rights, and does not suggest that all uses prior to the
designation are allowed. There must be a property right, rather than a general right of use. Courts
have consistently interpreted
“"subject to valid existing rights
”" to mean that the wilderness
designation is not intended to take property in violation of the Fifth Amendment of the
Constitution.
77 Ownership of land within a wilderness area would confer existing rights.
While most uses—timber harvesting, livestock grazing, motorized recreation—are not rights to
the lands and resources, the mining and mineral leasing laws do provide a process for establishing
rights to the mineral resources. The Wilderness Act allowed implementation of these laws through
1983 for the original areas designated; many subsequent laws explicitly withdrew the designated
areas from availability under these laws. Three statutes—P.L. 97-466
, , P.L. 101-628, and P.L.
10377103-77—directed that mineral leases within the wilderness be acquired through exchanges for mineral
leases elsewhere.
Debate Surrounding Wilderness Designations
Proponents of adding wilderness generally seek designations of specific areas to preserve the
areas in their current condition and to prevent development activities from altering their
5
16 U.S.C. §1133(c).
For more information, see CRS Report R41649, Wilderness Laws: Statutory Provisions and Prohibited and Permitted
Uses.
7
See Stupak-Thrall v. United States, 89 F.3d 1269, 1280 (6th Cir. 1996), and Utah v. Andrus, 486 F. Supp. 995, 1010
(D. Utah 1979).
6
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Wilderness: Legislation and Issues in the 114th Congress
wilderness character. Most areas protected as or proposed for wilderness are undeveloped, with
few (if any) signs of human activity, such as roads and structures. The principal benefit of a
wilderness designation is to maintain such undeveloped conditions and the values that such
conditions generate—clean water, undisturbed wildlife habitats, natural scenic views,
opportunities for nonmotorized recreation (e.g., backpacking), unaltered research baselines, and
for some, the simple knowledge of the existence of such pristine places. These conditions and
values may be constrained by existing rights and other exceptions and exemptions provided for
specific areas by Wilderness Act prohibitions and restrictions on development and access.
Opponents of wilderness generally seek to retain development options for federal lands. The
potential use of lands and resources can provide economic opportunities in extracting and
developing the resources, especially in the relatively rural communities in and around the federal
lands. The principal cost of a wilderness designation is the lost opportunity for economic activity
resulting from resource extraction and development. While some economic activities, such as
grazing and outfitting, are allowed to continue within wilderness areas, many are prohibited. The
potential losses (opportunity costs) for some resources, such as timber harvesting, can be
determined with relative accuracy, since the quality and quantity of the resource can be measured.
However, for other resources, particularly minerals, the assessments of the quality and quantity of
the unavailable resources are more difficult to determine, and thus the opportunity costs are less
certain.
The potential benefits and opportunity costs of wilderness designation can rarely be fully
quantified and valued. Thus, decisions about wilderness generally cannot be based on a clear
cost-benefit or other economic analysis. Rather, deliberations commonly focus on trying to
maximize the benefits of preserving pristine areas and minimize the resulting opportunity costs.
However, the individuals and groups who benefit from wilderness designations may differ from
those who may be harmed by the lost opportunities, increasing conflict and making compromise
difficult. Wilderness designations are not necessarily permanent. Congress has statutorily deleted
lands from 18 wilderness areas, commonly to adjust boundaries to delete private lands or roads
included inadvertently in the original designation. Thus, changes can be made if subsequent
information shows a wilderness designation should be altered.
Issues for Congress
In general, Congress addresses several issues when drafting and considering new wilderness bills.
These issues include the general pros and cons of wilderness designation and specific provisions
regarding management of wilderness areas to allow or prohibit certain uses.
Bills Designating Wilderness Areas
The first step in developing legislation to designate wilderness areas is to choose which areas to
designate. While the Wilderness Act requires areas of at least 5,000 acres for future designations,
8
8 no minimum size is required for designations made under new legislation. As a result, wilderness
areas have taken all shapes and sizes; the smallest is the Pelican Island Wilderness in Florida,
with only 5½ acres, while the largest is the Mollie Beattie Wilderness (Arctic National Wildlife
8
16 U.S.C. §1132(c).
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Wilderness: Legislation and Issues in the 114th Congress
Refuge) in Alaska, with 8.0 million acres. Many wilderness statutes have designated a single area,
or even a single addition to an existing area. Others have designated more than 70 new areas or
additions in a single statute. Some bills address a particular area, while others address all likely
wilderness areas for a state or sub-state region (e.g., the California desert), usually for one
agency’ agency's lands, although occasionally for two or more agencies
’' lands in the vicinity. Typically,
the bill references a particular map for each area, and directs the agency to file a map with the
relevant committees of Congress after enactment, and to retain a copy in relevant agency offices
(commonly a local office and/or the DC headquarters).
Numerous bills to designate wilderness areas are usually introduced in each Congress. For
example, 33 bills that would have designated wilderness areas (plus 13 companion bills) were
introduced in the
111th Congress.9111th Congress.9 One was enacted—the Omnibus Public Land Management Act
of 2009, P.L. 111-11. It included 16 subtitles (many of which had been introduced in individual
wilderness bills in the
110th and 111th110th and 111th Congresses) designating 2,050,964 acres of wilderness in
various locales, as well as including numerous land, water, and other provisions. The
112th
112th Congress was the first in decades not to designate additional wilderness; the only wilderness law
that was enacted reduced the size of a wilderness area in the state of Washington and transferred
the land to the Quileute Indian Tribe.
10
In the 113th10 In the 113th Congress,
over 30 more than 30 wilderness bills were introduced
to expand U.S. wilderness holdings, several
, several of which were included in P.L. 113-291, designating approximately 247,152 acres in new or
expanded wilderness areas in five western states. Congress also enacted one stand-alone bill
designating 32,500 acres of wilderness in Michigan. See Appendix A for an alphabetical list of
legislation introduced and those bills enacted into law.
Management in Accordance with the Wilderness Act
Most bills direct that the designated areas are to be managed in accordance with the Wilderness
Act, meaning human impacts, such as commercial activities, motorized and mechanical access,
and infrastructure developments, are generally prohibited. The land management agency may
allow an otherwise prohibited use in order to meet the minimum requirements necessary for
administration of the area.11 The Wilderness Act does allow some activities that affect the natural
condition of the property, such as access for emergencies and for minimum management
requirements; activities to control fires, insects, and diseases; livestock grazing; and presidentially
authorized water projects. Subject to valid existing rights, wilderness areas are withdrawn from
the public land laws and the mining and mineral leasing laws. Acquisition of nonfederal lands is
authorized from willing sellers, and “reasonable access” to nonfederal lands within the wilderness
area must be accommodated. State jurisdiction over and responsibilities for fish and wildlife and
water rights are unaffected.
9
For information on these bills from the 111th Congress, see CRS Report R40237, Federal Lands Managed by the
Bureau of Land Management (BLM) and the Forest Service (FS): Issues in the 111th Congress.
10
Although 41 bills to designate wilderness were introduced in the 112th Congress, see Appendix B, no new
wilderness areas were created for the first time since the 89th Congress (1965-1967). P.L. 112-97 reduced the
wilderness area in Olympic National Park by 222 acres, transferring the land to an Indian tribe.
11
16 U.S.C. §1133(c).
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Wilderness: Legislation and Issues in the 114th Congress
Hunting, Fishing, and Recreational Shooting
The Wilderness Act provides that the area will be managed, in part, for recreational use.12
Accordingly, wilderness areas are generally open to hunting and fishing, although motorized
vehicles, which may be helpful in removing big game from remote areas, are typically forbidden.
Based on the activities of earlier Congresses, the 114th Congress may look at how wilderness
areas are managed for hunting and fishing.
Both the 112th and the 113th Congresses introduced legislation to require wilderness areas to be
open for hunting, fishing, and recreational shooting. The Sportsmen’s Heritage Act of 2012, H.R.
4089, §104(e) (112th Congress) could have changed wilderness area management, perhaps
opening wilderness areas to any activity that related to hunting and fishing, such as motorized
transport, even if otherwise inconsistent with wilderness values. H.R. 1825 (113th Congress) also
could have changed wilderness administration by changing the standard by which land
management agencies determine when lands should be closed to certain activities. H.R. 1825
would have prohibited the land management agency from closing lands except where closure is
supported by the best scientific evidence, a different standard than required by the Wilderness
Act.13 In contrast, the Recreational Fishing and Hunting Heritage and Opportunities Act, S. 170
(113th Congress), would have ensured that wilderness areas managed by BLM or the Forest
Service could be closed to hunting and fishing where “necessary and reasonable and supported by
facts and evidence.”14 The bill stated that it would not allow motorized vehicle access for those
activities. Three of the wilderness areas designated or expanded by P.L. 113-291 authorize periods
when or zones where the wilderness may be closed to hunting, fishing, and trapping for safety
and administrative reasons.15 This or similar language has been included in several previous
wilderness designations and also is authorized under the Wilderness Act in general, which directs
agencies to preserve the wilderness character of the areas, leaving them unimpaired for future
generations.
Non-Conforming Uses or Conditions16
Lands do not have to be untouched by humans to be eligible for statutory designation as
wilderness. Enabling legislation could terminate or accommodate any non-conforming uses or
conditions. Existing wilderness statutes have directed immediate termination of non-conforming
uses or have allowed such uses to continue for a specified period. Similarly, existing statutes
typically have provided the agencies a specified period for removing, remediating, or restoring
non-conforming conditions or infrastructure. Alternatively, many non-conforming uses and
conditions have been permitted to remain in designated wilderness areas. The Wilderness Act
explicitly allowed continued motorized access by aircraft and motorboats in areas where such
uses were already established. Numerous wilderness statutes have permitted existing
infrastructure (e.g., cabins, water resource facilities, telecommunications equipment) to remain,
and have authorized occasional motorized access to operate, maintain, and replace the
12
16 U.S.C. §1133(b)
H.R. 1825, §4(a)(3).
14
S. 170, §3(d)(2).
15
The wilderness areas are the Columbine-Hondo, Pine Forest Range, and Wovoka wilderness areas. P.L. 113-291
§3061(g); §3064(e); and §3066(d), respectively.
16
For a discussion on uses in wilderness statutes, see CRS Report R41649, Wilderness Laws: Statutory Provisions and
Prohibited and Permitted Uses, by Kristina Alexander and Katie Hoover.
13
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Wilderness: Legislation and Issues in the 114th Congress
infrastructure. A few statutes have also allowed new infrastructure developments (e.g.,
telecommunications equipment and a space energy laser facility) within designated wilderness
areas. While such authorizations are usually for a specific area, some statutes have provided more
general exemptions, such as for maintaining grazing facilities or for fish and wildlife management
by a state agency in all areas designated in the statute.
Courts have looked narrowly at exceptions to permitted uses. Accordingly, broad legislative
language to continue excepted uses could be interpreted by courts in a way not intended. For
example, in one case, the law creating a wilderness specifically allowed the management agency
to “upgrade, maintain and replace” one structure. The court held that did not mean that Congress
intended preservation of other similar structures in that wilderness.17 In another case, the Eleventh
Circuit stated that unless the enabling legislation permitted it, maintenance and preservation of
structures, even those deemed historic, could not be permitted: “Congress wrote the wilderness
rules and may create exceptions as it sees fit. Absent these explicit statutory instructions,
however, the need to preserve historical structures may not be inferred from the Wilderness Act
nor grafted onto its general purpose.”18
A law enacted in the 113th Congress, P.L. 113-99, requires the Forest Service to operate and
maintain the Green Mountain Lookout in the Glacier Peak Wilderness in Washington. The
lookout is on the National Register of Historic Places, and at one point was fully disassembled
due to damage.19 In 2012, a federal court ruled that maintaining the structure was contrary to the
Wilderness Act and ordered it removed.20 P.L. 113-99 reverses that decision.
Buffer Zones
Many existing wilderness statutes have addressed management outside of the designated
wilderness area. For example, some legislation has also proposed prohibiting buffer zones around
the wilderness area, contending that the management of adjoining lands would be altered by the
presence of wilderness. Such provisions direct that non-conforming activities can occur up to the
wilderness boundary, and that the ability to see or hear a non-conforming activity from within the
wilderness is not a reason to prohibit the activity.
Special Access
Various existing wilderness statutes have included special access provisions for particular needs.
For example, statutes designating wilderness areas along the Mexican border commonly have
allowed motorized access for law enforcement and border security. (See “Wilderness and Border
Security” below.) Similarly, several statutes have included provisions addressing possible military
needs in and near the designated areas, particularly for low-level military training flights. Other
statutes have contained provisions allowing particular access for tribal, cultural, or other local
needs. Several statutes have included provisions authorizing the agencies to prevent public
access, usually temporarily and for the minimum area needed, to accommodate particular needs.
17
Olympic Park Associates v. Mainella, No. C04-5732, 2005 WL 1871114 (W.D. Wash. August 1, 2005).
Wilderness Watch v. Mainella, 375 F.3d 1085, 1092 (11th Cir. 2004).
19
See Forest Service, Mt. Baker-Snoqualmie National Forest website at http://www.fs.usda.gov/recarea/mbs/
recreation/recarea/?recid=41669.
20
Wilderness Watch v. Iwamoto, 853 F. Supp. 2d 1063 (W.D. Wash. 2012).
18
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Reserved Water Rights
Under the so-called Winters doctrine, based on the Supreme Court decision of that name, when
Congress reserves federal land for a particular purpose, it also reserves enough water to fulfill the
purpose of the reservation.21 Initial wilderness designations were seen as having a minimal effect
on water rights, as they were made in national forests, which are congressional reservations of
federal land and often included the headwaters of affected rivers and streams. Section 4(d)(7) of
the Wilderness Act explicitly stated that the wilderness designations did not “constitute an express
or implied claim or denial … as to exemption from State water laws.” Water is particularly an
issue for BLM lands, since many BLM lands are public domain lands (acquired by the federal
government from a foreign sovereign) that were not reserved by Congress. Furthermore, as BLM
lands often do not contain the headwaters of streams (in contrast to the national forests), upstream
diversions can affect the water flowing through a wilderness area. Wilderness statutes have taken
various approaches to water rights.22 Congress may consider addressing federal water rights in
wilderness legislation, especially for places that have water availability constraints.
Wilderness and Border Security
One issue that has received attention from some Members of Congress in recent years is the
impact on border security of the Wilderness Act and other federal laws governing land and
resource management.23 Many are concerned that wilderness areas abutting and near the Mexican
border are conduits for illegal aliens and drug trafficking because limitations on motorized access
may restrict apprehension efforts.
There are 15 designated wilderness areas within about 20 miles of the Mexican border. However,
only 5 actually abut the border (for approximately 96 linear miles).24 As noted above, the
Wilderness Act authorizes motorized access for emergencies and administrative needs, but does
not describe what is meant by “administrative needs.” The act is silent on access specifically for
border security, but some actions related to controlling drug trafficking and illegal immigration
might be considered administrative needs or emergencies. Language within a specific enabling
statute may be more specific.
The first explicit language on the issue of wilderness access for border security was in Title III of
the Arizona Desert Wilderness Act of 1990 (P.L. 101-628). Section 301(g) directs that
Nothing in this title, including the designation as wilderness of lands within the Cabeza Prieta
National Wildlife Refuge shall be construed as (1) precluding or otherwise affecting continued
21
Winters v. United States, 207 U.S. 564 (1908). See also CRS Report R41081, The Wild and Scenic Rivers Act
(WSRA): Protections, Federal Water Rights, and Development Restrictions, by Cynthia Brown, for a discussion of
federal reserved water rights in similarly protected areas.
22
For more information, see also CRS Report R41649, Wilderness Laws: Statutory Provisions and Prohibited and
Permitted Uses.
23
Other laws commonly cited as potentially impeding efforts to halt drug traffic and illegal aliens include the National
Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) because they require an assessment of
impacts prior to the activity’s being authorized.
24
Of the five wilderness areas that abut the border with Mexico, two are in California (the Otay Mountain Wilderness
(3.25 mi) and Jacumba Wilderness (9.5 mi), both managed by the BLM), and three are in Arizona (the Cabeza Prieta
Wilderness (37.5 mi) managed by the FWS, the Organ Pipe Cactus Wilderness (42 mi) managed by the NPS, and the
Pajarita Wilderness (3.75 mi) managed by the Forest Service). Mileage calculated by CRS from the National Atlas.
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border operations ... within such refuge, in accordance with any applicable interagency
agreements in effect on the date of enactment of this Act; or (2) precluding … new or renewed
agreements ... concerning ... border operations within such refuge, consistent with management of
the refuge for the purpose for which such refuge was established.
The California Desert Protection Act of 1994 (P.L. 103-433) also contains explicit guidance on
border security for all designated areas, including one adjacent to the Mexican border and six
others within about 20 miles of the border. Section 103(g) directs that
Nothing in this Act, including the wilderness designations ... may be construed to preclude
Federal, State, and local law enforcement agencies from conducting law enforcement and border
operations as permitted before the date of enactment of this Act, including the use of motorized
vehicles and aircraft, on any lands designated as wilderness by this Act.
The most recent statute designating a border-adjacent wilderness area, the Otay Mountain
Wilderness Act of 1999 (P.L. 106-145), also addresses border security. The act requires the
southern boundary of the wilderness to be at least 100 feet from the border. Also, Section 6(b)
allows border operations to continue consistent with the Wilderness Act:
Because of the proximity of the Wilderness Area to the United States-Mexico international
border, drug interdiction [and] border operations ... are common management actions throughout
the area.... This Act recognizes the need to continue such management actions so long as such
management actions are conducted in accordance with the Wilderness Act and are subject to such
conditions as the Secretary considers appropriate.
Concerns about access limitations to wilderness areas (and other legal constraints that apply more
broadly to federal lands) persist. On April 15, 2011, the House Natural Resources Subcommittee
on National Parks, Forests, and Public Lands and the House Oversight and Government Reform
Subcommittee on National Security, Homeland Defense, and Foreign Operations held a joint
hearing on the issues.25 The Government Accountability Office (GAO) testified, based on two
reports from late 2010.26 GAO noted that most border officials reported that any delays and
restrictions reported in border security operations did not affect security:
[D]espite the access delays and restrictions experienced by these [Border Patrol] stations, 22 of
the 26 patrol agents-in-charge reported that the overall security status of their jurisdiction had not
been affected by land management laws. Instead, factors such as the remoteness and ruggedness
of the terrain have had the greatest effect on their ability to achieve operational control in these
areas. Four patrol agents-in-charge reported that delays and restrictions had affected their ability
to achieve or maintain operational control, but they either had not requested resources for
increased or timelier access or their requests had been denied by senior Border Patrol officials
because of higher priority needs of the agency.
25
See http://naturalresources.house.gov/Calendar/EventSingle.aspx?EventID=234828.
U.S. Government Accountability Office, Southwest Border: Border Patrol Operations on Federal Lands, GAO-11573T, April 15, 2011, http://www.gao.gov/new.items/d11573t.pdf. See also GAO, Southwest Border: More Timely
Border Patrol Access and Training Could Improve Security Operations and Natural Resource Protection on Federal
Lands, GAO-11-38, October 2010, http://www.gao.gov/new.items/d1138.pdf; and GAO, Border Security: Additional
Actions Needed to Ensure a Coordinated Federal Response to Illegal Activity on Federal Lands, GAO-11-177,
November 2010, http://www.gao.gov/new.items/d11177.pdf.
26
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Wilderness: Legislation and Issues in the 114th Congress
Legislative Action
Bills were introduced in the 112th and 113th Congresses to reduce the potential restrictions of the
Wilderness Act and other federal statutes on border security activities, such as by waiving the
Wilderness Act to allow construction activities such as roads and structures; however, none of the
bills were enacted. See Appendix C for a discussion of those bills.
Wilderness Study Areas and Reviews for Wilderness Potential
DOI and FS have different requirements to assess the wilderness characteristics and potential of
the lands they manage. The 114th Congress may consider when and whether the agencies can and
must review the wilderness potential of their lands, and how those lands are managed. Some
believe that these wilderness study areas and roadless areas are improperly managed as
wilderness, restricting development opportunities, despite lacking congressional designation as
wilderness. Others note that the Federal Land Policy and Management Act (FLPMA)27 and
regulations dictate that certain areas must be managed to preserve their wilderness potential.
A controversial DOI order from December 2010, perceived by some as expanding wilderness
protection by BLM to non-designated lands, stimulated debate in the 112th Congress.28 The order
directed BLM to protect wilderness characteristics through land use planning. Funding for the
policy was removed in the FY2011, FY2012, FY2014, and FY2015 annual appropriations acts,29
despite the order being formally revoked by the Secretary of the Interior in June 2011.30
Forest Service Wilderness Considerations
The Forest Service is required to review the National Forest System for potential wilderness areas
during the development and revision of land and resource management plans (also known as
forest plans), approximately every 15 years.31 In the 1970s and 1980s, the agency conducted two
reviews—known as the Roadless Area Review and Evaluation (RARE) I and II—that resulted in
some, but not all, of these inventoried roadless areas being recommended for a wilderness
designation in January 1979.32 However, a successful judicial challenge to those
recommendations by the state of California33 led to uncertainty over the validity of the RARE II
recommendations and to disputes over the need to protect the wilderness characteristics of the
reviewed areas. Congress released the Forest Service from the duty of reviewing wilderness
potential in the initial forest plans and from preserving the wilderness characteristics of areas not
27
P.L. 94-579, 43 U.S.C. §§1701 et seq.
DOI Secretary Order No. 3310 (Dec. 22, 2010).
29
FY2011: P.L. 112-10, §1769; FY2012: P.L. 112-74, §125; FY2014: P.L. 113-76, Division G, Title I, §124; P.L. 113235, Division F, Title I, §115.
30
Memorandum from Secretary, Department of the Interior, to Director, Bureau of Land Management, Wilderness
Policy (June 1, 2011), http://www.doi.gov/news/pressreleases/upload/Salazar-Wilderness-Memo-Final.pdf.
31
Under Section 6(f)(5) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (P.L. 93-378), as
amended by NFMA, management plans for the national forests must be revised at least every 15 years.
32
Forest Service Roadless Area Conservation, Final Environmental Impact Statement, Volume II. 2000.
33
California v. Block, 690 F.2d 753 (9th Cir. 1982) (holding that the Forest Service had not satisfied the National
Environmental Policy Act or NFMA in producing the recommendations).
28
Congressional Research Service
9
Wilderness: Legislation and Issues in the 114th Congress
So far in the 114th Congress, more than 20 bills have been introduced to expand U.S. wilderness holdings and one has been enacted: P.L. 114-46. See Table 1 for an alphabetical list of legislation introduced and the most recent action (as of the publication of this report). Some of these bills include proposals to designate more than one wilderness area, and one proposes to designate several wilderness areas in different states.
Table 1. 114th Congress: Bills to Designate Wilderness Areas
Bill Title
|
Bill No.
|
State
|
Acreagea
Most Recent Action
|
America's Red Rock Wilderness Act of 2015
|
H.R. 2430/
S. 1375
|
CA
|
8,654,040 acresb
H.R. 2430 introduced 5/19/15
S. 1375 introduced 5/19/15
|
California Desert Conservation and Recreation Act of 2015
|
S.414
|
CA
|
398,497 acresc
Introduced 2/9/15
|
|
Central Coast Heritage Protection Act
|
H.R.1865/
S.1423
|
CA
|
288,788 acres
|
H.R. 1865 introduced 4/16/15
S.1423 introduced 5/21/15
|
|
Cerros del Norte Conservation Act
|
S.1240
|
NM
|
~21,410 acres
|
Ordered reported 7/30/15
|
Clear Creek National Recreation Area and Conservation Act
|
H.R.1838
|
CA
|
~21,000 acresd
Introduced 4/16/15
|
|
Colorado Wilderness Act of 2015
|
H.R.3336
|
CO
|
715,825 acres
|
Introduced 7/29/15
|
|
Continental Divide Wilderness and Recreation Act
|
H.R.2554
|
CO
|
~39,460 acres
|
Introduced 5/21/15
|
Douglas County Conservation Act of 2015
|
H.R.925/
S.472
|
NV
|
~12,330 acrese
H.R. 925 introduced 2/12/15
S.472 hearing 5/21/15
|
|
Gold Butte National Conservation Area Act
|
H.R.856/
S.199
|
NV
|
221,558 acres
|
H.R.856 introduced 2/10/15
S.199 introduced 1/20/15
|
|
Jay S. Hammond Wilderness Act
|
S.873
|
AK
|
~2,600,000 acres
|
Ordered reported 7/30/15
|
|
Northern Rockies Ecosystem Protection Act
|
H.R.996
|
ID, MT, OR, WA, WY
|
24,526,000 acres
|
Introduced 2/13/15
|
Oregon and California Land Grant Act of 2015
|
S.132
|
OR
|
86,640 acresf
Hearing 7/16/15
|
Oregon Wildlands Act
|
S.1699
|
OR
|
~56,700 acresg
Introduced 6/25/15
|
Sawtooth National Recreation Area and Jerry Peak Wilderness Additions Act
|
H.R.1138/
S.583
|
ID
|
275,665 acres
|
P.L. 114-46, 8/7/15
Sutton Mountain and Painted Hills Area Preservation and Economic Enhancement Act of 2015
|
S.1255
|
OR
|
57,465 acresh
Introduced 5/7/2015
|
|
Tennessee Wilderness Act
|
S.755
|
TN
|
~19,556 acres
|
Hearing 7/16/15
|
Udall-Eisenhower Arctic Wilderness Act
|
H.R.239
|
AKi
~1,559,538 acres
|
Introduced 1/9/15
|
|
Wild Olympics Wilderness and Wild and Scenic Rivers Act of 2015
|
H.R.2665
S.1510
|
WA
|
~126,554 acres
|
H.R. 2665 introduced 6/4/15
S.1510 introduced 6/4/15
|
Source: Congressional Research Service.
Notes:
a.
Estimated acreage as identified or derived from the latest version of the legislation—as introduced, reported, passed, or enacted.
b.
Total includes nine potential wilderness areas.
c.
Total acres includes six additions to the Death Valley Wilderness totaling 91,596 acres; one addition of 7,141 acres to the San Gorgonio Wilderness; and proposed new wilderness areas totaling 49,300 acres.
d.
Designates approximately 21,000 acres as the Joaquin Rocks Wilderness.
e.
Designates approximately 12,330 acres as the Burbank Canyons Wilderness.
f.
Total includes an addition to the Wild Rogue Wilderness (~56,100 acres) and designating the Devil's Staircase Wilderness (~30,540 acres).
g.
Total includes an addition of ~56,100 acres to the Wild Rogue Wilderness and adds 600 acres as potential wilderness to the area.
h.
Designates four new wilderness areas: Sutton Mountain Wilderness (29,675 acres); Pat's Cabin Wilderness (15,951 acres); Painted Hills Wilderness (6,900 acres); and Dead Dog Wilderness (4,939 acres).
i.
Designates land in the Arctic National Wildlife Refuge.
Management in Accordance with the Wilderness Act
Most bills direct that the designated areas are to be managed in accordance with the Wilderness Act, meaning human impacts, such as commercial activities, motorized and mechanical access, and infrastructure developments, are generally prohibited. The land management agency may allow an otherwise prohibited use in order to meet the minimum requirements necessary for administration of the area.11 The Wilderness Act does allow some activities that affect the natural condition of the property, such as access for emergencies and for minimum management requirements; activities to control fires, insects, and diseases; livestock grazing; and presidentially authorized water projects. Subject to valid existing rights, wilderness areas are withdrawn from the public land laws and the mining and mineral leasing laws. Acquisition of nonfederal lands is authorized from willing sellers, and "reasonable access" to nonfederal lands within the wilderness area must be accommodated. State jurisdiction over and responsibilities for fish and wildlife and water rights are unaffected.
Hunting, Fishing, and Recreational Shooting
The Wilderness Act provides that the area will be managed, in part, for recreational use.12 Accordingly, wilderness areas are generally open to hunting and fishing, although motorized vehicles, which may be helpful in removing big game from remote areas, are typically forbidden. Based on the activities of earlier Congresses, the 114th Congress may look at how wilderness areas are managed for hunting and fishing. Legislation introduced in the 114th Congress would alter management of wilderness areas for those activities.
- H.R. 528, the Recreational Fishing and Hunting Heritage and Opportunities Act, would change wilderness administration by changing the standard by which land management agencies determine when lands should be closed to certain activities. H.R. 528 would prohibit the land management agency from closing lands except where closure is supported by the best scientific evidence and through a transparent public process, a different standard than required by the Wilderness Act.13
- S. 556, the Bipartisan Sportsmen's Act of 2015, specifies that wilderness areas managed by FS and BLM shall be open to recreational fishing, hunting, and recreational shooting, unless a land management agency acts to close the land to the activity. The agencies may close an area if determined to be necessary and supported by facts and evidence for specified purposes, which include for the protection of resources, public safety, and private property rights, among others. Further, the effect of the bill on the use of motorized vehicles in wilderness areas is uncertain.14
Similar bills were introduced in the 112th and 113th Congresses. Additionally, three of the wilderness areas designated or expanded by P.L. 113-291 authorize periods when or zones where the wilderness may be closed to hunting, fishing, and trapping for safety and administrative reasons.15 This or similar language has been included in several previous wilderness designations and also is authorized under the Wilderness Act in general, which directs agencies to preserve the wilderness character of the areas, leaving them unimpaired for future generations.
Nonconforming Uses or Conditions16
Lands do not have to be untouched by humans to be eligible for statutory designation as wilderness. Enabling legislation could terminate or accommodate any nonconforming uses or conditions. Existing wilderness statutes have directed immediate termination of nonconforming uses or have allowed such uses to continue for a specified period. Similarly, existing statutes typically have provided the agencies a specified period for removing, remediating, or restoring nonconforming conditions or infrastructure. Alternatively, many nonconforming uses and conditions have been permitted to remain in designated wilderness areas. The Wilderness Act explicitly allowed continued motorized access by aircraft and motorboats in areas where such uses were already established. Numerous wilderness statutes have permitted existing infrastructure (e.g., cabins, water resource facilities, telecommunications equipment) to remain, and have authorized occasional motorized access to operate, maintain, and replace the infrastructure. A few statutes have also allowed new infrastructure developments (e.g., telecommunications equipment and a space energy laser facility) within designated wilderness areas. While such authorizations are usually for a specific area, some statutes have provided more general exemptions, such as for maintaining grazing facilities or for fish and wildlife management by a state agency in all areas designated in the statute.
Courts have looked narrowly at exceptions to permitted uses. Accordingly, broad legislative language to continue excepted uses could be interpreted by courts in a way not intended. For example, in one case, the law creating a wilderness specifically allowed the management agency to "upgrade, maintain and replace" one structure. The court held that did not mean that Congress intended preservation of other similar structures in that wilderness.17 In another case, the Eleventh Circuit stated that unless the enabling legislation permitted it, maintenance and preservation of structures, even those deemed historic, could not be permitted: "Congress wrote the wilderness rules and may create exceptions as it sees fit. Absent these explicit statutory instructions, however, the need to preserve historical structures may not be inferred from the Wilderness Act nor grafted onto its general purpose."18
A law enacted in the 113th Congress, P.L. 113-99, requires the Forest Service to operate and maintain the Green Mountain Lookout in the Glacier Peak Wilderness in Washington. The lookout is on the National Register of Historic Places, and at one point was fully disassembled due to damage.19 In 2012, a federal court ruled that maintaining the structure was contrary to the Wilderness Act and ordered it removed.20 P.L. 113-99 reverses that decision.
Buffer Zones
Many existing wilderness statutes have addressed management outside of the designated wilderness area. For example, some legislation has also proposed prohibiting buffer zones around the wilderness area, contending that the management of adjoining lands would be altered by the presence of wilderness. Such provisions direct that nonconforming activities can occur up to the wilderness boundary, and that the ability to see or hear a nonconforming activity from within the wilderness is not a reason to prohibit the activity.
Special Access
Various existing wilderness statutes have included special access provisions for particular needs. For example, statutes designating wilderness areas along the Mexican border commonly have allowed motorized access for law enforcement and border security. (See "Wilderness and Border Security" below.) Similarly, several statutes have included provisions addressing possible military needs in and near the designated areas, particularly for low-level military training flights. Other statutes have contained provisions allowing particular access for tribal, cultural, or other local needs. Several statutes have included provisions authorizing the agencies to prevent public access, usually temporarily and for the minimum area needed, to accommodate particular needs.
Reserved Water Rights
Under the so-called Winters doctrine, based on the Supreme Court decision of that name, when Congress reserves federal land for a particular purpose, it also reserves enough water to fulfill the purpose of the reservation.21 Initial wilderness designations were seen as having a minimal effect on water rights, as they were made in national forests, which are congressional reservations of federal land and often included the headwaters of affected rivers and streams. Section 4(d)(7) of the Wilderness Act explicitly stated that the wilderness designations did not "constitute an express or implied claim or denial … as to exemption from State water laws." Water is particularly an issue for BLM lands, since many BLM lands are public domain lands (acquired by the federal government from a foreign sovereign) that were not reserved by Congress. Furthermore, as BLM lands often do not contain the headwaters of streams (in contrast to the national forests), upstream diversions can affect the water flowing through a wilderness area. Wilderness statutes have taken various approaches to water rights.22 Congress may consider addressing federal water rights in wilderness legislation, especially for places that have water availability constraints.
Wilderness and Border Security
One issue that has received attention from some Members of Congress in recent years is the impact on border security of the Wilderness Act and other federal laws governing land and resource management.23 Many are concerned that wilderness areas abutting and near the Mexican border are conduits for illegal aliens and drug trafficking because limitations on motorized access may restrict apprehension efforts.
There are 15 designated wilderness areas within about 20 miles of the Mexican border. However, only 5 actually abut the border (for approximately 96 linear miles).24 As noted above, the Wilderness Act authorizes motorized access for emergencies and administrative needs, but does not describe what is meant by "administrative needs." The act is silent on access specifically for border security, but some actions related to controlling drug trafficking and illegal immigration might be considered administrative needs or emergencies. Language within a specific enabling statute may be more specific.
The first explicit language on the issue of wilderness access for border security was in Title III of the Arizona Desert Wilderness Act of 1990 (P.L. 101-628). Section 301(g) directs that
Nothing in this title, including the designation as wilderness of lands within the Cabeza Prieta National Wildlife Refuge shall be construed as (1) precluding or otherwise affecting continued border operations ... within such refuge, in accordance with any applicable interagency agreements in effect on the date of enactment of this Act; or (2) precluding … new or renewed agreements ... concerning ... border operations within such refuge, consistent with management of the refuge for the purpose for which such refuge was established.
The California Desert Protection Act of 1994 (P.L. 103-433) also contains explicit guidance on border security for all designated areas, including one adjacent to the Mexican border and six others within about 20 miles of the border. Section 103(g) directs that
Nothing in this Act, including the wilderness designations ... may be construed to preclude Federal, State, and local law enforcement agencies from conducting law enforcement and border operations as permitted before the date of enactment of this Act, including the use of motorized vehicles and aircraft, on any lands designated as wilderness by this Act.
The most recent statute designating a border-adjacent wilderness area, the Otay Mountain Wilderness Act of 1999 (P.L. 106-145), also addresses border security. The act requires the southern boundary of the wilderness to be at least 100 feet from the border. Also, Section 6(b) allows border operations to continue consistent with the Wilderness Act:
Because of the proximity of the Wilderness Area to the United States-Mexico international border, drug interdiction [and] border operations ... are common management actions throughout the area.... This Act recognizes the need to continue such management actions so long as such management actions are conducted in accordance with the Wilderness Act and are subject to such conditions as the Secretary considers appropriate.
Concerns about access limitations to wilderness areas (and other legal constraints that apply more broadly to federal lands) persist. On April 15, 2011, the House Natural Resources Subcommittee on National Parks, Forests, and Public Lands and the House Oversight and Government Reform Subcommittee on National Security, Homeland Defense, and Foreign Operations held a joint hearing on the issues.25 The Government Accountability Office (GAO) testified, based on two reports from late 2010.26 GAO noted that most border officials reported that any delays and restrictions reported in border security operations did not affect security:
[D]espite the access delays and restrictions experienced by these [Border Patrol] stations, 22 of the 26 patrol agents-in-charge reported that the overall security status of their jurisdiction had not been affected by land management laws. Instead, factors such as the remoteness and ruggedness of the terrain have had the greatest effect on their ability to achieve operational control in these areas. Four patrol agents-in-charge reported that delays and restrictions had affected their ability to achieve or maintain operational control, but they either had not requested resources for increased or timelier access or their requests had been denied by senior Border Patrol officials because of higher priority needs of the agency.
Legislative Action
Bills were introduced in the 112th and 113th Congresses to reduce the potential restrictions of the Wilderness Act and other federal statutes on border security activities, such as by waiving the Wilderness Act to allow construction activities such as roads and structures; however, none of the bills were enacted. See Appendix B for a discussion of those bills. To date, similar legislation has not been introduced in the 114th Congress.
Wilderness Study Areas and Reviews for Wilderness Potential
DOI and FS have different requirements to assess the wilderness characteristics and potential of the lands they manage. The 114th Congress may consider when and whether the agencies can and must review the wilderness potential of their lands, and how those lands are managed. Some believe that these wilderness study areas and roadless areas are improperly managed as wilderness, restricting development opportunities, despite lacking congressional designation as wilderness. Others note that the Federal Land Policy and Management Act (FLPMA)27 and regulations dictate that certain areas must be managed to preserve their wilderness potential.
A controversial DOI order from December 2010, perceived by some as expanding wilderness protection by BLM to non-designated lands, stimulated debate in the 112th Congress.28 The order directed BLM to protect wilderness characteristics through land use planning. Funding for the policy was removed in the FY2011, FY2012, FY2014, and FY2015 annual appropriations acts,29 despite the order being formally revoked by the Secretary of the Interior in June 2011.30
Forest Service Wilderness Considerations
The Forest Service is required to review the National Forest System for potential wilderness areas during the development and revision of land and resource management plans (also known as forest plans), approximately every 15 years.31 In the 1970s and 1980s, the agency conducted two reviews—known as the Roadless Area Review and Evaluation (RARE) I and II—that resulted in some, but not all, of these inventoried roadless areas being recommended for a wilderness designation in January 1979.32 However, a successful judicial challenge to those recommendations by the state of California33 led to uncertainty over the validity of the RARE II recommendations and to disputes over the need to protect the wilderness characteristics of the reviewed areas. Congress released the Forest Service from the duty of reviewing wilderness potential in the initial forest plans and from preserving the wilderness characteristics of areas not recommended for wilderness designation. This was known as release language, and was enacted
in 30 state-by-state Forest Service wilderness statutes between 1980 and 1990.
34
34
Review of potential wilderness is now part of the forest planning process; however, management
of Forest Service inventoried roadless areas has been controversial.
3535 The Clinton and George W.
Bush Administrations each proposed different roadless area policies. Both were heavily litigated;
however, the Clinton policy to prohibit many activities on roadless areas—with significant
exceptions—remains intact after the Supreme Court refused to review a lower court
’'s decision in
2012.
3636 Release language is no longer significant for national forest wilderness legislation,
although some bills do include release provisions. For example, S. 1967 (
113th113th Congress) would
have released all inventoried roadless areas in Wyoming national forests.
BLM Wilderness Review
BLM must review the wilderness potential of its
“"roadless areas of five thousand acres or more
and roadless islands of the public lands, identified during the inventory required by section 201(a)
of this Act as having wilderness characteristics.
”37"37 Section 603 of
FLPMA38FLPMA38 required BLM to
present its wilderness recommendations to the President within 15 years of October 21, 1976, and
the President then had two years to submit wilderness recommendations to Congress. BLM
presented its recommendations by October 21, 1991, and Presidents George H. W. Bush and
William Clinton submitted wilderness recommendations to Congress. Although these areas have
been reviewed and Congress enacted several statutes designating BLM wilderness areas, many of
the wilderness recommendations for BLM lands remain pending. There are two continuing issues
for potential BLM wilderness: protection of the wilderness study areas; and whether BLM has a
continuing obligation under FLPMA to conduct wilderness reviews.
Protection of BLM Wilderness Study Areas
Starting in 1977 through1979, BLM identified suitable wilderness study areas (WSAs) from
roadless areas identified in its initial resource inventory under FLPMA Section 201. Section
603(c) of FLPMA directs the agency to manage those lands
“"until Congress has determined
otherwise … in a manner so as not to impair the suitability of such areas for preservation as
wilderness.
”" Thus, BLM must protect the WSAs as if they were wilderness until Congress enacts
legislation that releases BLM from that responsibility. This is sometimes referred to as a
nonimpairment obligation.
WSAs have been subject to litigation challenging BLM
’'s protection. In the early 2000s, BLM
was sued for not adequately preventing impairment of WSAs from increased off-road vehicle use.
In Norton v. Southern Utah Wilderness Alliance, the U.S. Supreme Court ruled that the
nonimpairment obligation was not enforceable by court challenge.
39 The Court held that while
34
See, e.g., P.L. 98-321 (Wisconsin).
For more information, see CRS Report RL30647, National Forest System (NFS) Roadless Area Initiatives, by
Kristina Alexander.
36
Wyoming v. Department of Agriculture, 133 S.Ct. 417 (2012).
37
43 U.S.C. §1782(a).
38
P.L. 94-579; 43 U.S.C. §§1701-1787.
39
542 U.S. 55 (2004).
35
Congressional Research Service
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Wilderness: Legislation and Issues in the 114th Congress
39 The Court held that while WSA protection was mandatory, it was a broad programmatic duty and not a discrete agency
obligation. The Court also concluded that the relevant FLPMA land use plans (which indicated
that WSAs would be monitored) constituted only management goals that might be modified by
agency priorities and available funding, and were not a basis for enforcement under the
Administrative Procedure Act (APA). Therefore, it appears that although BLM actions that would
harm WSAs could be enjoined, as with any agency enforcement obligation,
4040 forcing BLM to
take protective action is difficult at best.
BLM Reviews for Wilderness Potential
Despite BLM
’'s continuing obligation under FLPMA Section 201 to identify the resources on its
lands, giving priority to areas of critical environmental concern,
4141 it is unclear whether BLM is
required to review its lands specifically for wilderness potential after expiration of the reviews
required by Section 603.
4242 In contrast to the Forest Service, which must revise its land and
resource management plans at least every 15 years, BLM is not required to revise its plans on a
specified cycle; rather it must revise its land and resource management plans
“"when appropriate.
”
" Furthermore, while NFMA includes wilderness in the planning process, both directly and by
reference to the Multiple Use-Sustained Yield Act of 1960, FLPMA is silent on wilderness in the
definitions of multiple use and sustained yield and in the guidance for the BLM planning process.
Thus, BLM wilderness reviews are less certain than future Forest Service wilderness reviews.
DOI Wilderness Policy Changes
DOI has changed its policy regarding how it administers areas with wilderness potential with
each administration. In September 2003, then-DOI Secretary Gale Norton settled litigation
challenging a 1996 policy identifying large amounts of wilderness-suitable lands.
4343 Following the
settlement, the BLM Assistant Director issued guidance prohibiting further reviews and limiting
the term
“"wilderness study areas
”" and the nonimpairment standard to areas already designated for
the original Section 603 reviews of the 1970s and 1980s.
4444 The guidance advised in part that
because the Section 603 authority expired,
“there is no general legal authority for the BLM to
40
See, e.g., Heckler v. Chaney, 470 U.S. 821, 831 (1985); United States v. Batchelder, 442 U.S. 114, 123-124 (1979);
United States v. Nixon, 418 U.S. 683, 693 (1974); Vaca v. Sipes, 386 U.S. 171, 182 (1967) (“an agency’s decision not
to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s
absolute discretion”).
41
FLPMA §201; 43 U.S.C. §1711.
42
FLPMA §603; 43 U.S.C. §1782 (requiring a review within 15 years [by 1991] of roadless areas greater than 5,000
acres to determine suitability for wilderness).
43
In 1996, then-DOI Secretary Bruce Babbitt used the inventory authority in Section 201 of FLPMA to identify 2.6
million acres in Utah as having wilderness qualities. This was in addition to the lands inventoried and reviewed in the
1970s and 1980s. The state of Utah challenged the inventory as violating Section 603. See Utah v. Norton, No 96-CV870 (D. Utah Order approving settlement April 14, 2003).
44
BLM Assistant Director, Instruction Memorandum 2003-275, Consideration of Wilderness Characteristics in Land
Use Plans (Excluding Alaska), p. 1 (September 29, 2003) (“It is, therefore, no longer BLM policy to continue to make
formal determinations regarding wilderness character, designate new WSAs through the land use planning process, or
manage any lands—except WSAs established under Section 603 of FLPMA and other existing WSAs—in accordance
with the non-impairment standard prescribed in the [Interim Management Policy])”). Available at http://www.blm.gov/
wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction.html. These memoranda rescinded the
Wilderness Inventory and Study Procedures Handbook.
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Wilderness: Legislation and Issues in the 114th Congress
"there is no general legal authority for the BLM to designate lands as WSAs for management pursuant to the non-impairment standard prescribed by
Congress for Section 603 WSAs.
”45
"45
On December 22, 2010, DOI Secretary Ken Salazar issued Order No. 3310, known as the
“Wild
"Wild Lands Policy,
”" addressing how BLM would manage wilderness.
4646 This order indirectly modified
the 2003 wilderness guidance without actually overturning the direction (or even acknowledging
it). The order relied on the authority in FLPMA Section 201 to inventory lands with wilderness
characteristics that are
“"outside of the areas designated as Wilderness Study Areas and that are
pending before Congress
”" and designated these lands as
“"Wild Lands.
”" It also directed BLM to
consider the wilderness characteristics in land use plans and project decisions,
“avoiding
"avoiding impairment of such wilderness characteristics
”" unless alternative management is deemed
appropriate. While Instruction Memorandum 2003-274 indicated that, except for extant Section
603 WSAs, the nonimpairment mandate did not apply, Order No. 3310 appeared to require an
affirmative decision that impairment is appropriate in a Section 201 wilderness resource area, or
otherwise impairment must be avoided. After Congress withheld funding, Secretary Salazar
announced in June 2011 that BLM would not designate any Wild Lands.
Legislative Action
The 113th Congress released three BLM
Legislative Action
So far in the 114th Congress, one bill has been enacted and several introduced to release BLM WSAs, meaning they would no longer be managed as
wilderness. See Table 2 for an alphabetical list of legislation introduced and the most recent action (as of the publication of this report). See wilderness. See Appendix A
, , Table A-2, for an alphabetical list of wilderness release legislation
of the 113th Congress.
of the 113th Congress.
Previous Congresses have considered legislation to more broadly release WSAs. The Wilderness
and Roadless Area Release Act of 2011 (H.R. 1581/S. 1087,
112th112th Congress) would have released
certain BLM WSAs—those not designated as wilderness by Congress and those identified by the
BLM as not suitable for wilderness designation—from the nonimpairment requirement of Section
603(c) of FLPMA. The bill also would have terminated the Clinton and George W. Bush Forest
Service roadless area rules. A similar bill in the
113th113th Congress—S. 1967, the Inventoried
Roadless Area Management Act—would have terminated the Clinton roadless area rule on
national forests in Wyoming.
45
Instruction Memorandum 2003-274.
Secretary of the Interior, Order No. 3310, Protecting Wilderness Characteristics on Lands Managed by the Bureau of
Land Management, (December 22, 2010). Available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/
Communications_Directorate/public_affairs/news_release_attachments.Par.26564.File.dat/sec_order_3310.pdf.
46
Congressional Research Service
12
Wilderness: Legislation and Issues in the 114th Congress
Appendix A. 113th Congress Wilderness Legislation
The 113th Congress added 279,709 acres to the wilderness system by either adding new
wilderness areas or expanding existing areas.
Table A-1. 113th Congress: Bills to Designate Wilderness Areas
Bill Title
Bill No.
State
Acreagea
Most Recent Action
Alpine Lakes Wilderness
Additions and Pratt and
Middle Fork Snoqualmie
Rivers Protection Act
H.R. 361
WA
22,173 acres
H.R. 361 ordered reported 7/30/14
S. 112
S. 112 passed Senate 6/19/13
P.L. 113-291, §3060 (NDAA)
America’s Red Rock
Wilderness Act of 2013
H.R. 1630
Arizona Sonoran Desert
Heritage Act of 2013
H.R. 1799
AZ
290,823 acres
Introduced 4/26/13
Browns Canyon National
Monument and Wilderness
Act of 2013
S. 1794
CO
10,400 acres
Hearing 7/23/14
Central Coast Heritage
Protection Act
H.R. 4685
CA
288,788 acres
Introduced 5/20/14
Central Idaho Economic
Development and
Recreation Act
H.R. 145
ID
332,928 acres
Introduced 1/3/13
Clear Creek National
Recreation Area and
Conservation Act
H.R. 1776
CA
21,000 acres
Hearing 5/20/14
Colorado Wilderness Act of
2013
H.R. 2552
CO
735,650 acres
Introduced 6/27/13
Columbine-Hondo
Wilderness Act,
H.R. 1683
NM
45,000 acres
H.R. 1683 introduced 4/23/13
Wheeler Peak Wilderness
Devil’s Staircase Wilderness
Act of 2013c
UT
9,144,240
acresb
S. 769 introduced 4/18/13
S. 769
S. 776 hearing 11/20/13
S. 776
H.R. 2491/
H.R. 1526
H.R. 1630 introduced 4/18/13
OR
650 acresh
P.L. 113-291, §3061 (NDAA)
30,520 acres
H.R. 2491 introduced 6/25/13;
30,540 acres
H.R. 1526 passed House 9/20/2013
S. 352/S.
1784
S. 352 passed Senate 6/19/13/S.
1784 hearing 2/6/14
Douglas County
Conservation Act of 2013
S. 1263
NV
12,330 acres
Introduced 6/27/13
Forest Jobs and Recreation
Act of 2013
S. 37
MT
626,192 acres
Reported 5/22/14
Gold Butte National
Conservation Area Act
S. 1054
NV
221,558 acres
Introduced 5/23/13
Congressional Research Service
13
Wilderness: Legislation and Issues in the 114th Congress
Bill Title
Bill No.
State
Acreagea
Most Recent Action
Hermosa Creek Watershed
Protection Act of 2013
H.R. 1839
CO
37,236 acres
H.R. 1839 ordered reported
9/18/14
S. 841
S. 841 hearing 11/20/13
P.L. 113-291, §3062 (NDAA)
Maine Coastal Islands
Wilderness Act of 2013
H.R. 1808
ME
3,256 acres
Hearing 7/23/13
Northern Rockies
Ecosystem Protection Act
H.R. 1187
ID, MT,
OR,
WA,
WY
20,971,000 acresd
Introduced 3/14/13
Oregon and California Land
Grant Act of 2013c
S. 1784
OR
86,640 acres
Hearing 2/6/14
Oregon Treasures Act of
2013c
S. 353
OR
~77,340e
Reported 9/10/13
Organ Mountains-Desert
Peaks Conservation Act
S. 1805
NM
241,067 acres
Introduced 12/12/13
Pine Forest Range
Recreation Enhancement Act
of 2013
H.R. 433
NV
26,000 acres
H.R. 433 hearing 7/23/13
S. 342 reported 6/27/13
S. 342
P.L. 113-291, §3064 (NDAA)
Restoring Healthy Forests
for Healthy Communities
Actc
H.R. 1526
OR
88,620 acres
H.R. 1526 passed House 9/20/2013
Rio Grande del Norte
National Conservation Area
Establishment Act
H.R. 560
NM
21,420 acres
H.R. 560 introduced 2/6/13
Rocky Mountain Front
Heritage Act of 2013:
S. 364
S. 241 reported 6/27/13
S. 241
MT
Bob Marshall Wilderness
Additions
Scapegoat Wilderness
Additions
67,112 acres
Hearing 7/30/13
50,401 acres
P.L. 113-291, §3065 (NDAA)
16,711 acres
P.L. 113-291, §3065 (NDAA)
Rocky Mountain Recreation
and Wilderness Preservation
Act
H.R. 5311
CO
41,798 acres
Introduced 7/31/14
Rogue Wilderness Area
Expansion Actc
H.R. 2488/
H.R. 1526
OR
59,986 acres
Introduced 6/25/13; H.R. 1526
passed House 9/20/2013
S. 1784
S. 1784 hearing 2/6/14
San Juan Mountains
Wilderness Act
S. 341
CO
33,200 acres
Reported 9/10/13
Sleeping Bear Dunes
National Lakeshore
Conservation and
Recreation Act
H.R. 163
MI
32,557 acres
P.L. 113-87
Congressional Research Service
S. 23
14
Wilderness: Legislation and Issues in the 114th Congress
Bill Title
Bill No.
State
Acreagea
Most Recent Action
Stephen Mather wilderness
boundary adjustment (no
formal title)
H.R. 1156
WA
no net change of
acreage
Reported 5/17/13
Tennessee Wilderness Act
S. 1294
TN
19,556 acres
Reported 4/8/14
Tumacacori Highlands
Wilderness Act
H.R. 5437
AZ
83,300 acres
Introduced 9/10/14
Udall-Eisenhower Arctic
Wilderness Act
H.R. 139
AKf
1,559,538 acres
H.R. 139 introduced 1/3/13
Virgin Valley Tourism and
Lake Mead Preservation Act
H.R. 2276
NV
221,558 acres
Introduced 6/6/13
Wasatch Wilderness and
Watershed Protection Act
H.R. 2808
UT
13,407 acres
Introduced 7/24/13
Wild Olympics Wilderness
Act of 2014
H.R.
3917/H.R.
3922
WA
126,554 acres
H.R. 3917 introduced 1/16/14; H.R.
3922 introduced 1/17/14
S. 1695 introduced 11/13/13
S. 1695
S. 1949 introduced 1/16/14
S. 1949
Wovoka Wilderness - Lyon
County Economic
Development and
Conservation Act
H.R. 696
NV
~48,981 acresg
S. 159
H.R. 696 hearing 4/18/13
S. 159 reported 9/10/13
P.L. 113-291, §3066 (NDAA)
Source: Congressional Research Service.
a.
Estimated acreage as identified in the latest version of the legislation—as introduced, reported, passed, or
enacted.
b.
Total includes nine potential wilderness areas.
c.
The wilderness designations proposed in H.R. 2491 (Devil’s Staircase Wilderness) and H.R. 2488 (Rogue
Wilderness) were incorporated into Title III of H.R. 1526 (Restoring Healthy Forests for Healthy
Communities Act). Title III of S. 1784 (Oregon and California Land Grant Act) includes the wilderness
designations proposed in S. 352 (Devil’s Staircase Wilderness). Title III of S. 1784 also proposes to designate
the Rogue Wilderness, which is one of the three proposed wilderness designations in S. 353 (Oregon
Treasures Act).
d.
Total includes potential wilderness in five states.
e.
Total acreage is based upon conditional land transfers occurring.
f.
Designates land in Arctic National Wildlife Refuge.
g.
national forests in Wyoming.
The release of the WSA is only to the extent that the lands within that area were not included in the bill's wilderness designation.
Table 2. 114th Congress: Bills to Release Wilderness Study Areas (WSAs)
(areas would no longer be managed as wilderness)
|
Bill Title
|
Bill No.
|
State
|
Name of WSA
(acreage to be released)
|
Most Recent Action
|
California Desert Conservation and Recreation Act of 2015
|
S.414
|
CA
|
Cady Mountains, Kingston Range, Avawatz Mountain, Death Valley National Park Boundary, Great Falls Basin, and Soda Mountainsa
Introduced 2/9/15
|
|
Cerros del Norte Conservation Act
|
S.1240
|
NM
|
San Antonio (7,050)
|
Ordered reported 7/30/15
|
|
Clear Creek National Recreation Area and Conservation Act
|
H.R.1838
|
CA
|
San Benito Mountain (1,500)
|
Introduced 4/16/15
|
|
Douglas County Conservation Act of 2015
|
H.R.925/
S.472
|
NV
|
Burbank Canyons (1,065)
|
H.R. 925 introduced 2/12/15
S.472 hearing 5/21/15
|
Gold Butte National Conservation Area Act
|
H.R.856/
S.199
|
NV
|
Specific WSAs not listedb
H.R.856 introduced 2/10/15
S.199 introduced 1/20/15
|
Sawtooth National Recreation Area and Jerry Peak Wilderness Additions Act
|
H.R.1138/
S.583
|
ID
|
Jerry Peak, Jerry Peak West, Corral-Horse Basin, Boulder Creekc
P.L. 114-46, 8/7/15
Source: Congressional Research Service.
Notes:
a.
The release of the WSA is only to the extent that the lands within that area were not included in the bill's wilderness designation.
b.
The bill would release any land within the Golden Butte National Conservation Area that the bill did not designate as wilderness.
c.
The release of the WSA is only to the extent that the lands within that area were not included in the bill's wilderness designation.
113th Congress Wilderness Legislation
The 113th Congress added 279,709 acres to the wilderness system by either adding new wilderness areas or expanding existing areas.
Table A-1. 113th Congress: Bills to Designate Wilderness Areas
Bill Title
|
Bill No.
|
State
|
Acreagea
Most Recent Action
|
|
Alpine Lakes Wilderness Additions and Pratt and Middle Fork Snoqualmie Rivers Protection Act
|
H.R. 361
S. 112
|
WA
|
22,173 acres
|
P.L. 113-291, §3060 (NDAA)
|
America's Red Rock Wilderness Act of 2013
|
H.R. 1630
S. 769
|
UT
|
9,144,240 acresb
H.R. 1630 introduced 4/18/13
S. 769 introduced 4/18/13
|
|
Arizona Sonoran Desert Heritage Act of 2013
|
H.R. 1799
|
AZ
|
290,823 acres
|
Introduced 4/26/13
|
|
Browns Canyon National Monument and Wilderness Act of 2013
|
S. 1794
|
CO
|
10,400 acres
|
Hearing 7/23/14
|
|
Central Coast Heritage Protection Act
|
H.R. 4685
|
CA
|
288,788 acres
|
Introduced 5/20/14
|
|
Central Idaho Economic Development and Recreation Act
|
H.R. 145
|
ID
|
332,928 acres
|
Introduced 1/3/13
|
|
Clear Creek National Recreation Area and Conservation Act
|
H.R. 1776
|
CA
|
21,000 acres
|
Hearing 5/20/14
|
|
Colorado Wilderness Act of 2013
|
H.R. 2552
|
CO
|
735,650 acres
|
Introduced 6/27/13
|
Columbine-Hondo Wilderness Act,
Wheeler Peak Wilderness
|
H.R. 1683
S. 776
|
NM
|
45,000 acres
650 acresc
P.L. 113-291, §3061 (NDAA)
|
Devil's Staircase Wilderness Act of 2013d
H.R. 2491/ H.R. 1526
S. 352/S. 1784
OR
|
30,520 acres
30,540 acres
|
H.R. 2491 introduced 6/25/13;
H.R. 1526 passed House 9/20/2013
S. 352 passed Senate 6/19/13/S. 1784 hearing 2/6/14
|
|
Douglas County Conservation Act of 2013
|
S. 1263
|
NV
|
12,330 acres
|
Introduced 6/27/13
|
|
Forest Jobs and Recreation Act of 2013
|
S. 37
|
MT
|
626,192 acres
|
Reported 5/22/14
|
|
Gold Butte National Conservation Area Act
|
S. 1054
|
NV
|
221,558 acres
|
Introduced 5/23/13
|
Hermosa Creek Watershed Protection Act of 2013
|
H.R. 1839
S. 841
|
CO
|
37,236 acres
P.L. 113-291, §3062 (NDAA)
|
|
Maine Coastal Islands Wilderness Act of 2013
|
H.R. 1808
|
ME
|
3,256 acres
|
Hearing 7/23/13
|
Northern Rockies Ecosystem Protection Act
|
H.R. 1187
|
ID, MT, OR, WA, WY
|
20,971,000 acrese
Introduced 3/14/13
|
Oregon and California Land Grant Act of 2013d
S. 1784
|
OR
|
86,640 acres
|
Hearing 2/6/14
|
Oregon Treasures Act of 2013d
S. 353
|
OR
|
~77,340f
Reported 9/10/13
|
|
Organ Mountains-Desert Peaks Conservation Act
|
S. 1805
|
NM
|
241,067 acres
|
Introduced 12/12/13
|
|
Pine Forest Range Recreation Enhancement Act of 2013
|
H.R. 433
S. 342
|
NV
|
26,000 acres
|
P.L. 113-291, §3064 (NDAA)
|
Restoring Healthy Forests for Healthy Communities Actd
H.R. 1526
|
OR
|
88,620 acres
|
H.R. 1526 passed House 9/20/2013
|
Rio Grande del Norte National Conservation Area Establishment Act
|
H.R. 560
S. 241
|
NM
|
21,420 acres
H.R. 560 introduced 2/6/13
S. 241 reported 6/27/13
|
Rocky Mountain Front Heritage Act of 2013:
Bob Marshall Wilderness Additions
Scapegoat Wilderness Additions
|
S. 364
|
MT
|
67,112 acres
50,401 acres
16,711 acres
P.L. 113-291, §3065 (NDAA)
|
|
Rocky Mountain Recreation and Wilderness Preservation Act
|
H.R. 5311
|
CO
|
41,798 acres
|
Introduced 7/31/14
|
Rogue Wilderness Area Expansion Actd
H.R. 2488/ H.R. 1526
S. 1784
|
OR
59,986 acres
|
Introduced 6/25/13; H.R. 1526 passed House 9/20/2013
S. 1784 hearing 2/6/14
|
|
San Juan Mountains Wilderness Act
|
S. 341
|
CO
|
33,200 acres
|
Reported 9/10/13
|
|
Sleeping Bear Dunes National Lakeshore Conservation and Recreation Act
|
H.R. 163
S. 23
|
MI
|
32,557 acres
|
P.L. 113-87
|
|
Stephen Mather wilderness boundary adjustment (no formal title)
|
H.R. 1156
|
WA
|
No net change of acreage
|
Reported 5/17/13
|
|
Tennessee Wilderness Act
|
S. 1294
|
TN
|
19,556 acres
|
Reported 4/8/14
|
|
Tumacacori Highlands Wilderness Act
|
H.R. 5437
|
AZ
|
83,300 acres
|
Introduced 9/10/14
|
Udall-Eisenhower Arctic Wilderness Act
|
H.R. 139
S. 1695
|
AKg
1,559,538 acres
|
H.R. 139 introduced 1/3/13
S. 1695 introduced 11/13/13
|
|
Virgin Valley Tourism and Lake Mead Preservation Act
|
H.R. 2276
|
NV
|
221,558 acres
|
Introduced 6/6/13
|
|
Wasatch Wilderness and Watershed Protection Act
|
H.R. 2808
|
UT
|
13,407 acres
|
Introduced 7/24/13
|
|
Wild Olympics Wilderness Act of 2014
|
H.R. 3917/H.R. 3922
S. 1949
|
WA
|
126,554 acres
|
H.R. 3917 introduced 1/16/14; H.R. 3922 introduced 1/17/14
S. 1949 introduced 1/16/14
|
Wovoka Wilderness - Lyon County Economic Development and Conservation Act
|
H.R. 696
S. 159
|
NV
|
~48,981 acresh
P.L. 113-291, §3066 (NDAA)
|
Source: Congressional Research Service.
a.
Estimated acreage as identified in the latest version of the legislation—as introduced, reported, passed, or enacted.
b.
Total includes nine potential wilderness areas.
c.
P.L. 113-291, §3061(b)(2) adds 650 acres to the wilderness area. Email from Anthony Edwards, Forest Service Legislative Affairs Specialist, to [author name scrubbed] (Dec. 18, 2014).
d.
The wilderness designations proposed in H.R. 2491 (Devil's Staircase Wilderness) and H.R. 2488 (Rogue Wilderness) were incorporated into Title III of H.R. 1526 (Restoring Healthy Forests for Healthy Communities Act). Title III of S. 1784 (Oregon and California Land Grant Act) includes the wilderness designations proposed in S. 352 (Devil's Staircase Wilderness). Title III of S. 1784 also proposes to designate the Rogue Wilderness, which is one of the three proposed wilderness designations in S. 353 (Oregon Treasures Act).
e.
Total includes potential wilderness in five states.
f.
Total acreage is based upon conditional land transfers occurring.
g.
Designates land in Arctic National Wildlife Refuge.
h.
Acreage specified in U.S. Congress, Senate Committee on Energy and Natural Resources, Lyon County
Economic Development and Conservation, report to accompany S. 159,
113th113th Cong.,
2nd2nd sess., September 10,
2013, S.Rept. 113-94.
h.
P.L. 113-291, §3061(b)(2) adds 650 acres to the wilderness area. Email from Anthony Edwards, Forest
Service Legislative Affairs Specialist, to Kristina Alexander (Dec. 18, 2014).
Congressional Research Service
15
Wilderness: Legislation and Issues in the 114th Congress
Table A-2. 113th 2013, S.Rept. 113-94.
Table A-2. 113th Congress: Bills to Release Wilderness Study Areas
(areas would no longer be managed as wilderness)
Bill Title
Columbine-Hondo
Wilderness Act
Bill No.
H.R. 1683
State
NM
Name of WSA
(acreage to be released)
Columbine-Hondoa (~1,000)
S. 776
Most Recent Action
H.R. 1683 introduced
4/23/13
S. 776 hearing 11/20/13
Douglas County Conservation
Act of 2013
S. 1263
NV
Burbank Canyons (1,065)
Introduced 6/27/13
Forest Jobs and Recreation
Act of 2013
S. 37
MT
Axolotl Lakes (7,804)
Reported 5/22/14
Bell and Limekiln Canyons
(9,650)
Blacktail Mountainsb (6,804)
Centennial Mountainsb
(3,991)
Farlin Creek (1,139)
Henneberry Ridge (9,806)
Hidden Pasture (15,509)
Humbug Spires (11,175)
Ruby Mountainsb (10,311)
Hermosa Creek Watershed
Protection Act of 2013
H.R. 1839
CO
Molas Pass (461)
S. 841
H.R. 1839 ordered reported
9/18/14
S. 841 hearing 11/20/13
P.L. 113-291; §3062(f)(3)
(NDAA)
Las Vegas Valley Public Land
and Tule Springs Fossil Beds
National Monument Act of
2013
H.R. 2015
NV
Sunrise Mountain (10,240)
Nevada Native Nations Land
Act
S. 2480
NV
Red Spring
Reported 8/26/14, but
without release provision
Organ Mountains National
Monument Establishment Act
H.R. 995
NM
Organ Mountains (7,283)
Hearing 5/9/13
S. 974
H.R. 2015 hearing 10/3/13
S. 974 reported 6/2/14
Consolidated Appropriations
Act of 2014, P.L. 113-76,
Div. G, Tit. I, §115
Organ Needles (7,630)
Pena Blanca (4,470)
Pine Forest Range Recreation
Enhancement Act of 2013
San Juan Mountains
Wilderness Act
Congressional Research Service
H.R. 433
NV
S. 342
S. 341
CO
Blue Lakes
H.R. 433 hearing 7/23/13
Alder Creek
S. 342 reported 6/27/13
(990 acres, total)
P.L. 113-291; §3064(d)
(NDAA)
Dominguez Canyon (3,033)
Reported 9/10/13
16
Wilderness: Legislation and Issues in the 114th Congress
Source: Congressional Research Service.
a. The release of the WSA is only to the extent that lands within that area were not included in the bill’s
wilderness designation. The enabling legislation for the Columbine Hondo WSA indicates it is approximately
46,000 acres (94 Stat. 3223). H.R. 1683, Section 101(a) identifies the new wilderness as being approximately
45,000 acres.
b. Release of these WSAs is only to the extent the lands within those areas were not included within the bill’s
wilderness designation(s). Total acreage released is based on the difference between the WSA acreage and
the acreage designated as wilderness.
Congressional Research Service
17
Wilderness: Legislation and Issues in the 114th Congress
Appendix B. 112th Congress Wilderness Legislation
Table B-1 lists alphabetically the bills introduced in the 112th Congress to designate new
wilderness areas. No new wilderness areas were created in the 112th Congress, for the first time
since the 89th Congress (1965-1967). The only wilderness bill enacted into law (P.L. 112-97)
removed 222 acres from wilderness designation.
Table B-1. 112th Congress: Bills to Designate Wilderness Areas
Bill Title
Alpine Lakes Wilderness Additions
and Middle Fork Snoqualmie Rivers
Protection Act
America’s Red Rocks Wilderness Act
of 2011
Bill No.
H.R. 608/
State
WA
Acreagea
22,173 acres
S. 322
H.R. 1916/
Most Recent Action
H.R. 608 hearing 10/25/11
S. 322 reported 1/13/12
UT
S. 979
9,174,040
acres
H.R. 1916 introduced 5/13/11
S. 979 introduced 5/12/11
Angeles and San Bernardino National
Forests Protection Act
H.R. 113
CA
18,208 acresb
Hearing 10/25/11
Beauty Mountain and Agua Tibia
Wilderness Act of 2011
H.R. 41
CA
21,431 acres
Hearing 10/25/11
S. 1574
S. 1574 introduced 9/19/11
California Desert Protection Act of
2011
S. 138
CA
394,441 acresc
Introduced 1/25/11
Cathedral Rock and Horse Heaven
Wilderness Act of 2011
S. 607
OR
7,375 acresd
Hearing 5/18/11
Central Idaho Economic
Development and Recreation Act
H.R. 163
ID
332,928 acres
Introduced 1/5/11
Colorado Wilderness Act of 2011
H.R. 2420/
CO
699,128 acres
735,650 acres
H.R. 2420 introduced 7/6/11
30,540 acres
H.R. 1413 hearing 10/25/11
H.R. 2922
Devil’s Staircase Wilderness Act of
2011
H.R. 1413/
OR
S. 766
H.R. 2922 introduced 9/14/11
S. 766 reported 1/13/12
Eagle and Summit Counties
Wilderness Preservation Act
H.R. 1701
CO
81,790 acres
Introduced 5/3/11
Forest Jobs and Recreation Act of
2011
S. 268
MT
666,260 acres
Hearing 5/25/11
Los Padres Conservation and
Recreation Act of 2012
H.R. 4109
CA
63,576 acres
Hearing 6/28/12
Maine Coastal Islands Wilderness Act
of 2011
H.R. 2984
ME
3,256 acres
Hearing 3/29/12
Manzano Mountain Wilderness (no
official title)
H.R. 490
NM
(unspecified)
Hearing 10/25/11
Northern Rockies Ecosystem
Protection Act
H.R. 3334
e
3,680,000
acres
Introduced 11/3/11
Olympic National Park Wilderness
(no official title)
H.R. 3222
WA
4,126 acresf
Hearing 12/2/11
Olympic National Park Wilderness
(no official title)
H.R. 1162
WA
(222 acres)g
P.L. 112-97
Congressional Research Service
18
Wilderness: Legislation and Issues in the 114th Congress
Bill Title
Bill No.
State
Acreagea
Most Recent Action
Organ Mountains—Dona Ana County
Conservation and Protection Act
S. 1024
NM
241,200 acres
Hearing 8/3/11
Pine Forest Range Recreation
Enhancement Act of 2011
H.R. 3377/
NV
26,000 acres
H.R. 3377 hearing 3/8/12
Pinnacles National Park Act
S. 1788
H.R. 3641/
S. 1788 hearing 3/22/12
CA
S. 161
2,905 acres
2,715 acres
H.R. 3641 Passed House
7/31/12; Passed Senate
12/30/12h
S. 161 hearing 5/11/11
Rio Grande del Norte National
Conservation Area Establishment Act
H.R. 1241/
NM
21,420 acres
S. 667
H.R. 1241 hearing 3/29/12
S. 667 reported 1/13/12
Rocky Mountain Front Heritage Act
of 2011
S. 1774
MT
67,112 acres
Hearing 3/22/12
Rogue Wilderness Expansion Act of
2011 (H.R. 3436 has no official title)
H.R. 3436/
OR
58,100 acres
60,000 acres
H.R. 3436 hearing 3/8/12
S. 2001
S. 2001 hearing 3/22/12
San Juan Mountains Wilderness Act
of 2011
S. 1635
CO
33,200 acres
Hearing 3/22/12
Sleeping Bear Dunes National
Lakeshore Conservation and
Recreation Act
H.R. 977/
MI
32,557 acres
H.R. 977 hearing 10/25/11
S. 140
Tennessee Wilderness Act of 2011
S. 1090
TN
19,556 acres
Reported 1/13/12
Tumacacori Highlands Wilderness
Act
H.R. 6609
AZ
70,000 acres
Introduced 11/30/12
Udall-Eisenhower Arctic Wilderness
(S. 33 has no official title)
H.R. 139/
AKi
1,559,538
acres
H.R. 139 introduced 1/5/11
S. 140 passed 12/30/12
S. 33
S. 33 introduced 1/25/11
Wasatch Wilderness and Watershed
Protection Act
H.R. 4267
UT
15,541 acres
Introduced 3/27/12
Wovoka Wilderness
S. 3701
NV
48,000 acres
Introduced 12/20/12
Source: CRS acreage calculation is based on the amounts indicated in the pertinent legislation.
Notes: Excludes legislation with minor boundary adjustments of wilderness areas.
a.
Estimated acreage as identified in the latest version—as introduced, reported, passed, or enacted.
b.
The Forest Service has estimated the area as 17,724 acres.
c.
Total includes 48,333 acres of potential wilderness in four areas.
d.
Designates as potential wilderness, and converts to wilderness upon acquisition of additional lands.
e.
Designates land in Idaho, Montana, Oregon, Washington, and Wyoming.
f.
Includes 15 acres of potential wilderness.
g.
Removed 222 acres of designated wilderness from the National Wilderness Preservation System and
transferred right, title, and interest to be held in trust by the United States for the benefit of the Quileute
Indian Tribe in the state of Washington.
h.
The provision designating additional wilderness areas was removed prior to passage. The passed bill
changed the name of the Pinnacles Wilderness to the Hain Wilderness.
i.
Designates land in the Arctic National Wildlife Refuge.
Congressional Research Service
19
Wilderness: Legislation and Issues in the 114th Congress
Appendix C. Border Security Bills Affecting
Wilderness
113th Congress
The Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), as
introduced in the 113th Congress, would have affected wilderness area management along the
U.S. border with Mexico. The bill would have authorized the Secretary of Homeland Security to
waive all laws in order to expedite construction activities along the border, including roads and
barriers.47 To the extent that those construction activities are in a wilderness area, the Wilderness
Act could be waived, as it otherwise would limit such projects. An additional provision of S. 744,
Section 1105, addressed border patrol activities along the Arizona-Mexico border. That area
includes wilderness comprising most of the Cabeza Prieta National Wildlife Refuge and the
Organ Pipe Cactus National Monument. Section 1105 would have required the land management
agencies to allow “immediate” access for certain border patrol activities. That apparently would
preclude the land management determination of whether an activity was necessary to meet the
minimum requirements to administer the area, as typically is made for wilderness areas.48
112th Congress
The National Security and Federal Lands Protection Act (H.R. 1505) would have allowed
“immediate access” for border security activities on Forest Service and Interior lands, “including
access to maintain and construct roads, construct a fence, use vehicles to patrol, and set up
monitoring equipment.” The act also explicitly would have applied the April 1, 2008, waiver of
the Secretary of Homeland Security (under Section 102(c)(1) of P.L. 104-208) for border security
actions within 100 miles of the border from many federal land and resource management and
protection laws, including the Wilderness Act.
The Border Security Enforcement Act of 2011 (H.R. 1507 and S. 803) also addressed border
security and wilderness by directing the Secretaries of Agriculture and the Interior to “authorize
and provide ... immediate access to Federal lands for security activities, including (I) routine
motorized patrols; and (II) the deployment of temporary tactical infrastructure.” This would apply
to all federal lands, including designated wilderness areas, within 150 miles of the border.
The FY2012 Homeland Security authorization bill (H.R. 3116, §606) would have authorized
routine motorized patrols and deployment of temporary tactical infrastructure by U.S. Customs
and Border Protection, “notwithstanding any other provision of law.” This provision would have
applied to all federal lands, including wilderness areas, within 150 miles of the southwest border.
Similar legislation in the Senate (S. 1546, §513) would have authorized routine motorized patrols
within 100 miles of Mexican border.
47
48
S. 744, §3(d).
See, e.g., Wilderness Watch, Inc. v. U.S. Fish and Wildlife Service, 629 F.3d 1024 (9th Cir. 2010).
Congressional Research Service
20
Wilderness: Legislation and Issues in the 114th Congress
Author Contact Information
Katie Hoover
Analyst in Natural Resources Policy
khoover@crs.loc.gov, 7-9008
Sandra L. Johnson
Information Research Specialist
sjohnson@crs.loc.gov, 7-7214
Kristina Alexander
Legislative Attorney
kalexander@crs.loc.gov, 7-8597
Acknowledgments
Ross Gorte, retired CRS Specialist in Natural Resources Policy, made important contributions to earlier
versions of this report.
Congressional Research Service
21
|
Bill Title
|
Bill No.
|
State
|
Name of WSA
(acreage to be released)
|
Most Recent Action
|
Columbine-Hondo Wilderness Act
|
H.R. 1683
S. 776
|
NM
|
Columbine-Hondoa (~1,000)
H.R. 1683 introduced 4/23/13
S. 776 hearing 11/20/13
|
|
Douglas County Conservation Act of 2013
|
S. 1263
|
NV
|
Burbank Canyons (1,065)
|
Introduced 6/27/13
|
Forest Jobs and Recreation Act of 2013
|
S. 37
|
MT
|
Axolotl Lakes (7,804)
Bell and Limekiln Canyons (9,650)
Blacktail Mountainsb (6,804)
Centennial Mountainsb (3,991)
Farlin Creek (1,139)
Henneberry Ridge (9,806)
Hidden Pasture (15,509)
Humbug Spires (11,175)
Ruby Mountainsb (10,311)
Reported 5/22/14
|
|
Hermosa Creek Watershed Protection Act of 2013
|
H.R. 1839
S. 841
|
CO
|
Molas Pass (461)
|
P.L. 113-291; §3062(f)(3) (NDAA)
|
Las Vegas Valley Public Land and Tule Springs Fossil Beds National Monument Act of 2013
|
H.R. 2015
S. 974
|
NV
|
Sunrise Mountain (10,240)
|
P.L. 113-76, Div. G, Tit. I, §115 (Consolidated Appropriations Act of 2014)
|
Nevada Native Nations Land Act
|
S. 2480
|
NV
|
Red Spring
|
Reported 8/26/14, but without release provision
|
|
Organ Mountains National Monument Establishment Act
|
H.R. 995
|
NM
|
Organ Mountains (7,283)
Organ Needles (7,630)
Pena Blanca (4,470)
|
Hearing 5/9/13
|
|
Pine Forest Range Recreation Enhancement Act of 2013
|
H.R. 433
S. 342
|
NV
|
Blue Lakes
Alder Creek
(990 acres, total)
|
P.L. 113-291; §3064(d) (NDAA)
|
|
San Juan Mountains Wilderness Act
|
S. 341
|
CO
|
Dominguez Canyon (3,033)
|
Reported 9/10/13
|
Source: Congressional Research Service.
a.
The release of the WSA is only to the extent that lands within that area were not included in the bill's wilderness designation. The enabling legislation for the Columbine Hondo WSA indicates it is approximately 46,000 acres (94 Stat. 3223). H.R. 1683, Section 101(a) identifies the new wilderness as being approximately 45,000 acres.
b.
Release of these WSAs is only to the extent the lands within those areas were not included within the bill's wilderness designation(s). Total acreage released is based on the difference between the WSA acreage and the acreage designated as wilderness.
Border Security Bills Affecting Wilderness
113th Congress
The Border Security, Economic Opportunity, and Immigration Modernization Act (S. 744), as introduced in the 113th Congress, would have affected wilderness area management along the U.S. border with Mexico. The bill would have authorized the Secretary of Homeland Security to waive all laws in order to expedite construction activities along the border, including roads and barriers.47 To the extent that those construction activities are in a wilderness area, the Wilderness Act could be waived, as it otherwise would limit such projects. An additional provision of S. 744, Section 1105, addressed border patrol activities along the Arizona-Mexico border. That area includes wilderness comprising most of the Cabeza Prieta National Wildlife Refuge and the Organ Pipe Cactus National Monument. Section 1105 would have required the land management agencies to allow "immediate" access for certain border patrol activities. That apparently would preclude the land management determination of whether an activity was necessary to meet the minimum requirements to administer the area, as typically is made for wilderness areas.48
112th Congress
The National Security and Federal Lands Protection Act (H.R. 1505) would have allowed "immediate access" for border security activities on Forest Service and Interior lands, "including access to maintain and construct roads, construct a fence, use vehicles to patrol, and set up monitoring equipment." The act also explicitly would have applied the April 1, 2008, waiver of the Secretary of Homeland Security (under Section 102(c)(1) of P.L. 104-208) for border security actions within 100 miles of the border from many federal land and resource management and protection laws, including the Wilderness Act.
The Border Security Enforcement Act of 2011 (H.R. 1507 and S. 803) also addressed border security and wilderness by directing the Secretaries of Agriculture and the Interior to "authorize and provide ... immediate access to Federal lands for security activities, including (I) routine motorized patrols; and (II) the deployment of temporary tactical infrastructure." This would apply to all federal lands, including designated wilderness areas, within 150 miles of the border.
The FY2012 Homeland Security authorization bill (H.R. 3116, §606) would have authorized routine motorized patrols and deployment of temporary tactical infrastructure by U.S. Customs and Border Protection, "notwithstanding any other provision of law." This provision would have applied to all federal lands, including wilderness areas, within 150 miles of the southwest border. Similar legislation in the Senate (S. 1546, §513) would have authorized routine motorized patrols within 100 miles of Mexican border.
Author Contact Information
[author name scrubbed], Analyst in Natural Resources Policy
([email address scrubbed], [phone number scrubbed])
[author name scrubbed], Information Research Specialist
([email address scrubbed], [phone number scrubbed])
Acknowledgments
Ross Gorte, retired CRS Specialist in Natural Resources Policy, made important contributions to earlier versions of this report.
Footnotes
| 1.
|
This report does not address the administrative, legislative, and judicial actions related to national forest roadless areas, which some observers believe were an administrative attempt to create wilderness; see CRS Report RL30647, National Forest System (NFS) Roadless Area Initiatives, by [author name scrubbed].
|
| 2.
|
Art. IV, §3, cl. 2.
|
| 3.
|
See CRS Report RL31447, Wilderness: Overview and Statistics, by [author name scrubbed].
|
| 4.
|
See P.L. 113-87 (Sleeping Bear Dunes, MI), and P.L. 113-291, §§3060-3062, 3064-3066 (Alpine Lakes Wilderness, WA; Columbine-Hondo Wilderness, NM; Wheeler Peak Wilderness, NM; Hermosa Creek Wilderness, CO; Pine Forest Range Wilderness, NV; Bob Marshall Wilderness, MT; Scapegoat Wilderness, MT; Wovoka Wilderness; NV.) The acreage is approximate, as the statute does not contain precise acreage for each area.
|
| 5.
|
16 U.S.C. §1133(c).
|
| 6.
|
For more information, see CRS Report R41649, Wilderness Laws: Statutory Provisions and Prohibited and Permitted Uses, by [author name scrubbed] and [author name scrubbed].
|
| 7.
|
See Stupak-Thrall v. United States, 89 F.3d 1269, 1280 (6th Cir. 1996), and Utah v. Andrus, 486 F. Supp. 995, 1010 (D. Utah 1979).
|
| 8.
|
16 U.S.C. §1132(c).
|
| 9.
|
For information on these bills from the 111th Congress, see CRS Report R40237, Federal Lands Managed by the Bureau of Land Management (BLM) and the Forest Service (FS): Issues in the 111th Congress, coordinated by [author name scrubbed] and [author name scrubbed].
|
| 10.
|
Although 41 bills to designate wilderness were introduced in the 112th Congress, no new wilderness areas were created for the first time since the 89th Congress (1965-1967). P.L. 112-97 reduced the wilderness area in Olympic National Park by 222 acres, transferring the land to the Quileute Indian Tribe.
|
| 11.
|
16 U.S.C. §1133(c).
|
| 12.
|
16 U.S.C. §1133(b).
|
| 13.
|
H.R. 528§4(a)(3).
|
| 14.
|
For more information on this bill, see CRS Report R44102, Hunting and Fishing: Analysis of S. 556 and S. 659, by [author name scrubbed].
|
| 15.
|
The wilderness areas are the Columbine-Hondo, Pine Forest Range, and Wovoka wilderness areas. P.L. 113-291 §3061(g); §3064(e); and §3066(d), respectively.
|
| 16.
|
For a discussion on uses in wilderness statutes, see CRS Report R41649, Wilderness Laws: Statutory Provisions and Prohibited and Permitted Uses, by [author name scrubbed] and [author name scrubbed].
|
| 17.
|
Olympic Park Associates v. Mainella, No. C04-5732, 2005 WL 1871114 (W.D. Wash. August 1, 2005).
|
| 18.
|
Wilderness Watch v. Mainella, 375 F.3d 1085, 1092 (11th Cir. 2004).
|
| 19.
|
See Forest Service, Mt. Baker-Snoqualmie National Forest website at http://www.fs.usda.gov/recarea/mbs/recreation/recarea/?recid=41669.
|
| 20.
|
Wilderness Watch v. Iwamoto, 853 F. Supp. 2d 1063 (W.D. Wash. 2012).
|
| 21.
|
Winters v. United States, 207 U.S. 564 (1908). See also CRS Report R41081, The Wild and Scenic Rivers Act (WSRA): Protections, Federal Water Rights, and Development Restrictions, by [author name scrubbed], for a discussion of federal reserved water rights in similarly protected areas.
|
| 22.
|
For more information, see also CRS Report R41649, Wilderness Laws: Statutory Provisions and Prohibited and Permitted Uses, by [author name scrubbed] and [author name scrubbed].
|
| 23.
|
Other laws commonly cited as potentially impeding efforts to halt drug traffic and illegal aliens include the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) because they require an assessment of impacts prior to the activity's being authorized.
|
| 24.
|
Of the five wilderness areas that abut the border with Mexico, two are in California (the Otay Mountain Wilderness (3.25 mi) and Jacumba Wilderness (9.5 mi), both managed by the BLM), and three are in Arizona (the Cabeza Prieta Wilderness (37.5 mi) managed by the FWS, the Organ Pipe Cactus Wilderness (42 mi) managed by the NPS, and the Pajarita Wilderness (3.75 mi) managed by the Forest Service). Mileage calculated by CRS from the National Atlas.
|
| 25.
|
See http://naturalresources.house.gov/Calendar/EventSingle.aspx?EventID=234828.
|
| 26.
|
U.S. Government Accountability Office, Southwest Border: Border Patrol Operations on Federal Lands, GAO-11-573T, April 15, 2011, http://www.gao.gov/new.items/d11573t.pdf. See also GAO, Southwest Border: More Timely Border Patrol Access and Training Could Improve Security Operations and Natural Resource Protection on Federal Lands, GAO-11-38, October 2010, http://www.gao.gov/new.items/d1138.pdf; and GAO, Border Security: Additional Actions Needed to Ensure a Coordinated Federal Response to Illegal Activity on Federal Lands, GAO-11-177, November 2010, http://www.gao.gov/new.items/d11177.pdf.
|
| 27.
|
P.L. 94-579, 43 U.S.C. §§1701 et seq.
|
| 28.
|
DOI Secretary Order No. 3310 (Dec. 22, 2010).
|
| 29.
|
FY2011: P.L. 112-10, §1769; FY2012: P.L. 112-74, §125; FY2014: P.L. 113-76, Division G, Title I, §124; P.L. 113-235, Division F, Title I, §115.
|
| 30.
|
Memorandum from Secretary, Department of the Interior, to Director, Bureau of Land Management, Wilderness Policy (June 1, 2011), http://www.doi.gov/news/pressreleases/upload/Salazar-Wilderness-Memo-Final.pdf.
|
| 31.
|
Under Section 6(f)(5) of the Forest and Rangeland Renewable Resources Planning Act of 1974 (P.L. 93-378), as amended by NFMA, management plans for the national forests must be revised at least every 15 years.
|
| 32.
|
Forest Service Roadless Area Conservation, Final Environmental Impact Statement, Volume II. 2000.
|
| 33.
|
California v. Block, 690 F.2d 753 (9th Cir. 1982) (holding that the Forest Service had not satisfied the National Environmental Policy Act or NFMA in producing the recommendations).
|
| 34.
|
See, for example, P.L. 98-321 (Wisconsin).
|
| 35.
|
For more information, see CRS Report RL30647, National Forest System (NFS) Roadless Area Initiatives, by [author name scrubbed].
|
| 36.
|
Wyoming v. Department of Agriculture, 133 S.Ct. 417 (2012).
|
| 37.
|
43 U.S.C. §1782(a).
|
| 38.
|
P.L. 94-579; 43 U.S.C. §§1701-1787.
|
| 39.
|
542 U.S. 55 (2004).
|
| 40.
|
See, for example, Heckler v. Chaney, 470 U.S. 821, 831 (1985); United States v. Batchelder, 442 U.S. 114, 123-124 (1979); United States v. Nixon, 418 U.S. 683, 693 (1974); Vaca v. Sipes, 386 U.S. 171, 182 (1967) ("an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion").
|
| 41.
|
FLPMA §201; 43 U.S.C. §1711.
|
| 42.
|
FLPMA §603; 43 U.S.C. §1782 (requiring a review within 15 years [by 1991] of roadless areas greater than 5,000 acres to determine suitability for wilderness).
|
| 43.
|
In 1996, then-DOI Secretary Bruce Babbitt used the inventory authority in Section 201 of FLPMA to identify 2.6 million acres in Utah as having wilderness qualities. This was in addition to the lands inventoried and reviewed in the 1970s and 1980s. The state of Utah challenged the inventory as violating Section 603. See Utah v. Norton, No 96-CV-870 (D. Utah Order approving settlement April 14, 2003).
|
| 44.
|
BLM Assistant Director, Instruction Memorandum 2003-275, Consideration of Wilderness Characteristics in Land Use Plans (Excluding Alaska), p. 1 (September 29, 2003) ("It is, therefore, no longer BLM policy to continue to make formal determinations regarding wilderness character, designate new WSAs through the land use planning process, or manage any lands—except WSAs established under Section 603 of FLPMA and other existing WSAs—in accordance with the non-impairment standard prescribed in the [Interim Management Policy])"). Available at http://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/national_instruction.html. These memoranda rescinded the Wilderness Inventory and Study Procedures Handbook.
|
| 45.
|
Instruction Memorandum 2003-274.
|
| 46.
|
Secretary of the Interior, Order No. 3310, Protecting Wilderness Characteristics on Lands Managed by the Bureau of Land Management, (December 22, 2010). Available at http://www.blm.gov/pgdata/etc/medialib/blm/wo/Communications_Directorate/public_affairs/news_release_attachments.Par.26564.File.dat/sec_order_3310.pdf.
|
| 47.
|
S. 744, §3(d).
|
| 48.
|
See, for example, Wilderness Watch, Inc. v. U.S. Fish and Wildlife Service, 629 F.3d 1024 (9th Cir. 2010).
|